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HomeMy WebLinkAbout10/13/2010 Public Hearing Transcript re: BILL#2376PUBLIC HEARING October 13, 2010 A public hearing of the Council of the County of Kauai was called to order by Jay Furfaro, Chair, Planning Committee, on Wednesday, October 13, 2010, at 1:40 p.m. at the Council Chambers, 3371-A Wilcox Road, Lihu`e, Kauai, and the presence of the following was noted: 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 The Clerk read the notice of the public hearing on the following: BILL NO. 2376 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE, which was approved on first reading and ordered to print by the Council of the County of Kauai on August 25, 2010, and. published in The Garden Island newspaper on September 27, 2010. JAY FURFARO: We're going to go ahead and call into session this Council session for the purpose of a public hearing, a public hearing that deals with the proposed shoreline amendment setback- bill proposed, and I'd like to ask the County Clerk if you could read that item. Thank you very much. Before I suspend the rules, I do want to express to those of you that are in the audience, since this will be referred to my committee in planning, I do think it may be a good idea when we go into committee meeting to also see if we can't get Dr. Fletcher down to participate in a workshop, especially since most of the work for the maps are maps that were submitted as a result of the study that we funded with him. I think it's very important for us to have a mutual understanding of the interpretations, especially on what determines the building's setbacks, the footprint, and what we currently have in the CZO that indicates that a minimal building footprint can be as up to 2100 square feet without any variances. But I did want to share that with the speaking audience as we take testimony from them, and the intent. This goes into committee, and my intent is to see if we can coordinate a workshop. So on that note, I'm going to suspend the rules and ask the clerk, do we have any people or persons signed up for testimony? 1 Mr. Nakamura: We have three registered speakers, Vice Chair. Mr. Furfaro: Could you read all three names in the order that they will give testimony? Mr. Nakamura: First registered speaker is Carl Imparato, second registered speaker is Caren Diamond, and .third registered speaker is Barbara Robeson. Mr. Furfaro: Thank you very much. The following communications were received for the record: 1) Carl Imparato, Sierra Club Kauai Group of the Hawaii Chapter, dated 10/13/2010 2) Thorne Abbott, dated 10/12/2010 The hearing proceeded as follows: CARL IMPARATO: Aloha Councilmembers, my name is Carl Imparato, and today I'm speaking on behalf of the Kauai Group of the Sierra Club. We submitted some detailed testimony, and what I'd like to do today, though, is to provide just an overview that focuses on two particularly bad changes that are being proposed to the existing shoreline setback ordinance. One is to 8-27.1a, which would exempt all sorts of development from all of the county's shoreline setback standards, and the other is 8-27.3c, which would exempt development from having to comply with erosion-based setbacks if those requirements would result in a buildable footprint of less than 2100 square feet. I'd like to start with the second problem here now. Let's take into typical example here. Suppose someone has a 10,000 square foot lot that's 100 by 100 feet, and it's located on the shore where there is a one and a half foot per year erosion rate. Now that's not an atypical erosion rate; there are a lot of places that have that. Under the existing setback law, they would have to be set back 40 feet plus 70 years times one and a half feet per year, which is 145 feet. That makes the lot appear to be pretty much unbuildable since it's a hundred foot depth lot. But also remember that at one and a half feet per year the entire lot would be makai of the shoreline during the lifetime of the development; it would be completely inundated, and in that case, all public access would be lost, and this doesn't even take into account climate change and sea level rise. So, you know, there's. a problem with lots of that nature. But under the existing ordinance, there's a .variance procedure, and under that variance procedure, you have a requirement to basically set back the proposed development as much as possible and go down to a 1500 square foot footprint if necessary. So that would result, that variance process, in the 2 development being set back about 75 feet on the hundred-foot lot. What this proposed change to the ordinance does is it says, oh we don't do that anymore, we go to this table and you only have a 40-foot setback. With that 40-foot setback, in just 27 years there'd be no public access at all, because the shoreline would move back that far. So what we have here is a strange thing where the very lots that should be set back the maximum possible distance instead get set back under the proposed change here, the minimum possible distance. Instead of going back 75 feet in this case, they go back 40 feet from the shoreline, and that's a real problem, and it's really endemic to the whole procedure that's proposed in 8-27.3c. I'd also like to point out that if you even just say well what about one foot per year erosion rate, that's the average erosion rate along the shores on Kauai. Still a large percentage of the lot would be exempted by this process, because basically a one foot per year erosion rate means you have to set back 110 feet, and then that means that the lot doesn't qualify to go into the erosion rate based setbacks, and they automatically go to a 40-foot setback. So there's a real problem with that part of the bill, and we hope that you'll give consideration to striking that proposal. The second thing I want to mention is the direct exemption from the entire law that's proposed by 8-27.1a. Now supposedly that's for cases where you have developments that are so far back from the shoreline that there should be no reason why they... Mr. Furfaro: Excuse me, Carl. I just...that was the three minutes. I'm going to give you your other three minutes now. I just want to point that out. Go ahead. Mr. Imparato: Thank you. So there are cases where clearly a development is on a 500-foot deep lot, it's 300 feet back, and maybe it shouldn't be subject to going through all of these procedures. But if something is going to be exempted, it's really...we have to be dead sure that that development would be set back at least 40 feet plus 70 years worth of erosion rate beyond the shoreline, and we have to be dead sure where the shoreline is. The changes that are proposed in the bill are very broad, they're vague, and basically they lead to a situation where someone just gets a good lawyer who just is going to argue that the setback won't interfere with public access, the bill doesn't say public access for a hundred years, one year, 40 years, and basically what we're going to end up with is a whole bunch of exemptions here, and when a development falls into that category, none of the setback law applies to it. So this is also a very problematic change that you're being requested to look into on the shoreline setback ordinance, and I hope that you'll give some thought to a different way of approaching the problem of determining what should be exempt from the going through the procedures of the shoreline setback law. You know, there's an argument that can be made that we should be giving more discretion to the planning department or to the planning director or to the planning commission to handle these kinds of exemptions, but I'll say I don't feel very comfortable about that when going back to the very first thing I talked about, 3 this bill came from the planning department, it came through the planning commission, and still, within it it has the proposed exemptions that basically take and allow projects that should be set back the maximum amount to be set back the minimum amount. If the planning commission isn't looking at that in detail and passing these proposals on to you for consideration, then I can't say that we would feel very confident giving discretion to the planning department and the planning commission to basically enforce this law in a way that protects public access. So I hope that you'll give some real consideration to those two proposals in particular, and if possible, if you do have something like a workshop also, then to look at other ways in which we can actually strengthen the law. And I thank you for your time. Mr. Furfaro: Thank you Carl.. May I ask, you heard my suggestion as this is going to be referred to my committee that I will pursue a workshop? Are you in favor of that? Mr. Imparato: I think that's an excellent idea, both because we have these concerns and because a workshop would allow us to look at some of the problems in the existing law which could be ways we could strengthen the law. Mr. Furfaro: And I do want to see if we can get Dr. Fletcher here, since we are dealing with, you know, maps that are the result of his studies. So you do favor that, then? Mr. Imparato: It's... In fact I think it's an excellent idea. I appreciate it. Mr. Furfaro: Okay. Are there any questions of the individual giving testimony? If not... Oh, go ahead. Mr. Kaneshiro: So your assumption is that this bill actually does not take the 500 feet law, because to me, this bill is really, you know, covers up to 500 feet. Mr. Imparato: When you say covers up to 500 feet, I wasn't sure what you're... Mr. Kaneshiro: Correct, of£..from the shoreline. This bill specifically, you know, even if you're not abutting the shoreline and you're 500 feet you're going to put something up, this bill still covers that too. Mr. Imparato: It covers... You're correct, it covers properties that don't abut the shoreline but are within the 500 feet. Mr. Kaneshiro: Correct. 4 Mr. Imparato: But ironically, the proposed change to 8-27.1a says that for the properties that actually abut the shoreline, they can... the applicant can make demonstrations that would allow the applicant based on the topography and the distance of the improvements to the boundary to move away... Mr. Kaneshiro: I see what you're saying. Mr.Imparato: That's the irony. It's the ones that abut the shoreline that escape, and the ones that are beyond-that are 500 feet from it- don't escape. Mr. Kaneshiro: I'll get a clarification from the planning department, because my belief is that this bill covers everything, whether you abut or you're within the 500 feet of the shoreline. So you know what I'm saying? So... Mr.Imparato: I understand. Maybe that's what we need clarification on. Mr. Kaneshiro: The intent, I think, was that anything that is over 500 feet where you have some circumstances where it could be even a half a mile away and they still would have to get a shoreline certification, and I don't think that's the intent that you would agree to that too. I know that. So we'll go ahead and send a communication over to make sure that this bill covers everything, you know, whether you abut or you're right on...within the shoreline. Mr. Imparato: Clearly. I think we're in agreement as to what should be done; the question is how to do it. Mr. Kaneshiro: Thank you. Mr. Imparato: Thank you. Mr. Furfaro: Councilman Kaneshiro, we'll go ahead and incorporate that communication over to planning. Does anyone have any other discussions or questions for Mr. Imparato? Is that you Mr. Bynum? Mr. Bynum: Yes. Thank you for your testimony, and I'm going to look forward to the workshop, and I am also going to suggest to the chair that...to find out if Dennis Huang is available for that workshop as well, because he was very helpful in his testimony in formation of this bill to begin with. And then maybe we can structure that workshop in a way that if your comments take longer than six minutes, we can accommodate that as well. Okay? Mr. Imparato: Appreciate that. 5 Mr. Bynum: Thank you. Mr. Furfaro: I will intend to. My intent is also to see if we can also encourage someone from the Seagrant Program that we had involved in this to participate. Carl, thank you for your testimony. Our next speaker? CAREN DIAMOND: Good afternoon Councilmember. Caren Diamond. Mr. Furfaro: Good afternoon Caren. Before I go on, you did hear. my plan is get this in committee, then try and set up a workshop from committee with participation with Dr. Fletcher and representation from the Seagrant people. Ms. Diamond: Thank you. That's an excellent idea, and I fully support that. Mr. Furfaro: Thank you. Ms. Diamond: I think that'll help address a lot of these issues and problems that are in the bill, and it'll be especially helpful to have Dr. Fletcher here, because it really confuses me reading this bill and where the title is saying that we're going to implement the coastal erosion rates, when actually this bill does the opposite. It does not implement the coastal erosion rates. It instead allows for an alternative, and it's really confusing in how it does it, because in two different places it says two different things. One place it says...it adds the building footprint to it where you have to consider the building footprint with the coastal erosion rate, which is completely erroneous, because you're supposed to figure out what your coastal erosion rate is, and then what your buildable area is, and then you do a building footprint that fits into that. It doesn't work the opposite way, unless you're really trying to create calamity on the coast. But there is another section in here that then says, well if the minimum building footprint doesn't fit, then you use the table. And so it's confusing-in these two places it says two different things. But if you were to use the existing ordinance, it was really well thought out, and it already addressed vari...it allowed for variances, and it allowed for the house size to be reduced, and the setbacks and the front yard and the side yards to be reduced. It also indemnified the county and allowed for no armoring forever, and you know, disclosure had to be apparent. And these kind of things are important on the coast, especially because what we find is the person who gets these permits and builds the structure is not the person who actually ever lives in the house, because we have what's called flipping here. And so they take that house as right up as close to the ocean as could be, and then they sell it, and you have some other completely unsuspecting person who thinks that their county approval and county building permit would mean that there is some level of safety in that structure, when in fact it doesn't really exist. 6 And you know, the problems in our coast, and if you look at Wainiha and Ha`ena, the old structures are all set back. They're all really far back. They're still far back. But the new structures are right... as close as you can get to the ocean. And so I don't understand why the county would want to, instead of implementing the coastal erosion rates, they would allow, you know, a proxy to happen and allow larger structures than actually fit on these lots to occur. And I'd urge you to look at the existing bill and how these problems were taken care o£ And you know, the reason the table was put in to begin with was because the coastal erosion study is a very expensive owner's thing for a landowner to have to do. And the table was put in so that someone could develop along the coast before those erosion rates occur. But now that the county has them, it would be really foolish for the county to say, well we know that the erosion here is this much, but we're going to allow you to put your house here anyway... because we do know that's how beaches are lost-it's development too close to the ocean. And it leaves one of two choices, you armor and lose the beach, or you lose the property. Either way, you're setting up the entire coastal system for failure, both for the landowners and for the public. And so it's really important that the things that are in this bill don't diminish the existing ordinance, don't give people loopholes that, you know, that unfairly put their houses at risk, and the people in them at risk. Our coastal hazards are real. I'll look forward to the workshop to go over the rest of the problems in this, and I will thank you guys for actually having experts come that can help make the implementation of the coastal erosion rates a reality. Thank you. Mr. Furfaro: I just want to make sure. We will, in a week, have the item in my committee for planning, and in that committee we'll work out the details of getting over people for the workshop, and then scheduling a separate workshop. Ms. Diamond: Excellent. Mr. Furfaro: So I just want to make sure we're clear, don't expect the workshop next week. What we'll do is we'll use the committee time to plan the workshop. Ms. Diamond: Okay, good. Thank you. Mr. Furfaro: Let me see if there's any questions. Anybody have any questions? None, thank you. Ms. Diamond: Thank you. Mr. Furfaro: I think our next speaker is Barbara Robeson. 7 .BARBARA ROBESON: Thank you Chair Furfaro and Councilmembers. Barbara Robeson for the record. I'm very much in favor of a workshop. When I started reading the bill, I had a really hard time understand...well, I didn't understand it. And so to have Carl and Caren help me understand it was very useful to me, but when I first had the opportunity to take a look at it, I wondered what the basis for the amendments to the existing bill were. And when I talked to some folks in planning, my question was, was there a particular study or report that came out of Dr. Fletcher's maps that were online, and I was unable to find out if there was or wasn't. So I'm hoping that maybe that could be one of your questions, if there's an actually study, because if there was a study, is it available to the public. On the other hand, if only maps were used to amend this bill, then who in the planning department, or how did those maps get translated? What was the expertise of that planner who took the maps and translated them into language for the ordinance? So those are just some. questions that I still have, and hopefully through the workshop I'll have a better understanding, because right now I have a big question mark. Thank you. Mr. Furfaro: Thank you Barbara, and that is my intent, is to get from planning, who submitted these amendments, some understanding of what we may have gotten from Dr. Fletcher that may have triggered these amendments that they're submitting, and also a time for us maybe just to have a summary of the complete study itself. So that is in the intent. Ms. Robeson: Okay, thank you so much. Mr. Furfaro: Are there any questions of Barbara? If not, thank you Barbara. I don't believe we have any additional speakers, and on that note, I will go ahead and adjourn this committee... Well, I will adjourn this public hearing on the shoreline setback bill. We are now adjourned. Thank you. There being no further testimony on this matter, the public hearing adjourned at 2:01 p.m. Respectfully submitted, i PETER A. NAKAMURA County Clerk /ao 8