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HomeMy WebLinkAbout03/07/2012 PLANNING Committee Meeting MINUTES PLANNING COMMITTEE MARCH 7, 2012 A meeting of the Planning Committee of the Council of the County of Kaua`i, State of Hawaii, was called to order by Nadine K. Nakamura, Chair, at the Council Chambers, 4396 Rice Street, Room 201, Lihu`e, Kaua`i, on Wednesday, March 7, 2012, at 9:31 a.m., after which the following members answered the call of the roll: Honorable Dickie Chang Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Nadine K. Nakamura Honorable Jay Furfaro, Ex-Officio Member Excused: Honorable Tim Bynum Honorable, KipuKai Kuali`i, Ex-Officio Member The Committee proceeded on its agenda item, as shown in the following Committee Report which are incorporated herein by reference: Bill No. 2423 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 6, ARTICLE 14, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE PUBLIC ACCESS, OPEN SPACE, AND NATURAL RESOURCES PRESERVATION FUND [This item was deferred.] Mr. Rapozo moved to approve Bill No. 2423, seconded by Mr. Chang. There being no objections, the rules were suspended. MICHAEL DAHILIG, PLANNING DIRECTOR: Good morning Chair Ij Nakamura, members of the Council, Mike Dahilig with the Planning Department. I believe the Council may be in receipt of a memorandum dated February 28, 2012 relating to questions concerning the proposed Bill and I'm free to answer any questions regarding the memorandum. Committee Chair Nakamura: Thank you and we received this memo and I'm sorry if you have not had a chance to... was it distributed ahead of time? Mr. Furfaro: This morning. Committee Chair Nakamura: This morning? Okay, sorry it wasn't sent to you earlier. There are several questions that you responded to and I think maybe since most people have not read it, maybe if you could walk us through some of the responses? Mr. Dahilig: Sure thing, Committee Chair. I guess the first question was is there a limit to the number of terms a commission member can serve? And currently a commission member can serve a maximum of three (3) consecutive terms and terms are three (3) year terms. 2 PLANNING COMMITTEE MARCH 7, 2012 The second question was concerning the one (1) appraisal that was mentioned at the last Committee meeting and we just provided description concerning the Hoban property, I believe... and this is the particular beach access that an appraisal has been conducted and just to state that the appraisal was actually was not done with County funds. It was done as a consequence of Kukui`ula agreements. The next one (1) was regarding the five percent (5%) administrative expenses and we have an annual operating budget that's submitted to the Finance Department along with the regular budget submittal. We included a copy of that budget submittal, a sample of the budget submittal for the current fiscal year, as attachment one'(1) to the correspondence. The next one (1) is linked to the efficiency rate between contracting the work and in-house work and our response to that was right now all commission duties are conducted as an in-house work and Nani Sodora is our workhorse in that respect. We did forward the priority recommendations to the Council as attachment two (2). And then attachment number three (3) to answer question number six (6) is really a commented version to the draft bill as to and this was how the... I guess what the Commission came up with. Question number seven (7) concerning implementation and what we're seeing (inaudible) as proposed in the bill is the legwork that's associated with the actual acquisition of these types of (inaudible) negotiations, contracting, appropriations, those types and creating the actual due diligence bubbles that would be eventually reviewed by the Council should appropriations be warranted out of the fund. There was a question concerning of what would be the amount of money if it was increased from a half percent to one percent. We're looking at about $814,700 and then the last question was concerning whether the annual reports would be, rather than two (2) years, whether a three (3), triennial report would be more appropriate and our response is that we're open to the idea of a triennial report, but given the adjustments proposed from a one (1) year to a two (2) year, we would like to see how those types of... how logistically and informational handling a pause between years would maybe meet some of the concerns that have been raised about having an annual report every year. That's the extent of our response, Councilmember. Committee Chair Nakamura: Thank you. Mike, if you could stay there. Mr. Dahilig: Sure thing. Committee Chair Nakamura: Is there any questions from Committee members? Councilmember Yukimura. Ms. Yukimura: Yes, starting with the last point number nine (9), how feasible would it be to implement a triennial report instead of a biennial report? I just wanted to make sure we're clarifying that the priority setting would be every three (3) years, but a report back on the activities and the recommendations of the Open Space Commission could be done annually. So when you answered the question here, what were you thinking of, because in terms of triennial versus biennial reports and the different aspects to it. 3 PLANNING COMMITTEE MARCH 7, 2012 Mr. Dahilig: I think we're kind of on the same wave length, Councilmember, in the sense that we're talking about the full blown evaluations. Ms. Yukimura: Evaluations... I mean prioritization. Mr. Dahilig: And we would be under the presumption that there would still be an annual type of status regarding the commissions activities and the department's activities with respect to Open Space. Ms. Yukimura: Okay, thank you for that clarification. And then on question number four (4), is it more cost efficient to perform any work related to Open Space land acquisitions in-house-certainly not with respect to appraisals and service? Mr. Dahilig: That is correct, and I would guess in the context of preparing the kind of due diligence or the research and those types of things not associated with what we have to contract out professionally. We don't have an assessor that does that kind of thing, but I think we're looking at it from a standpoint of rather than hiring an attorney to look through and conduct due diligence, where of a private title search firm would do those types of things, and a lot of that legwork can be done upfront first before and as with anything when we go through the actual contracting process, formal title searches would be contracted as sometimes a part of escrow and title guarantee and those types of things. I think we're looking at it from a legwork standpoint versus... but I certainly do understand that we don't have the capacity to actually do a certified evaluation from a licensed real property type of assessor. Ms. Yukimura: I mean even title searches, you're not going to go into escrow because you don't even know whether, I mean you might be doing some of this before you even talk to the owner. Mr. Dahilig: Yes. Ms. Yukimura: So to rely on escrow process isn't really feasible, but I'm sure preliminary and simple title searches would be good, but where you find a situation where it's very complex, then you might want to hire out, right? Mr. Dahilig: Certainly, we would want to reserve that possibility. From a cost efficiency basis, we're lucky that we have good partnerships with the Real Property Assessment Office where we can access through their database and those types of things without having to do a title search order with firms like TG or that type of things. Ms. Yukimura: Right and in fact you're right that you would go first to your in-house resources, outside of Planning but within the County. Mr. Dahilig: Yes. Ms. Yukimura: A County Attorney or Real Property. Mr. Dahilig: Yes. 4 PLANNING COMMITTEE MARCH 7, 2012 Ms. Yukimura: And then if it's more complicated, looking at going out. Mr. Dahilig: We've been lucky that the County Attorney that services the department has gotten training and is familiar with a lot of the new types of title forms as we're proposing as part of the tool box for the Commission, such as conservation easements and these types of things. It's something that I think expansive-wise, we've been trying to get up to speed for in anticipation that this legislation could possibly ask. Ms. Yukimura: I find it interesting that in your 2010 acquisition, actually the second item is Po`ipu Beach Park expansion, which was recently a discussion in the Council but I'm glad to see it on there. I do see the lists do vary from year to year, and I think maybe that's one of your rationales for saying that going to three (3) years might be too long, that a two (2) year trial might be better. Mr. Dahilig: Okay. Ms. Yukimura: Yes, okay thank you. Committee Chair Nakamura: Any other questions? Mr. Rapozo: One (1) quick question. Committee Chair Nakamura: Councilmember Rapozo. Mr. Rapozo: Mike, question number six (7). Mr. Dahilig: Sure. Mr. Rapozo: You referred to attachment number three (3) but attachment three (3) is just a copy of the bill. When you went through your questions, you said there was a commented version but all we have... it's just a copy of the draft bill. I think the request was for... am I looking at the wrong one? Mr. Dahilig: My apologies, Councilmember, that this may not have been copied in color. Mr. Rapozo: I'm sorry. Committee Chair Nakamura: The version that was copied may not have been in color. So that might be the problem. Mr. Dahilig: So just to maybe guide you, Councilmember, if you look at the top of the second page, you'll see in kind of in a lighter gray in parentheses some of the... Mr. Rapozo: Mike, one day you're going to get as old as I and your eyes won't work as good as they do now. Okay... that's fine, I do see the color, I need the color version. 5 PLANNING COMMITTEE MARCH 7, 2012 Committee Chair Nakamura: Staff, in the future I think the color version would show up better for Councilmembers. Mr. Rapozo: One (1) more. Committee Chair Nakamura: Go ahead. Mr. Rapozo: The training expense in your budget, this would be in reference to the budget question. Mr. Dahilig: Yes sir. Mr. Rapozo: Number... exhibit one (1). They're showing training expenses and registration and really aside from the associated expenses of travel and per diem, there's 1875. What training do our Commissioners get as it relates to open space? Are we making sure that they're getting the proper training as far as this area? I don't know what the 1875, are you aware of what that is for? Is that for one (1) training? Mr. Dahilig: We use the training expense budget for both staff and for Commission training. This particular line item did help pay for some of the registration for the recent HCPO conference for some of the Commissioners to attend on that respect. What we also do is that we have some staff to research, again as I mentioned earlier, this issue of different types of (inaudible) and how to create these forms of easements and trying to get the staff up to date on that. Committee Chair Nakamura: And HCPO is Hawai`i Congress of Planning Officials, it's an annual conference. Mr. Rapozo: Well okay, I guess as we see Commission appointees come up for interviews, it's oftentimes they're in my opinion not getting the training that they need. I think there's a lot of training offered in this area especially because we get all the flyers here from all of these trainings throughout the State, relatively inexpensive, but it covers areas such as open space and land acquisitions and easements. I'm not saying that we need to send all the Commissioners to all of the training, but I think we need to get some sort of plan to get our Commissioners trained. At the end of the day it's really the Commissioners that are tasked with making the decisions, and the staff person supports them. It shouldn't be the tail wagging the dog, it should be the Commissioners having at least the basic knowledge making what we are eligible for, there's a lot of opportunities in grants and so forth that I think our Commissioners should be trained on, and that's what I think that five percent (5%)... because if you look at registrations 1875, everything else was for travel, and I'm not sure how many of our Commissioners actually travel, but and maybe they cannot travel but I think if they are able to, we should have some level of expertise within the Commission by our Commissioners, and I'm speaking of all Commissions not just open space. We should really be trying to encourage our Commissioners to get informed on... and I've attended a couple of them in past years and it's usually held or put on by attorneys because all of these things really affect the legal aspect of going out and trying to get some access, open access lands. So just food for thought. I really would encourage the department to consider that, just so we can get our Commissioners up to speed on a lot of the issues that would help. I look at this list, the list of recommendations and it's got to be extremely frustrating for those Commissioners from 2005 the Hoban property and it moves from primary to 6 PLANNING COMMITTEE MARCH 7, 2012 secondary and I see one of them that I'm extremely interested in is the Kauapea, Secret Beach access, I think that's one that we should be going after. Again I think the Commissioners should have some level of understanding of the law and what's available to them so we can start moving forward rather than just having discussions. Mr. Dahilig: Okay, suggestion well taken. Mr. Rapozo: Thank you. Committee Chair Nakamura: Thank you and just to follow up on that point, I would really encourage using some of the funds to bring in some of the speakers so that every Commissioner on that Commission can be exposed to some of the cutting edge thinking about conservation easements or possible grant opportunities or just tools that... you know how open space is being dealt with nationally, so that's another option. I think that's a good point Councilmember Rapozo brought up. I also wanted to... I think that attachment that you provided that shows the prior year's priority recommendations were really helpful to me. It shows that Hoban has been on the list for five (5) straight years, it shows that Black Pot has been on the list for four (4) straight years, along with Kaneiolouma, and part of that was with Nukumoi. There are others that have been on the list for three (3) straight years, Kauapea, Papa`a, Salt Pond, and Mahaulepu, and so it's telling me and in between there's some of them appear once and maybe twice, but these are the ones that have been consistently on the list and placing high on the list. It tells me that there's some sense of priority and that we should be in the mode of executing rather than creating more lists and so I think the amendment that will be introduced today helps us to get there, and so we'll get more into that discussion when it's introduced. Councilmember Yukimura. Ms. Yukimura: Thank you. I just want to add a slightly different angle on the use of training moneys. Just building on what Councilmember Nakamura has said about the list showing really a lack of movement, which I think is in part due to lack of moneys, but the other part is due to lack of putting the deal together, and based on my experience with the Kaua`i Public Land Trust, that's where it happens. Usually it's the staff that does that, not the Commissioners, although they can help, so I actually believe that most of the training should go to staff whether it's how you craft a conservation easement, how you negotiate, what are the different options for crafting a deal that everybody can accept and move, how you untangle cloudy easements, or you know... that's a lot of staff work and so it's not one (1) or the other, it's training for both, but I'll tell you where the movement will come, it's in the supporting of staff work to put the deals together. That's my thoughts on it. Committee Chair Nakamura: And I would add project management. Ms. Yukimura: Yes. Committee Chair Nakamura: Chair Furfaro. Mr. Furfaro: Thank you Chairwoman. Mike, my question is going to be focused on... has the Commission had an opportunity to be given a presentation on the various financial opportunities that they need to make some decisions along with this Council on our financial plan for open space and our ability to borrow? For example, I said this many times before, but at today's 7 PLANNING COMMITTEE MARCH 7, 2012 interest rates before we raise the half percent to one percent, we could in fact find ourselves borrowing against the four hundred thousand, we could borrow upfront six point three million dollars, right up front. They have a pot of money where this half percent is tied to a financial cash picture that today will borrow us immediately six point three million dollars, okay. Second part of the financial picture is if we're going to execute a purchase within a thirty-six month period, we could be approaching or the Commission could be approaching the Council and the Administration maybe to put three million in a Bond figure, and they have to be for the most urgent and potential acquisitions. So putting those two (2) pictures together, I'm saying that it wouldn't hurt to have the Commission have an opportunity to hear about a financial plan that would help us with acquisition, because I think as Vice Chair Yukimura said, one (1) of the problems we're having right now and as Chairwoman Nakamura suggested with this jockeying for positions, the fact of the matter is we need to see if there's a way that we can leverage our ability to borrow with specifics in mind. Has there ever been a financial presentation to the Commissioners about what options are available to them? Mr. Dahilig: To the degree that you're describing, I'm not completely certain. Committee Chair Nakamura: Jean, can you come up and take a seat and maybe you can help address this question. JEAN SOUZA: Good morning, I'm Commissioner Jean Souza, I'm with the Open Space Commission. Mr. Furfaro: Jean, you have heard this question from me before, but I'm asking has the Administration been invited to make a presentation to the Commission about your financial options? Ms. Souza: Not recently. My recollection is that you actually had come over... Mr. Furfaro: I made a presentation. Ms. Souza: Quite a few years ago actually. Mr. Furfaro: Four (4) years ago about this subject. Ms. Souza: Yes, and I believe that is the only time that we've had a presentation on that. I wanted to point out that many of the Commissioners from that time have left, and so I would say that most of the Commissioners currently are not aware of that. Mr. Furfaro: Well Mike, I would ask that you might want to invite Wally to explore some of these possibilities and I think that would give us more influence in then replenishing the funds with the other half percent if we're able to commit the four hundred thousand a year for say a period of twenty-five years. We can immediately borrow up to six point three million for acquisition of assets. We can also see if we could look at another two or three million in a form of the next bond float, but that money has to be spent reasonably quick and there has to be a very, very good financial plan represented to the Bond Counsel. Those are two (2) items I wanted to say that should be part of the whole financial picture if 8 PLANNING COMMITTEE MARCH 7, 2012 one of the considerations is to go to one percent, but it certainly would help in deflecting some of the frustrations by not having. The County has, the Mayor, Wally, others in the financial picture, our treasurer, myself, we have a reasonably good financial picture and we should maybe take advantage of it here. If I may, I have a couple other questions? Committee Chair Nakamura: Go right ahead. Mr. Furfaro: Jean, give me a little bit of an idea here, at the Heiau complex in Po`ipu, did the Nukumoi site just kind of move up or has it always been a part of the Heiau preservation plan? I see over the years how we acquired pieces of the complex but I'm not sure I quite understand. Is Nukumoi the number priority? Or are they two (2) separate items? Ms. Souza: My understanding is that the Nukumoi property is part of the complex. Mr. Furfaro: Can be part of the complex, yes. Ms. Souza: Most of the... conceptually and culturally it's part of the complex. Mr. Furfaro: No, no. I understand that but we're dealing in western terms now, in a financial picture it's a completely different owner. Ms. Souza: That's correct. Mr. Furfaro: And so I'm trying to find out how we separate the two (2) if need be, because the reality is some of the Bond money might be used for something like that, separate, and with a separate appraisal. It is something for you folks to consider. Ms. Souza: Well the other properties are either owned by the County or by the State. Mr. Furfaro: Yes, we understand that. Ms. Souza: So this is, I believe, the only privately-owned one and it's important in terms of the complex because it is the traditional entrance to the area and it serves as a site for potential interpretation of the site and welcoming and just preparation to enter into the site. Mr. Furfaro: No, I clearly understand that, Jean. I don't think you... the Planning Commission has heard me, when we're talking on the financial picture. Ms. Souza: Yes. Mr. Furfaro: The State pieces, the County pieces, we have ownership of that and... Ms. Souza: That's right. 9 PLANNING COMMITTEE MARCH 7, 2012 Mr. Furfaro: ...and in fact have had concessions from the State. I'm just saying that we need to move on the estimates of the acquisitions of Nukumoi as if it's a separate piece from a financial picture, not from the culture values, which are so important, but from the financial picture, and I just wanted to share that. I have two (2) more pieces and then I'll sit back, because I'm not on the Committee. The Kauapea piece, does the Planning Department have the logistical metes and bounds for the access in that area and when was the last time that it was updated? Mr. Dahilig: I may want to refer that question to the Deputy County Attorney who handles the matter. Mr. Furfaro: Mr. Jung, I'll repeat the question as it deals with Kauapea Beach. Do we have something that's recently been done on the metes and bounds to describe that particular access? IAN JUNG, DEPUTY COUNTY ATTORNEY: Good morning Committee Chair and members of the Council, Deputy County Attorney Ian Jung. Are you relating to what's referred to as the western access or the eastern access? Mr. Furfaro: Actually both. The western access is the piece closest to the bay itself, and the eastern is closer towards the long stretch of beach that faces the lighthouse. Mr. Jung: Right. The western access there was, I think it was in 2005 this Council and Mayor Kusaka renegotiated it, a specific path which was accepted by Public Works; it ultimately got the formal Grant of Easement by the Council at that time. So there is a specific metes and bounds description for that particular piece, for the western. But regarding the eastern access, it's an issue that's going to be before the Planning Commission relatively soon. Mr. Furfaro: Okay. Mr. Jung: We've been researching it and trying to identify what was the original intent of the subdivision back in... and this is the Kilauea Gardens Subdivision back in 1978. An SMA was issued in 1979 of the project and so we're evaluating that and looking at what the original developer, not the current landowner, had intended for that particular trail easement that was noted on the file map's plans. Mr. Furfaro: Okay. Mr. Jung: So it likely will become somewhat of a legal battle, but I kind of want to leave that issue there for now. So there is no specific metes and bounds description that we're aware of at this point for the eastern access. Mr. Furfaro: Okay. So on that legal challenge, there hasn't been any further work done and I'm going to reference it as the eastern access to Kauapea since the 2005 piece was resolved? Mr. Jung: Well I've been working on it now getting some documents prepped up and have been in discussions with the former... the 10 PLANNING COMMITTEE MARCH 7, 2012 property's recently been sold but with the former landowner's attorney; they're aware that it's an issue. Mr. Furfaro: I see. Okay, do you need any financial help from the Council or is it yet to be determined? Mr. Jung: It's yet to be determined, and I do have two (2) strategies which I don't want to lay out on the table now, but we'll be approaching... Mr. Furfaro: I wasn't asking for the strategy, I just wanted to make sure because there is two (2) different pieces here when we say Kauapea. Mr. Jung: Correct. Mr. Furfaro: It's interpreted in the community as two (2) different pieces. Then the last piece and this might be for Mike and not the attorneys, are we giving any consideration to doing a geological survey as it relates to Salt Pond and the salt ponds themselves? To understand the technical and geological aspects of how the salt pans work for the people and having an understanding of the geological and Mother Nature as a whole when they produce this asset of the community. Is there any consideration of doing a geological survey? Mr. Dahilig: It's a great question, Chair, and it's something that maybe in-house we can take back and as part of the due diligence work we can make contact with the University of Hawai`i Science and Technology maybe try to use their resources to assist us on that item. Mr. Furfaro: Okay, I would encourage you folks to probe that with the University of Hawai`i because obviously this is a one of a kind asset and it wouldn't hurt us to understand the geology that delivers such a special product to our island community by understanding the science behind it. May I make that request as a consideration? Mr. Dahilig: Sure, certainly. Mr. Furfaro: Okay. Committee Chairwoman, thank you for the time. Committee Chair Nakamura: Thank you very much for raising those options with the Commission to look at possible floating of the bonds and potential CIP bond request, so thank you very much. Councilmember Rapozo. Mr. Rapozo: Thank you. Mike, under 6-14.3 I believe it's on page four (4), we had some discussion at the last meeting, section "c" and "e" regarding the private owner and funds that may be appropriated to private owners, can you just expand a little bit. I'm going to be introducing an amendment to this and I'm just debating whether it will stay in or stay out. Can you help me on that and I did read your commentary and it wasn't that clear for me, but I guess for me if you can cite an example or... not so much a specific but a hypothetical where it would help the County and the Commission move forward. 11 PLANNING COMMITTEE MARCH 7, 2012 Mr. Dahilig: Thanks for the question, Councilmember, and it really is a consequence of hypothetical at this point when we're looking at the tools that possibly by policy could be provided to the Commission for its work. When we say private landowner, we're looking at a situation where there maybe not an eleemosynary type of group that's the 501(c)3, but let's say a philanthropist that may hold that conservation easement over a property, and so somebody that's maybe a very wealthy philanthropist may say okay I'm going to put a million dollars in the pot if you match me with five hundred thousand dollars, and I'll hold it in perpetuity as the holder of this conservation easement. Those are the types of... Traditionally it's been done with 506(c)3 and it's been done with NGO's, but we do get some sense that people that are looking for means of furthering their own personal interest and protecting lands that possibility may come up, and so that's the hypothetical we were trying to address. Mr. Rapozo: And we're relatively sure that we can protect that transaction into perpetuity? Mr. Dahilig: It's not something that is novel and so the idea is not coming out of... we are aware that there is a possibility but it's how the documents are drawn up. If it's held by the private entity and the government agency also is signatory to that agreement, then there would be some levels of protection, but it really comes as a consequence of how the document is drawn up and who has the right to enforce and those types of things. Mr. Rapozo: I saw you, Ian, you have anything to add? Mr. Jung: I just wanted to give an example. When we did the Black Pot transaction and we got moneys from the State Legacy Lands Fund because we were concurrent... we were entities, parties going in to get this piece of property. But for the County of Kaua`i to hold, and this was a fee simple piece right, for County to hold title, we had to enter into what's referred to as a grant agreement. We had to essentially assign that we will intend this piece of property to be as open space in perpetuity and if the County ever did sell the property or dispose of its interest, then we would have to repay the State of Hawaii the grant funds that we got. So there are protective measures that we can institute within the department themselves for such grants like this in regards to the agreements,and then deed restrictions and covenants and whatnot. Committee Chair Nakamura: Do you have other questions? Mr. Rapozo: That's it, thank you. Committee Chair Nakamura: Councilmember Yukimura. Ms. Yukimura: I think those deed restrictions against the County or a non-profit are very different than against the private owner. Give me an example of a deed restriction against a private owner that wasn't a non-profit. A real live example. Mr. Jung: As far as I have seen, I haven't seen any. Ms. Yukimura: I haven't either and I don't think we should risk allowing it unless you show us a working model. 12 PLANNING COMMITTEE MARCH 7, 2012 Mr. Jung: Okay and it is a policy call for this body to make in terms because you're looking ultimately this body will make the decision, because the Commission serves as an advisory body to the Council in making this decision of which type of property to get and which specific type of property to acquire right, whether it's in fee or by conservation easement. The model, when we went to a recent training, Nani Sodora and myself, about conservation easement, this idea was put onto the books in terms of look these are options where single owners will want to purchase pieces of property, impose conservation easements, and be the conservation easement holder, but it all comes down to... the devil is literally in the details about how it's negotiated. Could there be consequences, yes. Could there be benefits, yes. Committee Chair Nakamura: Do we have, although we may not have a local example of a conservation easement held by a private land owner, are there other State or national examples? Mr. Jung: I'm sure we could... I mean I could dig up my own materials to see if there's any specific examples, but the attorney who's doing the presentation discussed that option. But if the comfort level is not here for the Council at this point, then it's really up to you guys. Committee Chair Nakamura: Well the comfort level for me is not there only because I don't know if I have enough information to make a decision. So I think I would like to know where situations like this have occurred in the past and how it may have been handled and what are some of the potential downsides, upside and downsides of pursuing it? If it is a tool that has been used in other places successfully. Councilmember Yukimura. Ms. Yukimura: In this work and I've seen it often is the landowner who wants a conservation easement for his own purposes to lower his taxes, to get some open space so his view's not changed, and what you have to watch for from these individuals that come up to you and say please help me do a conservation easement is the self-dealing. That's the danger of it, and that's why I don't think there are many examples if any, and if you have those examples, you have to see how they work long term when you change ownership, I mean I don't know what happens with all of those cases. They have to work long term and also you're trusting the public officials to really do the devil in the details to make sure that it's not flawed and to me the risks are not worth it. We should just be doing the ones where it's very secure in terms of protecting the public interest long term. To me you're playing with fire to go into these areas that haven't been tested long term, but I may be wrong, maybe there is somewhere an example that it really works for the purpose of public conservation, but you really have to watch it. Committee Chair Nakamura: Thank you Councilmember Yukimura for the words of warning. Councilmember Rapozo. Mr. Rapozo: No, I'm not sure if how time sensitive this is and I plan to introduce the amendment once we get back into order and then we can have the discussion and whatever the Chair wants to do, I'll definitely support. Committee Chair Nakamura: Before we do that... you have a few more questions? Okay, Councilmember Yukimura. a v 13 PLANNING COMMITTEE MARCH 7, 2012 Ms. Yukimura: Okay thank you. I thought we were just staying on this topic but if we can go to others. Question for the attorney on Kauapea Beach east, because you said Kauapea Beach west has pretty much been finalized or settled right? Mr. Jung: Correct. Ms. Yukimura: I remember Greg Kamm working on that and the Administration to get that finalized. The zoning condition as I recall had us going off a cliff and the new easement that is finalized was one that was negotiable by foot. So that's an example of how our early zoning conditions were so vague and so unchecked, they haven't been researched that they were unworkable, and I think the Kauapea west has become workable now. It is an example of a successful resolution of a problem access. Now the east, is that what used to be Garfinkle property? Mr. Jung: Correct. Ms. Yukimura: And he has sold that property or is he still the owner? Mr. Jung: From what I understand and I haven't seen and this is just from talking with the attorney that it has been sold. Ms. Yukimura: Okay. I'm really glad you're researching that. I just wanted for my own mind to know which one it was. And then I have a question for Commissioner Souza. Jean just to clarify on the Kaneiolouma, the only acquisition piece of that project is the Nukumoi right because as you pointed out, State and County owns the rest of the complex. So being able to acquire that Nukumoi piece would really complete our acquisition desires and would allow us to have the land we need to actually develop that site into that vision that the community has of a restored cultural preserve that can be used for interpretation Y P p and education and so forth, okay. I think the Chair in speaking of the financial piece was talking about some of the work for the fencing and development of the site, cultural development of the site but it's not an acquisition issue? As far as acquisition is concerned, it's the Nukumoi? Is that right? Ms. Souza: Yes. Ms. Yukimura: Okay, okay. Thank you. Just to understand your lists, my understanding is they are not prioritized as one, two, three, four, five work on the first one first, the second one second, and the third one third, but whichever one breaks or becomes where the deal is made and there's a willing owner and you have a deal, that's the one that is to be funded right? Or are your acquisitions, do this first, do this second... do this third... Ms. Souza: Over the years we've tried a number of different ways of presenting the recommendations to you. Ms. Yukimura: I can see that. Ms. Souza: So sometimes we try one (1) way and it doesn't seem to get a response, so we try a different way, we try to word it a different way... your sequential... 14 PLANNING COMMITTEE MARCH 7, 2012 Ms. Yukimura: Priority? Ms. Souza: Priority has been tried in subsequent... in other years. This year which you haven't gotten the report yet, I don't think... the report that has just been completed, that has priority order and usually we know that someone is working on the higher priority ones, so we want to send a message to you and to the Administration that we think it's important too and we want to support it. Now let's understand the situation as it has been. Up to now, there has been only one (1) project that has been approved. Although we have many aspirations of which one should go forward, realistically we're not encouraged that it will be sequential, so it's primarily to send a message to you that number one (1) it's more important than maybe number five (5), but the fact that it's on that priority list means that of all the sites on Kaua`i, these are our top five (5) or six (6) or ten (10) or whatever it happened to be. Now the current report that will... it's either on your desk or is soon to be on your desk. Ms. Yukimura: I haven't seen it. Ms. Souza: It's divided up into acquisition priorities and other recommendations, and the reason we have that is the other recommendations propose some other actions other than just land acquisition and so it depends. Ms. Yukimura: Well thank you. I can see that so much thought has... through the years has gone into how to craft these lists and how to communicate them to the County. I just want to share, on the Kaua'i Public Land Trust Board because we had an acquisition list or priority list, we had actually a set of criteria by which we judged any proposal, willing owner, cost, urgency, top natural reserve in the natural areas qualities and so forth. We ranked them by numbers, but we ended up just having a list because we never knew which was going to break first. In the issue of Hanalei Hodge property, I mean at one (1) point it was really low on our list because they had put construction fences up and they were going to build in the heat, and then the economy fell and all of a sudden selling a property and the owner was open to talking to us, so things just change from year to year, and so we learn not to set hard priorities but to have a general list and then to see which one broke first. We had several often times had four (4) or five (5) in the fire trying to track them. Ms. Souza: I can't speak for the other commissioners on it, but we did have a ranking discussion on it, and so we like the idea you have on the soft priorities. I think the commission would be happy if anyone of... Ms. Yukimura: On the list? Ms. Souza: ...top ones on the list, from any of the prior years really was acted upon. Ms. Yukimura: Yes. Ms. Souza: But what is it? The former Hoban property resolution that is before you, that was submitted as a way to try to implement a set of recommendations. So we have a set of list... we have a list that we send to you. You will be seeing from us periodic submittals saying please give us or please 15 PLANNING COMMITTEE MARCH 7, 2012 approve this because we would like to do or we think the following things could be done to acquire it. Ms. Yukimura: Yes. Ms. Souza: So that was one of the first ones, I think you'll be seeing a couple more coming also on that. Ms. Yukimura: I think we understand that there may need to be Council action at different points in time, even on the condemnation for the Sheehan properties, that you needed some Council direction and authorization in order to proceed. Ms. Souza: That's right. Ms. Yukimura: So that makes sense. Ms. Souza: Yes, because we're purely advisory. Ms. Yukimura: Right. Ms. Souza: Yes. Ms. Yukimura: Thank you very much. Committee Chair Nakamura: Any further questions? Can we have the County Attorney back? Ian, thanks for being here. One of the questions that came up previously at this Committee was if we were to change the amount allocated to the Open Space Fund, can that be done in this bill or should it be done in a separate bill? Can you respond to that question? Mr. Jung: Sure it goes to the issue of substantial change right? Committee Chair Nakamura: Yes. Mr. Jung: Whether or not the original purpose is not necessarily... or the new proposal is not necessarily germane to the original purpose. I think given we're stretching our legs here pretty far through the process, we already held the public hearing, to change the original content of the bill to include the elevated level certified real property tax revenue, I think that should probably go in a separate bill. And the only reason for that is that the intent of this bill is to clarify the role of the commissioners and how they get input from public and take action on certain things. So I would suggest to the body that it be done in a subsequent bill. Committee Chair Nakamura: Thank you. Any other questions then? If not, we'll come back to our... There being no objections, the meeting was called back to order, and proceeded as follows: 16 PLANNING COMMITTEE MARCH 7, 2012 Mr. Rapozo moved to amend Bill No. 2423 as circulated, as shown in the Floor Amendment which is attached hereto as Attachment 1, seconded by Mr. Chang. Committee Chair Nakamura: Thank you. Mr. Rapozo: Really some of the items here are being submitted by the request of the Administration and some are by request of the Planning Committee. I think most of it has been explained by the Administration, by the Planning Department as well as the County Attorney. The only one that I think that was discussed was the private owner in section 6-14.3 "c" and "e," and this amendment would remove that private owner language from the section. I think Councilmember Yukimura, you painted a pretty realistic picture of what could happen, the fact that the landowner designates a conservation easement on his property doesn't make that property public; it just puts that conservation layer on it. The Charter does really specify this is a public access, open space, natural resources preservation fund, I think the intent was to create more areas of open access for the public... and not... and I understand the example and I think Councilmember Yukimura has a very valid concern that I share. It is an opportunity for private landowners to use public money to create a conservation district or a conservation easement on their property and yet retain the private rights to that property; that is a possibility, devil is always in the details. I'm not comfortable at all so my amendment would really be to remove that from the proposed amendments. That's it, do you have any questions regarding the amendment? Section 6-14.2, the highlighted areas are the areas that are being proposed. If you look at the first one under 6-14.2 subsection four (4) that is a housekeeping item that clarifies the appointment process. I think it's vital that they be allowed to operate even if they don't have that final member. We talked about the biennial or triennial list, the project list, this amendment will require a biennial list; however, it will require a annual report for the Mayor and the Council review and that will include the accomplishments, challenges, future goals and objectives, and recommendations. Committee Chair Nakamura: Any discussion on this amendment? Thank you Councilmember Rapozo. Mr. Chang: I would like to. Committee Chair Nakamura: Yes Councilmember Chang. Mr. Chang: Thank you Councilmember Rapozo for introducing these amendments and thank you Councilmember Yukimura for painting a very realistic picture on how the homeowner can work on their advantage, so thank you on behalf of the public for keeping us aware of that and reminding us that sometimes things do happen in those ways. So thank you. Thank you, Chair. Committee Chair Nakamura: Any other comments? Councilmember Yukimura. Ms. Yukimura: Yes, I know Councilmember Nakamura that you have been working on these, and so I want to thank you also, and the Commission and Planning Department for proposing the bill because I think the more we get a clear and workable law and framework, the more we can get the job 17 PLANNING COMMITTEE MARCH 7, 2012 done on this very important issue. I look forward to a new bill that will increase the percentage that we allocate and set aside because lack of funding is one of the issues as well. I'm very pleased with the progress of this and I think this is good work, I'll be voting for it. Committee Chair Nakamura: For myself, I feel I have incomplete information, especially on this issue of private ownership. I believe the open space or some of the open commissioners wanted to have some flexibility, but I don't understand what the implications of that flexibility are and I don't have a good grasp on if there are any successful models of private ownership with conservation easements. I would like to request the Committee members for a deferral so I can get that information. That would help me and I don't believe it's a time sensitive bill, but I think once I can get access to that information, I will be able to move forward and other than that, I'm pretty comfortable with this. The only other issue that I would have some concern with is the biennial, I'm willing to go that way but I still think a triennial approach might be better and I want to explain my reasoning here. Over the past five (5) years, the Open Space Commission has had one (1) staff member, and the role of the staff person has been to guide the Commission by creating their one (1) and only authorized Charter objective to create this list. In that five (5) year period, they have done an excellent job in going out to the different communities on this island, to get feedback, to identify potential acquisition areas, areas of concern, areas of opportunities, to open up public access and opportunities, and so to me a very sad commentary that we have only this five (5) year process has produced one (1) project, one (1) acquisition that involved outsourcing to a non- profit to make the deal happen. My thinking is that if we focus the staff attention away from this public process of creating lists and focus into project management, collaborating with other non-profits, collaborating with potential landowners... if we focus that time and attention away from all these meetings that the commission has and into the project management mode of delivering some products for this County, that it's a better use of our staff resources, that's my thinking. It seems like it will be an adjustment, but I think to me if we can start checking off this list and say we have accomplished this, this, and this, then I would feel better but to continue to spend staff resources on producing lists that just gets repeated year after year, to me that's not a good use of public money. Councilmember Yukimura. Ms. Yukimura: Yes, thank you. I understand what you're saying and I agree with you and I'm thinking that maybe there's a hybrid that we can use. Your concern is that all the energy spent every year to come up with basically the same list, could be better spent in actually getting the deals done and doing the research and I really agree with that point. What if we had lists made every three (3) years but an amendment process that's allowed if there's somebody initiates a new piece that should be added to the priority list because all of a sudden there's a proposal to develop a wetland or something and you realize the urgency of saving it. So somebody comes and so there's a way but requires less time and only upon initiation from the public or from the commission to add but otherwise the list stays the same for three (3) years, Committee Chair Nakamura: Okay. Ms. Yukimura: And... Committee Chair Nakamura: I believe that... Ms. Yukimura: It allows that right now? 18 PLANNING COMMITTEE MARCH 7, 2012 Committee Chair Nakamura: I think Councilmember Rapozo's amendment allows that on page three (3), subsection "c" under recommendations. We could refine that to say amendment two (2), recommended list. Ms. Yukimura: Okay. So I'm just talking in a conceptual way what if we did that, so we'd go with a three (3) year, but allow for urgencies or exceptions to be brought forth during that three (3) year period. The other thing I wanted to say on your first point about conservation easements, there are thousands of working models of conservation easements on private land that is not the issue. The issue is with giving money to a private owner. Funds may be appropriated to another government entity, a private owner to acquire an interest, because in the case where there is a conservation easement on private land which has a public conservation purpose, the holder is a third party, the holder of the easement is not the private owner who owns the land. It's someone; it's a third party who watches to make sure that the conditions of the covenant are followed. So otherwise you have the fox watching the hens sort of speak and that's what I'm concerned about, that the private owner would be the holder of the conservation easement. Committee Chair Nakamura: Okay. Ms. Yukimura: To me there's not enough of an arm's length and there's not enough protection. At least with a non-profit there's State laws which require that they have a public purpose and there's certain things they have to file, and so I don't think there's those protections for just a private owner and that's my concern. Committee Chair Nakamura: Thank you for making that clarification. Ms. Yukimura: Yes. So there are a lot of lands are protected by conservation easements over private land but those easements are held and enforced by the holder of the easement which is usually, from my knowledge, always separate from the owner of that private land. Committee Chair Nakamura: Okay. Ms. Yukimura: So I just wanted to add that information. Committee Chair Nakamura: Thank you very much. Councilmember Rapozo. Mr. Rapozo: Thank you. First of all as far as this bill will set the requirement for the triennial or biennial report but I think the Commission rules would dictate how you address the amendments and so forth. I don't think that needs to be on our bill, that's how you want to handle it. Because in the current language of the amendment, and by the way the amendment was created by Committee Chair Nakamura, so we got to give credit where credit is due. She cannot introduce the amendment because she's the Chair, so I'm doing it as a request of her but I fully support the amendment. So I don't believe we need to touch that; I think that's something that the Commission deals with as far as amendments how you want to deal with the public process; I think you already established that in your current practices. After hearing the discussion today and comments from the members, I'm even leaning more towards a triennial, because 19 PLANNING COMMITTEE MARCH 7, 2012 you'll give the commission three (3) years to work on list and I think what Mr. Chair talked about earlier with the leveraging of funds, I think all of those tools need to be incorporated into this process. So that when the list does come to the Council and the Mayor, there's a mechanism that had been discussed as options. Right now with four hundred thousand dollars, to think that we're going to buy any of those recommendations, I think it's not going to happen. With the financial opportunity or option that the Chair discussed this morning, that creates a little more opportunity; now with six million dollars, I think we have an opportunity to have something behind the recommendation. So I think the three (3) year process is probably one that's better because you have an opportunity to explore financing opportunities, do an appraisal, and all of that, so when the list comes, it's actually backed by some data. I'm going to support the deferral obviously because I think we need to get that information. The easement issue, the conservation easement issue, that's one that I'm battling with again. I think if you read the Charter it kind of specifies the use of these funds and it really is for public benefit and I guess you could stretch it to say it's the habitat of some long-legged bird or something but in essence what you're doing, you're allowing a private owner to come to the County, get taxpayer funds to preserve that open area fronting the house. I think that's the downside of it, and I do believe the County still has some opportunities at the permitting level to force these landowners to create conservation easements for the purpose of conservation, private conservation. In other words, fine you want to build this house, you want to zone your property, you put a conservation district and you can keep as private as you want. But I think with the public space money, if they're going to be getting public space money, then it has to be public, it has to be open, the public has to be able to get some benefit. I'm a little troubled with that, I do appreciate Mr. Jung's comment that if we're not comfortable at this point, it's okay. Because if a situation arises in the future, we have a philanthropist that... and first of all, if a philanthropist is a true philanthropist, he isn't going to ask the County for money. But if we did have that scenario, it wouldn't be difficult for this Council to amend the law at that point, and to make sure that would work. I think that's the safest direction to take because the fear of the unknown and no disrespect to the attorneys, but for every restriction that an attorney can put into a document, there's an attorney that can unwind it and that is my fear. Those are my comments; again I will support the deferral. I'm not sure, Chair, if you want us to vote on the amendment and then defer the original bill as amended, or did you want me to withdraw my motion for this amendment? Mr. Furfaro: Correction. You probably should withdraw the amendment at this point and start over. Mr. Rapozo: Because a deferral would leave the motion hanging. Ms. Yukimura: That's right, then we could come back with another amendment. Mr. Rapozo: Whatever your preference, Chair Nakamura. I mean it wouldn't be a problem for me because I anticipate maybe changing the amendment, and what I don't want to do is have to amend the amendment that just creates a lot of stress for our staff. Mr. Rapozo withdrew his motion to amend Bill No. 2423, Mr. Chang withdrew his second. 20 PLANNING COMMITTEE MARCH 7, 2012 Committee Chair Nakamura: Thank you. Now we're back to the main bill. So I just wanted to point out as I think about the discussion around the bond float, I think one of the early concerns of the Commission, and Jean please correct me if I'm wrong, is that there was a discussion about using the annual allocation to do a Bond Float that would generate upfront cash that they could then use to acquire properties, and then the concern was, okay then for the next twenty (20) years, we're not going to have any funds to then allocate. I think what the Chair brought up today is the possibility of other sources of funding such as CIP and others as another source that I think wasn't in the picture at that time. I think that was one of the concerns is if we use it all up now then there's really nothing for us to work with. Chair Furfaro and then... Mr. Furfaro: Maybe you should go to your Committee members first. Committee Chair Nakamura: Committee member Yukimura. Ms. Yukimura: My experience is that you always, and most always need to piece together the financing from a variety of sources, which if I may, was one of the reasons I wanted to add that to the bond list, I mean the Po`ipu Beach expansion to the bond list, because I know even though it was Legacy lands, it was Parks money, and then it was CIP money, and there's others, there's water land conservation money and private donations and so forth. That's part of putting the deal together and so a large part of, like when Kaua`i Public Land Trust was doing some of the work, was applying for those moneys and trying to make sure we could get them. To think that we would spend all of our open space moneys on one (1) piece of property is not real cost effective. Committee Chair Nakamura: Thank you. Chair Furfaro. Mr. Furfaro: I just want to clarify again. I would like Planning to invite Finance to speak with the Commissioners so that they understand those options, and for some of you, that we go back and revisit our leveraging and that's the key here. Obviously the initial float would be for about a twenty-five (25) year period, but let's say six (6) years into the program, we refinance a bond, then that relieves those funds again because now it's a new General Obligation and not tied to the incremental piece. But to go through those types of details, I think would benefit the Commission. Committee Chair Nakamura: Councilmember Rapozo. Mr. Rapozo: After your last commentary regarding the staffing, is it possible to get Mike back up. Committee Chair Nakamura: Sure. There being no objections, the rules were suspended. Mr. Rapozo: It's more of a procedural question as far as how the Commission is structured right now and what staffing or support services they have if in fact as we roll into the budget process. How is it set up right now? How does the Commission get their support? 21 PLANNING COMMITTEE MARCH 7, 2012 Mr. Dahilig: We have one (1) dedicated Planner, which is Nani that's in the audience, and her full-time job is to service the Commission as well as provide research and other types of draft and support in that level. We also have a commission clerk that handles all the minutes and other administrative matters for the Commission and that's Duke Nakamatsu. So we have two (2) employed for this Commission. Mr. Rapozo: So you have one (1) full-time dedicated Planner? Is that what you said? Mr. Dahilig: Yes. Mr. Rapozo: And so that person just strictly open space? Mr. Dahilig: Yes. Mr. Rapozo: And then Duke Nakamatsu, you said he's a commissions clerk so he... Mr. Dahilig: Yes. Mr. Rapozo: Again, only assigned to open space? Mr. Dahilig: Yes. Their meeting schedule is pretty intense and they meet twice a month between three (3) to five (5) hours a meeting. It's almost from a logistical standpoint it's similar to what they have to provide for the Planning Commission based on their workload. Mr. Rapozo: Is that enough? Mr. Dahilig: I think at this point it is sufficient and if we were to look at the legislation pending before the Council at this point, there would be some adjustment, but based on the adjustments provided that we should be able to handle the change in the workload, and if not, then we'll certainly raise that up the flag pole if there's a concern. Mr. Rapozo: So what is the biggest problem, if it's not staffing and it's... Sounds like everything is in order. Obviously funding is one (1), but is there any other obstacles to getting some of these projects completed? Nadine talked a lot about the five (5) year, what... If it's not staffing then it's obviously something else. Mr. Dahilig: I think that's the purpose behind the legislation, it's to provide that more expansive authority as well as expansive of policy guidance and actually doing the implementation work related to the recommendations that's coming forth. Right now what it has been, it's been an actual size about list and that's where I think part of the impediment is the actual legislation. Mr. Rapozo: Well it is definitely... it's come to that and I feel for the Commissioners because they do spend a lot of time; I've actually witnessed their meetings in the community. Sometimes they take a lot of crap from the community and they come back and they submit this list. At least with my kids when they did Christmas wish list to Santa, we picked the cheapest ones and we got 22 PLANNING COMMITTEE MARCH 7, 2012 them, so at least they got something. They had not received anything except again that one (1) parcel that if not for the community, non-profit Kauai Public Land Trust, I don't know even if that would have even come to fruition. So there's going to come a point in time where Commissioners are going to leave and there's going to come a decision we got to make. Are we going to keep that Commission, because they go through the exercises but we as the leaders and the people that are supposed to be making it happen, we're not getting it done. You're saying this bill will help? Mr. Dahilig: It will help. I think the Commissioners have quite honestly I think they feel like they have gotten a lot of coal over the past few years. Mr. Rapozo: Oh yeah and I don't blame them. Mr. Dahilig: It's something that I think will allow them to engage them in a more proactive environment where they actually can have a set of tools that they can mix and match with their list and recommend priorities from the implementation standpoint, not just what is the list. Mr. Rapozo: Okay, thank you. Committee Chair Nakamura: Thanks for bringing this up, Mel, because my other observation is that by having so many meetings twice a month to prepare this list that staff time is used solely to support those meetings and the notes and preparing and getting everyone there, that it leaves very little time to actually do the work, the implementation part of it. Has there been any discussion with the Commission about reducing the frequency of their meetings and focusing on the implementation of their recommendations? That can only be done because you have one (1) staff person. Mr. Dahilig: I think it's a valid point, Councilmember. I think based on whatever happens with this legislation is something that we're going to have to sit down with the Commissioners if passed and really pour down the transition from the staff being the support and research to the actual implementers. I think the discussion concerning the biennial and triennial report really does assist in how we would look at deploying staff time in such a matter it would actually, I would anticipate reduce the amount of meetings because the list wouldn't need to be regenerated and re-switched every single year. Committee Chair Nakamura: I think considering meeting less frequently even once every other month or once a quarter just to free up this limited staff you have to focus on product. Mr. Dahilig: I do have to acknowledge that they are a committed group of individuals and I think this bill really came out of that desire to really want to do more. They are volunteers and it is tasking to have to be coming in on such a frequent basis and so hopefully this legislation, we can retool our outlet and try to create a more balanced approach with respect to Commission time to staff time. Committee Chair Nakamura: Thank you very much. Councilmember Yukimura. 23 PLANNING COMMITTEE MARCH 7, 2012 Ms. Yukimura: I think you're right, Mike, that there will be reorienting of both the Commission and the staff with this new legislation and this idea of getting the projects done. Because it will turn probably more into like our Kauai Public Land Trust meetings where there would be reports of the progress and the work of each project and input and advice and sometimes connection work. If say one of our Kaua`i Public Land Trust board members knew a Legacy Land Commissioner, a phone call from them could help move whatever you need to move ahead, within the proper limits of the law of course, but it'll change. The roles will change and it'll be much more oriented to project management, project oversight, and reports back on progress on each case. I think that's what the Commission's been wanting to see all along, so the idea of fewer meetings and a different orientation sounds good to me. Committee Chair Nakamura: Thank you, Mike. There being no objections, the meeting was called back to order, and proceeded as follows: Committee Chair Nakamura: Councilmember Chang. Mr. Chang: Thank you Chairman Nakamura. First of all thank you everybody for coming to the meeting, and I want to take this opportunity, Nani, thank you for being here. I think it's very important because we need to remind the community and ourselves that all Commissioners are on a voluntary basis and many of whom are working one (1) or two (2) jobs full-time, families, everything else just to make it, so I hope we can encourage the commissioners that weren't able to be here in person to watch it online, watch it on Hoike, make a video available, so they can see what this extremely important discussion is. I want to thank Jean Souza because most of us know during her day job, this is probably the busiest time of her work as she visits and welcomes our beautiful humpback whales into our island, so I know there's a lot of work during this duration of the time. I think it's a reminder to our Councilmembers of the dedication, especially to the two (2) Commissioners that we're going to sadly lose in two (2) very, very short months and that's Commissioners Souza and Kinnaman. What really concerns me is these are Council appointed positions. I don't know if any names were submitted or we have anybody in mind, and it's an extremely critical time, especially when we're looking at every island boundary is so important, but we're looking at the Po`ipu, Koloa, Omao district that connects into the greater Kalaheo on into `Ele`ele, and these are the areas that these two (2) Commissioners with their skill and with their background and their knowledge over all these years. That worries me of the continuity that we'll be able to have. Two (2) extremely strong commissioners will be parting and we're responsible for filling these holes. I'm just hoping that we can find people that are able and willing to not only volunteer but hit the ground running, and I hope these kinds of discussions doesn't detour or scare people because it's such an important Commission. I think more importantly it is very important that the Commissioners see this conversation and watch the conversation, study the conversation, and understand the concerns of the Council because as I mentioned I think and I want to thank Jean for being here and 24 PLANNING COMMITTEE MARCH 7, 2012 Commissioner Kinnaman and all the other Commissioners, but it just puts it on the radar screen that we really have to hustle because in two (2) very, very short months our Commissioners' terms will be expired. Committee Chair Nakamura: Thank you Councilmember Chang. Upon motion duly made by Mr. Chang, seconded by Ms. Yukimura, and unanimously carried (Councilmember Bynum excused), Bill No. 2423 was deferred. CR-PL 2012-01: on Bill No. 2424 A BILL FOR AN ORDINANCE TO ALLOW SOLAR ENERGY FACILITIES IN THE AGRICULTURE DISTRICT [Approved as Amended.] There being no further business, the meeting was adjourned at 11:31 a.m. Respectfully submitted, Darrellyne M'Simao Council Services Assistant II APPROVED at the Committee Meeting held on April 4, 2012: n/4 NADINE K. NAKAMURA CHAIR, PLANNING COMMITTEE March 7, 2012 FLOOR AMENDMENT Bill No. 2423, Relating to the Public Access, Open Space, and Natural Resources Preservation Fund INTRODUCED BY: Mel Rapozo, Councilmember (by request) Bill No. 2423 is amended in its entirety to read as follows: "SECTION 1. Findings and purpose: The Council of the County of Kaua`i finds that to better manage the Public Access and Open Space on Kaua`i, the Council should expand the scope of duties of this Commission. The Council finds that it needs to improve the Commission's operational efficiencies and bring the scope of the Commission's duties in alignment with the expectations and needs of the people of the County of Kaua`i. SECTION 2. Chapter 6, Article 14 of the Kaua`i County Code 1987, as amended, is hereby amended to read as follows: Sec. 6-14.1 Purpose. (a) In adopting each fiscal year's budget and capital program, the Council shall appropriate a minimum of one-half of one percent (0.5%) of the certified real property tax revenues to a fund known as the Public Access, Open Space, and Natural Resources Preservation Fund ("Fund"). The moneys in this Fund shall be utilized for purchasing or otherwise acquiring lands or property entitlements for land conservation purposes in the County of Kauai for the following purposes: (1) Public outdoor recreation and education, including access to beaches and mountains; (2) Preservation of historic or culturally important land areas and sites; (3) Protection of significant habitats or ecosystems, including buffer zones; (4) Preserving forests, beaches, coastal areas and agricultural lands; (5) Protecting watershed lands to preserve water quality and water supply; (6) Conserving land in order to reduce erosion, floods, landslides, and runoff; Attachment 1 1 (7) Improving [disabled and] public access to, and enjoyment of, public land and open space; (8) Acquiring [disabled and] public access to public land, and open space. (9) Conserving land for open space and scenic values. (b) The moneys in this Fund may also be used for the payment of interest, principal, and premium, if any, due with respect to bonds issued pursuant to Sections 3.13, 3.14, or 3.15, Charter, in whole or in part — for the purposes enumerated in paragraph (a) of this section and for the payment of costs associated with the purchase, redemption or refunding of such bonds. (c) Any balance remaining in this Fund at the end of any fiscal year shall not lapse, but shall remain in the fund, accumulating from year to year. The moneys in this Fund shall not be used for any purpose except those listed in this section. Sec. 6-14.2 Administration. (a) A community-based process that incorporates countywide community input for the purposes of establishing [annual] biennial recommended priorities of lands or other property entitlements to be acquired for those land conservation purposes described in Section 6-14.1(a) of this article and paragraph C of Section 19.15 of the Charter shall be utilized by the County. To meet this intent, a fund advisory commission ("Commission") shall be established consisting of nine (9) appointees. (1) The Mayor shall select four (4) appointees, with at least one (1) from each of the following development plan areas and one (1) at-large: (A) Waimea— Kekaha; (B) Lihu`e — Hanama`ulu; and (C) Kapa'a a`a— Wailua. (2) The Council shall select four (4) appointees, with at least one (1) from each of the following development plan areas and one (1) at-large: (A) Hanapepe — `Ele`ele, (B) Koloa— Po`ipu —Kalaheo; and (C) North Shore (Anahola to Ha`ena) (3) One (1) island wide, at-large appointee shall be selected by the [appointed eight (8)] seated members. If there is no agreement on the selection of the one (1) additional member within [forty-five 2 Attachment 1 (45)] seventy-five (75) days of the [appointment of the eight member] vacancy, [the one (1) additional member shall be appointed by] the power to fill that vacancy shall fall to the Mayor and confirmed by the Council. [(4) Initial terms of appointment shall be as follows: (A) All at-large appointees shall serve initial terms of one (1) year. (B) Two (2) Mayoral district appointees shall serve three-year terms. (C) One (1) Mayoral district appointee shall serve an initial one-year term. (D) Two Council district appointees shall serve initial terms of two (2) years. (E) One Council district appointee shall serve a three-year term.] (4) Pursuant to Charter Section 23.02(B), all subsequent appointments shall serve for staggered terms of three (3) years and until their successors are appointed. However, no holdover term shall extend beyond ninety (90) days. (5) The role of the Commission shall be to: (A) Work with the Planning Department to develop an [annual] biennial list of priority projects to be considered for funding; and (B) Solicit public input on development of the [annual] biennial list of priority projects to be considered for funding. (C) Prepare an annual report for the Mayor's and Council's review. This report should include, but not be limited to, a list of: (i) Accomplishments; (ii) Challenges; (iii) Future goals and objectives; and (iv) Recommendations. (6) The Commission is also authorized to: (A) Advocate and be a resource for public access, open space, and natural resources preservation planning for the County of Kaua`i; (B) [Assist with the] Provide feedback on the Department's implementation of priority recommendations; 3 Attachment -1 (C) Serve as a forum to receive public input on issues relating to the nine land conservation purposes outlined in Section [6.14-1] (a) (1) through (9)_; (D) Assist with the resolution of issues relating to the nine land conservation purposes outlined in Section 6-14.1 (a) (1) through (9); and (E) Biennially report the balance and review the sufficiency of the Public Access, Open Space and Natural Resources Preservation Fund to the Council and the Administration. (b) The Commission shall establish [annual] biennial recommended priorities of lands or property entitlements to be acquired, or for the funding of projects directly related to the purposes of this article. (c) For administrative purposes, this Commission shall be attached to the Planning Department. (d) At any given time, no more than five percent (5%) of this fund shall be used for administrative expenses. (e) Meetings of this Commission shall comply with requirements of Chapter 92, Hawaii Revised Statutes (the "Sunshine Law"). (f) The Commission shall adopt administrative rules of procedure pursuant to Chapter 91, Hawaii Revised Statutes (the "Hawaii Administrative Procedures Act") within one hundred and eighty (180) days of the full appointment of the Commission's membership. Sec. 6-14.3 Appropriation of Funds. (a) Appropriations for expenditure from this fund shall be made by ordinance. (b) The Commission shall transmit [annual] biennial recommendations to the Council for priorities of lands or other property entitlements to be acquired, or for the funding of projects directly related to the purposes of this article. (c) Funds may be appropriated to another government entity, Jprivate owner,1 or nonprofit organization and used to acquire an interest in property with the requirement that lands or entitlements benefit the public and are protected in perpetuity. (d) Lands or other property entitlements to be acquired may be owned or held by the County of Kauai, other government entity, or nonprofit organization with the requirement that lands or entitlements benefit the public and are protected in perpetuity. (e) Lands or other property entitlements to be acquired may be managed by the County of Kauai, other government entity, (private owner,] or nonprofit organization with the requirement that lands or entitlements benefit the public and are protected in perpetuity." Attachment 1 4 SECTION 3. If any provision of this ordinance or application thereof to any person, persons, or circumstances is held invalid, the invalidity does not affect the 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 severable. SECTION 4. Ordinance material to be repealed is bracketed. New ordinance material is underscored. When revising, compiling or printing this ordinance for inclusion in the Kaua`i County Code, 1987, as amended, the brackets, bracketed material, and underscoring shall not be included. SECTION 5. This ordinance shall take effect upon approval." (Material to be deleted is bracketed. New material is underscored) V:\CS OFFI,CE FILES\AMENDMENTS\2010-12 term\2423 FA, No Private Owner (NN), GG, il.doc 5 Attachment 1