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HomeMy WebLinkAboutMinutes 11-8-11 KAUAI PLANNING COMMISSION REGULAR MEETING November 8, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Herman Texeira at 8:48 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Herman Texeira Mr. Jan Kimura Ms. Camilla Matsumoto Mr. Hartwell Blake Absent and excused: Mr. Caven Raco Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: I would like to make an announcement and that is to congratulate our new Planning Director and I would like to have the ladies give him...Cammie can do the honors for the Planning Commission. (Planning Director Michael Dahilig was presented with a lei from Commissioner Matsumoto). And Leslie will represent the Planning Department(Planning Director was presented witH a lei from staff member Leslie Takasaki). Now we can get into the formal part of the agenda. As you can see we have a quorum, we have four members,two are excused and absent. So therefore at this time I would like to ask for the approval of the agenda. Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve the agenda, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to receive items for the record, motion carried unanimously by voice vote. MINUTES On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve the regular meeting minutes of October 11; 2011 and Hearings Officer Special Meeting of October 19, 2011, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Annual Status Report No. 4, (September 8, 201 l) from Michael J. Belles, Esq., Belles Graham Proudfoot Wilson& Chun LLP, for Special Management Area Use Permit SMA(U)- Planning Cotnmission Minutes November 8,2411 1 DEC 13 2011 2007-13,Project Development Use Permit P.D.U-2007-25 and Gass IV Zoning Permit Z-IV- 2007-29,Tax Mgp Key 2-8-16:3,&4 and 2-8-15:43, 44 & 82.Po`ipu, Kauai=SVO Pdci>`ic, Inc. Staff Repo tpertainin to this matter. Staff Planner Mike Laureta: Congratulations Michael. (Staff read report into record, on file). Chair: Are there any questions for the planner? Mike based on your report and maybe I can ask the applicant's representative but in terms of the overall acreage of this project, originally I thought I saw 19.1 acres. Has the acreage expanded with the mauka end of the project? What is the total acreage of this project? If you are not sure I can ask the... Staff: Let's give that one to Mike. Chair: If there are no questions for our planner then I would like to call on the applicant's representative. Mr. Michael.Belles: Good morning Mr. Chairman and members of the Planning Commission. For the record my name is Michael Belles and sitting to my right is Mr. Greg Kamm of Greg Kamm Planning and Management, also know,for me, as the other Mike. I would like to also acknowledge Mr. Laureta has been actively involved in this project when we first got our permits back in 2007 so he knows the project probably as well if not better than I do. He clearly has a much better memory than I do so I will defer to him if there is any conflict or disagreement on the basic facts. I think the report is very thorough as they always are with Mr. Laureta and we have nothing to add to that, I simply wanted to highlight the facts that we did get our permit approvals in 2007,in October as Mr. Laureta pointed out. The following year in June we filed our building permit applications and we have continued with the building permit process review. And as Mr. Laureta pointed out we have already invested approximately 10 million dollars plus in the renovations and restorations and repairs for the makai or the hotel wing where tpe existing hotel is. We are hoping to have that done in the first quarter of next year in terms of all the renovations being completed but we have actively been keeping these permits not only alive but moving ahead and keeping people employe4. I think it is a rather dramatic statement when you consider that in 2007 when we got the permits it is that year that is cited as the year of the global economic meltdown. So I think it is a testament to the client that they have remained committed to the project to continue moving forward investing in the project as they have. And we are hoping to continue in the futgre but obviously we are looking as everyone else is on plans that were approved previously to make sure that they are still current,they are still relevant and still work as an appropriate economic model in this day and age. With that, I really don't have anything to add. I will however respond as best I can to the Chairman's earlier question to the staff planner and that is the total 4creage. The acreage that we have identified iA the report is 19.1 acres and pf the 19.1 acres you have 8.4 which is in the ocean or makai portion of the property and 10.7 which is in the garden or mauka portion of the property. So that is how we have calculated the total aniourit of land that we have covered by these permits. Chair: Excuse me Mike,the reason why I mentioned that is because in the staff report they said the consolidated parcel will now consist of 21.4 acres and I was just wondering why the discrepancy. Mr. Belles: I honestly don't know. Chair: It is not that relevant. Mike,is that just a typo or something? Planning Commission Minutes November 8,2011 2 Staff They were going through th- consolidation and re-subdivision process. Mr. Belles: A way to be more responsive to this, we will be coming in with a report on the consolidation as we have annual reports with this, we have to do them with consolidation and subdivision of the property. We can work with the Planning Department staff to reconcile the numbers and make sure that whatever numbers are reported in tha�report are indeed accurate and been verified by the Planning Department. Chair: Great,thank you. The second phase,not the second phase but the mauka, you have cleared the property of the existing...? Mr. Belles: No, not yet, nothing has been cleared, everything has been left as is and this is an ongoing work in progress in terms of studying again what is feasible, what is viable. Because what was feasible and viable in a very heady market in 2007 has changed dramatically and we want to make sure that when we build it people will come and that what we build is in keeping with the industry and we are competitive with other people that we have to be competitive with. So We are constantly looking at that and in fact as we speak decisions are being made on how best to approach the mauka portion of the development. Chair: 5o at this point right now you don't have any definite plans to develop the mauka portion. This will be pending the uptake in the economy so to speak? Mr. Belles: Well we do have the permit applications pending and we are still working with County and State agencies on those comments. The question is how do we proceed and do we do it next year or may additional time be required.for us to do that. We haven't made that...a business decision has not been made by the client as yet but it is something they are very sensitive to and I think that is why I wanted to underscore what we did on what we had control over and what we knew we had to keep up to snuff and competitive and that was the hotel portion of the project. The balance of the project, the timeshare,that is more problematic and that is the most honest answer I can give you. Chair: So presently the mauka portion is currently in use then, it is part of the hotel activity. Mr. Belles: Right. We still have the 227 units in the mauka portion which all functioh as hotel rooms which mean they don't have kitchens. If they were to be demolished as the original proposal called for they would be converted into timeshare units,they would have kitchens and they would function differently. But there is no plan to demolish that until decisions are made on how to deal with the balance of the property. Chair: Thank you Mike for that explanation, I appreciate it. Anyone have any questions of the applicant's representative? Mr. Blake: I was going over the report and some questions that occurred to me, the pool construction, is it done? Mr. Belles: It is largely done, yes. And the former Oasis Pool bar is now called Lava's, we have changed the name of it but what was formerly known as Oasis, that has been completed. The Point Restaurant has been completed, and the breezeway and the kitchen are Largely completed and that is what we are hoping to have done by the end of the year or first quarter of next year. Mr. Blake: And this is for Mr. Laureta, these extensions and so forth and so many permits involved, we are not running up against any deadlines, the County isn't running up against any deadlines... Staff: No we aren't. Planning Commission Minutes November 8,2011 3 Mr. Blake: Now the other thing I noticed was that there are requirements and the applicant says we are going to meet the requirements,: Don't get me wrong about the Sheraton, it has always been a pleasure to work with Sheraton Po`ipu, I have nothing but good things to say about them. But when I see answers like that that are open ended. I wonder when is it going to get paid, when is it going to get accepted, when is the County going to have the money in hand and so forth. It says the applicant acknowledges the condition, this is on page 5 regarding the Koloa/Po`ipu Circulation Plan, and it says once the plan is approved by the County. Is that a holdup? Mr. Belles: Exactly, Commissioner Blake. I think as you probably know and I know you have been intimately involved in most of the activities on the South Shore but Regional Development Plan, the last official action that I am aware of is the County Council adopting by resolution a proposal and forwarding it to the County administration for a response. And it is my understanding that they are continuing to study that but there is no official final recommendation from the County that we can even comply with. Mr. Blake: And right now we are waiting on the Council? Mr. Belles: We are waiting on the County of Kauai but I will say generically so as not to unfairly limit it or point the finger at anyone. Chair. Anything else Commissioner Blake? Mr. Blake: Page 6,the Sheraton is seeking County or authorization to refurbish and maintain the existing comfort station at the southeast end of the Hoonani Road cul-de-sac, page 6.d. I always thought Sheraton had accepted that responsibility. Mr. Belles: No. We had done initial maintenance on the property and we had made the comfort station more attractive. Subsequent to that the responsibility was taken over by the original parties that were legally obligated to manage and operate the restroom facility. Mr. Blake: Who is that? Mr. Kamm: That is the Moana Corporation and they have a local oontra.ctor doing the maintenance. Mr. Blake: So if I understand what you said the Moana Corporation had the original responsibility and at this point you are negotiating with... Mr. Kamm: We are letting them do it until they step back, until and if they step back. Mr. Belles: How we came into the picture in the first place was by default. There was just no one providing the appropriate maintenance and repair of the facility. And since this was serving our cliental as well as the general public on property immediately abutting us it just made sense for us to do whatever we could to keep the environment around the property in the most suitable fashion possible and that is why we volunteered to do that. But since Moana has stepped forward now and agreed to comply with their original obligation we are; stepping back. Mr. Blake: So you are waiting for Moana or the County? Mr. Belles. Moana Corporation has the legal responsibility to maintain and operate the restroom facility. The County does not have any obligation or responsibility to the best of my knowledge. In fact it was the County as yoU recall Mr. Blake, after almost two decades that finally forced the issue and got the restroom built and up and running. Chair: Any more Mr. Blake? Can we come back to you? Mr. Kimura. Planning Commission Minutes November 8,2011 4 Mr. Kimura: In the staff report over here you say you have a total of 382 units, well existing 413 hotel units, 227 rooms will be from the mauka garden wing. And out of the 227 you are going to increase it to 382? Mr. Belles: Correct. The original plan that we applied for back in 2007 what it called for is for a total mauka of Hoonani Road to be 3 82 units and that would have necessitated us demolishing the existing 227 units. Mr. Kimura: That is not counting the 186 units of the gardep wing, right? Mr. Belles: Correct. Mr. Blake: There was a fair amount of...in one of the letters about instead of installing curbs and butters they were going to install rural sections on Hoonani Road to maintain the ambience I believe is what the purpose was. Is that going to be maintained by the County of by the Sheraton? Mr. Belles: It will all depend on the terms of the right-of-way agreement between the County and my client. Chair: Do you have any more questions Mr. Blake? Mr. Blake: And so the issue about the voluntary fair share also awaits County... Mr. Belles: A decision by the County of Kauai. Chair: Thank you Mr. Belles and Mr. Kamm. We will call on the public now if anyone is wishing tb speak on this item,please raise your hand. Seeing no one wishing to speak on this item, Mike,could you please give us your recommendation. Staff. The recommendation is that the Commission accept the status report dated September 8, 2011, by the applicant. Chair: Mike, I am sorry, as you stated earlier you have no concerns, no questions in regards to the staff report? You completel' agree with the staff report'? Thank you very much, thank you Mike. With that in mind is there a motion? Ms. Matsumoto: Move to accept the status report No. 4 for Special ManagemeAt Area Use Permit SMA(U)-2007-13, Piroject Development Use Permit P'.D.U-2007-25, and Class IV Zoning Permit Z-IV-2007-29, Tax Map Key 2-8-16:3 &4, 2-8-15:P43,44 & 82, Po`i.pu,Kauai, SVO Incorporated. Mr. Blake: Second, Chair: Any discussion on the motion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to accept Status Report No. 4, motion carried unanimously by voice vote. Commission recessed at 9:15 a.m. Meeting called back to order at 9:20 a.m. In the Matter of Petition to Appeal Decision of the Planning Director, Tax Map Key (4) 5-2-022: 064: 0019 Names Stigler,and Lisle Stigler. i a. Michael A. Dahilig's Motion to Dismiss James Stigler and Lisle Stigler's Appeal of Determination of Incomplete Application to the Planning; Commission. Planning Commission Minutes November 8,2011 5 b. Applicant's Opposition to Michael A. Dahilig's Motion to Dismiss James Stigler an d Lisle Sti leg is Appeal of Determination of lnco=lete Application to the Planning Commission, Chair: We are on the matter listed as item A.2 on our agenda. The Director has filed a motion to dismiss James Stigler and Lisle Stigler's appeal of his determination pursuant to Section 1.6-16 of the Rules of Practice and Procedure of this Commission. Public testimony pursuant to HRS, Chapter 92 will now be concerning this agenda item. Parties will be allotted time to discuss their positions before the Commission later. Is there anyone in the public wishing to testify on this agenda item? Seeing none,before we take up the matter concerning the motion to dismiss we will first receive all submitted documents for the-record. Is there a motion to accept for the record? Ms. Matsumoto: So moved. Mr. Blake: Second. Chair: Any discussion, all those in favor say aye,-those opposed, motion carried. On motion made by Camilla Matsumoto and gec6nded by Hartwell Blare, to reo-eive all submitted documents for the record, Motion carried unanimously by voice vote. Chair: The Director's motion to dismiss dated October 21, 2011 and appl'icant's opposition to Director's motion dated October 31, 2011, those were the two items that we asked to receive. We are on the motion at hand, with public testimony concluded, there being none, I now ask that each of the parties to this petition come forward, take a seat, and identify yourselves for the record please. Mr. Idn Jung: Deputy County Attorney Ian Jung on behalf of the Director, Mike Dahilig. Mr. Charlie Foster: Charlie Foster on behalf of the applicant, the Stiglers. Chair: We will now begin oral presentations concerning the motion to dismiss. I will allow each party 5 minutes to make your presentations with 3 minutes reserved for the rebuttal. Mr. Jung. Chair and members of the Commission the issue before this Commission is whether or not the applicant timely filed their appeal. As you probably read in our motion it is the department's position that they slid not. And in looking at the specific facts of this particular case and as you know there are three motions in front of you today. But with regard to the Stigler case the applicant's filed their application with the Planning Department on October 14, 2010 and then also filed a supplement on February 4, 2011. So the original submittal of the application its self was timely however on May 31, 2011, Deputy Director Dee Crowell issued a letter indicating that and I quote, "Since Planner Mike Laureta's phone call of 5/14/11, we have not received the necessary 75%property/CPR owner's authorization for the subject application." So the Planning Department notified them of the inadequacy of the application. On October 17th which is the day after one year period of application process closed for the Special Permit for TyRs,the Deputy Director in that case sent him a letter indicating that he did not meet the 75% authorization requirement. It is critical to know that department did not receive any appeal of the Deputy Director's letter dated August 17, 2011. That appeal should it be timely under what we submit as the 21 day time requirement would have been on September S, 2011. On September 14th the applicant then submitted what they called an appeal of the determination of incomplete application. In the applicant's opposition he argues that this Commission should do what is fair. Now I think this Commission should know that fairness works both ways, we have to balance these issues of fairness because on one side, procedural rules and deadlines allow for applicants to have their right to due process. But on the other side there needs to be a time when the Planning Commission Minutes November 8,2011 6 department or agency can have conclusion or finality to decisions so these decisions aren't potentially left open far challenge. Now with regards to these rules,we do have rules,which is this game of application and it is critical that these applicants conform to these rules in this game that we have to play. And that is how the fairness works is that both parties have to adhere to the rules. Failure to follow those rules has consequences. In other words if you don't file an appeal timely you lose your right to an appeal. Pursuant to your rules there is a 21 day period under Chapter 9,that 21 day period starts after the adverse decision. Now it is critical to note that this decision was on August 17th. The Mailing was on August 24th. Now although there is a week delay there the applicant still.has two weeks or 14 days to file his appeal within that time frame of when that 21 day clock ends on September 8, 2011. So we submit that the 21 day time limit is the date after the adverse decision because it is the date on that letter that is critical. In his brief the applicant states that it should be the date of when the decision is received by the applicant blit that is just not the case. In Chapter 9 our rules specifically say it is the date after the adverse decision. Now assuming arguendo, even if we were to look lit it should be the date of mailing of the actual decision,the rr i0ing was on August 24,2011 which he received it as he noted in his opposition on August 25th. If it was mailed on the 24th,that period ending would have been September 13th. But he still only filed his appeal on September 10. So lie is one day outside that 21 day period. And that is why it is critical in this case that we noted the Hui Kako case which we believe this Commission should follow the principles established in that case which failure to comply with the rules set forth and promulgated by a body such as this Planhini g Commission, that no right to contest the case will lie. It's like the statute of limitations where if you don't follow the required time period to apply or do something and you g6 outside that window of time then you are not entitled to get that due process right. So in this case the plaintiff clearly failed to timely submit its appeal. He failed to engage the administrative machinery that is in place td allow for an appeal such as this and therefore the appeal should be dismissed. Chair: Mr. Foster. Mr. Foster: Thank you. I would make one correction; the appeal was timely filed if counted from the August:24th mailing date. Now there are two issues here, one is...well let me start with the requirements of notice under due process. The NCU or nonconforming use is fundamentally different from other kinds of applications that you deal with in that a nonconforming use is a property right, it is a constitutional right. That is why the whole body of nonconforming use law exists. The requirements of due process therefore apply to nonconforming use. Due process under Federal and Hawaii State case law requires that notice not only inform the effected parties about an action to be taken,it also must inforrn them of procedures available for challenging that action. Now the notice sent out did not so inform the applicants. There is no language telling the applicant here is what you need to do to appeal and that is required under the law. Second is what date should that clock run for? Under the Planning Department's logic they could hang on to a decision,now this decision was made behind closed doors,the public didn't know about this, the applicants didn't know about this decision at the time it was made. The applicant doesn't know until they receive notice. Under the County's logic they could hang on to the decision for 21 days then let the applicant know aid then say well your time has run, you have no more time to appeal. Another problem with the County's position is that the amount of time they hang on to a decision before they inform an applicant leads to problems of arbitrary and capriciousness. If they gave somebody 21 days,they gave somebody else 15 days,they somebody else 2 days. They are treating applicants differently for the same issues and that is a problem. So the time should be counted from the August 20 or August 25th is when the applicant actually received notice and the time should run from that time. And furthermore the notice its self is insufficient Planning Commission Minutes November 8,2011 7 as a matter of law and so in actuality the applicant has not received sufficient legal notice to this date at all and that is my argument. Chair: Mr. Jung you have a few minutes to rebut. Mr. Jung: Just to counter the argument with regard to due process. I think what the County dick here is on ordinance 904 we specifically laid out everything that is required in the application,we identified what was required. We informed,in this particular case on May 31, 2011 we even sent a letter to the applicant saying hey look, you have to get your 75% authorization. So before the timeline of when the one year application period closed we took an opportunity to notify them that hey,this is required,your application is deficient. At no point did they come up and submit what was required. And second,with regard to due process, in the case that Mr. Foster cited on behalf of the applicant is the Brown case. In that particular case it was you are taking away, it was an impoundment of a boat and if you are taking away the boat from someone then the court said yes you have to give them adequate due process notice which includes the fight to challenge the appeal and how to challenge that appeal. But zoning is a little different where you voluntarily submit yourself to this process of applying for land and zoning entitlements. You subject yourselves to these rules. You must study up and learn the rules. If we were td notify everybody at every point at every decision we make that you have this opportunity, you have to do this,our letters would go from 1 page to about S to 7 pages. So as much as they have to come in and study and do their own homework on what the rules are they have to know these rules if they are going to engage in the game because they voluntarily submit themselves to the process versus an action where due process needs to be required in terms of how they need to give proper notice and how to challenge things, is if someone gets something taken away from them. And if they want-to challenge on a substantive due process grounds the right to their so called nonconforming use certificate they can challenge that substantively and say hey look, we don't even need a permit. And they can bring a DEC action or any type of other action in the courts and then we can deal with it on$ose grounds. But the 4pplication process to 4pply for a Special Permit was laid out in ordinance 904. They had notice in terms of why their specific application was deficient on May 31 2011* They still didn't get what was required. And following the decision of August 17 they didn't timely submit their appeal until September 14th And I did the calculations and I disagree with Mr. Foster's calculations. And we are not saying the Commission should do this because we hold to the position that it is the date after the adverse decision that should be followed. BuI even if you look to mailing under rule 3, service is complete upon mailing for all other documents for the Planning Commission but that is in the case of a contested case when you are filing other types of motions and whatnot, not specifically in terms of how you filing an appeals because rule 9 follows those specific requirements. But if you do that 21 days would lead you to September 13th'which is still one day out from whtrn that 21 day period would run. Chair: With the end of the argument of the motion I believe the Commission is ready to deliberate. Mr. Mauna Kea Trask: Thank you Chair, for the record Deputy County Attorney Mauna Kea Trask. The Commission must entertain either three actions in this case, one,to grant the Director's motion to dismiss the appeal,two,deny the Director's motion to dismiss, or three, take the arguments under advisement and defer the matter. Chair: With that in mind is there a motion for any of these actions? Do we need to repeat the choices again or are we ready to move on? Mr. Blake, Can we ask questions of the parties? Planning Commission Minutes November 8,2011 8 Mr. Trask: Yes. Mr. Blake: Mr. Foster, was the fact that the application was unacceptable a surprise? Mr. Foster: No ya we are getting into... Mr. Blake: Just yes or no, was it a surprise? Mr. Foster: Could you restate the question? Mr. Blake: Was the fact that the application was insufficient a surprise? Mr. Foster: No. But that is the merits of our appeal and we are trying to get to the merits of the appeal but my understanding is that the merits are outside of the scope of this motion. Mr. Blake: So you got a telephone call, you got a letter on the telephone call in May, and then you received another letter that said that your application had been denied. Is that correct? Mr. Foster: Yes, something like that. Mr. Blake: Now the law governing appeals is a matter of public of record isn't it? Mr. Foster: Yes. Mr. Blake: So everyone is presumed to know what they are supposed....know the law. Whether they do or not they are presumed to know the law. Mr. Foster: Sure'. Mr. Blake: So how is it then that the applicant is somehow being dealt with unfairly because the department could hang on to these letters until the last day and send the final confirmation out that the application has been denied? I wonder why, you get a letter in May, another, these are all documents, and then the appeal is, it is almost as if and I am not saying this is what happened but let's see how long we can stretch this out until we file an appeal. Mr. Foster: Well again we are getting into the merits. The merits of our appeal aren't okay now let us come forward with the correct number of signoffs,the merits of our appeal is that is not a proper requirement. That would be the merits of our appeal. We are not trying,to stretch anything out. We are not trying to say give us more time to get the correct number of neighbors. We are saying, we are arguing essentially that that is an improperly promulgated rule. That would be the merits. Now we are not at the merits yet of our argument and we are trying to get there. Mr. Blake: You don't get to the merits of the argument unless you are procedurally on all s fours is what is supposed to be happening. Mr. Foster: Well I think under due process all applicants would have 21 days from notice to respond. Chair: Excuse me Commissioner Blake, maybe we can get back to you. Ms. Matsumoto: I have a question to the County. I took down some of the dates you mentioned when you started. Given all of the dates you ended saying no matter what they were a day late. Mr. Jung_ That is correct and we are holding to the position that it is the date after the decision of the Planning Director in this case the Deputy Director because that is the form date that is on the specific letter. If you use the date when it's mailed or if you use the date that it is received there is still a question unless it is certified and in this case it was certified, there is still a question of when it would be done. So the date should be on the date of the decision. Now Planning Commission Minutes November 8,2011 9 with regard to the mailing issue we don't concede but for arguments sake even if it was on that day we'calculate it from August 24th, the 21 day period would lapse on the l3 th so it is still outside that September,the September 14th filing is still outside. Mr. Kimura: Mr. Foster, why didn't you respond on the phone call from Mr. Laureta or the letter from Deputy Director Dee back in May? Mr. Foster: Well the question is... Mr. Kimura: No, why didn't you respond? Mr. Foster: We responded,we talked to the County. The question is...if we didn't have the correct number of neighbors to signoff then we are appealing based on that requirement. Mr. Kimura: So why didn't you appeal right then and there? Mr. Foster: Because there was no decision to appeal yet. Mr. Kimura: It says you need 75%. Mr. Foster: There is nothing to appeal until we received notice that our application was deemed incomplete. Mr. Kimura: But you still should have, well it says here that you were notified on August 17th with a letter, right,well you were notified back in May saying that your application was incomplete. Mr. Foster: Well in May, yes, all through the whole process there were times when we were told we are looking for this or we are looking for that. Arid yes, we were told we are still looking for the signoff. But there is nothing to appeal then,there is no official action to appeal at that time. Mr. Kimura: Without the 75%you knew your application was still incomplete. Mr. Foster: Yes, we knew that under the requirements that the Director was promulgating that our application would be deemed incomplete. We disagree with the requirements of the Director but we can't appeal that until... Mr. Kimura: Whether you disagree or not it is the criteria that they ask, that you need 75% whether you agree with it or not. Mr. Foster: Right. Mr. Kimura: So what is the problem? Mr. Foster: Wklat is the question? Mr. Kimura: The question is you know that the 75%is one of the criteria. Mr. Foster: Right. Mr. Kimura: And you didn't comply with the 75%. Mr. Foster: Right. Mr. Kimura: Are you trying to say that the County was wrong to ask for 75%? Mr. Foster: Well that would be the merits of our appeal and that is exactly what we will be arguing in''the appeal. Planning Commission Minutes November 8,2011 10 Mr, Kimura: But everyone had to come up with the 75%. Mr. Foster: I understand but it would be improper for you to make your decision on this motion based on what you think of as the merits of the appeal. We haven't argued the merits yet. Mr. Trask: If I may,just for clarification Commissioner Kimura. You are asking or you are discussing the 75% issue in regards to this case because of the due process notice requirements, right, not actually the merits of the 75%. Mr. Kimura: No,just for that. Mr. Blake: You are also aware then Mr. Foster,that service upon the parties other than the Commission shall be regarded as complete upon mailing and you don't like that either section 1-3-3, rule 302. Mr. Foster: Service may be complete but that is when notice, when a party receives notice it is- Mr. . Mr. Blake: It doesn't say received it says shall be regarded as complete upon mailing. Mr. Foster: One moment. In any case when a person receives notice is when that clock should fairly begin to run. Mr. Blake: That is your legal opinion. Mr. Foster: Yes. Mr. Blake_ It does not comport with What the rule states. Mr. Foster: Tell me which rule that is. Mr. Blake. 1-3-3.e of rule 302 from the Rules of Practice and Procedure of the Planning Commission. Mr. Foster: I am counting on my calendar, one moment. 21 days from August 24t1h, not counting the first day is the 14th of September, the day that we filed. So we filed on 21 days from the day that it was mailed. Mr. Blake: So when did you start your count? Mr. Foster: We start the count on the 25th, the day after; you start the count the day after. You don't count both days on both ends. You have an action and then you count, next day on and on. Mr. Junk: Commissioners if I could respond I think you have to count that 20 day and assuming arguendo because we still believe the day of the decision is the date the clock should start from. But assuming arguendo if you look at when service is complete upon mailing it is still that day of when it was mailed, the 24th,that is the day you start counting from. I have practiced with this circuit here and you have the date of the pleading and when it is file stamped, that is the day you start your cale.'s from, it is not when you receive the certificate of service if you receive it two days later. Mr. Foster: That is not what I am aiguing if I may. Mr. Trask: The Commissioners are asking questions. I don't think it is needed that the parties argue with each other. Mr. Kimura: Mr. Foster, do you have the letter in front of you mailed out on May 31 st? Planning Commission)Minutes November 8,2011 11 Mr. Foster: I don't. Mr. Kimura: You don't. Mr. Foster: I don't have it in frpnt of me. In fact I probably do have it. Mr. Kimura: Over here it says the applicant; well they sent it out on May 31","We have not received the necessary 75% (inaudible)". According to the department this is all they were waiting for from you to proceed with your TVR to get your use permit and this is back in May. Why did you wait so long? Why didn't you just comply with it? Mr. Foster. Why didn't we comply with it? Well again as I say in the merits of our appeal we are arguing that that requirement is improper. That is our argument about not complying with it but that is the merits. Why we waited... Mr. Kimura: I£it is so important to you... Mr. Foster: Pardon me? Mr. Kimura: If this TVR is so important to you and your client why not just do what the department asked, that criteria? Mr. Foster: Again, our argument is that criteria is an improper criteria. Mr. Kimura: Is it because you could not get the 75%? Mr. Foster:. That is very possibly so and what we are arguing is it is an improper requirement but that is the merits of the appeal. Mr. Kimura: So did you try to get the 75%? Mr. Foster: But that is the merits of the appeal. Mr. Kimura: So that is what I am asking you, did you try and get the 75%? Mr. Foster. Yes,we tried to get the 75%. Mr. Kimura: Did you get the 75%? Mr. Foster. We did not but you are arguing the merits here. Mr. Trask: At this time we should not proceed any further with the merits issue. Chair: Commissioner Matsumoto. Ms. Matsumoto: I did have a question about and I think you answered it about When you start your clock and when you end it. Mr. Foster: Yes and may I address that pne more time? When you file something in court and then you count to the next deadline you don't count the day you file something you start the next day. I filed it Tuesday and then I start, Wednesday, Thursday, Friday, Saturday, Sunday,Monday, that is how you count and so that is how we counted from when the notice was put in the mail then we say starting the next day as 1, 2, 3,, 4 up to 21 days. Mr. Trask: I think Commissioner Matsumoto what may be helpful is actually looking at the actual rule that governs computation of time before the Planning Commission and that is rule 1-2-23, Computation of Time. And it says "In computing any period of time under the rules herein," which again we are looking at 1-9-2, Submission Appeals so this would apply, "by notice or any order or regulation of the Commission the time begins with the day following the Planning Commission Minutes November 8,2011 12 act, event or default, and includes the last day of the period." So irrespective of what goes on in any other form before the Planning Commission you figure out what is the day of the act or decision and then you begin it the day after. So that might help the discussion. Mr. Foster: And that is how we counted was in accordance to that rule, we started the day after. Mr. Jung: If I could just respond. We still hold that the date of the adverse decision is the date of when that clock starts. It's the date of the letter. And even if there it was mailed out including the weekends on a Tuesday when it was supposed to be mailed out on a Thursday or something like that it is harmless error because they still had two weeks to prepare their appeal. Other attorneys have prepared appeals and submitted the appeal and then supplemented their appeal. So they can still submit an appeal within that 21 day period and then supplement their appeal. In this case they did not. Chair: I have a question of the County Attorney in regards to...what is your opinion on this subject? Mr. Trask: In looking at rule 9-2 which I believe is the substance of the argument, it states "The appeal shall be submitted to the Planning Commission and shall be filed within 21 days for appeals as provided in the Comprehensive Zoning Ordinance and 15 days for appeals is provided for in the Subdivision Ordinance after the adverse decision." Now on this case we are dealing with,both parties agtee, a Comprehensive Zoning Ordinance. I don't think that is at issue so it is the 21 days. Really it all depends on what the rule says regarding the start date and according to the rule and I don't know if any of the parties have an opinion as to what the rule actually says but it says "After the adverse decision."And in computation of time the time begins with the day following the act, event, or default and includes the last day. So given that the rule plainly says after the adverse decision, not receipt of the adverse decision or notice of the adverse decision it would appear that according to the rules it would begin, you figure out what date the adverse decision was and begin with the following day and then count 21 days out. That is what it appears the rule says. And also too regarding another issue that came up the hypothetical posed by the appellant or the respondent in this case, under 1- 3-2.d, extension of time, "A party may request an extension of time for good cause before the expiration of the prescribed period," and they may do it by stipulation, the Director may do it through (inaudible). And they also may be able to move for an extension of time to file something after the expiration'of the specified period where the failure to act is clearly shown to be the result of excusable neglect. So just to deal with that hypothetical if the Planning Department were to hold on to an appeal for say a month or two months and an applicant would only get that after the appellant date, through no fault of their own, I think it would be appropriate at that time to move for an extension of time. I don't see why hypothetically it wouldn't be granted. It is just another provision in the rules that would act as,a pressure value. Mr. Blake: To me the purpose of this whole exercise is to be fair. And sometimes fairness comes down... Mr. Trask: I'm sorry Commissioner, I think at this time if there are no more questions to be posed to the parties, maybe we can move, have some kind of motion and then discussion after that. Mr. Blake: I move to deny. Mr. Kimura: Second. Chair_ Any discussion on the motion to deny? Mr. Jung: Just for clarification is it move to deny the County's motion? Planning Commission Minutes November 8,2011 13 Chair: To dismiss the County's motion or deny? Dismiss, right? Mr. Blake: To accept the recommendation of the Director and deny the motion to appeal. Mr. Trask: I think it is to grant the Director's motion to dismiss, deny the Director's motion to dismiss, or take the arguments under advisement and defer. Mr. Blake: What is the wording again? Mr. Trask: The motion before is a motion to dismiss and so it would either be grant the Director's motion to dismiss which would dismiss this case, the affect would be untimely appeal filing. You could deny the Director's motion to dismiss in which case Mr. Foster would win, or you could defer. Mr. Blake: Or you can defer for more... Mr. Trask: You can defer the matter, take the matter under advisement and defer it so you can discuss it later in exec. session or whatever you think. Mr. Blake: So I move to grant the Director's recommendation to deny. Mr. Kimura: Second. Mr. Blake. I have a question in reg"Cirds to that motion. Is it dismiss or deny, is that important that we discuss the language? Mr: Trask: The Director's motion is to dismiss. I believe that is the title of it so maybe the motion should be grant the Interim Director Michael A. Dahilig's motion to dismiss James Stigler and Lisle Stigler's appeal of determination of incomplete application to the Planning Commission. Mr. Blake: I move to grant Director Michael A. Dahilig's motion to dismiss James Stigler and Lisle Stigler's appeal of determination of incomplete application to the Planning Commission. Mr. Kimura: Second. Chair: Any discussion on the motion? Mr. Blake: All I was going to say was the purpose of this whole exercise is to be fair and listening to the reasons for dismissing the matter or accepting the appeal, to me,the applicants have not been dealt with unfairly. The Rules for Practice and Procedure before the Planning Commission contain all kinds of ways that you can save yourself from the chopping block, the axe falling on a certain day because you just haven't had time or you are not ready or whatever. Given that the decision was to forego those avenues then it rises and falls on what is before us and in my opinion it is not an unfair result regardless of who avails. Chair: Any further discussion? If not may I have a roll call vote please. On motion made by Hartwell Blake and seconded by Jan Kimura, to grant Director Michael A. Dahilig's motion to dismiss James and Lisle Stigler's appeal, motion carried by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting Vacant -1 Planning Commission Minutes November 8,2011 14 Commission recessed at 10:00 a.m. Meeting called back to order at 10:10 a.m. In the Matter of Petition to Appeal Decision of the Planning Director(Tax Map Key: 4( - 4-9-014:020 (2),Robert Davidson and Julie Valentine. a. Michael A. Dahilig's Motion to Dismiss Robert Davidson and Julie Valentine's Appeal of Determination of Incomplete Applicatgh to the Planning Commission. b. Applicants' Opposition to Michael A Dahilig's Motion to Dismiss Robert Davidson and Julie Valentine's Appeal of Determination of Incomplete Application to the Planning Commission. Chair: We are on the matter listed on the agenda as item A.3. The Director has filed a motion to dismiss Robert Davidson and Julie Valentine's appeal of his determination pursuant to sectioq 1-6-16 of the Rules of Practice and Procedure of the Kauai Planning Commission. Public testimony pursuant to HRS Chapter 92 and will now be concerning this agenda item. The parties will be allotted time as in the previous case to discuss their positions before the Commission later. At this time is there anyone in the public wishing to testify on this agenda item please raise your hand? Seeing none, before we take up the motion concerning td dismiss we will first recei-'ed all submitted item documents for the record and the items are the Director's motion to dismiss dated October 21, 2011 and the applicant's opposition to the D'irector's motion dated October 31, 2011. Is there a motion to accept for the record these two items? Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to receive all submitted documents for the record, motion carried unanimously by void vote. Chair: We are on the motion at hand, we have not received any public testimony, I know ask that ear.h of the parties to the petition(inaudible). We will begin the oral presentations concerning the motion to dismiss and again I will allow each party five minutes to make their presentation with three minutes reserved only for the rebuttal. Mr. Jung: Morning again Chair and members of the Commission, Deputy County Attorney Ian Jung with Mike Dahilig, Planning Director. The arguments are essentially the same in this case as they were in the prior case. I will incorporate by reference my arguments in the previous case. And just for the record I think the department will prepare the letter granting the County's motion to dismiss with regard to the Stigler appeal. With regard to this particular case the facts are a little different, in this case the applicant did apply for the Special Permit on the last day, August 16th, and in this case the reason for the denial was that they didn't provide any evidence of operation prior to March 7, 2008. But again I will incorporate by reference my arguments because they are exactly the same. Mr. Foster: Thank you and I too will incorporate my previous remarks in the Stigler case. I will reiterate my argument regarding the sufficiency of this notice. A nonconforming use is a property right, therefore the requirements of procedural due process in a way that it doesn't apply in lots of other kinds of matters that you hear. And again the requirements of procedural due process are that a notice of an action contain not just the action that is detrimental to the person but also how that person can appeal that action and the notice here did not give that information that is required under the law. The State case in my brief that supports that, Counsel said it's about a boat being a piece or property. There are a slew of cases, Federal and State, regarding Procedural due process and Planning Commission Minutes November 8,2011 15 what is the same in this case and the boat case is in both cases we are talking about a property interest and that is the key element to both cases and the key to this question. Counsel had also said the applicants here voluntarily subject themselves but in a nonconforming use case that is not true. In a nonconforming use case the law has been changed and the applicant really has no choice but to come to the County and say you have outlined my legal use, now I am going through this process so that I may maintain my constitutionally guaranteed legal use. Provided that it is legal and that is what the argument is bf course becomes in this body. Outside of that I will just re-incorporate what was argued before and close my remarks. Mr. Jun&: Just a quick brief reply to that. 904 allowed for a process for people to apply for entitlements. It is still a voluntary process. Whether or not they want to or not is entirely up to them. The nonconforming aspect of 904 was that because these are outside of VDA, so ordinance 904 said they are outside the VDA, they still have to come in fdr the Special Permit. So that is where the distinction here is it is not quite a property interest until they get that entitlement which is the permit. So the ploperty interest is if they subject themselves to the process but it does not affirmatively grant a property right until they get that permit. If they want to challenge that otherwise, they want to challenge 904,that is up to them but this isn't the forum to do that. Chair: Prior to deliberation like we did the last case does any Commissioner have any questions of the attorneys? Mr. Blake: So Mr. Foster you;are stating that because...I'm sorry that is the merits of the case. Chair: There being none... Mr. Blake: I reiterate whatever I asked before about time and practice and procedure before the Planning Commission? Chair: Is the Commission ready to deliberate? Again, Mr. Trask, could you read the three choices or actions that we are looking at? Mr. Trask: The Commission must entertain either one of three actions, one, to grant the Director's motion to dismiss the appeal, two, deny Director's motion to dismiss, or three, take the arguments under advisement and defer the matter. Chair: I await your proposed motion. Mr. Blake: And you are arguing that this case shouldn't even be here? The timeliness doesn't apply at all; the timeliness of the appeal doesn't apply at all? Mr. Foster: The argument would be the same that the appeal time should run from the date of notice. There is nothing letter, the letter doesn't say on x date such an action was taken. The letter is dated but the County hung onto the letter for a week and then sent it. The law gives 21 days for a person to appeal and effectively this applicant has been given 14 days. Mr. Blake: So they hung onto their Appeal for 14 days. The applicant hung onto their... Mr. Foster: Well the applicant took 14 days to prepare the appeal, we wrote an appeal, we wrote arguments, we did research,we prepared a brief. Mr. Blake_ They didn't feel they should ask for an extension? Mr. Foster: Our assumption was that the time would run from notice because that is what comports with due process and this is very definitely a due process case. Ms. Matsumoto: So when you received the notice did you call the Planning Department at all to ask any questions or to... Planning Commission l(finutes November 8,2011 16 Mr. Foster: When we received the notice it came certified mail, very important, there was a date. Our office calendared the date of receipt and we looked up the Iaw, 21 days to answer and that was what we worked from. Mr. Jung. If I could briefly respond, I think Commissioner Matsumoto brings up a very interesting point is the letter did indicate that should you have any questions please contact the Planning Department. So I think it is an invitation for further information if you are looking at what is required in the notice. So the number was there, whether or not they called, I don't know, but there was an invitation for more information should they wanted. Chair: Anyone from the Planning Department can respond to that? Did anyone call the Planning Department? r our office, {Ne did not call and ask about which date Mr. Foster: I can answer that fa should be count from. Chair: We are back to the motion. Mr. Kimura: I make a motion to grant the Director's motion to dismiss the appeal. Mr. Blake: Second. Chair: Any discussion on the motion to grant the Director's motion to dismiss the appeal? If not could we have roll call please. On motion made by Jan Kimura and speonded by Hartwell Blake, to grant Director Michael A. Dahilig's motion to dismiss Robert Davidson and Julie Valentine's appeal, motion carried by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: Mono -0 Absent: Raco, Katayama -2 Not Voting: Vacant -I In the Matter of Petition to A eal Decision of Planning Director Tax MqY Key: 4 -4-5- 2:004: 064: 0003 Lee Unkrich and Laura Century Family Trust. a. Michael A. Dahili 's Motion to Dismiss Lee Unkrich and Laura Century Trust's Appeal of Detennination of Incomplete Application to the Planning Commission b. Applicant's Opposition to Michael A. Dahili 's Motion to Dismiss Lee Unkrich and Laura CenturTrust's Appeal of Determination of Incomplete Application to the Planning Commission. Chair: We are now on the item listed as A.3 on our agenda. The Director has filed a motion to dismiss Lee Unkrich and Laura Century Fdmily Trust's appeal of his determination pursuant to section 1-6-16 of the Rules of Practice and Procedures of the Kauai Planning Commission. Public testimony pursuant to HRS Chapter 92 will be concerning this agenda item. Again parties will be allotted time to discuss their positions before the Planning Commission. Again before we take up the matter concerning the motion to dismiss we will first received all submitted documents and these include No. 1, the Director's Motion to Dismiss dated October 21, 2011 and No. 2;the Applicant's Opposition to Director's Motion dated October 31, 2011. Chair: Is there a motion? Ms. Matsumoto: I would like to make a motion but I have a question before I do that. On the original here, on the right side I see the Stigler's name so I was wondering is that just...what can we do about that? Planning Commission Minutes November 8,2011 17 Mr. Trask: If given an opportunity maybe the respondent will move to amend just to reflect that the documentation matches. Mr. Foster: I see that error and I do so move to amend. Chair: So with that in mind we have a motion to amend. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Charlie Foster and seconded by Camilla Matsumoto, to amend original document, motion carried unanimously by voice vote. Mr. Trask:. So then just for the record the respondent's opposition wilt read...ask if there is any public testimony. Chair: Before we move any further is there any public testimony in regards to this proposed'amendment? Seeing none... Mr. Trask: For the record, again,the caption,the right side of that caption will read, "Applicant's opposition to the Interim Director Michael A. Dahilig's Motion to Dismiss Lee Unkrich and Laura Century Family Trust's Appeal of Determination of Incomplete Application to the Planning Commission." Chair: We are back to the main motion to accept the two reports. Ms. Matsumoto: So moved. Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blaki, to receive all submitted documents for the record, motion carried unanimously by voice vote. Chair: Mr. Jung. Mr.114n& Again Chair, members of the Planning Commission, Deputy County Attorney Ian Jung here with Mike Dahilig,Planning Director. Again we will incorporate by reference our arguments from the previous cases and specifically with regard to the fact pattern in this case with regard to this applicant they did also apply on the last day but the issue with the denial was the 75% authorization requirement. Mr. Foster: Thank you, Charlie Foster for the applicants and we would incorporate our previous two arguments here as well. Chair: Do you want to rebut? Mr.jjlpg No further reply. Chair: Again with the epd of these arguments of the motion I believe the Commission is ready to deliberate. Mr. Trask would you again read the choices that we are looking at? Mr. Trask: Thank you Chair, again for the record, Deg uty County Attorney Mauna Kea Trask on behalf of the Planning Commission. The Commission must entertain either one of three actions in this case, one,to grant the Director's motion to dismiss the appeal,tiro, deny D'irector's motion to dismiss, or three, take the arguments under advisement and defer the matter. Planning Commission Minutes November 8,2011 18 Chair: Again before we entertain&motion do we have any questions of the two attorneys, the appellant and the County Attorney? Mr. Blake: All I want to say that I reiterate my questions and answers. Chair: So with that in mind, again, we would like to entertain a motion,what is the pleasure of this Commission? Ms. Matsumoto: Move to grant Interim Director Michael Dahilig's motion to dismiss this application or this appeal. Mr. Kimura: Second. Chair: Any discussion on the motion, seeing none, roll call please. On motion made by Camilla Matsumoto and seconded by Jan KimtYra, to grant Director Michael A. Dahilig's motion to dismiss Lee Unkrich and Laura Century Trust's appeal, motion carried by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Race, Katayama -2 Not Voting: Vacant -1 Commission recessed at 10:29 a.m. Meeting called back to order at 10:42 a.m. COMMUNICATION (NONE) SUDD+IVSION (NONE) i UNFINISHED BUSINESS Special Permit SP-2011-11 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Moloa`a, Kauai, Nprox. 650 ft. south of the northern terminus of Moloa`a Road. further identified as Tax Map Key 4-9-14:10, and containing an area of.2984 acres =Paul& Cheri Gienaer acid Arthur_& Keri Koebel. (Hearings Officer Special Meeting Public Hearing closed 1.0/19/11, refer to 10/19/11 Minutes] Supplemental No, 1 Director's Report pertaining to this matter. Staff Planner Mike Laureta: I will just highlight the information on the application. This is a parcel of record which is not a CPR, owned by the applicants. The hearing date, October 19, 2011, hearing was opened and closed, there were no requests for intervention. There was no public comment. Agricultural activity,the applicant has 10 banana, 3 papaya, 10 coconut, and 20 other various fruit and flower trees planted however they are willing to supplement this with additional plantings based on an agricultural master plan that they will develop. There were no zoning or use violations based on the department's site, inspection. I will go into the discussion on page 3 on the public hearing, no public testimony from surrounding neighborhood. Additional comments were received from Department of Public Works Engineering and I passed those out this morning. The applicant is willing to develop an agricultural master plan and there being no further discussion the hearings officer closed the public hearing. The balance of this report is consistent with what you have seen to date which is 4 applications so far, 3 if them in Moloa`a. I will go to page 5, TVR applications in Moloa`a, as of August 16, there are a total of 13 applications for TVRs in Moloa`a on State Land Use Planning Commission Minutes November 8,2011 19 Agricultural Lands, County zoned Open out of approximately 81 applications. The period in which to submit such applications sunset on August 16, 3 TVR applications in Moloa`a have already been approved by the Planning Commission, Houston, SummE,rs, and Sparks. What follows in the evaluation is consistent with the information provided for the other 4 and it is very specific to this application. Chair, do you want me to go to the conclusions and hold off on the recommendation? Chair: Yes. Staff. Based on the foregoing findings and evaluation it is concluded that the transient vacation rental use can comply with"the requirements for the issuance of a Special Permit. Such an approval should be with the imposition of conditions of approval to address the use and mitigate potential and/or anticipated impacts to the neighborhood. Since adverse public comment from the surrounding neighborhood was not received during the public hearing portion of this request the approval of this Special Permit should be for a limited 1 year period in order to better gauge this and other TVR proposals in the neighborhood. This use needs to be strictly managed in order to prevent an animal house type impact to the neighborhood from occurring. It is finally concluded that even though the department has strong reservations about TVR uses outside the Visitor Destination Area, especially within the State Land Use District Ag. District, the law must be paramount. Our recommendations were contemplated under the confines of the law including Federal constitutional considerations concerning property rights and takings,the County's ordinance No. 904, and recommendations of the General Plan and Chapter 13 of the Planning Commission's Rules of Practice. Chair: Thank you Mr. Laureta any questions for the planner? Mr. Blake: In the area that is impacted by this application there is 81 still pending? Staff. No, 81 applied, 13 are in Moloa`a. We have 3 approved, we have a couple today, so the window is dosed, nobody can apply for any of these things anymore. So out of the 81, 13 were in Moloa`a. Mr. Dahilig: And just to also add to that the 81 also includes the 3 that were denied by procedural reasons today. Mr. Blake, But the 3 are in Moloa`a so there are 10 more that we are going to have to decide on in Moloa`a. Staff: Less than 10. That number doesn't include the ones that withdrew or failed to meet the application requirements so I am just giving you totals. Mr. Blake: Today,potentially, how many pending applications are there? Staff. In Moloa`a or overall? Mr. Blake: In Moloa`a. Staff. I'd say approximately 8 to 10. Mr. Blake: And that is down in the valley,right? Staff. Yes. Mr. Blake: And how many other, if you know, other private residences exist in this neighborhood? Chair: That are not TVRs? Planning Commission Minutes November 8,2011 20 Mr. Blake: That are not TVRs, right. Staff: I'm not going to try and guess. There are a lot that did not apply but as we go forward with these applications you will notice that there were three districts heavily impacted by these applications. Mr. Blake: And these here were previously operating and met all the other requirements of operation prior to the imposition of this statute? Staff. They were in operation prior to March 7, 2008 and they provided the financial documentation required by ordinance 904. Mr. Blake: So the question is whether we are going to continue the uses. Staff: Continue what? Mr. Blake: The question is whether we are going to continue the previously established use. Staff: To a certain extent yes but now the continuation of this use will have performance conditions and these performance conditions are quite stringent. The conditions of approval Are quite stringent. The County has never faced a project such as this, to grandfather such�large number and throw it at the Planning Commission. And then now that the Commission has to or the department has to renew these permits every year, the approval of the conditions means that any impacts that were generated in a community up to the Commission reviewing and approving this it is going to be really strict. The conditions have to be recorded at the Bureau of Conveyances, you can't have noise past a certain hour,all parking has to occur on your property, even if you have a gate you have to provide access to Fire.Department through this unique system that they now have if you have gates. If there are any complaints in the neighborhood based on the operation after approval and somebody complains to us we can bring it right back to the Commission and we can move for termination of the permit at the worst case. We have to find out basically what is driving the complaint and what happened. That has already occurred. So management of these things are going to be...there is no management now, pure and simple there is no management, there are no conditions of approval. These guys are running willy nilly parking all over the plane. Now we are going to bring some order to this thing. Mr. Blake: And to date there have been no complaints on this particular TVR. Staff. That is correct. However I will let you know that based on one of the projects that the Commission had approved we did get a complaint with these conditions of approval and all it took was one call to say look, if you don't get a handle on this it has to go back to the Commission and we are going to revoke. Not too good you have your permit revoked after it got approved a couple months age. So management of these things is going to be very interesting. Ms. Matsumoto: I like your questioning about the area because if you look at tl-is map that is in the report in my opinion there aren't a lot of prope4ies and in proportion to that there are vacation rentals there. I like what I am hear' g about the stringent management of the projects because we want to preserve the communities and people's right to live peacefully in their own homes. Mr. Blake: That was my concern and that why I think it is important for the residents, the permanent residents to make their feelings felt if they have any feelings about it. Mr. Kimura: Mr. Laureta, I just want your opinion on this. Do you think will all these TVRs in Moloa`a,because it is such a confined area and it is basically a one vehicle access road...it is not wide enough for two cars to go past each other, right? If there is a natural disaster down there will that be putting our first responders at risk? Planning Commission Minutes November 8,2011 21 Staff: That is like a two-parter. One of the requirements of Fire Department was that, one of the conditions of approval in here now is that you have that natural hazard's sheet in the structure behind the main door to tell them what to do and what to expect and what you are supposed to do. Up to this point they had a notification sheet, it wasn't really detailed, it is going to be a lot more detailed. Now in the event of natural disasters evacuation is first and foremost, that is going to very interesting to see how that works. This is a confined neighborhood but the other neighborhoods that you are going to see these large numbers, information is most important and that is the most you can do is provide these people with information as to what you are supposed to do in the event of when the siren goes off. Mr. Kimura: Do you feel that we should put our first responders at risk? I mean it doesn't necessarily have to be a natural disaster but just a disaster it's self Staff: I don't believe they will be at risk based on these conditions but to get a handle, only because 904 now exists, we have to deal with grandfathering. And I think in answer to Mr. Blake's question the number came out to like out of the 81 total applications 57, 58 made it through. You have seen 4 plus these 6 today, that is 10, you will see another 6 on the 181' and 19 on the 29th. So they are coming now. We have a big number to deal with based on the 210 day. With the imposition of these conditions of approval I don't think we are putting our first responders at risk because now these TVRs have to maintain their access, all the parking has to be on their property. First responders will have access to gated residences and they will have a better information sheet for natural disasters within the structure. So that is the start point. Now within one year after we approve they are going to come back for a renewal and maybe every year after that. We are going to find out if the department is properly managing this thing and we anticipated the issues correctly and we are going to find out if the owners of these TVRs manage their property ap' propriately and complied with the conditions of approval because the proof is going to be complaints in the neighborhood. Mr. Kimura: You stated there were how much applications in the Moloa`a area? Staff: 13 total. That doesn't mean we have 13 in motion, there were a little bit less than that made it through that are in motion. Mr. Kimura: Meaning what, 9? Staff. 8, 9, 10. Mr. Kimura: And you figure,just do the math, you have say 4 people per house,per TVR, and there is a natural disaster or some kind of disaster and you times that by 8 and you have the Fire Department coming in and you have EMS coming in, Police Department coming in. As a visitor how often do they read that and know exactly what to do? Staff: You are throwing hypothetical at me. Mr. Kimura: I don't want to put the first responders at risk that is all 14m saying. That is the bottom line. They risk their lives every day let alone to come in to risk their lives 4gam because the vacation renters don't know exactly what to do in a natural disaster. Even though they have the form or the notification in the premises they still panic, everybody panics, it's human nature and to put the first responders at risk, I am a little conceriled about that. Staff: Like I said I O.on't believe the first responders will be at risk as we manage these things. And we are going to find out within the 1 year period when they renew if problems existed. That is the best we can do. We have anticipated a lot of scenarios which is why these conditions are as numerous and specific as they are. I have heard these applicants complain mightily about how many conditions there are. I and go well, it's an entitlement. Now you are going to have to prove if you can live up to these things or not. But for the first responders,the Police, the firemen, we have addressed their concerns. Planning Commission Minutes November 8,2411 22 Mr. Kimura: That is my concern because;it is such a confined area and you hpve so many of them in such a confined area that I am really concerned about that if someth'4g happens. You have 30 people with 30 different cars trying to get out of there at once and you have first responders coming in,you never can tell and that bothers me or that concerns me. Chair: Thank you, I would like to call on the 1pplicant's representative to come forward please. Mr. Jonathan Chun: Good morning,Jonathan Chun for the applicant. Thank you for this time. We have read through the report provided by the department and the comments so we are open to answering questions you may have. We do agree with the report and recommendations. If you have questions op the first responders I think that is a legitimate concern but I just wanted to point out that as we all know from past experience during this local tsunami warning that we had it was not the visitors that were not evacuating properly but it was a lot of locals the ones standing out by the water taking pictures and actually going surfing. So I don't believe, I think it is a legitimate question but I think usually it is the visitors that really go out and try to evacuate as quickly as they can. Unfortunately sometimes it is the local residents are the ones that want to take pictures and stay out and try to surf out in a tsunami zone. But as an observation I don't believe...I agree with the department, I don't believe there will be any danger to the first responders. Normally the visitors are the very first ones to respond and to evacuate when they hear the sirens. The owners and also Kauai Visitor's Bureau have done an excellent job of informing everyone in terms of especially tsunami warnings what needs to be done. The only other comment I would like to make also on that, I thilak there was a question by Commissioner Blake which was a good question in terms of how many homes are out there. I don't know for sure how many homes are there that are not TVRs but I do know that there is approximately 50 units,not units but separate parcels within that area including the coastal ones also and going further back on the road up into the volley. There are about 50,!maybe a little bit more than 50 parcels out them. Some of those parcels also have been CPR'd so I would estimate at, a conservative estimate in terms of how many houses are out there,maybe 70. Because I know there is at last 4 or 5 parcels that I know of that have been CPR'd so Nyhen you look at 50 units each unit is entitled to at least 1 house plus whatever their CPR. You are lootipg at about maybe 70 houses all together there. The other problem, it's hard because some of those larger Ag.parcels in the valley close to the river,you can't really see them from the road. And that is the other thing, it is really difficult to get a number unless you can actually take an aerial view and count one by one the number of houses there. But just to give you a snap shot I think it is about 70 maybe. Mr. Dahilia: Just for additional 'information,because we are going to have more Moloa`a TVR applications coming through I did talk with Lea in the office who is our GIS specialist and she is going to be trying to (inaudible)and see what we can come up with. I do have the maps here that do show what has been permitted in terms of zoning permits but this has to be reconciled by (inaudible) but I do have the information here. Mr. Blake: In response to Mr. Kimura's concerns,I don't know if we are ready to make it a requirement yet but perhaps when someone applies for a vacation at one of these TVRs that warning thing should be part of the application that they read and sign,just a thought. Mr. Dahilig: So your suggestion would be to have the compulsory safety for you;and neighbors I guess notification as included as part of the rental agreements that they...would the applicant be adverse to a condition like that? Mr. Chun: I wouldn't be adverse to that. I would only state that probably...I think the concern raised by Commissioner Kimura probably is more important in regards to tsunami areas. Planning Commission Minutes November 8,2011 23 And so I think maybe for those TVR within the tsunami area maybe something specific should be written. Mr. Kimura: Not necessarily just fo tsunami areas. I am talking about just natural disasters, somebody light a fire burning rubbish and the whole place engulfs in flames. I am just saying that you have so much renters in one particular area, it is so confined and the road is so narrow,will that affect or put in danger our first responders. That is my main 6oncern because you have so much visitors there,that is my concern. I am not saying it is good or bad I am concerned about them. Their safety should be number one in this. I am talking about the renters and the first responders. Ms. Matsumoto: It's more of a comment, I think that it is not...the emergency considerations are really important,that is number one. Also though I think that you want to build awareness in the visitors that they are staying in a place that happens to be also a place where other people live. And so to remind them not just about the emergency but to be respectful of where they are I think is important. That is what I see when people come and use a place that is not really their home they tend to forget about that because their perspective is different. So in any kind of advertising or information that they have available in the house about safety and cleanliness or all the house rules and all that just to add that kind of information to say,yes I understand that. People tend to forget. Mr.lg= Just so the Commissioners are aware it is a requirement that it be posted but I think you want to take that one extra step of making them aware of it through either an application process or some kind of verification. 1 Ms. Mgtsumoto: Just so they understand. Come and have a good time but just understand that other people live here and want to have good lives here too. Chair: Any other questions of the applicant? If not;thank you Mr. Chun. We already closed the public hearing but I would like to just ask the public anyway if anyone wishes to comment, give you an opportunity to comment on this application. Seeing none, Mr. Laureta could you give us your recommended action. Staff: Based on the foregoing evaluation and conclusion is recommended that Special Permit SP-2011-11 to Paul and Cheri Gienger and Arthur and Teri Koebel be approved subject to the following conditions. Do you want me to read all the conditions or... Chair: It is up to the Commissioners,fellow Commissioners do we need tc review...unless you haye specific questions pertaining to the itemized conditions. If there are none, Mr. Laureta, do you see any that require our attention? Staff: I will point out where the conditions were refined, condition No. 14, well conditions 1 through 13 are the same, are template, 14 has been refined regarding the Fire Department. And the language that was included was,"A multipurpose ABC Fire Extinguisher", that is one. You will also notice"An emergency escape plan be mounted behind the main door with emergency phone numbers and information about natural disasters",that was included; "Smoke Alarms"shall be included. The last sentence,"Driveway should be maintained,provide emergency vehicle access and if an entry gate is utilized access shall be provide for emergency services with a Knocks Rapid Entry System." That is like a magic key that they can get to so the Fire Department has that. So if a fire engine comes up to.a gate if they have this Knocks Rapid Entry System there they can go in,they don't have to busi the gate. Fire Department,Water Department is the same, condition 15,"All conditions be recorded", 16 is the same, 17 is the same requiring the TVR number and address, 18 is new, "No other commercial use of the property shall be permitted unless approved by the Planning Commission." So if there is independent weddings being conducted on the property and they are not the TVR guest that is no good,you have to come in for another permit for commercial use of Ag. lands., 19, specific to this application,"Applicant shall develop and implement an agricultural plan to increase and supplement the agricultural use of the property. Such additional use shall be reflected on a revised plot plan when this Special Permit is next renewed." And 20, Planning Commission Minutes November 8,2011 24 "Applicant shall discuss and resolve the applicable agency comments with the appropriate government agency prior to the renewal of this permit and provide documentation of such." So all the agency conditions will be addressed prior to the next renewal, agricultural plan to supplement and increase and recordation of the conditions and the agency comments... Mr. Dahilig: Just as a suggestion if you could turn back to page 9, to address the concerns that all the Commissioners have raised may I propose the following suggested changed language ar�d if we could possibly seek the applicant's concurrence on this. 10 would read, "To respect the neighboring residential properties," and add the language, "and for the safety of the visitors"with a colon. And leading to page 10,with the paragraph beginning"these", the language would read"these limitations shall be incorporated in the", and then I would add the language, "compulsory safety for you and your neighbors welcome and notice posied within the dwelling". Then just say that is what is already required regarding safety for you and neighbors would have to be incorporated within any and all contracts and advertisements. I woul4 put that forward as suggested language for changes. Mr. Chun: On behalf of the applicant we don't have any opposition to that. We would agree to that. The language is what, compulsory, safety and welcome and notice? Mr. Dahilig. Yes the compulsory, the phase in the ordinance is safety for you and your neighbors so it would just say compulsory safety for you and your neighbors and welcome and notice_ Mr. Chun: I just wanted to make sure that we label that document correctly. No objects to those changes. Mr. Kimura: Can we add on... Mr. Jung: I think Commissioners before we start looking to amend any particular conditions there has to be a motion on the floor. The thing is if Mike wants to amend his report he can certainly do that but if Commissioners waist to start making changes... Mr. Dahilig I would include that as part of an orally amended report. Ms. Matsumoto: Move to accept this application. Mr. Blake: Second. Chair: Any discussion? Mr. Juna: I think the proper motion rather than accept would be to approve unless you are accepting the application its self. Ms. Matsumoto: Move to approve the application. Mr. Blake: Second. Chair: Any discussion? Now we can go into the proposed amended conditions. Mr. Kimura: Maybe we can add on that all caretakers of the subject property need to park in the property, like say landscape maintenance, anybody that is affiliated with the property needs to part on their own property, not on County property outside. It takes up spice for everybody else. Mr. Dahilig: Maybe if I could suggest language that the bullet point under 10, "All vehicular parking related to this use and property", and then add the language "including maintenance vehicles". Mr. Kimura: Yes. Planning Commission Minutes November 8,2011 25 Mr. Chun: I was going to suggest that you look at paragraph 10; you could change it, "related to this use and maintenance 4 the property." Mr. Kimura: Or anybody affiliated with the property. Chair: Mr. Chun, do you concur with that? Mr. Chun: I have two suggestions here, I think either one in concept we would agree. Basically the concept is anybody using the property or maintaining or going on the property has to be parking on the property. That is agreeable to us. The language, I leave it up to the staff io figure up what language to use to accomplish that goal. Mr. Kimura: Mr. Attorney... Mr. Jung. Before there is any specific vote on it lets get the verified language that I believe the planner is writing down right now. Mr. Dahilig: The department would propose that the amendment proposed by Mr. Kimura would read, "All vehicular parking related to this use and property including maintenance vehicles shall be accommodated on the subject property at all times." Is that okay Commissioner? Mr. Kimura: Yes. And if there are any complaints on vehicles being parked outside of the property at any given time and it affiliated with the property, what is the outcome of that? Mr. Dahilig: That would be a violation which would be into the enforcement arm of the permit. Mr. Kimura: Meaning? Mr. Dahilig: That we could move to modify, revoke, issue cease and desist orders, notices of violation, those types of things. Chair: Mr. Laureta, I just wanted to ask you about this addendum that we received, comments. Mr. Jung: I think before we move onto that there has to be some action on that condition to amend the Director's report. There is no motion. Chair: I thought we were going to have to amend a bunch of different...that is my question because I may want to have some more amendments. We are looking at a number of amendments aren't we, not just one. Mr. Jung: One that the Director did and then you have a rriotion right now that Jan has open on the floor that hasn't been seconded yet. Staff. But they are relative to condition 10. Chair: I was going to ask for a motion in order, one at a time. Mr. Kimura: Do you want me to withdraw my motion? Mr.1un>7: It is up to you guys however you want to handle it but we just have to have it orderly. Chair: We will just do it in sequence. We are going to go through each proposed amended motion. I just wanted to do it in order. This is my question, this is in regards to what was said to us,the recommendations from the... Planning Commission Minutes November 8,2011 26 Staff: Public Works. Chair: These recommendations, are they pert of the conditions that you prepared? Staff: Condition No. 20 would be part of that and that condition,that agency comment, will have to be recorded with the letter of approval. So you are going to have the letter of approval with the conditions of approval and the agency comments recorded at the 1314reau. Chair: So how does that impact these conditions? Staff: It doesn't, we are okay. It is just additional information that will be addressed by the applicant. Chair: So we can go back to the proposed amended motion, what is the first one`? Is that No. 10? Mr. Dahill I believe we went through all the conditions that we recommend including the orally amended report that already incorporates the suggested changes regarding the safety of the visi>lrs. I think the only change was a Commission initiated motion considering maintenance vehicles to paragraph 10. Chair: I am confused because these are all proposed amendments to the conditions, right? All that we are talking about so therefore we have to approve each one individually. Mr. Dahilig: No. The motion on the floor is to approve given the recommendations of the Commission, Mr. Kimura wants to amend the motion. Now what can also happen is that Commissioner Matsumoto can also accept Commissioner Kimura's proposed changes as a friendly amendment to her motion without having to go through procedural change, proceLral vote. Chair: I am confused. S, ,1ff Would you like me to read the revised condition? Chair: Yes please. Staff: The only revisions we have looked at so far apply to condition 10. Condition 10 will read, "To respect the neighboring residential properties and for the safety of the visitors; All vehicular parking related to this use and property including maintenance vehicles shall be accommodated on the subject property at all times. On street parking shall not be permitted at any time." And then you have the elevated noise activity. The next paragraph is where the second revisi n goes, "These limitations shall be incorporated in the compulsory safety for you and your neighbors and welcome and notice posted within the dwelling and within any and all contracts and advertisements for use of the structure from the date of this approval. Copies of these documents shall be provided to the department." Chair. Is there a motion to approve as read by the planner? Ms. Matsumoto: So moved. Chair: Any second? Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to amend condition No. 10, motion carried unanimously by voice vote. Planning Commission Minutes November 8,2011 27 Chair: We are back to the main motion; it was approved and seconded, is there any further discussion on the main motion? If not could I have roll call please? On motion made by Camilla Matsumoto and seconded by Hartwell Blake, tQ appro*e staff recommendation as amended, Motion carried unanimously by the following roll call vote: Ayes: Blake, Kimura, Matsumoto,Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting: Vacant -1 Commission recessed at 11:24 a.m. Meeting called back to order at 11:30 a.m. Special Permit SP-2011-13 to permit use of an existing sifigle family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalihikai (`Anini), Kauai, mauka of and adjacent to `Anini Road, approx. 1,950 ft. east of the `Anini Beach Park, further identified as Tax Map Key 5-3-4:29, and containing an area of 13,610 sq. ft._=Linda Cunningham, fHearings Officer Special Meeting Public Hearing closed 10/19/11,refer to 10/19/11 Minutes.l Supplemental No. 1 Director's Report pertaining to this matter. §taff Planner Mike Laureta: The applicant is Linda Cunningham, Jonathan Chun is the applicant's representative,the hearing was conducted before the hearings officer on October 19`h, the hearing was opened and closed, no adverse comments were heard or provided. This application is in Kalihikai, `Anini. The applicant has planted fruit trees on'the property for personal consumption, t�se and enjoyment by the guests. The most recent field inspection reflected no zoning or use violations,the additional findings as regarding the public hearing on October 19, no adverse public testimony. Even though the applicant has some agricultural use of the property they are willing to supplement that use with the development and implementation of an agricultural master plan. And based on this information the hearings officer closed the public hearing. From the discussion section, page 5, this is another one of those regions that are heavy with TVR applications. As of August 16, 2011 there are a total of 25 applications for TVRs in the Kalihiwai to Kalihikai region on State Land Use Ag. Lands out of approximately 81 applications,the period in which to submit such applications sunset on August 16th. This information will be provided standard fot pretty much all the regions but the ones that you will notice the heavy applications will be Moloa`a, Kilauea, and Kalihikai and Kalihiwai. Those had approximately 60 applications total. The evaluation is the same as the previous applications as is the conclusion. I am open to any questions. Chair: Any questions of the planner? Seeing none I would like to call on the applicant's representative please. Mr. Chun: Good morni3xg, Jonathan Chun on behalf of the applicant. We have reviewed the supplemental report and the'recommendations and we agree with its recommendations and the report.!We are here to answer any questions that the Commission might have regarding the applicant's operation. Chair: Thank you, again the public hearing was closed,this is a request if anyone from the public is wishing to speak on this application please come forward. If not,Mr. Laureta, do you want to provide you conclusion and recommendation. Planning Commission Minutes November 8,2011 28 Staff: The recommendation, based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2011-13 to Linda Cunningham be approved subject to the following conditions. The first 9 conditions are the same, condition 10 staff will amend to be consistent with the previous application of Gienger and Koebel and it is regarding the notification of the safety for the visitors. All the parking including for contractors will be on site. On page 11, conditions 18, 19, and 20 are now consistent, no commercial use of the property shall be permitted unless approved by the Planning Commission, 19 is the implementation of an agricultural plan to increase and supplement the ag. use. And No. 20 is to discuss and resolve agency comments and provide documentation prior to renewal. Chair: Thank you, Mr. Chun do you have any concerns or questions in regards to the amendments? Mr. Chun: No,the applicant would agree to those changes in the conditions. Chair: Thank you very much. Mr. Kimura: I have a question for Mr. Chun. Over here you have youf plot, `Anini Kai plot and orchard plan. The dark outline, is that the property line? Mr. Chun: Yes so you can see some of the plants or the fait trees that she has growing and taking care of are not on her property. Mr. Kimura: Who owns that property? Mr. Chun: I am taking an educated guess if I may; I believe it might be Princeville's property. Mr. Kimura: Princeville's property. Over here you have .3124 acres and over here you have .29. The .3124 acres, is that with the property that doesn't belong to her? Mr. Chun: I don't know who prepared this plot plan but I do know and when I asked her specifically about the location of the plants and property lines she did confirm to me that she did clear an area behind her house and plant those trees,the macadamia nut, the avocado, star fruit, the semi-dwarf pamalo and the banana trees. Mr. Kimura: So basically the majority of her orchard is planted on property that doesn't belong to her. Mr. Chun: Basically about fifty percent of it. Mr. Kimura: So according to this there is a lot of room to plant fruit trees do her own. property. Mr. Chun: Right and I have discussed that issue with her and she is preparing in fact she sent me last week a revised orchard plan and planting showing an additional 6 new plantings on her property. I am working with her still on that but yes she is aware of that and we are working to try t6 get more planting on her lot. Mr. Kimura: Should Princeville be notified if they are the proper owners that she is using part of their property as an amendment to her guest? Mr. Chun: I can ask her. I don't know whether she did contact them or not at this point in time. Mr. Kimura: My question is do you think they should be notified. Mr. Chun: I think they should be notified, yes. Planning Commission Minutes November 8,2011 29 Mr. Kimura: Sorry but if somebody was using my property I would like to know that somebody is using my property,that's all. Ms. Matsumoto: In that same map it says cleared to this line so what does that look like beyond those trees? Mr. Chun: I believe past that is scrub brush and tall guinea grass. When I asked her about that she had somebody clear that grass away and I don't ltinow whether or not like I said, quick question by Commissioner Kimura, did she check with Princeville prior to doing that, I don't know. Mr. Blake: Because if Princeville says no the Ag. plan is out the window,right? Mr. Chun: Well that is why we asked her to amend her Ag. plan and to put in additional plantings on her property. Ms. Matsumoto: Yes, it seems unusual because it looks like there is quite 4 bit of land there that she could have used on her side, she didn't have to go touch the other side. Mr. Chun: Right, like I said she gave me another plan where she proposes to plant more trees on that blank area and I am trying to work with her in terms of whether we can plant additional. But right now she has 6 more additional and I will work with Planning in terms of what their comments are on that. Mr. Kimura: So should we put some kind of writing in there saying... Chair: I was thinking should that be an additional... Mr. Kimura: Until that is done that this application not be passed until then. Chair: Mr. Laureta would you...go ahead, do you have another comment? Ms. Matsumoto: Going back to this map here there is a fence, where is the fence because it says fence ends, which fence is that? Mr. Chun: I believe there is a fence on the Kilauea side of the property. Ms. Matsumoto: And who put the fence up? Mr. Chun: I believe the client put toe fence up there. Ms. Matsumoto: On the other person's property? Mr. Chun: It ends in Princeville's property, yes. Ms. Matsumoto: And is there a fence on the other side on the 25 foot line? Mr. Chun: That I don't know. I don't believe so. I can look at the pictures on the Princeville side. Ms. Matsumoto: And there is no fence where it says cleared to this line,there is no fence running across that? Mr. Chun: No. Ms. Matsumoto: What is the purpose of that fence? Mr. Chun: I really Wouldn't know. I don't know why they put the fence up on that side. Planning Commission Minutes November 8,2011 30 Ms. Matsumoto: What is on the other side of that fence? Mr. Chun: Another house I believe. Ms. Matsumoto: How close is it to that? Mr. Chun: To the house? Ms. Matsumoto! Yes. Mr. Chun: I wouldn't know. There is, if you can look in the report there is an overhead picture showing the area and the fence is kind of showing...there is a long line of hedges along the fence line. And I don't see any house near that fence line or within 10 or 15 feet. Ms. Matsumoto: And so it is an 8 foot fence? Mr. Chun: I don't know. I don't have that information with me. Chair: Mr. Laureta, do you have any comments or recommendations as to how we should word these possible changes or additions? Staff: I have wording for condition 21 regarding this matter. Chair: So this is additional? Staff: New condition just to address this matter but should we make a motion first? Chair: That is correct. So with that in mind could we entertain a motion just to get the ball started? Before we can discuss any amendments we need to have a motion. Mr. Blake: Motion to accept report? Chair: Motion to approve. Mr. Jung: Approve, deny or modify. Mr. Blake: Were we going to approve this provisionally? Was the discussion to approve it provisionally? Chair: During the discussion phase we would discuss the proposed condition No. 21. We just want to open it up for discussion. Mr. Blake: Move to approve. Ms. Matsumoto: Second. Chair: Okay,this is the discussion phase. Number one, the only item we plan to change is to increase the conditions from 20 to 21.. Staff: Yes, to address this matter of use of adjacent land. Chair: Would you please read condition 21 as proposed. Staff: "Applicant shall resolve use of adjacent land for agriculture and fencing purposes with the owner and provide necessary documentation addressing and resolving this matter within 30 days of approval of this permit." Chair: Is that satisfactory? Mr. Blake: Are we discussing this now? Planning Commission Minutes November 8,2011 31 Chair: Yes*e are discussing this now. Mr. Blake: Addressing doesn't mean,in my opinion,Princeville says okay, addressing means you get it all on your land. You get that whole farm plan on your property. Staff. Well the first thing is Princeville...let's assume it is Princeville2 if Princeville says no Princeville will them take it out or vacate the property and remove the improvements. Mr. Blake: If they say yes or no... Mr. Kimura: It should be on your own property. Staff If they say yes... Mr. Dahilia: Commissioner,I would concur with that given that the permit pertains to the specific parcel of land. We would not want to be entering into a situation of trying to allow agricultural use on a neighboring property to qualify as ag. use on the particular parcel plan. And so I guess I would be in the position to suggest that a modified agricultural plan for the property encompassing what was an encroachment be put onto the actual property and not on the neighboring property,period. l- Staff: That is addressed by condition 19. Chair: So are we satisfied by that,have all conditions been met as we discussed? Staff. Well the use,her ag.use on somebody else's property needs to be addressed but she also has to supplement what exists on her property with additional ag. use,that is condition 19. Condition 21 would address what is existing on someone else's property and if she cannot resolve it then it comes off or gets abandoned. Ms. Matsumoto: I see it as separate. I think an ag.plan has to be made for the property its self and thep there is that separate,I think of it as d separate issue of using somebody else's land for something,that needs to be cleared up too so I think that is very different. Never mind, what if she put not trees but what if she put picnib benches or something like that so it is use of somebody else's land that concerns me. Staff And 21 would try and resolve that. Ms. Matsumoto: Interestingly it is 25 feet beyond her property, right,that is quite a bit of land in my opinion. Mr. Dahilia: Mike,maybe what we can try is"The applicant shall notify the adjacent landowner of agricultural use by the applicant on their property and that the agricultural plan shall reflect an increase in ag. activity proportional to that outside of the applicant's boundary:" Mr. Blake: Why are we even getting involved with the adjoining landownei? That is between the two of them,the neighbors. To me all we need to do is say the ag.plan will be instituted on the property in question,period. Mr. Juna: I concur with the former County Attorney because you want to look at the specific lot in question. So if there is an issue with neighboring lot owners it becomes a civil issue between those two and whether or not Princeville or whoever the landowner is may have a claim against her for encroachment or something like that. If you guys want to look at specifically this property you could request that the ag.plan be modified to increase what Mike just mentioned ih terms of adding more fruit trees or whatever. Mr. Dahilia: And I guess just to address my concern is that there is a representation before this Commissiori that uses beyond their property is being represented before the Planning Commission Minutes November 8,2011 32 Commission as sufficient agricultural use as part of a plan. So I think just as a matter of consequence for the protection of the Commission that if they are going to move forward with this document as included in this particular application versus delaying the application and having them resubmit a new agricultural plan that r'lotification be compulsory because that is in here as a representation. That was the root of Iny suggestion of mandatory notification to the adjacent landowner unless the applicant wants to defer the matter and have the map changed and submitted because right now that is the representation before the Commission. Mr. Chun: If T may,.either way. I would agree on what has been said that I think the Commission for its records should have some kind of statement from the adjoining landowner that it either agrees or disagrees with the planting on their property. But I also dgree with-the Planning D}rector and the comments made that when you look at an applicant's ag. plan it should contain agricultural use on their unit. And as I represented before I have discussed this with the applicant already and she has given me a revised planting plan which shows an additional b trees on her property which is Princeville wants us to remove the 5 trees on their property would more than adequately take up the ones from Princeville"s and replace them with plantings on their own lot. And as I said we are open to still taking with 1 Planning in terms of whether they want to see more or not. It is in the process right now. Mr. Dahilia: If I could make a suggestion to the Commission is maybe deferring the matter,maybe not to the next meeting,but deferring the matter today and giving Mr. Chun the ample time to get that revised document to the Commission for entertainment and distributing that later on in the agenda today. Mr. Chun_ I could do that,yes,I could have copies made. Chair: So we would bring this up again. Mr. Dahilia: Yes,later on today in the agenda. Mr; Kimura: What I brought up with the applicant before this about parking in their own property, is that going to be ongoing for each and every application? Mr. Dahilia: Yes. Mr. Kimura: So maintenance, service and all that. Mr. Dahilia: Yes. Mr. Kimura: So that goes without saying. Mr.jm& I think the department is going to request to amend their own set of conditions before they present it to you and I take it its okay to say it's going to go on without you having to raise it. Mr. Dahilia: As these reports have already been posted or having been made available to the public we have to mechanically go through at least for this batch but then as we move forward in the next set of reports we will incorporate... Mr. Kimura: That is what I mean for today, do we have to make a motion for all of these? Mr. Dahilig: Yes. There will have to be at least some amendment that we are going to have to use to fix the documents to reflect that but going forward on the rest of the TVR applications we will have that as a standard. Mr. Kimura: From the next meeting on but for this meeting each and every application that comes before us,what we have before us,needs to be amended. Planning Commission Minutes November 8;2011 33 Mr. Dahilig: Yes and part of the reason why is we also need to ask the applicant whether or not they object to the change in the condition. Mr. Kimura: Why do we have to ask? Mr. Dahilijz: Because we need to have it on the record whether they object to it or not. Mr. Blake: Why do we have to ask? Mr. Dahilig: So that their objection is noted in case they choose to contest the condition down the line. Mr. Blake: But they are told that they are subject to change. Mr. Dahilig: Yes but because of the process today on the floor we want to make sure that they are aware of the changes that happen of the consequence of deliberations and that were not incorporated as part of the original document that was given as part of the notice. They are subject to changes in conditions but given that this is something that is discussed it is prudent to have the applicant be aware of them verbally. Mr. Kimura: So do I ask for an amendment now or does Mike have it down and he is going to... Staff: Whln I do the presentation to you by section I will already be making reference to the change, to amendment of condition 10. Mr. Kimura: Thank you that is all I needed to hear. Chair: We did at the beginning, right? Staff: I did. Chair: So we have a proposal to defer, what are the wishes of this Commission? Mr. Kimura: Make a motion to defer until the representative can come up with a new ag. plan. Chair: And this would be after lunch? Mr. Chair: Yes, I have it right now I just need to make copies for the staff, for the department. Mr. Kimura: Is that acceptable to the department? i Mr. Dahilig: That would be our recommendation to give Mr. Chun time to come up with the documents. Chair: Mr. Chun it is almost 12:00. Mr. Chun: Could I request maybe sometime...I have a court hearing at 1:30 this afternoon. Chair: We plan to reconvene at 1:00. Mr. Chun: Yes but if that matter can be deferred also and I have another matter, Brenner, if you are going to be convening at 1:3 0 I would like to request that that matter be deferred until I finish with the court hearing. I don't know where on the calendar on the 1:30 calendar I ara in court s0 I Can't... Planning Commission Minutes November 8,2011 34 Mr. Dahilig: Which judge are you before? Mr. Chun: I am before Judge Watanabe. Mr. Blake: Can we just defer it until he can tell.us he can come back? Mr. Chun: To the end of the calendar, you can say defer to the end of the calendar. Mr. Kimura: So we are looking at D.2 and D.3. Mr. Chun: Correct. Chair: At the end of the calendar but I hope it's not 4 o'clock. Mr: Chun: I hope not either. Chair: The point I am trying to make is that... Mr. Kimura: If we are done we are done. Chair: I am not going to wait for an hour. That is not fair to the Commissioners. Mr. Chun: I understand. I will tell the judge. Chair: Fellow Commissioners,we have a motion to defer until after the calendar, at the end of the calendar, is there a second to defer? Mr. Blake: Second. Chair: Do we have any discussion, this is to defer until the end of the calendar, any discussion? Ms. Matsumoto: I have a question. I am looking again at the map. So you are going to be talking to your client, in the front there is a hedge so do ybu want to address that when}Toil come back as well? Mr. Chun: The fence? Ms. Matsumoto: The hedge. Because isn't her property line that dark solid line? Mr. Chun: That I am not quite clear. Th',hedge, if that is the property line, the dark solid line, the hedge might be within the County's right-of-way. I can't know for sure. Ms. Matsumoto: If you can talk to her about that too. Chair: So we have a motion that has been seconded, all those in favor say aye, those opposed, motion carried. On motion made Jan Kimura and seconded by Hartwell Blake,to defer action to the end of the agenda, motion carried unanimously by voice vote. Commission recessed for lunch at 11:58 a.m. Meeting called back to order at 1:00 p.m. Special Permit SP-2011-18 to permit use of existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalihikai (`Anini), Kauai,mauka of and adjacent to `Anini Road, approx. 1,100 ft. east of`Anini Beach Park, further identified as Tax Map Key 5-3-4:26 (2), and containing an n area of 29,700 sq ft. of Planning Commission Minutes November 8,2011 35 the over 1147,700 sq, ft. site= William & Mary Alen Turk.rHearing�Officer Special Meeting Public Hearing closed 10/19/11 refer to 10/10/11 minutes. Supplemental No. 1 to Director's Report pertaining to this meeting. Mr. Dahilig: Commissioners, again, D.5.a which is the supplemental report 1,this property is a CPR unit,there are actually two of them and this is considered unit No. 2,unit No. 1 is actually also applying for a TVR Special Permit which will be considered at a later date. All the requirements so far have been satisfied. We did hold a public hearing on Nov. 19, sorry, October 19th. The property is located in Kalihikai and I will let Mr. Laureta pick up on this. Staff Planner Mike Laureta: Sorry, what is the number? Mr. Dahilig: We will keep going, on page 2, 29,700 square feet of an overall 47,700 square foot parcel. We are looking at about a little over an acre. We did conduct a site inspection and there is ag. activity, flower and fruit trees that ate on the property based on what you see in exhibit No. 3. Based on the public hearing there wa§no adverse testimony however there was testimony received from Charlie Pereira and Marge Denti on just the general issue concerning taxes and ag. use. And the same evaluations do apply except specifically for this parcel, otherwise that is about it. Chair: Are there any questions of the planner? Seeing none I would like to call on the applicant to come up please. Mr. William Turk: Good afternoon, for the record William Turk and my wife Mary Ellen Turk,we are the applicants. I don't know that we have a lot more to add today,we have done everything we can to comply with the requirements of the 904 ordinance. Chair: My question to you is you have seen the report, the staff report, do you concur with the staff report? Mr. Turk: We concur with the staff report, yes. Chair: So you have no problems with the staff report. Mr. Turk: No. Chair: Are there any questions of the applicant? Mr. Kimura: Being that you have over an acre have you ever considered just farming part of or one parcel of that CPR? Mr. Turk: We do quite a bit of growing or agricultural products, fruit trees and so forth but actually we are less than an acre and we are 29,000 square feet in our part of the CPR. And then about 6,000 square feet of that is the easement access which is all part of our property. My wife actually is a very prolific gardener and she loves to grow things and so we do a lot of growing and the yard is full of fruit trees although the soil there is not real good, it is real sandy, rocky. But we do a lot of composting and we can force grow many things. Not always with good results, as an example recently we lost all of our papaya trees due to disease and poor rooting systems. Mr. Kimura: The reason why I am saying that is right in the back of your property this farm used to exist call Otto Farm and they were very productive in their farming back there, very, very productive. And it is hard for me to understand why you have over an acre and you can't really farm on it, you say you can't be productive. Mr. Turk: Well did you see the agricultural map that we have there, exhibit 3? Planning Commission Minutes November 8,2011 36 Mr. Kimura: Yes I did but what I am saying is that right in the back of your property toward the balk end of your property,not your property but in the back of your property... Mr. Turk: Yes, in the back of our property... Mr. Kimura: I think it is owned by Princeville now or always was, and Otto Farm used to I guess lease the property from Princeville and it is the same element, what is it,B, not B, E, the soil study on that property. It would be the same as yours but they were very productive as a farm. Mr. Turk: Right. The property that is behind us and extends back into the little valley there, there is a stream Qn the side of our property, it doesn't show on the map but on the left side of the i1nap along the easement is a stream. Back deeper into the valley area there is a banana type plantation. Mr. Kimura: Right where that banana plantation was that Akana used to run is where Otto Farm used to be. Mr. Turk: Right, but that is not our property back there. Mr. Kimura: I know but the type of soil back there and the type of soil that you have on your property is the same. Staff: No, it's not. Mr. Turk: No it's quite a bit different really. You would have to visit the site really to see it but it is rated as rather poor and suited only for grazing according to the soil -Malysis. Mr. Kimura: Mike, why is it not the same? Staff: Because the lots closer to the beach along the road are beach sand. The ones further up the valley are different, they are not beach sand. Mr. Kimura: Even though it is like 50 yards apart? Staff. If you look at the soil rates, types and ratings,this soil is rated D on a scale of A to E. As close as they are you have changes in soil types depending on elevation and location. But you can't make that assumption that you can be next door, they could be spending lots of money on fertilizers, they may have a better irrigation system. But this is not one acre, this is less than one acre in a CPR. Mr. Kimura: But don't they own two, don't they own the whop property? Staff: No. On the first page on their ownership information it is unit No. 2 of a two unit CPR, applicant has the necessary authorization to make this application, CPR unit No. 1 has also submitted a TVR Special Permit application which will be considered at a later date. So this is less than...it is only 29,700 square feet. Mr. Kimura: Okay, I thought they owned both CPRs. Mr. Turk: I wish I did. Mr. Kimura: Sorry about that. Ms. Turk. We are .68 of an acre but it has several structures on it. Mr. Kimura: What is that again? Planning Commission Minutes November 8,2011 37 Ms. Turk: Our portion is .68 of an acre and then it has, reducing the area size dire a garage structure, house structure, septic tank and leech field building and an easement for the driveways. So I have gardened every other square inch on the property that I have been able to. There is a little garden plan included in out report with a legend telling you of the plants that are planted. Staff Exhibit 3 Commissioner Jan. Mr. Kimura: I see the 3. What is building B? Ms. Turk: Storage garage. It is pictured; when Bambi came to the property he photographed it. Staff Exhibit 4 is the department inspection report that has pictures of that structure. Mr. Kimura: Thank you. Chair: Any other questions? If not, thank you. At this time I would like to ask if anyone from the public is wishing to speak on this item on the agenda please come forward at this time? If not I would like for our planner to give us the conclusion and recommendation. Staff. The conclusion is similar to the previous items. The recommendation is based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2011-23 be approved to applicant's William and Mary Ellen Turk subject to the following conditions. And condition 10 staff is suggesting, recommending the revision to condition 10 similar to the. other permits. Chair: Excuse me Mike, I just wanted to ask if the applicant is familiar with the revision to condition 10,are you familiar? Mr. Turk: Yes we are. Staff. The final two 18 and 19, no commercial use of the property and resoltztioh of agency comments with the appropriate agencies prior to renewal c4nd that concludes surtf's recommendation. Chair: Thank you. What is the recommendation of this body? Do you have a question of the planner? Ms. Matsumoto: Yes. I am looking at the Pahl and Cheri Gienger application and the conditions and they have 20 conditions and this one has 19, could you point: out...? Staff. The difference is that in staff's determination based on exhibit 3 the applicant's have a fair amount of agricultural activity going on already so we didn't believe you needed more. Ms. Matsumoto: That's good,thank you. Chair: Going back to the motion. Ms. Matsumoto: Move to approve this application. Mr. Kimura: Second. Chair: Any discussion, roll call please. Planning Commission Minutes November 8,2011 38 On motion made by Camilla Matsumoto and seconded by Jan Kimura; to approve staff report as read by the planner, motion carried unanimously by the following roll call vote: Ayes: Blake,Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Note Voting: Vacant -1 Chair: We are going to go back on our schedule; we are going to take up item DA. Special Permit SP-2011-18 to permit use of an existing; single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Moloa`a, Kauai; approx. 140 ft. south of Moloa`a north terminus,further identified as Tax Map Key 4-9-4:161 and containing an area of.0617 acres, or 2,687 sq. ft. = Gary and Apolonia Slice. [Hearings Officer Special Meeting Public Hearin cg lbsed 10/19/11, refer to 10/19/11 minutes., Supplemental No. 1 Director's Resort pertaining to this matter. Staff Planner Mike Laureta: Special Permit 2011-18 to Gary and Apolonia Slice in Moloa`a. This property is really small, 2,687 square feet or .0617, it is on Moloa`a Beach. The additional findings, the public hearing, no adverse public testimony from surrounding neighborhood was submitted or received. The applicant reiterated the information contained in their application acid there being no further discussion the hearings officer closed the public hearing. As earlier stated this morning on the number of applications in Moloa`a, 13 out of 81, 4 have been approved, 3 and 1 this morning. There were comments submitted by Public Works that have been addressed and/or resolved in discussions with the applicant. All the other comments and recommendations in the staff report are similar to the previous three, four. I am, open to questions. Mr. Kimura: Is that a right-of-way right next to their property? Staff: A beach right-of-way. Mr. Kimura: How wide is the path? Staff: Five to seven feet possibly. Mr. Turk: More like ten. Staff. It is heavily used. Mr. Kimura: Is there any parking along that road for beach access? Mr. Turk: No. Staff. Not really but people do. Mr. Kimura. So you have a beach access that has no parking so basically that beach access is fix just the residents there? Mr. Turk: For both. Staff: The limes I have gone down there people even though there are"no parking"signs nobody enforces them and they park within the road right-of way. Mr. Kimura: The last time I was doom there, it has been a couple of years but all I saw was no parking, no parking, no parking. Staff. Yes. Planning Commission Minutes November S,2011 39 Mr. Kimura: So where are you supposed to park if you want to go to the beach? Staff. Where there are no "no parking" signs. It is further up the road; up the valley, but it helps if you know people down there to park on their lot. Mr. Kimura: Just curious. Staff. That is one of the issues we have to try and address with beach access. Mr. Jung_ Commissioner Kimura that is an issue we are looking at and how to deal with it because a lot of our public access easements for beach and pedestrian right-of-ways do not adjacent parking lots to get to that area. So we are trying to address that. Mr. Kimura: Well seeing that most of this will be coming before us, that is TVRs, is there any way possible that we could working something out with the landowners for the public to park? Mr. Jung- We could certainly look at that but in this particular case it is because the lot is so small, really nonconforming, it would be difficult in this particular case. Mr. Kimura: Well there are lots across from them that are fairly huge, I ara just saying. Mr. Jung; I think a lot of these lots down in Moloa`a were old Kuleana lots before our CZO so that is why they are so small even though they are on ag. We are addressing that, it might take a little time. Chair: Anyone else? Mr. Blake: Moloa`a Beach Park is historically a hot bed and over the years I haven't seen any solution, practical solution,but you hear the same complaints over and over and over. And primarily we used to be able to park there, why can't we park now and that is because the homeowners that butt up against the roads say no or the propeFties that are smaller. So it is just one of those things. Maybe as electric cars get popular we will have less (inaudible). Chair_ Anyone else? If not I would like to ask the applicant have you reviewed the staff report and what is your comment? Mr. Turk: Yes I have reviewed it and I agree with all of the recommendations. Chai Great,eat, aid that includes condition loo. 10. 1 think you were here earlier so you might have heard us discuss condition No. 10. Mr. Turk: Right, about the notices. Chair: Yes. Mr. Turk: Yes I agree. Mr. Kimura: Is there enough room on your property for the landscapers to get into there and work and park-their vehicles on your property? Mr. Turk: We have 3 stalls so yes there is alwdys available parking for anybody involved in activities at the house. Chair: Thank you very much. I would like to call on any one from the public wishing to testify on this application please come forward. Seeing none I would like to ask the Commission... Planning Commission Minutes November 8,2011 40 Ms. Matsumoto: I have a question. I am looking at a photo of the house and I can see the vegetation along the beach. Remember all those issues about plantings on the beach? Mr. Turk: Yes. Ms. Matsumoto: How are they doing that? Staff. Their property line goes further out but as you can see the resulting vegetation lines are just working their way inland. But there are no lateral beach access issues here. Mr. Kimura: I have noticed here on page 2, amenities, off-street parking. You guys offer off-street parking. Mr. Turk: Not to my knowledge because if you park on the street it very much inhibits egress and ingress for emergency vehicles or just people trying to get in and out of their driveways. Mr. Kimura: I understand that but it says here on your amenities off-street parking, you have barbeque area, television, ceiling fans, purified water, balcony, ocean view, telephone, stereo, ocean front, air conditioning, off-street parking. Mr. Turk: Well I wasn't aware of that. Staff: Off-street parking is the garage,the stalls under the garage. Mr. Turk: Oh, off-street, I thought you meant on-street. Yes there is, there are 3 parking stalls. Sorry, I misunderstood. Chair: Thank you very much,with that in mind,Mike do you want to make your conclusion? ` Staff. For the recommendation and evaluation, it is recommended that Special Permit 2011-18 to Gary and Apolonia Stice be approved. All the conditions up to 9 are the same, 10 is being revised to be consistent with previous Commission actions, 18, no commercial use of the property, 19, resolution of agency comments. In discussions with Public Works, Public Works wanted their comments separated out instead of a generic approach so that would be condition 20 and I will read condition 20 as recommended by Public Works. `Electric meter must be elevated above base flood elevation. We recommend that the applicant contact an electrician at KIUC in order to resolve this issue. The applicant must submit an elevation certificate to confirm that this has been done. The second floor shall only be used for storage. The as-built plans on the Special Permit application must indicate that the second floor is for storage only. We request that the Planning Department establish a separate condition of approval which states the following: Applicant shall at all times use the area below the third floor solely for parking access and storage. Applicant shall submit to our office original conditions of approval document stamped and recorded by the Bureau of Conveyances." This condition is covered by 19 which requires resolution with the agencies prior to renewal and by the recordation condition so now Public Works comments are addressed. Chair: Is that a separate condition that you just read? Staff. Yes, at the request of Public Works condition 20 was included. Chair: Has the applicant seen condition 20? Mr. Turk: Yes. Chair: Are you agreeable to that condition? Mr. Turk: Yes I am. Planning Commission Minutes November 8,2011 41 Chair: What is the pleasure of the Commission? Do we need to,No. 20 do we need to make an amendment to the original conditions? Mr. Jun& It is on recommendation of the department. Mr. Dahi:l� You would stylize the motion to be as read by the planner, approve the report as read by the planner. Mr. Kimura: And condition No. 10, does that have to be... Mr. Dahill : That is incorporated in that motion. Ms. Matsumoto: I have a question. So what was the purpose of the second floor being r used for storage? Staff: Many years ago Mr. Stice had executed an agreement with Public Works regarding the use of the second floor; that is a long time ago. He had been over the years the use slowly morphed down to the second floor. And Public Works when they did their inspection and they did the review of the advertising on the website they saw that it was being used for habitable space so they want to make sure that any use of this structure is limited only to the third floor with the second floor being storage only and the first floor being for parking. So with the conditions and the agency comments being recorded and the condition of approval being inserted the applicant is very well aware of the limitation on use and the area it is limited to. Ms. Matsumoto: So approval back then was based on agreeing to use that second floor as storage only. Staff: I am not sure how that evolved but that was with Public Works and it had to do something with the building permit. And I think it was at the time after hurric4ne Iniki when rebuilding was done they must have had to do some kind of agreement. Ms. Matsumoto: For size of the property or something. Staff. Elevation above base flood elevation. Ms. Matsumoto: Thank you. Chair: I need a motion. Ms. Matsumoto, Move to approve this application as read by the planner. Mr. Kimura: Second. f Chair: Any discussion, roll call please. On motion made by Camilla Matsumotg and seconded by Jan Kimura, to approve staff recommendation as read by the planner, motion carried unanimously by the following roll call vote: Aves: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting: Vacant -1 Special Permit SP-201130 to permit use of an existing single family residence for Transient�Jacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalihikai (`.Anini), Kauai, mauka of and adjacent to `Anini Road, 4p12rox. 1,000 ft. east of the `Anini Beach Park, further identified as Tax Map Key 5-3-4:25, and containing an area of 32,670 Planning Commission Minutes November 8,2011 42 sq. ft. = Toren/Cory LLC. (Hearings Officer Special Meeting Public Hearing closed I0/1„9/11, refer to 10/19/11 minutes.l Supplemental No. 1 Director's Report pertaining to this matter. Staff Planner Mike Laureta: Torey/Cory LLC is being represented by Walton Hong. This application is for a TVR dwelling unit and one guest cottage both owned by the applicant. The parcel of record is not a CPR and it contains one dwelling unit and one guest cottage. There is agricultural activity on the property, gardenia, ginger,papaya, bananas and citrus and thait is reflected on exhibit 4. The department conducted an irlispection and a follow tip inspection and can now confirm that the farm dwelling unit and guest cottage are as originally approved. No zoning violations exist. The guest cottage will be used as an accessory bedroom to the main dwelling unit, will not have kitchen improvements, and would not be advertized or be used independent to the main dwelling unit. No adverse public testimony from the surrounding neighborhood was submitted or received. The applicant's representative reiterated the information contained in the application and hearings officer closed the hearing. Kalihikai and Kalihiwai have 25 applications out of a total of 81. The evaluation, it is similar to all the previous applications and the conclusion is also similar to the previous applications. This concludes staff's findings. Chair: Thank you Mr. Laureta, any questions of the planner? Mr. Kimura: Why is it necessary that the guest house be part of the main house as a TVR? Staff The guest cottages are being treated as a separate bedroom. What we had found earlier on that some of these guest cottages were being advertized independent of the main dwelling unit and that would be counting as a second TVR. It is just a matter of what was approved and was the structure being use appropriately. With the guest cottage as long as the use is as approved, no kitchen, it can be considered as an additional bedroom unit. If there was an additional dwelling they would come in for a second TVR on the same property. Mr. Kimura: Why is it necessary that they include it though? I mean isn't-the house sufficient enough for the TVR? Mr. Jung: By function of the CZO you can have a guest house and it doesn't count as an extra unit, dwelling unit,but it is an accessory to the main dwelling. But it can't exceed 500 square feet. Staff And it cannot hive kitchen facilities. Mr. Kimura: How many bedrooms is that main house? Staff Three bedrooms and a loft. Mr. Kimura: That is the main house an�21 kitchen. Chair: I think we can address the applicant for that question. Do you want me to ask the applicant to come up Mr. Kimura? Mr. Kimura: Sure. Chair: If there are no further questions of the planner I would like to call on Mr. Hong please, the applicant's representative. Mr. Walton Hong: Thank you Mr. Chairman and members of the Planning Commission, for the record my name is Walton Hong representing the applicant Torey/Cory LLC. Chair: Thank you, so your question is how many bedrooms? Planning Commission Minutes November 8,2011 43 Mr. Kimura. Well over here it says 3 bedrooms, 2 batlis, second structure guest house on the subject property has submitted a separate TVR. Staff. No, they had until we did the property inspection and realized that application for a separate TVR was inappropriate because it was a guest cottage and it wasn't supposed to have kitchen facilities. Ms. Matsumoto: How many bedrooms does that one have? Mr. Hong: The cottage is just one open room. Chair: Mr. Hong, do you have any comments? Mr. Hong: Yes,we have read the staff report and concur with the staff report. I was in attendance earlier in the morning when your condition was going to be amended to be standard form about the safety and welfare, etc. We concur with that. We have nothing else to add and we ask for your favorable consideration. Mr. Kimura: So you understand that all parking associated with the property will be on property only. Mr. Hong Yes, there is adequate space for parking. Mr. Kimura: Fox maintenance and everything else. Mr. Hong: For maintenance and everything else. Chair: Any other questions, if not thank you Mr. Hong. Anyone from the public wishing to testify on this application please come forward, seeing none, Mr. Laureta, would you give us your concluding remarks. Staff. Based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2011-30 to Torey/Cory LLC be approved subject td,the following conditions. Those conditions are the same as the previous 4 or 5 applications. Condition 10 has been refined to be consistent with previous Commission action, 11, 12, 13, 14, 15, 16, and 17, are all the same, 18 is for the requirement to implement an agricultural plan to increase and supplement the ag. use of the property, 19,the guest house shall only be used as, an accessory room to the transient vacation rental use of the farm dwelling. It cannot be used nor be advertised 'independently of the main farm dwelling unit. Kitchen improvements shall not be permitted, 20 is -the prohibition of any other commercial use, 21 is the resolution of applicable agency comments prior to the renewal of the permit. This concludes staff's recommendation. Chair: What are the wishes of this body? Could we have a motion? Mr. Dahilig: Again Commissioners we would request that the Commission, our recommendation is the Commission approve as read by the planner. Ms. Matsumoto: Move to approve this application as read by the planner. Chair: Any second? Mr. Blake: Second. Chair: Any discussion on the application, there being none could we have roll call please. Planning Commission Minutes November 8,2011 44 On motion made by ;Camilla Matsumoto and seconded by Hartwell Blake, to approve staff report as read by the planner, motion carried unanimously by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting: Vacant -I Commission recessed at 1:30 p.m. Meeting called back to order at 1:45 p.m. Mr. Daiailig: Mr. Chair, for sequencing purposes rather than handle the public hearing now I request that the Commission take up items F.2.a, b, and c, and F.3.a, and b for public comment and acceptance into the record. NEW BUSINESS For Acceptance into Record—Director's Report(s) for Project (s) Scheduled for Public Hearing on 11/22/11. Class IV Zoning Permit Z-IV-2012-9 to construct a new locker room building for the existing football stadium facility, and Variance Permit V-2012-6 to deviate from the requirements noted in Section 8-5.5(a) of the Kauai County Code (1987) relating to land coverage within the Open zoning district, located within the Kapa`a New Town Park, approx. 1,300 ft. north of the Kahau Road/Olohena Road intersection further identified as Tax Map Key 4-5-015:032 (poor,), and containing a,total area of 18.083 acres = County of Kaua`i, D!'?Partment of Parks and Recreation. Director's Report pertaining to this matter. Special Management Area Use Permit SMA,(U)-2012-,12,Use Permit U-2012-8 and Class IV Zoning Permit Z-IV-2012-8 to construct a farm dwelling unit, gazedo, and associated improvements on a parcel within the Open/Special Treatment-Resource District(0/ST-R), further identified as Lot 7 of the Kahili Makai Subdivision, approx. 3/4 milt north of the Kahili Makai Road/Kuhi`o Highway intersection, Tax Map Key 5-2-021:007, Unit 4, and affecting a total area of 11.612 acres =Kahili Makai Moldius,LLC, Director's Report pertaining to o this matter. Project Development Use Permit P.D.U-2012-1, Use Permit U-2012-7, Variance Permit V-2012-5 and Class IV Zoning Permit Z-IV-2012-7 for development of a commercial shoppin certer that includes a mixture of commercial/retail uses offices restaurant bank and health clinic,on property located within Kilauea Town, situated immediately across the Kong Lung building, along the north side of the Kilauea Lighthouse Road/Keneke Road intersection, further identified as Tax Map Key 5-2-023:027 & 028, and containing a total area of 7.46 acres= Kilauea Ventures LLC. Director's Report pertaining to this matter. For Acceptance and Finalization—Director's Report for Shoreline Setback Activi Determination. Shoreline Setback Determination SSD-2012-08 and Shoreline Setback Commission Review SSCR-20212-04 for a shoreline activity determination, Tax Map Key 2-8-017:001, for acceptance by the Planning Commission=Lealani Corporation.dba Brennecke's. Planning Commission Minutes November 8,2011 45 Director's Report pertaining to this matter. Shoreline Setback Determination SSD-2012-07 and ,Shoreline Setback Commission Review SSCR-2012-03 for a shoreline activity determination, Tax map Key 5-5-001:012, for acceptance by the Planning Commission=Nathan Hamar. Director's Report pertaining to o this matter. ANNOUNCEMENTS The next scheduled public hearing to be held by the Kauai Planning_Commission's Hearings Officer will be held at=9:00 a.m., or shortly thereafter at the County of Kauai Board of Water Supply Board Room, located on the second floor of the Kauai County Department of Water's Microbiology Lab Building, 4398 Pua Loke Street, Lihu`e, Kauai Hawaii, on Friday, November 18,2011. The following scheduled Planning Commission meeting will be held at 9:?00 a.m.,or shortly thereafter at the Lihu`e Civic Center, Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street,_Lihu`e, Kauai, Hawaii 96766 on Tuesday. November 22, 2011, The next scheduled public hearing to be held by the Kauai Planning Commission's Hearings Officer will be held at 9:00 a.m., or shortly thereafter at the Lihu`e Civic Center Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street, Lihu`e,Hawaii 96766 on Tuesday, November 29, 2011. T Chair: Anyone from the public wishing to testify on those items just mentioned, seeing none. Mr. Dahilig: We request that the Commission move to accept items F.2.a, b, and c, and F.3.a, b, and c, into the record. Ms. Matsumoto: So moved. Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to accept items into record, motion carried unanimously by voice vote. PUBLIC HEARING Special Management Area Use Permit SMA(U)-2012-1, Use Permit U-2012-6 and Class IV Zoning Permit Z-IV-2012-6 to construct and operate a grease interceptor, 2 wastewater pumps and connections in Po`ipa, located at the intersection of Hoone Road Hoowili Road, further identified as Tax Map Key 2-8-017:001, 007, 011, 023, & 15 and affecting portions of approx. 26.5 acros—Lealani Cor.[Director's Report received 10/25/11.1 I a. Form Letters received in support of application: 1. Sherri Or(9/29/11 2. Joe &Kellie McEvoy (9/19/11) 3. Janice Echternach 9/20/11 4. Celia Rane Aller (9/18/11) 5. Sweden Kealoha(9/19/11) 6. Renee Klae er ,9/18/11) 7. Rebecca Morehead (9/18/11) 8. Jessica Lopez ,9/18/11) 9. Kandice Poloa(9/16/11) Planning Commission Minutes November 8,2011 46 10. Hazel Lagundino (9/16/11) 11. Tyson Valente-Gonsalves (9/15/11) 12. William.Zakour 9/1/5/1 I�} 13. Bianca Gomez (9/15/1 l� 14. Primo La undino 9/15/111 15. Ryan_Hoku Gordines (9/15/11) 16. Jason L. Brown(9/14/11 17. Jabrille Richards (9/15/11 18. Gina Pereza(9/15/11) 15`. Alanna Whitt; (9/15/11) 20. Candice Deusbicey (9/14/1 21. Kristy Kinimaka (9/13/11) 22. Kody Forner (9/i 3/11) 23. Chuck Olson (9/13/11) 24. Aaron Hendrickson(9/16/11 25. Lawrence Chaffin, Jr. (10/29/11) Chair: Do we have any additional comments or statements for the Director's report? Staff Planner Kaaina Hull: Do you want to just accept the Director's report or do you want it read onto the record? Prior to going into the Director's report just a point of clarification for the Director,those items that were just accepted by the Commission included F.3.a, the shoreline determination? Mr. Dahilig: They are all taken care of Staff: The determination has been accepted? Mr. dahili : Yes. Staff Planner Kaaina Hull Director's report into record (on file). Chair: Any questions of Kaaina our planner? If not, thank you Kaaina. I would like to call on the applicant to come forward please. Introduce yourselves please. Mr. Jed Sueoka: Jed Sueoka, I am the president of Po`ip-a Inn, Inc.,the owner of the Brennecke's building. Mr. Bob French: Bob French, I am the lessee of the Po`ipu Inn building. Chair: You have heard the staff report, do you have any comments you wish to make in regards to the report? Mr. Sueoka: Yes. Good afternoon ladies and gentlemen of the Planning Commission, my name is Jed Sueoka and I am the president of Po,ipu Inn, Inc.,the owner of the Brennecke's building. The corporation is owned by the children of George Sueoka, a resident of K61oa who passed away last year. The property has been owned by the company since the 1960s and was operated by my dad for many years until we leased it to the Brennecke's group. For the record Po`ipu Inn has no ownership interest in Sueoka Store which is a grocery store up ii?.K61oa Town and I personally have no ownership interest in the store, it is owned by other family members and my brother. As you know the EPA has mandated that commercial establishments discontinue the use of cesspools and we have been working diligently with the County and other agencies to resolve this problem. We believe our project provides a solution to our problem and also provides a solution to the County's problem regarding sewage disposal. Unfortunately the EPA is requesting that this project be completed ASAP and we would like to move it forward as soon as we can and get your approval and move it into the next phase. Jean Kamp our consultant will explain the project to you after our testimony. The timetable for this project has gone much Planning Commission Minutes November 8,2011 47 longer than we had planned and the cost has gone up substantially since that time. I unfortunately have had to commit some of my personal funds to cover the additional costs. I hope that the information that you received today from all of us will be adequate to allow you to i approve our project so that we can move forward and get it dome. Thank you very much. Chair: Thank you. Mr. Bob French: Commissioners,thank you,thanks for seeing us early today also, I appreciate it. Bob French is my name,I have leased the Brennecke's building since 1983. We took over an old building shortly after hurricane Ewa, we.remodeled the building. We added one additional septic cesspool system at that particular time and thought that that would be adequate for our purposes. Shortly after we opened we began pumping our cesspools almost on a daily basis,certainly the old cesspool that was located directly under the building. We have two existing cesspool easements on the property and Jean will show you at a later time that our plan is to enlarge the sewage easement to incorporate both of those two existing easements. Prior to 1992 I had been working with Ian Kagimoto of HOH and Aqua Engineers to resolve our sewage easement, our sewer problems because it was costing our company a lot of money. And we went through several different options from buying our own pumper truck and disposing of the wastewater in the water reclamation systems down there in Po`ipu,we looped at alternate sources of small sewage treatment systems with injection wells or leech systems. They ail, all of the options amounted to leasing or acquiring property in order to do the work. Our building occupies 99 %of the property in which Po`ipu Inn owns down there in Po`ipii so any option would require a lease from the County or the adjacent property owner. In working with the County for many years it we ran into a roadblock each time and also with the adjacent property owner. We did work in a diligent manner but as laymen in a project like this we really were, I was really naive to the scope that was required to procure an easement from the County especially t1 e size that would be required. We use a little over a million gallons of water a year down there at Brennecke's. In 2007 Ian's recommendation was to try to tie into the existing Po`ipu wastewater facility system and at that time HOH had an easement which rap to the end of Hoowili Road,Hoonani Road, excuse me. We later found out that when the Marriot developed their property and their underground parking that that easement had been eliminated and put within 100 feet of the Marriot property. So that created another problem for us. In my time for the last 28 years down there in Po`ipu I have observed several things in the park and had a very good repartee with Public Works and people and Nishihara and several other people in the park system. And one of them was that the septic system there at the park was having to be pumped quite a bit because of the quantity of the flow and the fact that the water table is just a few feet under...its proximity to the ocean. Our current plan was proposed and went throilgh our environmental assessment in review in 2010. Last march unfortunately we got a letter from the EPA and I had been communication with the EPA ever since 2003. The Safe Water Drinking Act of 2001 mandated the closure of our two large capacity cesspools. I had been in communication with the EPA,they were aware that we were making steps to solve that problem. But in 2011, in March 2011 we were issued a consent decree instrument by the EPA with potential of some major punitive assessments and those are one of the reasons that timing in really of the essence on it. I need the County's help in approving this application in a diligent and timely manner. I think it is a good plan for the treatment of wastewater,not only our wastewater but the wastewater that comes out of the two bathrooms there at Po`ipu Beach Park. It is cost effective by the County. My landlord has approved paying for the majority of the costs associated with the construction of this facility. It is a minimal disturbance with respect to vehicular and pedestrian traffic and it is a good clean environmentally friendly plan. So I certainly urge selfishly of course and in the County's best interest if the Planning Commission could approve our application,thank you. ' Chair: Thank you. Are there any questions of Mr. French? Planning Commission Minutes November 8,2011 48 Ms. Matsumoto: I heard two dates, you said 2001 is when you got your first notice I guess about the... Mr. French: Actually 2001 was the Safe Drinking Act of 2001. The closure of the LLC's was by April of 2005. We had been in communication with the EPA since 2003 to keep them abreast of our progress and last March we received a letter from the EPA stating that they were losing patience with us and were ready to do a consent to order on u;. Ms. Matsumoto: So you have been trying all this time to... Mr. French: We have several different ways but like I said, I was naive to fhe process. Even when we volunteered to tie the park festrooms in with the construction costs at that time I did not realize all of the miscellaneous certifications that were necessary having to do with everything from archeological to coastal certifications and setbacks and all the rest of it. So as Jed mentioned the costs are extravagant. For a small business it is a lot of money, I will put it that way. It takes a lot of hamburgers. Chair: Anyone else wishing to ask questions of Mr. French? Mr. Kimura: I just wanted to make a comment. As far as what you guys are doing for the parks at Po`ipu I commend you guys for doing that. It is going beyond the call and I appreciate that. Chair: Thank you for that. I would like to call on the public, I am going to be opening the public hearing so I would like to call on the pudic if there is anyone from the public wishing to testify on this application please come forward. Mr. French: Mr. Texeira I did want to mention that I did accept the report from Planning, it was very thorough. Chair: You are fine with the report? Mr. French: Yes sir. Chair: Do you plan to, I know this, is public testimony but I am just asking if you plan to discuss your project at some point? Do you want to do it after the testimony? Unidentified Speaker: I can do that if you would like and give you a brief overview. If you don't need it, that is fine. I know you guys are on a tight time scale today but I am happy to just review that for you. Chair: I guess we don't need an overview. Go right ahead, give us your name sir. Mr. Rupert Rowe: My naive is Rupert Rowe. I am the po`o of Kane O la Uma. Being neighbors to this project and the culture in that area I support this. I think it is a great idea and like the Commissioner said to take the County their wings and improve the park that needed improvement for so many years. This should have been done after the hurricane so this is a learning lesson. That is all I have to say. I support that project. Mr. Dave Blchet: Commissioners, my name is Dave Buchet. I am from O`ma`o. I just would like to urge you to consider this project positively, ecologically and economically it is a very important project for Brennecke's. Speaking for over 70 employees that work in that building it is vital to all our livelihoods and there is a lot of money that comes from that little flipping hamburger joint and economically supports Kauai. So I urge you to pass this, thank you. Chair: Thank you for coming forward. Anyone else wishing to testify on this application? Seeing none... Planning Commission Minutes November 8,2011 49 Mr. Dahilig: Mr. Chair,just to also add that the testipQny received by the departmeM is in the Commissioners packets as well as supplemental memorandum from agency comments from the Department of Parks and Recreation signed by Ian Costa concerning support for the proj ect. Chair: Could we have your final recommendation? Staff Planner Kaaina Hull read department recommendation(on file). Mr. Da.hilig. Maybe, Kaaina, m'hat we can do is ask the applicant if they have read the conditions and if they concur with tliem. Chair: We are just asking you again if you have seen all the conditions. Instead of going through and reading all the conditions... Mr. French: I agree with all the conditions. Chair: If you agree with them then we don't need to go through every condition if that is okay. Staff: And just for the one condition that stands out, in particular the State Historic Preservation Division requirement which we have recently received communications from that agency and the applicant's proposal includes what is already mandated. Or I should say already includes what is mandated by SHPD. Chair: So we don't need to revise the condition at all then so you are good to go with these conditions. Staff: We are good to go. Mr. Kimura: Move to approve Special Management Area Use Permit SMA(U)-2012-1, Use Permit U-2012-6, and Class IV Zoning Permit Z-IV-2012-6, Lealani Corp. Ms. Matsumoto: Second. Mr. Kimura: And to close the public hearing. Ms. Matsumoto: Second. Chair: Any discussion on the application,there being none I would like to have roll call please. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to close the public hearing and approve staff recommendation, motion carried by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting: Vacant -1 Commission recessed at 2:16 p.m. Meeting called back to order at 2:31 p.m. Mr. Dahill : Mr. Chair, we have a motion on the floor to approve Special Permit application 2011-13. The Commission was at the entertainment of additional condition, specifically condition No. 21 pertaining to a revised agricultural plan and the issues concerning Planning Commission Minutes November 8,2011 50 what appears to be an encroachment on a neighboring property. What I would suggest if the applicant's substitution counsel would concur, that item 21 be added as a condition to delegate authority to the Planning Director to review the agricultural plan to ensure non-encroachment on the property by other plants and other agricultural activities. That would be my suggestion. Chair: That is condition No. 21? Mr. Dahilig_ Yes,that would be suggested condition No. 21. Mr. Kimura: This is a comment that they notify Princeville that they are using their property in the back and to notify the County that their hedge isn't encroaching on County property in the front. Mr. Dahilig: So again it would be the Director's responsibility to resolve all potential encroachments. Mr. Kimura: Potential. Mr. Dahilig. Potential, because the map that is provided is not done by a surveyor,there is no stamp on it, it is just merely for location purposes sa I think part of the Sherlock Holmes activity here is to ensure that there are no encroachments. Mr. Kimura: And if there is? Mr. Dahilig: If there is then I would resolve it on behalf of the Commission. Chair: So that would be existing and potential. Mr. Kimura: Resolve meaning the front Codnty property will be taken back by the County? Mr. Dahill It still is the County's but they would have to resolve that with the County as well as if this is Princeville in the back and inform them that there was a representation before the Planning Commission of ag. activities on their adjacent properties qnd that those are no longer going to be considered as part of the ag. activity on the actipg permit. Mr. Kimura: And if this hedge is encroaching on County property will that be to-en down if it is on County property? Mr. Dahilig: It is up to the County. Again I cannot speak for the County at this point because that... Mr. Kimura: Can we make a condition saying that if it is on County property that the hedge be removed? Mr. Dahilig: That would be a private landowner issue so if the Department of Public Works, if this is fact is on a County right-of-way, does still want to have the hedge then that should be their...that can be their call but that is not our department's call to make. Mr. Jun>7: There are two steps Here, one is if the hedge does encroach on the County property, then two, if it does, then the County Engineer will have to detenhine what to do. It could be a request to remove the hedge from tie County property or they could want the hedge there. It is going to be up to the Engineer. Mr. Dahilig: And the same for Princeville. Mr. Kimura: Putting something on the County's property without the County's permission is illegal to begin with. Planning Commission Minutes November 8,2011 51 Mr. Jung: Well it may be overgrowth, we just don't know. So in terms of affecting County property if there is an issue once they notify the County l.hen we will have the County Engineer take a look at it and it is his Kuleana to make that determination. Chair: Mike, so 'we need to add condition 21? Staff: The way the Director put it was appropriate, delegate authority to the Planning Director to ensure non-encroachment of ag. or improvements on abutting properties. Chair: Is that acceptable? This is an additional condition so do we have a main motion on the floor? Mr. Dahilig: If Commissioner's Blake and Matsumoto believe it is a friendly amendment you wouldn't need an additional motion. Chair: So we can just get to the main motion then. Mr. Dahilig: Yes,just so long as they believe it is a friendly amendment. Chair: So going back to the applicant's rep., Mr. Belles thank you for representing the applicant. Mr. Belles: Good afternoon Mr. Chairman and members of the Planning Commission. Again for the record my name is Michael Belles representing our firm's client Ms. Cunningham. In listening to the discussion we have no objections to the delegation of authority to the Planning Director to conduct whatever investigation is necessary and then to work with the parties in coming up with an appropriate resolution should there be an encroachment. Chair: Thank you Mr. Belles. So with that in mind we need a motion... Mr. Dahilig: If the motion make believes it is a friendly amendment then we don't need to take a vote on that. Chair: Who was the motion maker? Mr. Dahili2: It was Commissioner Blake and then Commissioner Matsumoto. Chair: So Commissioner Blake, the Planning Director states that if you concur that it is a friendly amendment then we don't have to formally amend that condition if you concur. So Mr. Blake concprs that it is a friendly condition so therefore it will be included'as condition No. 21 and therefore we already made a motion originally,I am not sure. Mr. Dahilig: Yes. Chair: I would Iike to call for roll call please. On motion made by Hartwell Blake and Camilla Matsumoto, to approve staff recommendation,motion carried by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting: Vacant -1 Special Permit SP-2011-17 to permit use of an existiniz single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Kaldheo Homesteads. Kauai east of and adjacent to the end of Waewae Place further identified as Tax Map Key 2-4-2:20.(2), and containing an area of.776 acres of the overall 1.034 acre site Planning Commission Minutes November 8,2011 52 Fa ye Brenner. (Hearings Officer Special Meeting Public Hearing was closed 10/19/11, refer to 10/19/11 Minutes.] Supplemental No. 1 Director's Report pertainilig to this matter. Staff Planner Mike Laureta: The applicant's ire Faye and Robert Brenner. The propetty is a CPR unit No. 2 of a two unit CPR,both of which are owned by the applicants. The other CPR is not being sought for a TVR. Kalaheo Homesteads,the unit size is .258 acres, overall property size is 1.034. The property is very steep and they provided a topo map produced by a surveyor. The applicant has planted flower and fruit trees on property for personal consumption and use and enjoyment by the guests. Chickens and a hen house also exist. Recent inspection by the department reflected the extent of agricultural use and no zoning violations. The soils on a scale of A to E is rated E. The public hearing,the department received a letter of objection from an abutting neighbor dated 10/19/11,this is also attached to the report as exhibit 6 for information purposes. The complainant's husband submitted a letter of support for the request which is attached as exhibit 5. The complainant requests similar consideration for TVR use even though she did n©t submit an application. Applicant reiterated the information contained in the application. There being no further discussion the hearings officer closed the public hearing. In Kal"heo there are a total of 4 applications out of 81. This is the first that you have seen from Kalaheo. The evaluation is similar and consistent to the previous applications has prepared to the Commission as is the conclusion. This concludes staffs report. Chair: Are there any questions of Mr. Laureta? Seeing none I would like to call on the applicant to come forward please. Mr. Chun: Good afternoon Mr. Chair and members of the Commission. Sorry for the delay and I want to thank my partner for filling in for me on the last application. We have reviewed...also I represent the applicant in this case. I came on later in the process that is why my name is not on the application its self but she has asked me to stand in her stead in today's hearing. We have reviewed the report along with the conditions and recommendations and we would agree with the conditions imposed including the newer ones that were going to be amended later on. Chair: Any questions of the applicant's representative? Seeing none,thank you, anyone from the pudic wishing to testify on this application please come forward. Seeing none,Mr. Laureta would you like to make your conclusion. Staff. Based on the foregoing evaluation and conclusion it is recommended that Special Permit 20 -17 to Faye and Robert Brenner be approved subject to the following conditions. All the conditions 1-9 are consistent, 10 is being revised to be consistent with earlier Commission comments and recommendations. And in the back they are the similar conditions, 18,no commercial use of the property and 20 is resolution of agency comments. The applicant has a lot of agriculture going on, on the property, even with the steep slopes of the property so we are not recommending additional agricultural use. Chair: But we do have condition No. 20,right? You mentioned 20 so it is just 19? Staff No, 19: Chair: Okay,just wanted to clarify that. Staff That concludes staff's recommendation. Chair: Thank you, what is the desire of this honorable body? We need some kind of motion. Ms. Matsumoto: Move to approve this application as read by the planner. Planning Commission Minutes November 8,2011 53 Mr. Blake: Second. Chair: Any discussion, so we don't need to modify or amend any of the conditions, we are all set to go? Staff. It's good. Chair: If there is no further discussion could we have roll call please. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve staff report as read by the planner, motion carried unanimously by the following roll call vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Raco, Katayama -2 Not Voting: Vacant -1 ANNOUNCEMENTS The next scheduled public hearing to o be held by the Kauai Planning Commission's Hearings Officer will be held at 9:00 a.m.. or shortly thereafter at the County of Kauai Board of Water Supply Board Room,locatEd on the second ;door of the Kauai County Department of Water's Microbiology Lab Building, 4398 Pua Loke Street Llhu`e Kauai Hawaii 96766 on Friday, November 18, 2011. ,_ The following scheduled Planning Commission meeting will held at 9:00 a.m., or shortly thereafter at the L�u`e Civic Center, Moikeha Building,Ml eeting Roo 2A-2B, 4444 Rice Street, Lihu`e, Kauai,Hawaii 96766 on Tuesday, November 22,2011. The next scheduled public hearing to be held by the Kauai Planning Commission's Hearings Officer will be held at 9:00 a.m., or shortly thereafter at the L-ihu`e Civic Center, Moikeha Building Meeting Room 2A-2B 4444 Rice Street. Lihu`e Kauai Hawaii 96766 on Tuesday,November 29, 2011. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to adjourn the#neeting, motion carried unanimously by voice vote. ADOURNMENT Commission adjourned the meeting at 2:46 p.m. Respectfully Submitted. cv. Lani Agoot Commission Support Clerk Planning Commission Minutes November 8,2011 54