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Home My WebLink Aboutpc12-13-11minutes KAUAI PLANNING COMMISSION REGULAR MEETING December 13, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair,Herman Texeira at 9:19 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 Mh Hartwell Blake Mr. Caven Raco Mr. Wayne ks.atayama Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: I would like to ask before the approval of the agenda if we need to make any modifications to the agenda. Mr. Dahilia: Thank you Mr. Chair, we would like to recoffimend that the agenda be approved with the following modifications that item B.4 be moved before the Special Order of the Day which is item A on the agenda as well as a minor correction on item G.2, the date is actually 1/10/2012 rather than 1/6/2012. Chair: So the order will be the same after these changes? Mr. Dahili2: Yes. Chair. Can I get a motion to approve the agenda please? Mr. Katayama: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed,motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to approve the agenda as amended, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Hartwell Blake and seconded by Wayne Katayama, to receive items for the record, motion carried unanimously by voice vote. MINUTES On motion made by Hartwell Blake and seconded by Wayne Katayama, to approve meeting minutes of November 8, 2011 and November 22,2011, motion carried unanimously by voice vote. EXECUTIVE SESSION Executive Session: Pursuant to Hawaii Revised Statutes 92-4, 92-5(a)(4), and Kada`i County Charter Section 3.07(E),the Office of the Counter Attorney requests an executive session with the Planning Commission to discuss matters pertaining ;`i Revised Statutes Section wz �to Hawai JAN 2 4 2012 514B and the provisions of Ordinance No, 904. This briefiniz and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Planninw Commission and the County as they relate to this agenda item. Ort motion made by Wayne Katayama and seconded by Jan Kimura, t6 go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 9:24 a.m. Meeting was called back to order at 10:24 a.m. Chair: If there is no objection we would like to move item A after item B, so we are going to be starting with item$ because we need to get more information for item A, some printed material. GENERAL BUSINESS MATTERS Annual Status Report 2000 (2/11/11) regarding Complianc36 with Permit Conditions and request to amend Condition No. 10 to allow additional time to complete project, submitted by Robert Q. Bruhl, Vice President, for Project Development Use Permit P.D.U-2006-19, Variance Permit V-2006-08 and Class IV Zoning Permit Z-IV-2006-24 for D.R. Horton —Schuler Division, Tax Map Key 3-7-003:0202, Hanamd`ulu, Kauai. Staff Report pertaining to this matter. Staff Planner Dale Cua read staff report(on file). Chair: Any questions for our planner Dale Cua? Seeing none, thank you Dale, I would like to call on the applicant's representative please. Mr. Clyde Kodani: Good morning Commissioners, for the record my name is Clyde Kodani and with me is Bob Bruhl, Vice President of D.R. Horton who will do all the talking. Chair: Bob,before you go into your, if you are going to do a presentation, you have heard the planner's comments and recommendations, are you in concurrence? Do you have any concerns that you want to share with us? Mr. Bruhl: I know we are in concurrence and appreciate the Commission's time and consideration on the matter. Chair: Do you want to add anything to that recommendation? Do you have anything to add on behalf of your project? Mr. Bruhl: No, we feel that it was accurately presented, thank you. Mr. Kimura. You are asking for an amendment that would allow five years to commence an I correct? Mr. Bruhl: I believe it I am not mistaken it would take us to five years to commence. Mr. Kimura: Well here it says "Applicant is proposing two amendments that would allow five years to commence with the construction on the project from the date of Commission approval and ten years to complete". So what are you asking for, an additional one year to start the project and an additional two years to finish the project? Staff. That would be correct. That would be an amendment to the previous approval that was done. Mr. Kimura: And the previous approval was four and eight, four years to begin and eight years to complete. Planning Commission Minutes December 13,2011 2 Staff Correct. Mr. Bruhl: One thing if I can just add, for those of you that may not know our company does have a fairly long history of building here on Kauai. Following shortly after Iniki we started with our developments in Puhi and built 700 affordable homes, about 700 affordable homes to meet Grove's 60%requirement under various zoning conditions that they had on other master planned areas. This project was purchase by our company in 2005. I was the representative who was involved from the company's standpoint at that time. For your benefit my background is I am responsible for our development statewide so gn O`ahu, Kauai,the Big Island,and Maui. At the time when we purchase the project we negotiated for the purchase of all 60 acres. You have seen before you subdivision actions our company is pursuing both for the large lot subdivision to break up the 60 acres into four or .five sub-parcels. Those four or five sub-parcels then become the development phases of Kohealoa. There also is before you I think in separate,not today but at different times a subdivision action to take one of those parcels and break it up into smaller single fainily lots. That will be our first area that we are developing. One thing I wanted to make trertain that you all understood is that our company is here with the intent of doing something that we feel is good for the island of Kauai and is to provide resident housing,workforce housing and the same typz of housing that we provided at Puhi. It is nearby the employment center,it is in an area that has long been zoned for residential development. We have worked continuously with the various departments here and with Mr. Kodani's help both on the State and the County side to work through the various issues that are usually inherent to a large project of this nature. In 08 we were able to successfully participate in the affordable housing agreemert. In 09 and 10 the water master plan and the infrastructure master plan were approved. Recently, as of last week I am happy to report we now have an agreement in principal with the Department of Transportation for the improvements that are required along Kuhi`o Highway. That agreement is now before the Attorney General and we are hoping to have it executed hopefully in the first quarter depending on how long they take. If they send it to us and tell us to sign it we would sign it tomorrow. Clyde has submitted our first set of civil plans,construction plan;that are with the Department of Public Works. We have made it through most of the agencies except I think Public Works is the last one we are waiting for comments from with respect to that first phase. It is our intention to start construction in the second half of 2012,of caleridar 2012, assuming that gives the ample time that we need to nail down all the appropriate approvals and to finish working with the various departments. I give you that background because I wanted to make sure that you understand that we are committed to this project and we want to see It through. We have owned it for a long time and we are not sitting on it we are trying to work through the various issues we need to work through appropriately with all the myriad of agencies so that we can move forward. If there was any rumor or sentiment that we weren't going to stay with this project believe me in the more difficult parts of the housing downturn those decisions or that action would have been clear. We view this as the appropriate place for housing development on Kauai for its residence. We view our company as the appropriate company to see that throu&-h with our history and we saw it as an important way to nail down our fixture here on Kauai. So that is why we are here today. IVith that if I am not mistaken I am a little bit confused because I know it may be up to your discretion but we are talking about a one year extension. I am hoping that it would not ask too much,it is a one year extension from the date of any approval you may or may not provide today as oppgsed to the March date of the letter before because that would only take us out three months. I can tell then we will be back before you respectfully asking for your time one more time maybe in four months. So if we could have until one then hopefully what we are doing is showing that we have approved construction plans and perhaps even as exciting as it sounds we may have started work too and then it would be that much more clear to you. So thank you for your time this morning. Mr. Kiniura: My concerns with allowing extensions are I feel that we want to get the construction workers back to work as soon as possible. Construction on Kauai is a little slow and this project for reasons unknown to me is...why is it going to take five years to complete? Planning Commission Minutes December 13,2411 3 Mr.Bruhl: Actually I think it will take a little bit longer to complete truthfiilly speaking because there will be the backbone infrastructure and the major civil work will not but,there are four phases to this project,it is a total of 445 units even though I think it said 2,93. There is one parcel that we also own that is connected to it,it is part of Koheglpa but I think it}s subject to a different zoning ordinance which is why it is not part of this Class IV technically, and that is the R-6 parcel,isn't that correct? So we think of it as the 440,450 units in total. That can't happen overnight in Hawai`i's strongest market and none the less Kauai's strongest market. We think of it as probably anywhere between once we start 50 units, 50 homes in the first year,and riaybe because of the variety of housing that is going to be offered and the variety of price points because it is predominantly or 40%of it is affordable hotising to meet growth requirement under the Ll iu`e/Hanamd'u$master plan are and the rest is all market rate resident housing. Maybe we would average somewhere between.'60 and 80 units a year,maybe a little bit better depending on the market. I would suspect that we would be back before you s4owing our progress year to year as we are constructirig in dehyering housing but that it would take closer, once we are started, would take closer to a decade to complete a project of this size. Mr. Kimura: So your marketing plan is to build in phases as the market demands? Mr. Bruhl: To build in phases, it is hard to know what the market is derzanding but I will tell you... Mr. Kimura: But the plan is to build as the market deman ds. 4 Mr. Bruhl: Yes but we would like to have phase I and phase II going simultaneously because they are very different housing types,phase II is a smaller unit,smaller set of units,it is multi-family, it is a much lower price point. Phase I will be single family detached subdivided homes and some additional dwelling units that allow us to have a different offering type. So we think we can hit,because of the price point differential,we should be able to hit different parts of the market and sell them sirriultaneously. The only piece of experience I can speak to, I have been with the company for eight years so the only proj ect that we have done on Kauai in that eight year time frame was Halelani Phase LE,which we marketed as Hookena which was all affordable housing, it was 56 units and they were townhomes. And we were told that they weren't going to sell on Kauai,that the people of Kauai don't want to live in attached and we had done a bunch of single family homes as well prior just this particular parcel was zoned a certain way. We sold all 56 and closed them in one year so I know that there is a demand here. Even though the market,that times are tougher,the price point in tougher times moves down but the demand is still there so it is going to be our job to see if we can bring it. Mr. Kimura: Do you think there was a demand or just that is all that was available. Mr. Bruhl: They may be one in the same. One of the challenges for Kauai is there is not a lot going on here right now and we are with you,we want to get it going because our trade partners are looking for work too. You are talking to one representative of a company that through these tough economic times has found a way in its projects to invest about 100 million dollars a year into Hawaii year in and year out since 08. We haven't pulled back and we haven't been making a lot of money on that but we have a job, we need to keep our machine moving forward so the guys stay employed. And that 100 million dollars represents the buildings that we build but also it represents all the infrastructure that we are building throughout those project areas on sites and off sites. There are some considerable off sites that we have to build in terms of water line improvements, sewer lift stations and things like that and improvements to Kuhi`6 Highway and that is what we are willing to step up and do. And that is what we want to have the chance to do because that is what we do for a living;we need to get our approvals to do so. Mr. Kimura: Do you plan on using island contractors for these jobs? Mr. Bruhl: That is our intent because it is very expensive to have guys ship everything over. There may be...that is what we did in 07 predominantly for Hookena,there may be a trade or two that come over but that is because there just there are holes in the system here too. But especially from a site standpoint I can tell you it is going to be more economical for us to use Planning Commission Mintites December 13,2011 4 G-91 or Koga or somebody who is set up here than to have Royal or one of the dredging or whoever ship equipment over on Young Brdthers. Mr. Kimura: I commend you for that. Chair: Mr. Kimura, I just want to ask all the other Commissioners; I can get back to you, anybody else wishing to ask any...could you discuss your time frame again in terms of your completion. You said it would take about ten years or so. Mr. Bruhl: I believe so from the point we are able to start. Chair: So you are looking at when? Mr. Bruhl: So if we started construction in the second half of 2012 we would hope to have this project finished around 2020, 2022, it is hard to look out that far. Chair: When do you think would be the majority of your Work would be coming on board or when you would start? If you were looking at a chart what would be the years that you would have the most activity do you think? Mr. Bruhl: if we could start in the second half of next year I think the majority of the activity you wog} d see especially from the infrastructure standpoint would be through 2015. There are some off sites that are required and we need to work with the agencies exactly when those are going to go in. And then there are some off sites that are required by Grove Farm that I can't speak to that don't necessarily hold up the first two phases, they hold up later phases, water system expansion and 'items like that. Chair: In terms of a planning prospective as Jan was saying we would like to see construction every year so that we can have the workforce instead of peaks and.valleys. It would be nice to see a steady I wouldn't say growth but just a steady spurt of activity. It seems like there are a bunch of projects, construction projects that will be coming on board around 2014, 2015, it seems like it is coming to a confluence at that particular time. Does that imp4ct your project because there are other residential projects that might be coming on board right around this time such as Grove Farm? Mr. Bruhl: I am answering my opinion, the answer is no in my view because*e feel we have a job to do and we have an investment to protect too and the only way that we are going to adequately manage that property is by responsibly developing it. We are not in the business of buying land and holding it for decades. Unfortunately we don't have the luxuries of a tot of the original trust or things like that. Now,that being said, if someone were to develop something that directly competes with Kohoaloa might it slow down our sales, certainly, but we deal with that everywhere where we operate and I certainly wouldn't expect us to be the only game in town. Chair: Are you having the same problems and situations on the neighbor islands? Mr. Bruhl: The neighbor islands in terms of the economy? Chair: The economy and your projects in terms of... Mr. Bruhl: To different degrees. The neighbor islands, 'each economy is different, Maui has prover'to be decently sta..ble for us in the single family area but not in the multi-family area, we have taken some hits there. The Big Island has been probably been hit the first, the hardest, and will be the last to come out of it and Oahu has remained decently stable. I guess to sum it up this way we have learned a lot of lessons all over the place the hard way but that hasn't stopped our resolve. I sit here before you hopefully cdnveying'a sense of excitement. I wanted to be here myself today so we could send you this message. Our company is starting to again aggressively push forward with our projects. We feel that the time is coming upon us where it is the right time to move forward and to get these things in place because if they are ready to go in a year or two years, we are in the throw of it three years from now,that timing would have proven to be good. Planning Commission Minutes December 13,2011 And for a long time we spent four years fixing our own problems internally in dealing with a very aggressive downturn nationally, not just in real estate but like all of us have everybody. I sit before you here telling you that we are looking...I think we spent a lot of time bailing the water out of the canoe because there were so many holes, you are bailing the water out, bailing the water out, and then all of a sudden maybe for six months all you were doing was bailing and there was no water left that is was time to look for a paddle again. So I am si=tting before you saying I hope when we are back here the next time you call us in, if we haven't started work then we have gotten another big box check which is approved construction plans or something else because we know how important it is to show this particular group consistent progress. Chair: Thank you for coming forward today, we appreciate it. Anyone from the public wishing to testify on this matter, seeing none, Dale, do you need to provide a... Staff. Based on staff's recommendation Bob has brought up a good point. If we were to commence based on the language being proposed, if he was to commence with the construction five years from the date of Planning Commission approval that would bring thb deadline date to March of 2012. If we were to accommodate Mr. Bruhl's concern then I would suggest amending at least the first part of condition No. 10 and rather than five years it would be six years. So it would push the commencement date starting with the project to March of 2013 but keep the completion date the same to 2017. At some point if they need to go beyond 2017 then we could probably address it at that point in time, five years from now. Bui at least for the commencement it would give them some time to at least complete the construction plans and start with the project. Chair: Thank you for the recommendation, what are the wishes? Mr. Katayama: I have a question for the Director or Dale, is any part of this project bonded? Staff: I cari actually answer that. Right now the applicant has two subdivisions that have received tentative approval. One of the subdivisions involves, if you go to your exhibits, it involves (inaudible)parcel 4 project. That parcel 4 project has received a different entitlement from the bigger entitlement for the AMFAC Li11u`e master plan area however as Bob mentioned this parcel 4 project is still within the Kohealoa project which is the entire project in its self. The applicant is in to subdivide the Kohealoa project into these four parcels. So you have one subdivision that breaks up the 60 acre piece into four parcels and then you have a separate subdivision to create the individual single family lots within parcel 4. If the applicant chooses to bond the parcel 4 project then they would be able to obtain final subdivision approval of the project. Mr. Kataama: And sine D.R. Horton is stepping into meeting Grove Farm's affordable housing requirement are there any responsibil'itie's going back to Grove Farm for nonperformance? Mr. Dahiliz You mean nonperformance on behalf of Horton? Mr. Kata ama: Yes. Mr. Dahilig. I guess part of the affordable housing requirements are meant to help support further development on other lands that Grove Farm hasn't initiated yet so if this doesn't go through then Grove Farm would have to find other alternatives to do that. Mr. Bruhl: I can, also, if it is appropriate,jump in there and just say... Mr. Katayama: The question really I am having is that I am hoping that these affordable housing requirements are market driven as opposed tip a subsidy or some other reason. If the market does not or affordable housing doesn't match other development plans for Grove Farm are there any strings that go back to that? Planning Commission Minutes December 13,2011 6 Mr. Bruhl: I can answer in the context of our purchase contract negotiation$with Grove Farm,these parcels first have recorded against them the zoning conditions that require affordable development on them to begin with. We have agreed as part of the original purchase from Grove Farm to do additional affordable above and beyond and then we reached an agreement with the County of Kauai which speaks directly to these parcels and says that they will be 40% affordable housing. So there are items of'record that restrict this area. So if it is D.R. Horton that doesn't follow through the eventual owner of this parcel will be developing affordable housing here at some point. But I will tell you right now it is our intention that is us, we have done it before. And speaking to the bonding issue we can't place a bond until we have approved plans but we are not going to delay to post that bond once we get everything lined up for final subdivision approval. Mr. Katayama: Thank you. Chair: Any other questions of the appl-ant? Thank you. We have a suggestion by Dale that we amend condition No. 10 and Dale, coWd you read that condition so that we can decide whether we want to... Staff. As proposed condition 10 would read, "Applicant shall commence construction of the project development within six years from the date of Planning Commission approval and shall complete construction of the project development within ten years from the date of Planning Commission approval of the subject pertnit." And the rest remains the same. Chair: Does the 2017 still apply? Staff. Yes. Mr. Kimura: I make a motion, move to approve amendment No. 10 as read by the planner? Chair: Do we need to approve the report as vyeW Mr. Dahilig: And maybe if I could suggest and also accept the status report. Mr. Kimura: And accept the status report from staff. Ms. Matsumoto: Second. Chair: Any discussion, roll call please. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to accept status report and approve staff recommendation as amended, motion carried unanimou"ly by the following roll call vote: Ayes: Matsumoto, Blake, Kimura; Katayama, Texeira -5 Noes: Done -0 Absent: Raco -1 Not Voting: Vacant -1 SPECIAL ORDER OF THE DAY Special Permit SP-2011-22 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. 2,-650 ft. northeast of the Old Kuhi`6 Highway and Moloa`a Road Intersection, further identified as Tax Map Key 4-9-13:1 (Unit B aka"Skippers") and containing a unit area of 14,839 sq. ft. of a 31,246 sq. ft. parcel=Aldo & Lisa AlbertonL rHearings Officer Special Meeting Public Hearing held 11/18/11, Motion to approve not carried due to a split 3/3 vote 11/22/11.1 Planning Commission Minutes December 13,2011 7 Staff Planner Mike Laureta read supplemental Director's Report No. 2 (on file). Chair: Thank you, any of the Commissioners wish to dddres�any concerns to Mr. Laureta? Seeing none, at this time I would like to call on the applicant's representative to come forward please.,. Unidentified Speaker: Good morning Commissioners and Chair. I would add to the report and to the supplemental report No. 1 that was read last time to say that, a very positive report to the application, I would add that in eleven years... Mr. Dahilip,: Excuse me Mr. Foster, at the last meeting the applicant appeared pro-say if I recall and so I just want to confirm with the applicant that now Mr. Foster is speaking on your behalf and is your authorized agent? Mr. Albertoni: That is correct. Mr. Foster: I would add that in having spoken with the applicant at length in eleven years of operation of the TVRs, eleven years for the one and three years for the second there has never been a single complaint. It is very quiet. He runs a very quiet operation. He insists that there not be celebrations and parties. He advertizes it as a quiet getaway. He is on great terms with his closest neighbors,there are no really close neighbors, so again, in eleven years there have been no noise complaints, no complaints about the operation. I would also .draw your attention to exhibit 3 if you have ttie supplemental report No. 1 still with you, the agricultural activities on the property, avocado,coconut,mango, lemon, orange, grapefruit, mandarin,tangelo, passion fruit, cherries,bananas,papayas, and he has plans to increase this. So it strikes me coming in late in looking over this application that this application is far and away one that this body would easily have granted prior. So that being said we would...one other thing, it satisfies all requirements of ordinance 904 and all the regulations, all the conditions are easily complied with and the applicant is very happy to comply with all conditions. The supplemental report says that tliere are no negative impacts, there is plenty of off-street parking, you won't have negative impacts on the area or the neighborhood. So we would be happy to take any questions. Chair: Any of our Commissioners wish to ask any questions? Mr. Katayama: For clarification you said that one TVR was in for eleven years and the second for three, which is which? For this parcel that we are considering how many years was it in operation? Mr. Foster: This is the one that has been operating for three years, three and a half years. Mr. Kimura: You built the ADU in February of 2008, correct? Have you used the ADU according to the additional dwelling unit concept, the concept exists now as a general housing opportunity. The ADU camp; about for'reasons of the housing crisis back in the 90s or 80s and it seems like you built the ADU for a TVR rental or just a TVR rental instead of what the concept of the ADU was. Mr. Foster: What is the question? Mr. Kimura: The question is, have you used the ADU other than a TVR? Unidentified Speaker: We bought the first one which is a very small house eleven years ago and then in the meantime we have adopted four kids and the small one bedroom house didn't accommodate us all. So when the County put a sunset clause on the ADU capabilities we thought that is probably a very good time to go ahead and build the ADU that would accommodate all of us. So yes, my family comes and uses it a lot. Mr. Kimura: I understand that but you haven't answered my question. Have you used the ADU other than a TVR? Planning Commission Minutes December 13,2011 8 Mr. Foster: As he stated his own family and that is not as a TVR, his own fardily stays there when they are here. Chair: Anyone else? Mrs,: I think, Commissioners,procedurally and maybe the attorney can correct me if I am wrong on this but because there was a no action at the last meeting technically there is still a motion on the floor for discussion and another vote so that is why it is listed as a Special Order of the Day. So it was a motion to approve the Special Permit application as recommended by the Director's reports. Chair: In terms of order should I ask for public comment? Mr. Dahilig: I would recommend public comment and then I guess deliberation and discussion and then another vote on the matter. Chair: At this time anyone from the public wishing to speak on this applic�aion please raise your hand or comp;forward. Seeing none, Mr. Laureta, qre there any concluding remarks that you wish to make before we deliberate? Staff. Other than that the Dir'ector's report recommended approval with the 19 conditions of approval which were generally all standard. Chair: So you don't have any further... Staff. No, nothing further. Chair: Going back to the applicant again, you have seen the supplemental report and I am sorry but I didn't get the fact that you either accepted the report or you have any comments on the revised supplemental report? Mr. Foster: We accept the supplemental report and have no objections. Chair: Thank you. Mr. Jung: Commissioners,just to clarify and concur with Mike,the Director,this motion is still open because there was no action sb there is still the motion to approve so you guys will have to take action on that motion to approve. Mr. Kimura: So we need to make a motion? Mr. Jung: No, the motion is already on the floor. Mr. Kimura: Can I make another motion? Mr. Jung; You have to act on the other motion first. Chair: Can we bontinue the discussion or do we have to... Mr. Dahilig: I would say as part of the discussion you can amend the previous motion but the motion that was voted on last time still needs to be disposed of Mr. Kimura: By amending the original motion meaning taking back your motion? Mr. Dahilig: No it would be to if you wanted to change, let's say for instance you wanted to adjust conditions that is still allowable I would say but the main motion still needs to be disposed of Mr. Kimura: So we are in discussion now. Chair: Correct,Mr. Blake. Planning Commission Minutes December 13,2011 9 Mr. Blake: So there is a motion to approve that is on the floor. If we vote right now 4 to I and there are 4 votes to approve then it is granted. Mr. Dahilig: Yes. Mr. Blake: And if we vote righ f now and there are 4 against it is not granted. Mr. Dahilig: It would fail. Mr. Blake: The motion would fail and if it is still 3/3 or 2/2 then nothing happens again and it gets put over. Mr. Dahilig: Maybe the attorney can advise on the timing on this. Mt. Jung: Per the rules of Chapter 13 we would have an additional 45 days to take action on the petition. Mr. Blake: How many 45 day periods do you get? Mr. Jung: Just one per the rules. Mr. Blake: And we are not in that 45 day period right now? Mr. Jung: No. Mr. Blake: Why not? Mr. Jung: Because the maximum 210 days is not up yet. Mr. Blake: And the issue before the Commission right now is the approval of the smaller unit that is only'three years old to be utilized as a TVR? Staff No, this vote is on the larger unit. Mr. Blake: So the small one has been approve already. Staff: Yes. Mr. Blake: And Commissioner Kimura's question was whether the second TVR, excuse me,the second unit was built as an ADU or a TVR. Mr. Kimura: Did they ever use the Abu other than a TVR. Mr. Blake: And the answer to that was we use it as an ADU, the family. Mr. Kimura. Yes. Mr. Blake: But only them. Mr. Kimura: My take on the ADU when the County came up with that was for additional housing because of the housing crisis. They already had one House and they turned it into a TVR. Then they had an ADU which if they want to make one of their houses into a TVR it is acceptable but the ADU was intended for housing in my opinion and to have that turned into a TVR is kind of misusing what the ADU was intended for. That would be my reason for denial on this particular application. It is just misuse of the ADU, what was intended for. Chair: Anyone else wishing to... Ms. Matsumoto: To clarify then, the motion is concerning the larger unit? Planning Commission Minutes December 13,2011 10 Chair: Correct. Mr. Kimura: I have a question, this might be for the attorney or the Director, how do we go about or how do I go about changing that motion from approval to my reason for denial? Mr. Jung: Because the motion that is open 'on the floor is to approve then if the motion to approve gets voted clown with a valid action of 4 votes then you could subsequently make a motion to deny but you have to act on the me tioh to approve first. Mr. Kimura: What if whoever made the motion to approve takes it back? Mr. Jung. It's been acted on. Mr. Kimura: We acted on it, we voted on it once, okay. Chair: I would like to state for the record as well that I am concerned about the issue of intent and the original purpose of the ADU which was to provide housing for residence, additional housing, especially fbr families that wanted to bring their kids back home and to provide additional housing as a need arose. So I would like to just state that I support what you have been stating, Jan, for the record. Anyone else wishing to speak on this matter? Seeing none I would like to call for a roll call please. Before we do that, I'm sorry could we state the motion again? Mr. Dahilig: Again]Mr. Chair, this motion is to approve Special Permit application SP- 2011-22 with conditions as outlined in the supplemental Director's reports. On motion made by Wayne Katayama and seconded by Hartwell Blake_ , to approve staff recommendation, motion did not carry by the f6llowing roll call vote: Ayes: None -0 Noes: Matsumoto, Blake, Kimura, Katayama, Texeira -S Absent: Raco 1 Not Voting: Vacant -1 Mr. Dahilig. Mr. Chair, given the action we need one more motion. Mr. Jung: Yes,the motion to approve failed so you can either, this is the last meeting to act but yot� could... Mr. Kimura: Make a motion to deny? I would like to make a motion to deny Special Permit SP-2011-22, tax map key 4-9-13:01, unit B, aka"Skippers". Mr. Katayama: Second, Chair: Any discussion on the motion to deny? Mr. Dahilig: Mr. Chair, I would also request if it could be received as a friendly amendment that the motion include authorization for the Chair it execute any appkopriate decisions and orders and any documentation relating to the denial of the permit. Mr. Kimura: Meaning? Mr. Dahilig: That the Chair can sign off on the decision and order. Chair: So do we need to amend that motion to include your statement? Mt. Dahilig: If both the motion maker abd the person that made the second view it as a friendly amendment no charge to the motion would be needed. Chair: Very good,there being no further discussion could we have roll call please? Planning Commission Minutes December 13,2011 11 On motion made by Jan Kimura and .seconded by Wayne Katayama, to deny staff recommendation and authorize Chair to execute any appropriate decision and :order and documentation relating to the denial, motion carried unanimously by the Following rofl call vote: Ayes: Matsumoto, Blake, Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Raco -1 Not Voting: Vacant -1 Annual Status Report (I 1/17/09) submitted by Avery H. Youn, Authorized Agent for Special Management Area Use Permit SMA -2004-6 Project Development Use Permit P.D.U-2004-30_and Class IV Zoning Permit Z-IV-200-35 for Po`ipu Beach Villas, LLC., Tax Map Key 2.8-015:025-037 045-074 081 Po`ipu, Kauai. Staff Report pertaining to this matter. Staff Dale Cua: Basically what you have before you is;the applicant's compliance with condition No. 7 of the permits so in accordance with the condition the applicant is providirig its annual status report for the year 2011. Based on the status report it is recommended by the department that the Commission accept the annual status report dated November 15, 2011. Also, the applicant is advised that all applicable conditions of the approval including the provision for an annual status report as required by condition No. 10 shall remain in effect. Chair: Any questions of Mr. Cua? There being none I world like to call on the applicant's representative. Mr. AveKy Youn: Good morning Commissioners, my name is Avery Youn, with me today is Todd Hadley the project manager for K61oa Landing. We are here primarily to answer questions. I just want to make one comment on the condition. I just want to say that the condition as worded does not accommodate phase construction which is what we are doing here. The first phase was 86 units and that is 26% of the project. The second phase which is under construction now is 62 units so we have a total of 148 units. With these 148 units we are it 45%. Now if you look at the condition it states that substantial construction shall mean completion of infrastructure, foundations, s-lructure walls and roofing but when you deal with phase construction you are not going to have walls and roofing in the future phases. Before,this Commission and the department identified substantial construction as completion of foundations and with this condition it changes it a little. So although we are not affected by this now, when we come in for our next annual status report we probably would have to address the wording in this condition so that it will accommodate phasing instead of completion of all the unit's foundation walls and roves because it just doesn't work that way in today's market. Are there any questions? Chair: Any questions of the applicant's representative? Seeing none, Mr. Cua, you have heard the comments made by Mr. Youn, can we accommodate his recommendations? Staff- Yes, I think as he noted the next time they come in for an annual status report in 2012 then these particular matters can be addressed at that point in time and can be pointed out in his status report. Chair: How do you feel about that, is that acceptable to you? Mr. Youn: Yes. Chair: Great, thank you, anyone from the public wishing to testify on this application? Seeing none, thank you very much gentlemen, Dale, is that it? Staff: That's it, it was just the recommendation to accept the annual status report. Chair: I need some kind of a motion. Planning Commission Minutes December 13,2011 12 Mr. Kimura: Motion to accept the status report. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye,those opposed,motion carried. On motion made by Jan Kimurn and seconded by Camilla Matsumoto, to accept annual status report, motion carried unanimously by voice vote. Mr. Dahilig Mr. Chair, given the timing of the Commission's schedule and the lunch pending at 12, and given the short amount of time available,maybe we can have a short update on the long range projects and then move to unfinished business after lunch. Chair: So just to let the public know, we will be having an update on long range projects by our planning staff and then we will be continuing with the agenda after lunch about 1:00. UNDATE ON LO NG RANGE PROJECTS Mr. Dahilia: Planner VII Senior Planner,Peter Nakamura, as well as Lea Kaiaokarnalie Who is also in our long range shop. Marie Williams is actually on sick leave today,unfortunately she won't be here but they prepared a short presentation for your regarding our long range program. Chair: Thank you for doing this we appreciate it. Mr. Peter Nakamura: Mr. Chair Texeira and members of the Commission,Mr. Director, my name is Peter Nakamura, I am the Senior Planner recently started with the department. With me today is Lea Kaiaokamalie and as the Director said Marie Williams is not in the office today. What we did prepare was a short presentation on an overview of the Long Range Division of the Planning Department projects. The first page of the handout what you will see is the Kapa`a/Wailua Development Plan or as some people call it the East Kauai Development Plan. In terms of that project there is just to be kind of brief and to the point there is a review draft of that development plate update that is being prepared. It is being circulated in-house for agency review and we are hoping to get that out in the first quarter of next year and get that on track and moving again so that would be the Kapa`a/Wailua Development Plan update. Briefly, on your second handout which is the Important Agricultural Lands Study that was undertaken by the department I believe approximately two years ago and just recently just passed. I would soy it was last week the department completed the last scheduled advisory committee meeting at which point the next meeting,any further meetings of the advisory committee will be on an as needed basis so that would have been the last scheduled meeting. At that meeting the consultants presented to the advisory committee options on scoring of important agricultural lands and provided further information on the acreages that were covered by the different scores on the important agricultural lands. I think the next phase of the project I believe there have been two review drafts that have been circulated to the advisory committee. We are looking for a third review draft to come out sometime in January and hopefully that will lead towards the finalization of the study and the maps for the project. Briefly,on the next project which is the Koloa/Po`ipu/KalahPQ Development Plan project which is to update the current Koloa/Po`ipfl/Kalaheo Development Plan. This project is again we are in the process of retaining a consultant for this project after a revision of the scope of the previoi}s development plan and this required the department to go out and basically call for new consultant qualifications based on the expanded scope of the project. So hopefully that is another one that is going to be in process by the first quarter of next year. The next slide is the Lihu`e Development Plan update and in This project W. 6 are currently in the process of retaining contracting with a consultant on this Llhu`e Development Plan on this project. Hopefully once again we are going to finish all the contract's requirements and start date hopefully is in March of 2012, next year. So as you can see probably around the first Planning Commission Minutes December 13,2011 13 quarter of next year is going to be a fairly busy time in terms of development plan projects coming on line. The last projects that we are looking at' are the General Plan Update Technical Studies and this is actually three studies that comprise the General Plan Update Technical Studies. Tho three studies that are being contracted for,one is a socioeconomic analysis and forecast,the second i�a land use analysis and build-out report, and the third product is an infrastructure analysis and assessment. What these studies are doing are to lay the foundations for the actual General Plan update and what they would provide is they would provide if you would the underlying foundations for the General Plan update,provide the data and the information that is going to be necessary to actually start on the General Plan update. Of the three studies what we are hoping to do is start with the socioeconomic analysis study because in essence the other two studies,the infrastructure analysis study and the land use analysis study will probably be driven by the numbers that we come up with on the socioeconomic analysis study which include population projections and include visitor projects also. So in essence what we are looking for the socioeconomic.analysis to proceed first and hopefully to have numbers involved coming out of that study so w�can get to the land use analysis and the infrastructure assessment. And again all three of those projects look like we are on track to start in the first quarter of next year. Ms. Matsumoto: The numbers here of population growth, so could you define what groups you included in that, single family... Mr.Nakamura: I would have to get back to you on that Commissioner. I think Marie Williams actually worked on these and these are numbers that are from the U.S. census that was conducted in 2010. And so what we tried to do and what we are going to do with these studies is take the number that came out from the U.S. census study and break them down, including an island wide analysis,break it down into development plan But the nrnnbers that are in this chart are from the U.S. census,the 2010 census. Chair: Could I follow up on that question if I could please, so the population projections and forecasting will be done in-house or will you have a consultant do that projection and secondly 4 you plan to include a low,medium, and high range for that population projection? Mr.Nakamura: Mr. Chair, for the first question, yes,that was one of the studies that we went out to contract with a consultant to do so that is...the model will be developed by a consultant. The primary numbers I think what we are looking at is we are looking at the census numbers that are coming out of this. And this second part of the question is that what we hopefully are doing is as you said 1Qoking at a high stable and-a low growth scenario and we are asking the consultants to look at those scenarios for the numbers so including both a high kind of a stable growth rate and a low growth rate. Chair: And*hen is this expected to be completed,this consultant study on the population projections? Mr.Nakamura: Hopefully what we are looking at is for all three of the foundational studies of the General Plan update is to complete them within a year of contract notice to proceed. We are looking to kind of hopefully work on the socioeconomic analysis one first but I am hoping that we will be able to complete all three within a year to about a year and a half. Mr. Dahilix Maybe just to add also Commissioners that we have been corisuiting with the Office of the Mayor and are already creating a technical advisory committee to advise the long range division and the consultants as they are moving through these studies,just looking fgrward in terms of what our CIP request is going to be for the next budget tehn. Part of the desire to get these studies done is that hopefully by the next fiscal year we can get the other portion of the funds for the actual full General Plan and that by the time we are done with that contracting process it will put us to a point where these studies are able to dovetail into that full on General Plan process. Mr. Nakamura: Commissioners, in line with what the Director is saying I think with the establishment of the technical advisory committee what we are in essence this advisory committee to do is to help us verify the data that comes out of this and not necessarily to set Planning Commission Minutes December I3,2011 14 policies. But just to show them the process by which we get the numbers and make sure that is understood Because those are going to be the foundation for the General Plan update. Chair: Has the technical advisory committee been formed already? Mr.Nakamura: No,not yet. There have been discussions about inclusion of what kind of people from the community and what kinds of people from the business sector but as far as the formation of the committee,not yet Mr. Chair. Mr. Katavama: In approaching long range planning have you given a thought to...to me one of the weaknesses to long range plamung is that by the time you finish the product it becomes dated and to keep it current becomes an issue. Have you considered an approach where it can be more dynamic and responsive in a shorter cycle? I can see one is the data collection portion and updating that, then it becomes the polio,.cy'portion which I can see being separate again and the third part is providing that for action in terms of this body. I know that the process is very time consuming however I think given the technology I think you have to sort of review the methodologies that the model has to be more dynamic and more responsive in a shorter cycle. I don't know what that means in English but as a planning tool. Mr.Nakamura: I think we understand your concern and your question Commissioner because one of the things that we are looking at hopefully developing out of the socioecoriomic analysis study is to create a model,kind of a dynanuct model which as numbers comes in that we. cari then update it as the figures come in. And iii fact what we are looking at doing is we are asking in five year increments that these projections be based upon,five year increments. The other thing would be in addition to that I Mink what we want to be able to do and it kind of ties into Chair Texeira's question is if we are able to look at high stable and low growth ranges then we can kind of track to see where it is going. And hopefully what the model would have beeli able to do is bind of give us some flexibility in prediction in where the trends are going. Ms. Lea Kaiaokamalie: I was just going to add to that that as far as planning has gone we have really just gone through one generation of it and traditionally what has been increasingly an issue is that we have been generating the numbers in-house. And this really gives us th6 opportunity to f nally set a baseline in which like you were saying you were concerned about being able to update those numbers more frequently so that we can run analysis as we need and to review the types of policies that need to be developed out of that so definitely wanting to start off a system's approach with the technical studies that we look to do. Mr. Katayama: I think the data is key so we can model policy decisions or policy assumptions to see what the outcomes and the impacts on infrastructure. Mt: Dahilia: And adding to that,when we look at the Kapa`a/Wailua plan one of the concerns was staleness and knowing when this plan was going to be completed in contrast with when the new census data was coming out in the beginning of this year. And so that explains some of the delay with that particular plan because we wabted to have the new census data be integrated into it rather than having something that becomes stale and has to be updated down the line. Chair: Anybody else? If not,thank you very much for the update we certainly appreciate you putting this together. Before you move on I would like to ask if there is anyone from the public wishing to speak on this matter, if not thank you very much. Commission recessed for lunch at 11:58 a.m. Meeting called back to order at 1:33 p.m. SUBDIVISION Mr. Jan Kimura: Subdivision Committee Report No. 10,committee members present me and Mr. Blake, absent was Cammie Matsurpoto. General business none, communications none, unfinished business none,new business, final subdivision action, 5-2012-2... Planning Commission Minutes December 13,2011 15 Staff Dale Cua: Correction, it is tentative approval. Mr. Kimura: S-2012-2, Saiva Siddhanta Church, TMK: 4-2-007:014, 015, approved 2-0. Tentative subdivision action, S-2012-3, James K. Keahi Trust/Randall W. Yates Trust, TNIK 1- 6-002:074, approved, 2-0. Tentative subdivision action, S-2012-4, Cornerstone Hawaii Holdings, LLC., TMK: 4-7-002:003, approved 2-0. Tentative subdivision action, S-2012-5, Kealia Makai Holdings, LLC., TMK: 4-7-006:018, 4-7-007:001, approved 2-0. Final subdivision action, S-2007-31, Andrew Vea/Glenn Kagawa/Gerry Coyaso, TMK:2-3-0Q2105, 106, approved 2-0. Chair: Thank you, I need a motion to approve the...Mr. Chair... Mr. Kimura: I make a motion to approve the subdivision committee report. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve Subdivision Committee Report No. 10, motion carried unanimously by voice vote. UNFINISHED BUSINESS Special Management Area Use Permit SMA(U)-2012-2, Use Permit U-2012-8 and Class IV Zoning Permit Z-IV-2012-8 to construct a farm dwelling unit, gazebo, and associated improvements on a parcel within the Open/Special Treatment-Resource District LO/ST-R), further identified as Lot 7 of the Kahili Makai Subdivision, approx.'3/a mile north of the Kahili Makai Road/Kdhi`o Highway intersection, Tax Map Key 5-2-021.007 Unit 4 and affecting a total area of 11/612 acres =Kahili Makai.Koldings,LLC [Director's Report received 11/8/111, hearini_closed 11/22/11.1 Staff Planner Dale Cua read Director's report(on file). Chair: Thank you, you know the ten conditions that are stated herewith is there anything special that we should know about those conditions, anything unique that you should bring to our attention? Staff. Pretty much the development is consistent with other developments that wer€ permitted not only on this parcel but the neighboring patcels as well. Chair: Any questions of Mr. Cua? Mr. Kimura: All these rock walls, is that part of the archeological sites? Staff. Yes,the rock walls that you see in the report have been inventoried at the time of the subdivision of the property as well as for the overall subdivision. Chair: Anyone else, seeing none would the applicant please come forward? Mr. Ben Welbourne: Aloha Commissioners, Ben Welbourne; Landmark Consulting, for the applicant. Chair. You have read the report by the plannirxg staff do you have any concerns or comments in regards to that report? Mr. Welbourne: No. I just wanted to make a couple of...note a couple of things, condition No. 2 concerns exterior colors and finishes and we did include with the application an exhibit showing the exterior color palate so I am sure we can get that approved by Planning. Condition No. 5 from the Department of Water, there is already a water meter installed and I did contact the Water Department to confirm that and that meter has already been allocated to this particular property. Planning Commission Minptes December I3,2011 16 Chair: So do we need to adjust condition 5 or just to receive as noted? Staff. Yes. Chair: Anything else? Any questions of the applicant, seeing none, thank you. I would like to call on the public, anyone wishing to testify on this 4pplication please come forward or raise your hand. Seeing none, you did provide your recommendation,we were already looking at the ten conditions, I await a moti6ns . Mr. Kimura: Motion to approve. Mr. Katayama: Second. Chair: Any discussion on this project, seeing none roil call please. On motion made by.fan Kimura and seconded by Wayne Katayama, to approve staff recommendation, motion carried by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Raeo -1 Not Voting: Vacani -1 Si)6cial Permit SP-2011-33 to use of an existing single family residence for Transient Vacation kental purposes as'permitted by County of Kauai Ordinance No. 904 in Kalihikai `Anini), Kauai, mauka of and adjacent to `Anini Road, approx. 870 ft. east of the `Anini__Beach Park, further identified as Tax Map Key 5=3-4,30, and containing an area of 28,680 sq. ft. =Barnet& Julie Feinblum. [Hearing's Officer Special Meeting Public Hearin_g held 11/21 9/11.1 Supplement No. 1 D'irector's Report pertaining to this matter. Staff Planner Mike Laureta: I will provide the highlights from the supplemental report 1. Barnet and Julie Feinbium, their parcel of record is owned by the applicants, this is in Kalihikai. District zoning is Open, property is 28,680 square feet. They do have l0 citrus, 50 banana, 10 coconut and 40 palm trees on the property. No zoning or use violations exist. On November 29'h the public hearing was held, no adverse testimony from the surrounding neighborhood was submitted or received, applicant reiterated the information contained in the their application and there being no further discussion the hearings officer closed the public hearing. `Anini and Kalihikai have a total.of 25 applications out of the total 81 and the evaluation that follows is consistent with the considerations of the other applications considered by the Commission including the conditions of approval, proposed conditions of approval. Staff is available for questions. Chair: Thank you; do wl e have any questions of Mr. Laureta? Do we need more time to look at the application? Mr. Kimura: Two minutes. Chair: In the meantime let me call the applicant to please come e forward. Mr. Harvey Cohen: Good afternoon Commissioners, Harvey Cohen on behalf of the applicants, Barnet and Julie Veinblum. Chair: You have seen the report, do you have any comments? Mr. Cohen: Chair, we concur completely with the staff report, we agree to the 20 conditions set forth therein, certainly available to answer any questions. Just a quick highlight, the applicants purchased this lot in 1985,they built this home is 1990 and ha4.re been operating Planning Commission Minutes December 13,2011 17 this as a vacation rental ever since. As Mike said no complaints, I think they have been model citizens whh respect to the operation. Chair: Thank you very much, any questions of the applicant? Mr. Kimura: In this particular picture here is seems that your property runs right up to the County road. Mr. Cohen: That is correct. I believe it is one of the relocated Kuleana's that got pulled up the street hence it carried with it the State Ag. zoning but it is zoned Open in the County. Mr. Kimura: So it goe8 right tip to the road? Mr. Cohen: Correct. Mr. Kimura: There is no County shot}lder? I thought that all County roads have a 10 foot setback line,this is for the attorney. Mr. Jung: There is a 10 foot setback requirement fronting the road. Mr. Kimura: Well this one shows it goes right up to the road and he just confirmed... Mr. luny: The Lot line? Mr. Kimura: Yes. Mr. Jung: Well the owner owns the setback area he just can't build in that setback zone. Mr. Kimura: But he can...I don't know, is there some kind of fence or hedge in front of there? Mr. Cohen: There is some landscaping and jest to be clear we have agreed with the department's condition that all activities and all parking take place inside the property, there is not going to be any parking on the road if that is your concern. Chair: In line with that question if I could, so you said there is a hedge on the property line? Mr. Cohen: I believe there is some landscaping. Chair: Is that landscaping right up to the County roadway or is there d 10 foot setback to allow for. a setback? Mr. Cohen: I am relatively certain the landscaping complies with all setback requirements. The County conducted their inspections and did find any violations. Again, there is a condition. I believe Commissioner Kimura had asked a few weeks ago for the insertion of a condition that if there is any encroachments and that is in the conditions here. And certainly if it were to come to our attention we would comply with that. Chair: Any other Commissioners have any other comments they wish to... Mr. Katayama: In your application under agricultural activity on the property it designates that no; however applicant has approximately 10 citrus; 50 banana, 10 coconut, and 40 palm trees planted on the property. Is that the total scope of the agricultural activity? Mr. Cohen: Yes. I think the answer"no" is to the question of whether there is intensive agricultural activity. The soils on this particular lot down in `Anini are not conducive to intensive agriculture,it is a fairly small lot as you can tell. the applicant over the years has actually tried to plant some additional things without much success, some additional fruit bearing trees. But yes, in answer to your question that is the extent. Mr. Katayama: Is there any commbreial agricultural activity on this lot? Planning Commission Minutes December 13,2011 18 Mr. Cohen: No. Mr. Katayama: How long has this been a TVR or a transient rental? It says documents provide prior to 2008. Mr. Cohen._ Since 1990, 21 years. Chair: Anyone else wishing to ask any questions of the applicant? Seeing none, thank you, I would like to call on the public, anyone wishing to testify on this application,please come forward. Seeing none, Mr. Laureta do you wish to give us any? Staff. Did Commissioner Jan's question get answered, that roadway strip? Chair: I think the applicant stated that you weren't sure. Am I correct that there was no 10 foot setback on that? Mr. Cohen: I wasn't sure that the landscaping, what the relative location of the landscaping was with respect to the setback but as I indicated there is a condition, Commissioner Kimura you had asked about for insertion of an encroachment condition a few weeks ago so that is in here. So if we were to discover that we were encroaching we would certainly move. Mr. Kimura: Encroaching.meaning plantings, fence, hedge? So if you go back and look at it and you found any kind of encroachment would that be removed? Mr. Cohen: Absolutely. Mr. Kimura: Thank you. Chair: Is,the ones on the County to go forward and take a look and inspect the property in question to'determine whether there is an encroachment or not or is it on the applicant to determine that? Staff. We will be meeting with him to discuss this. So depending on the current photographs we can help him in determining if there is a setback issue or not. Chair: Thank you. Mr. Kimura: Mr. Cohen, is this particular house called Pua Nani? Mt. Cohen: Yes. Chair: Mike. Staff. The evaluation is standard. As you can see in the right hand column everything has been standardized and going to the conditions of approval the only applicant specific condition would be developing:an agricultural plan to increase and supplement ag. use of the property, everything else, no commercial use, t'YR number and address on any advertising. I am looking for the ode about if the improvements are within the setback area,that should be standard language with these permits now. Chair: So is that included as a condition or do we need to include that? Staff: We need to include that. Chair: Do you need time to review that? Staff. Yes, that would be an additional condition. Chair: Do you need a few minutes to put it together? Planning Commission Minutes December 13,2011 19 Staff: Yes, give me a couple minutes. Chair: We will take a 5 minute recess. Commission recessed at 1:56 p.m. Meeting called back to order at 2:02 p.m. Staff This would be referenced to as,encroachment cond4ion and it is, "The Planning Commission shall delegate authority to the Panning Director to ensure non-encroachment of agricultural or improvements on abutting properties." Chair: What number is that? Staff. It will be 21. Chair: Is there any objection to the condition? Mr. Cohen: No there i� not. Chair: Is there a motion? Mr. Katayama: So moved. Ms. Matsumoto: Second. Chair: Any discussion, at this point I would like to reiterate Mr. Laureta's recommendation that we include condition No. 21 and that would be a separate motion. This is a amended, right? Staff. To amend the staff report. Chair: So a motion to amend the staff report. Mr. Katama: So moved to amend the staff report (inaudible). Chair_ Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Camilla Matsumoto, to amend the staff report with the addition of condition No. 21, motion carried unanimously by voice vote. Chair: We are back to the main motion as amended. Mr. Katayama: I have a question Mr. Chair for the Director. Condition No. 19, what is the expectation of the department on the applicant? Mr.Dahilia: I think the expectation is that they do produce an ag. plan,that they follow through the ag. plan and that they actually look at ways of even trying to expand the use if applicable. Mr. Kataama: So what would be the deliverable...? Mr. Dahilijz: Essentially what would come to us as a deliverable is the next time this permit is up for renewal and review by my department is that we would take a look at the ag. plan, do probably a subsequent inspection of the property to see what is actually occurring on the site. And then take that into consideration for a Special Permit renewal whether it warrants a Commission review or whether they are following through with their plan that they presented to US. Planning Commission Minutes December 13,2011 20 Mr. Kataama: And the baseline that you will be using is the ag. activity a5 presented on the application? Mr. Dahilia: That is correct Commissioner. Chair: So we have a motion, we have a second, any more discussion on the motion? There is no confusion on that motion? We are at the original motion to amend, as amended, could we have roll call please? On motion made by Wayne Katayama and seconded by Camilla A,4atsumoto, to approve staff report as amended, motion carried unanimously by the following roll call vote: Ayes: Matsiunoto, Katayama, Kimura, Blake, Texeira -5 Noes: None -0 Absent: Raco 4 Not Voting: Vacant -1 Special Permit SP-2011-29 to permit the use of an existing,single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kilauea, Kauai, approx. 3,100 ft. west of the Kauapea Road and Kilauea Lighthouse Road intersection, further identified as Tax Map Key 5-2-5:29 (Unit A), and containing unit size of 3.041 acre parcel=Andrew Haas dba Dali Hale LLC. [Hearing's Officer Special Meeting Public Hearing held 11/29/11.1 Supplemental No. 1 Director's Report pertaining to this matter. Staff Planner Mike Laureta: This is a two unit CPR, Unit A is owned by the applicant and he has received authorization from the owners of Unit B to make this application. The project is located in Pali Nama Ha"na Subdivision in Kilauea. The zoning is Agriculture and Open, the property is 3.041 acre unit size out of a 5.041 parcel size. The property is smaller than 5 acres so it cannot be dedicated for agriculture however there is some agriculture on the property. No zoning or use violations exist. The additional findings, at the public hearing no adverse public testimony from the surrounding neighborhood was submitted or received. The applicant reiterated the information contained in their application and there being no further discussion the hearings officer closed the public hearing. In Kilauea, out of 81. total applications received by the department 30 of them are in Kilauea. I am available for any questilbrfs. Mr. Kimura. I don't see the exhibits from (a) to (g), it is not present. I might have over looked it. Mr. Katayama: It is right here. Mr. Kimura: I am looking for exhibit (e). Staff. On the applicant's submittal? Mr. Kimura: Both of them. Mr. Katayama: Mike, Z have a question. On the 5 acre dedication limit or the minimum size, to the extent that the lot has been CPR'd and we are saying that that in fact is not a parcel of record but two condominium units. So wouldn't that dedication rule still apply that in this case it is still above 5 acres so technically it could be dedicated? Staff, If both owners shared in the operation. So the unit size is under 5 acres. Mr. Katayama:, But we are saying that in an earlier definition CPR does not diminish the parcel size, all it does it create common interests. Staff. And ownership interests. So the owners own a certain ihterest so 3 acres, 5o unless the two get together then you can get the 5. Planning Commission Minutes December 13,2011 21 Mr. Kataama: In the case of an agricultural activity and if that is the intent of the occupants the 5 acre rule will still be okay. Staff. That would be Real Property's call on actual dedication requirements. Mr. Katgyama: Here we are using it as a dedication to alleviate one of the tests for ag. dedication and ag. use so I guess we can't have it both ways depending on what your... Mr. Jung: Well actually by function of State law CPRs can be taxed independently of lots so CPRs get assigned their own tax map key for taxation purposes. So the ag. dedication is a function of Chapter 5A which would allow for reduction of taxes for that ag. operation so the individual unit owners can get an ag. dedication separate and apart from the other unit owner on that same lot. So it is not a CZO provision it is a taxation provision through Chapter 5A and not Chapter 8 of the Kauai County Code. Mr. Katayama: The qualification for that exemption, the demonstration for ag. activity is probably a little more comprehensive as we have portxayed it here in the application. Mr. Jung: It is difficult to obtain because you have to have it within a certain tine frame to show that you had the ag. operation to benefit from the tax reduction and they set the 5 acre minimum because that is what they felt was a reasonable amount of land that can be taxed, whoever made those rules. Mr. Blake: So if you have a 5 acre parcel that qualifies as far as acreage goes for ag. dedication and you built a house on it and it takes it under 5 acres you can't argde then that it is under 5 acres it can't be dedicated so you can't use the ag. allowance and therefore you should be allowed to have a TVR on it, right? Is that what you were saying? Staff: If you are dedicating land area for agriculture it is based on land area and use and taxes and all that stuff. If you are going to build a house you minus that area from the overall area, that is not included in the ag. dedication. What people have done now is include the house for the TVR application. So the dedication part is Real Property's call, it is based on criteria that we have no control over but it is referred to in ordinance 904 as one of the considerations. You either have schedule F, you either dedicate it for ag., and it doesn't say how much acreage it just says you dedicate it, or your property is too small and has constraints. Mr. Blake: It what? Staff. Is too small or it has flooding, slope, soil constraints. Mr. Blake: So if you have a.6 acre parcel you could dedicate only 5 acres to ag. Staff- No, you can dedicate as much as you want to but you have to subtract out the improved areas that will not count in the ag. dedication, roadways,improvements, sheds, warehouses, houses, those don't count so those subtract out. Mr. Blake: So if you have a dedicatable parcel and you come into it and the parcel is big enough to dedicate and then you start your little subtractions does that take it for TVR purposes under the 5 acres so that it is not available for ag. dedication and therefore available for one of these arguably reasonable and different uses? Staff: The ag. dedication part is like I said Real Property's division. All Planning looked at was the minimum requirements, did you get it or not, do you have dedication or not. The specific requirements I can't answer. Mr. Jung: I think, Commissioners,just going back, the whole intent of the three prongs of the ag. dedications, schedule F, or looking at whether or not the lot's shape, size, topography, or location was to show that there is some kind of agricultural activity on there. That is the reason.the ag. dedication requirement was put in there to show that there was an ag. operation to promote the effectiveness of Chapter 205. That was kind of delineated in Chapter 205-6 which Planning Commission Minutes December 13,2011 22 is the Special Permit criteria. The Special Permit criteria in one of the five prongs you can also look at the property size, shape, topography, and location and that is how you reference back to the third prong. So when it is under 5 acres then it could potentially be constraints on that specific lot or unit that would not allow for intensive ag. So the ag. dedication was really only to show that there was some type of ag. operation going on, on the property. Mr. Blake: And the definition of ag. means intensive ag.? Mr. Jung: No. Mir. Blake: So we don't care if it is intensive or not intensive. Mr. Jung: Right. But the 5 acres is what the County Real Property has shown could be intensive ag. to qualify for a reduction in taxes. Mr. Blake: So if you have 4 acres of prime taro land you can apply for another special use. Mr. Jung: You can apply for ag. dedication but there is a certain criteria, you have to have been in operation for a certain period of time and I am not sure what the rules specifically say. But if it is 5 acres or less you can get it but it is more stringent requirements. Mr. Katayama: Ian, what I am trying to establish is, one, is that if you had land that was suitable for ag., by your own hand you have made it unsuitable, visa vi a CPR. And secondly we are putting condition 19 in all of these applications that you need to demonstrate an ag. plan and implement that plan before the next review. It will be interesting again to see what the deliverables are on that and what it means to actually have a viable ag. plan developed and implemented by the next review. I think that is the line of my sort of understanding what the expectations are from the applicant as well as the department. Mr. Jung: Just bear in mind you don't need an ag. dedication to do ag. because you can do the ag. without the ag. dedication. Mr. Katayama: That wasn't my questioning, it is that the clearest form is that you have an ag., land that is dedicated in ag. and you have these auxiliary activities tiyhich I think you could make the argdment that it is in support of the ag. function. Absent that it becomes based on what the planner has presented before us but now we are asking before the next expiration of this review process that you have an ag. plan in place and I am just trying to understand where that bar is. In the exhibits that are presented the intensity of that ag. varies quite a bit so I think that is what I am trying to comprehend is the expectation of the applicant and the department and this Commission in alignment. Staff. Question Commissioner, it is the department's expectation that in reviewing these applications and having the inspector's reports of the property and a description of the extent of ag. existing, if it is very minimal the expectation is an increase. You are going to have a lot more compared to what we see today, what you are going to have next time. All we are asking f6r is a lot more effort on the ag. side. We are not expecting them to go get a schedule F. We are not expecting to see dedication. What we don't want to see is gentlemen estates with lot's of wide open land and a TVR and maybe a couple fruit trees. That is not good. So we are expecting a lot more effort and the bigger your property is there is going to be a lot more effort. But taking into account the slope constraints and/or the soli constraints and the location that all has to be dialed into it too but the agricultural plan that they are going to develop is going to start from today, what exists, and what is going to be developed over time because what exists today isn't good enough. Mr. Kimura: This is 3.04 acres. There is another application before us today that is 2.69 acres. They are claiming that the property is not big enough or acceptable to raise or to have a legitimate farm. Here we have another smaller property that is a legitimate farm and he is applying for a TVR and at the same time they are a legitimate farm. If they can do it why can't this applicant do it? If they can't farm it then maybe they should think about leasing it to someone who can, a piece of their property, or the fzuits and vegetables that they harvest from Planning Commission Minutes December 13,2011 23 the property maybe donate it to the senior center and have them sell it as a nonprofit for them so they can have excursions,pay for bus fares,things like that. I mean they do have ample amount of acreage to farm and I didn't know we raise tennis courts in ag. land. I just feel that they do have the property to do it and whatever they raise on there they should donate it to nonprofit organization or something. Mr.Attorney, any comment? Mr. Iun . The action that you guys take here concerns the use of the land. I don't think it would be appropriate to force an applicant to donate certain agriculture. Mr. Kimura: Can we ask? Mr. Jung. You can certainly as but I would caution you guys from making that a condition. Mr. Blake: The thing that bothers...well concerns me is owners of less than 5 acres who want to be constrained like I ant going to shoot myself in the foot so I can call it disabled where before I was able. And I mean it just seems so much like a cat and mouse game that it is just wants,begs, me for some draconian law that says ag. is ag.,period. And if you have the misfortune to live on ag. land well if you want to become a hotel then move into the VDA. It is not like you are constrained from all use of your land. And that is why you have this 2 acres can do and 3 acre's no can do. Chair_ Mike, do you have any more comments you want to make? Staff I can see what the Commissioners are trying to drive at. It has come down to focus. Unfortunately ordinance 904 doesn't provide focus; it provides a very general playing field of certain things that can be interpreted as you are picking it up. The best that we;can do, the department can do,is apply ordinance 904 and 'it's very general requirements. It doesn't say you have to have a schedule F but if you do it is good. It doesn't say you have to have ag. land dedicated but if you do that is good. The part that the Commission is getting stuck on is the focus part. The general generalities of this ordinance are everything that you are beating on and I agree,but all I can say is beat away,that is what the ordinance says. You can't force anybody to do 4g., we never have. You can't force people to do intensive ag. But the one thing you are missing is it might be State hmd use ag. but you have been told State land use ag. is the humping ground for the State in their cate ories. County focuses on the zoning, it is Open zone. We acknowledge the limitations of the property; you are not picking up on that. It is the zoning but it is a State permit you are dealing with. So what you are trying to do I totally empathize with. I wish the Council h�d taken a fourth swing at trying to make this better. And when I came in that is what I said,this is not doable. Mr. Dahilia: I would disagree on a fourth swing because three was enough. And I would just like to remind the Commissioners again that this in as much as we would like to delve into the realm of policy calling here the policy call has been made by the Council as to the process concerning how to determine whether these types of applications warrant a Special Permit or not. The process has been prescribed,the standards are laid out in pages 6 and 7 of the reports arid there are 5 standards that are prescribed by lawthat the Commission can either Use their rr}anao in determining whether this fits those 5 categories or does not fit those 5 categories. I would like to add a sixth. If the Commissioners think there is a shibai factor here then that is part of it too. But I think what needs to be focused on by the Commission here is that ultimately does this application rise to the standards as set forth in the 5 criteria laid out by the 205 law. A.nd whether it meets it or it doesn't meet it the Council's direction is that no TVK shall be there and that is it. And so what it conies down to again is, is it contrary to the objective to be accomplished by 205 and 205A,the desired use will not adversely affect the surrounding property,the use would not unreasonably burden public agencies to provide roads and streets, sewers,water, etc., unusual conditions,transient needs have arisen since the boundaries have been established, and the land upon which the proposed use is sought is isn't suited for the uses permitted within the district. These are the standards that are set forth to determine whether this application meets...should a Special Permit be Warranted. Planning Commission Minutes December 13,2011 24 I would love to enter into more discourse on the viability of agriculture on a property and I think Commissioner Kimura is right,that sometimes we can push people a little harder to be creative and try to find other means for more agricultural use. But I think the concern I want to raise with the Commission that again,the core of this deliberation needs to focus oil the 205 Special Permit standards. Mr. Katayama: I think that is where the difficulty it the decision is that how does this ultimately help ag. and again the property is an agriculture use. To me that higher that level is met the easier it is to agree and therefore look at all the rest of the conditions and just check them off as being compliant. I think that is where most of the uneasiness at least for is, is that where is that level of agricultural use where this activity will help benefit. Mr. Dahiiia: In as much as that is a factor and it is laid out in 904 in terms of the limitations and they set the limitation a 5 acre limitation based on the inability to dedicate. We can get into a whole other discussion on whether 5 was an appropriate threshold or not an appropriate threshold but we are dovetailing, when we look at the ordinance this is dovetailing on a separate portion of the task code... Mr. Katayama: And again as we go through these applications to the extent that you have had that threshold where dedication will clearly make this decision a lot easier, you have done things to make it less clear. I think that is where we are or at least I am having sort of difficulty stepping back and looking at the end product and saying that at the end of the day is ag. better off in our decision making. Mr. Dahilig: And that is the purpose of the Special Permit essentially is to determine that but also go outside the bounds of what are the normal classifications. And that is where the discretion.among the members around the table comes is exercise the discretion given the bounds of these 5 criteria. And I would encourage the Commissioners if there are concerns about this application that the discourse remain around the 5 items whether you agree or disagree. And if an agricultural element, for instance if item 2 (inaudible) affect surrounding property and if the lack of ag. use and more commercialization impacts other ag. lots that Iare nearby then I think the Commissioners should make that known and make that very clear for the record. Because the more that we can stick around these 5 criteria and agreeing or disagreeing for whatever discretionary reasons are there, the better we can convey to other applicants that are coming down the pipeline, this is what the expectations of the Commission are. Mr. Blake: Is there a definition of a slope, what an appropriate slope constraint for ag. use? Mr. Dahilig: I am not old enough to know what...there is a certain slope that was already zoned when they had the slope constraint districts... Staff. Mike, it is 20%. Mr. Dahilig_ But in terms of what can grow ag. we haven't gone that far but if it is a slope constraint district that is the only standard in the CZO that we look at and that is like Mike said 20%. Mr. Blake: So this is a slope constraint district Mike? Staff: A portion of the property towards the ocean, you can see it on exhibit 3, as it drops towards Secret Beach. Do you see the compressed topo lines on exhibit 3? That section of the property but everything else looks okay. Mr. Blake: Did they tell you what percentage of their property is anti-agriculture because of slope? Staff: Not in terms of generally described. Planning Commission Minutes December 13,2011 25 Mr. Blake: Because we just from what I have seen that term is just thrown in and we accept it as an article of faith that whenever someone says, quote, "slope constraints", automatically that means you can't do anything with it. Staff That is not the only thing they say. The limitations that you will face, you are soon to face, is salt breeze, salt air, drainage, slope, soils; all these applications are claiming many different things. You haven't run into the salt air yet even though it was pineapple and sugar cane lands before. Mr. Blake: Which means there are no salt constraints, right, because that was intensified agriculture so just by definition it doesn't exist over there. Mr. Kimura: Across the street 6om this property, I think it is called Running J Ranch, they do have a nursery there. Further up the street or across the street there is a farm, a legitimate farm. I don't know about the rest of the properties over there but here we..have two different properties that do legitimate faniiing or ag. on the property and it might be bigger, smaller, I can't tell you but they do have legitimate farms there. My whole take on this is they do excess property to farm. And we are trying to get away from these so called gentlemen famers but it deems like you plant a couple of fruit trees and you are a legit.farmer with the new law that we have in place, am I correct? Mr. Jung: No. Mr. Kimura: So explain to me why they planted a few trees and it is ag. and it is different from a gentleman farm. Mr. Jung: Let's back up, 205, it is unfortunate but it is a reality that there is no restriction on the amount of ag. that is required nor is there a restriction on the amount of income that has to be made. You may refer to them as gentlemen farms but he Council at no time has put a restriction on the size of a house and the Council has through our ordinances, our CZO, has put a restriction on the limitation on the size of the lots based on a subdivision standard that is on a sliding scale. And then there is a cap on density on ag. but it can go up to 5, so 1 thought 5, maxing at 13 acres. Once it is above 13 acres you can't have more than 5 on a 1 per 3 acre basis. Those were the laws that were in place. The subdivisions that were done were permitted the way they were done. The houses that were permitted on there were permitted as they were because there was no restriction as to what size of house could be there or how the lots can be varied. So it is a by function of how the history of our CZO and then the reality of the regulation of TVks this has come into play. There are many, many,Factors and how we are trying to grapple with this issue. Mr. Kimura: So this particular applicatioti that is before us from what I am seeing is still a gentleman farm. Mr. Jung: And you are entitled to refer to it as that if you want but there is no definition of gentleman farm. Mr. Kimura: No definition of a gentleman farm. Mr. Dahilig: Just as there is no definition of a farm. Mr. Kimura: There is no definition of a farm here that is for sure. Mr.ljm& It is something that has been di§cussed in trying to nail down what a farm is for the past 30 years since the constitutional amendment in 1978 to create important ag. lands. There is still no definition of what a true farm is. There is a definition of agricultural activity but not farm. Mr. Kimura: But they call it farm dwellings. Mr. Jung: For lots created after June 4, 1976 there was a requirement that they be called... Planning Commission Minutes December 13,2011 26 Mr. Kimura: So this is considered a farm dwelling. Mr. Jung: When was this lot created? Mr. Kimura: With no farm. Mr. Jung: I will leave it at that because you are diving into the policy calls and it is a long standing issue and it hasn't been resolved before me by some of the attorneys that are in this audience. Mr. Kimura.: Thank you. I just want to make it clear that it is a farm dwelling with ' a farm so in my eyes it is a gentleman farnf. Chair: I think we have asked a number of questions, I think we could move on at this point. We have a choice, right, tb approve, disapprove. Mr. Dahill You just need a motion on the floor. Chair: Or to defer? Mr. Dahilig: I believe you have... Chair: I am not suggesting that. I am not suggesting anything I just wanted to discuss our options. Mr, Dahilig: You do have one more...max 210 would actually fall on January 10, 2012. Chair: That is the next meeting? Mr. Dahilig: That is the next meeting so action would have to be taken at the next meeting if deferral is the pleasure of the Commission. Chair: I don't recall but did I request for public testimony? Then at this point I would like to call anyone wishing to testify on this application. You are the applicant, you wanted to comment? Maybe you can clear things up for us. Mr. Harvey Cohen: Thank you Commission, Harvey Cohen on behalf of the applicant Dali Hale LLC. I think I can fairly quickly. To Commissioner Blake's concerns with respect to an applicant kind df hamstringing himself by reducing the size below 5 acres I would encourage you to understand that with respect to this partiplar application when my client purchased the property it was already CPR'd. This property has been a vacation rental since 1988. My client purchased it in 2004' With respect to Commissioner Kimura's suggestion that any access ag. products be donated to a nonprofit, he would be happy to do that and I would put that as an additional condition on our ag. plan because between the last time Mike and I have traded information there has been an incredible amount of ag. related activity put on the property. The property just went through a remodel, the landscaping was torn up but I have a lot of confidence that the supplemental ag. plan, you would be very impressed with. With respect to Commissioner Katayama's concern about the size or the intensity and I think Commissioner Blake asked this as well, approximately one thiid of the property is actually over the bluff edge and some of it would require conservation approval and approval of the landowner, the adjacent landowner to do anything to. But I am not going to take issue with the fact that more ag. could be done but I think you will be pleasantly not surprised hopefully but you would respond favorably to what is going on there right now. With that lam happy to address any questions. We concur with the staff report and all 20 conditions. If Kimura would like I would certainly work with staff to come up with a nonprofit component. The client is really active in the nonprofit world and I don't know how we would do that but I am happy to make an effort to do that on your suggestion. Chair: Thank you very much. Planning Commission Minutes December 13,2011 2't Staff: After the applicant's representative if Jonathan would like to come up and explain to you aboi4t the tax dedication component if you want to hear it. Chair. I'm okay. Do you want to hear about the tax dedication component from Mr. Chun? Mr. Kimura: I'ni good. Chair: Mike, for my own sake, the two units CPR,there are actually twp units, right, two separate detached units. Staff. Two separate CPR units within the parcel. Chair: And both are used as TVRs and they have been since... Mr. Cohen: No. The applicant is the owner of one of those two units. The other unit as far as I know is occupied fulltimo by the residents. Mr. Kimura: The 8 bedrooms, when you bought it was it already 8 bedrooms? Mr. Cohen: Yes and remodeled. It has actually been reduced in size but it is a large home, it is one of the largest homes on the North Shore. Mr. Kimura: The amount of people that you guys rent it to if I read correctly somewhere in here is 6, not more than 6 but average 2 to 4. Is that correct or was that another application that I read? Mr. Cohen: I think that was another application. Mr. Kimura: So what is the maximum you guys will allow? Mr. Cohen: I am not aware that there is a maximum but certainly I don't think they rent to more than 12 people if there are 6 bedrooms or there about. Mr. Kimura: Well over here it says 14 to 16, how would that no affect traffic in Kilauea? Mt. Cohen: My suspicion is the last time I rented a car it was fairly expensive, I don't think each occupant rents their own vehicle. Historically it has been operated as a very large rental and there haven't been any complaints with respect to traffic. And again as before all the parking takes place off the street inside the property boundaries. Mr. Kimura: Well traffic is becoming an issue in Kilauea right now and it is a big issue so with that amount of people...because a lot of times when you have a big group like that it is like maybe 7 couples, 6 couples, getting together and renting a place out. We are talking 3, 4, 5 cars. Mr. Cohen: In my experience the applicant tends to rent to large families who are having maybe two families who want to huddle up and come over to Kava`i for a vacation. It is pretty rare that you would have like 6 unrelated couples renting the home. Mr. Kimura: Thank you Mr. Chair. Chair: So there is nothing in the TVR requirements that you could have unrelated people staying in the unit? There is nothing about that? I am just a little confused, that is quite...8 units, you could have a bunch of unrelated people; it is almost like it is individual rooms that you are renting. Mr. Kimura: I have seen it before. I have seen it where 1 have known of renters with multiple bedrooms, one in particular I think in is Anahola with like 7 bedrooms, and there were like I want to say 18 people in the house and there were a bunch of cars parked in the back of my uncle's property. And I couldn't figure out why and I asked and it was because a bunch of Planning Commission Minutes December 13,2011 28 people rented the place and there were like 7 cars there. So it would be a big concern to me coming from Kilauea where traffic is... Chair: But presently there are no restrictions. Mr. Kimura: I am just saying that in here it says that traffic will not be affected. I am just making a comment. Chair: Yes, it will be. Mr. Blake: Can we limit the amount of cars that are parked on the property and the number of guests? Chair: Mr. Laureta, could we impose such a condition or is that out afthe prevue of the Commission? Staff. I will defer to the Attorney. Mr. Jung: I would have to research that. Mr. Kimura. So should we ask for a deferral? Mr. Junk: The issue, I mean it is obviously a big issue of traffic but you have to remember that this is a single family home so if there are 5 members of a family who want to stay there and each one to rent out their own individual car while they are here I would imagine it would be difficult for us to impose such a condition let alone enforce such a condition. I understand the concept is traffic but you have to look to see whether or not it's reasonable to... Mr. KimurL. Isn't that part of 205? Mr. Junk: It is, for burdens on infrastructure but would you want to restrict the number of cars that come in there or what is your goal? Mr. Kimura: I don't know. Mr. Blake: As I understand the law a family consists of up to 5 unrelated people. Mr. Dahilig: By case law. Mr. Blake: And if this were a standard habitation we wouldn't even be asking this question but this is a TYR. Mr. Jung: So even if there is a family of, what is that TV show with 21 kids, you wouldn't N*t more than 5 in there? Mr. Blake: Since it is a problem in the community, no. Why should we exacerbate the problem? This is a TVR, it is a vacation rental. It has been done; the law regarding TVRs has been enacted to make available to the vacationing public more bptions, those are not untrammeled options. Those are not just you can do anything you want there just Iike you could anywhere else. This is on ag. land, it comes with special conditions,there is a problem that preexists the grahting of his permit which is the traffic problem that we all know exists in Kilauea. So why should we allow an opportunity for more problems? Limit the amount of cars, limit the amount of people. Just like in a hotel you can only have so many people. Mr. Kimura: Over here it says wedding deposits, please inquire. Isn't weddings a commercial use? Mr. Jung: I think it would depend on whether or not they are renting it out for weddings unless they are having... Mr. Kimura: It says wedding deposit. Would that be charging for it? Planning Commission Minutes December 13,2011 29 Mr. Junk: I think, Mike, do we have a condition in;this one as well that prohibits commercial activities such as weddings, parties... Staff Well if the wedding is part of the TVR, if it is an accessory to the TVR use, a couple goes there and they are going to get married that is okay. You can't schedule a TVR for commercial weddings, big party, which is riot accessory to the TVR use. Mr. Kimura: But isn't that still a commercial use? Staff No it would be an accessory to the TVR, to the couple,to the people renting. Mr. Kimura: Why are they charging a separate deposit for weddings if it is not part of the TVR use? Staff. It is another service that is provided. Mr. Kimura: If it is anothet service it is commercial.. Stdf£ You can approach it that way. I can see you can approach it that way but if a couple is going to go there and they want to get married on the property because of the view, get married. Chair: I would like to get back... Mr. Kimura: Well it is a concern df mine that they are charging for weddings anti to me that is a commercial use in my opinion. Mr. Cohen: Commissioner Kimura, I concur with Mike Laureta's summation. There is no intention to rent it just for a wedding like for a day. It would be as if you are offering some sort of additional service, maid service or something like that that is an additional charge because it is considered an additional impact on the property. Mr. Kimura: But it is still considered commercial, right, you are charging for it. Mr. Cohen: To the extent that additional money changes hands but it is part of the same commercial operation. It is not separate and distinct from...in other words I couldn't go there for the day and get married but I could go and stay for a week and get married there. And in that regard the owner has historically required an additional deposit for the wear and tear on the property. Chair: I just would like to ask the Commissioners, there are a whole bunch of questions we have been asking do you thihk we need to defer this matter to flush out whatever we need to, more information for us to make a better decision or not? But we need to go somewhere on this. Mr. Kimura: I would like to make a motion to defer to the next Commission meeting. Ms. Matsumoto: Second. Chair: Is there any discussion on the deferral? Staff: I just want to let you know that January l Oth is already a huge agenda. You will have Coco Palms on that date. Mr. Kimura: Well we still need the information to make our decision where the next Commission meeting is booked or not. Staff. No problem. Mr. Kimura: For me to make the right decision I would like to have additional information. Planning Commission Minutes December 13,2011 30 Mr. Dahilig. What is the information that yoir would need by the 10th just so we are clear? Mr. Kimura: Any type of commercial use is if there is a difference and about...what is the other one I asked about, cars, traffic impact. Mr. Dahilig: Are you looking for an opinion from Public Works Department in terms of traffic impacts? Mr. Kimura: Yes, probably if that is who we have to talk to but according to our attorney he needs to look into whatever he needs to look into. Chair: Mr. Blake, I know you have some concerns and questions you want to ask. Mr. Blake: Getting back to the weddings, if you are going to rent the TVR and plan to celebrate your birthday there t]Zat is fine. If you rent the TVR and plan to celebrate your wedding there that is fine. I think the wedding problem arises when you have a big reception. Just getting married,there are npt a whole lot of people. But if you are going to have a big reception then you are going to have who knows how many people, cars, etc. Is that the differentiation that bothered you? Mr. Kimura: My concern is you rent the TVR for a vacation rental but on top of that if you want to get married there you are charging them an extra fee whether it be big or small. And to me I just feel it is a commercial use charging an extra fee for the wedding. If you are going to rent the TVR you are renting the whole property,right, and for them to charge an additional fee for the wedding? To me in my opinion it is commercial. Chair: Before we go any further I would like to take a 10 minute recess. Commission recessed at 3:00 p.m. Meeting called back together at 3:10 p.m. Chair: So how do we resolve this, any recommendations? Mr. Dahilig: Mr. Chair, if I could maybe request the applicant come forward and maybe we can inquire, you have heard some concerns regarding the Commission's concerns with respect to wedding types of activities. Would the applicant be amenable to limitations on rentals that have say weddings at the property or those types of things? Mr. Cohen: What type of restrictions? Mr. Dahilig: I guess in thinking and throwing this out for consideration whether the weddings would be limited to people that are registered guests at the home or the amount of people that are there equivalent to the maximum capacity,the published maximum capacity of the home. Because there is some concern about the thing turning into too much of d commercial enterprise in terms of like a wedding chapel or that type of thing. Mr. Cohen: I could certainly call the applicant and I could probably do it right now if that would alleviate the grid lock and avoid having to come back in January when I understand you have a super full docket. Mr. Dahilig: And again this is for the Commission's entertainment if they want to move down that path. I just thought I would pose the question. Chair: Could we just eliminate weddings? I don't want to go in that direction. I take back what I said. Mike, we need your direction over here. During the break what have we come up with in terms of recommendations for the Commission? Planning Commission Minutes December 13,2011 31 Staff. Other than the addition of condition 21 which is the encroachment condition I will let the other Mike take first lead. Mr. Kimura: Okay settle this, I will just withdraw my motion to defer. Mt Jung, Let's take a look at condition 18 it says "No other commercial use of the property shall be permitted unless approved by the Planning Commission,i.e. weddings,parties, commercial retail or rental items other than ag, related produce grown on the property, commercial filming, etc." So technically should it be approved it would be restricted anyway. So the question is what the people who rent the home, are they going to be allowed to do weddings? Mr. Dahilija: That is the question and I think what the...I mean this is the limitations of Euclidian zoning here where you are stuck with a definition one way and you can read it another way. Mr. Kimura: And that would be under the discretion of the department? Mr. Dahilig: I think whether it passes the shibai test or not it really comes down to a matter of enforcement. If they are renting the out for 12 hours to conduct a wedding and throw a massive party I think it is something the department would definitely frown on. Part of it can be curbed by a matter of enforcement by the condition that the attorney is mentioninb but if the Commission does not feel that it provides enough of a curb and would like to address specifically this notion of somebody rertitig the house 4tid throwing a wedding for the people that are living in the house then it is up for discussion among the Commissioners. Mr. Cohen: Mike, if I may, we did have this discussion briefly with Mike and I don't think my client would have any problem with limiting the fiinctions to registered guests. Certainly the intention was not to book this thing for weddings on a given day it was kind of a culmination of a stay there,part of a stay,people come, families come for a period of t-ime and get to spend time together culminating in a wedding. I think I can speak on behalf of my client in agreeing that those uses described have to be kind of a pertinent if you will to tho rental activity it's self. Ms. Matsumoto: How would you implement No. 18,how would that be done? How would the guests notify you or ask approval? Mr, Dahilia: If we were to receive a complaint I think what we would have to do is do a monitoring investigation and also to cross reference whether the observations we have really show some type of violation. And at that point and it is unfortunate but it is a system that we have to then implement measures that once the renewal process comes along that that is a notation that pops up in our renewal reviews. And then at that point we may need to bring it 4p to the Commission for modification of the permit to try to tighten the belt on this thing if it becomes a persistent problem and that type of thing. Ms. Mat iinioto. But you can g4ther information in order to assess? Mr. Dahilig: Right. And one other thing of note dnd just for the Commis'sioner's information that the Council a couple weeks ago passed the Civil Fines Bill and so the department now has the authority for any violations of the CZO to fine up to 10 thousand dollars a day or 10 thousand dollars per action. And so it could also be enforced in that manner that the department can levy a heavier hammer financially on people that are persistent violators. One caveat is that the State law allowing that type of civil fining does encourage compliance first arid so that will still be our first line of compliance is'trying to get people into following the law and then use the hammer if there is a conscious effort to violate it because of perceived financial gain. Chair: Mr. Kimura, you took away your motion to defer so we are back to square again. Mr. Kimura: You have to take back the second. Chair: Who made the second to defer? Cammie, do you take back your second? Planning Commission Minutes December 13,2011 32 Ms. Matsumoto: Yes. Mr. Katayama: 1 make a motion to accept. Chair: To accept and... Mr. Jung: Is it just to accept the report or approve? Mr. Katayama: To accept and approve. Chair: And this is with the conditions as stated by the planner. Mr. Kimura. Mike, did they put it in there about donating the...? Mr. Jung: You have to wait for a second. Ms. Matsumoto: Second. Chair: Now we can have the discussion phase. Mr. Kimura: Did they agree to donate the fruits and vegetables or whatever to a nonprofit organization that you guys can work out? Mr. Cohen: Sure. I would suggest we can make that part of the supplemental ag. plan if that is agreeable. Mr. Kimura: Sure that will work. Mr. Katayama:, What about the encroachment, we will add that as well? It has been added? Okay. Chair: Any further discussion on the petition, if not could we have roll call please. On motion made by Wayne Katayama And seconded by Camilla Matsumoto, to approve staff recommendation, motion carried by the following roll call vote: Ayes: Matsumoto, Blake,Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Raco -I Npt Voting: Vacant -1 Special Permit SP-2011-15 to permit use of an existing single family residence for. Transient Vacation Rental u oses as permitted by"Count of Kauai Ordinance No. 904 in Ki11auea, Kauai, approx. 2,800 ft. north of the Waiakalua Street and Kuhi`b Highway intersection, further identified as Tax Map Key 5-1-5:47 (Unit C) and containing a unit size of 2.69 acres .of a 10.902 acre parcel =Michael Testa. [Hearings Officer Special Meeting Public Hearing held for 11/29/11.1 Supplemental No. 1 Director's Report pertaining to this matter. Staff Planner Mike Laureta: Michael Testa, applicant's representative is Jonathan Chun. This is a three unit CPR, Unit C is owned by the applicant and has received authorization from the owners of Unit A and B to make this application. The owner of Unit A has also applied for a TVRNCU Special Permit for nonconforming transient vacation rental use. This is in the Kilauea agricultural subdivision approximately 2,800 feet north of the Waiakalua Street and Kuhi`6 Highway intersection. Unit C is zoned Ag. and Open,the area is 2.69 acres out of a 10.902 acre. And agricultural dedication for 2.0 of the 2.69 acre unit existed for the period from 2000 to 2010. In this instance this ordinance standard No. 1 and 2 are applicable since the dedication existed prior to March 7, 2008 and the applicant continues to file federal 1040 schedule F filings. The Planning Commission Minutes December 13,2011 33 agricultural use is a fruit orchard and 'still exists but has been supplemented with macadamia, (inaudible), an rambotan. The agricultt.tral activity exists, yes, existing fruit orchard, the department inspected the property on April 281h, no uses or zoning violtigns exist. On November 29 a neighbor from the surrounding neighborhood submitted a letter of concern which is exhibit 6 and presented testimony of her concerns which were general in nature. The applicant submitted exhibit 7 to address those concerns. The applicant reiterated the information contained in the application and there being further discussion the hearings officer olosed the public hearing. Of the 81 total applications 30 were in Kilauea and the evaluation follows. Going forward into the recommended action by the Commission staff would propose adding condition 21 which is the encroachment condition and that concludes staff's presentation. Chair: Thank you Mike. Mr. Kimura: Mike,this is just for the guest house, the TVR, or is it for the regular residence and the guest house?` Staff. For a vacation Dental and guest house. The guest house will be an accessory to the main house and will be a counting bedroom. The guest house cannot be advertised or operated independent of the main house so it is just like a surplus bedroom. Chair: And that is all part of the TVR? Staff: Yes. Chair: Anyone have questions of Mr. Laureta? Mr. Kimura: The guest house, doesn't it have a kitchen in there? Staff. No. Mr. Kimura: What am I looking at here then? Staff. On exhibit 4 is the inspection report. Picture set 2, the guest house, on the inspection done April 28th it looks like the kitchen had been removed by the time the inspection had occurred. Mr. Kimura: Removed meaning... Chair: If there are no further questions of Mr. Laureta I would like to call on the applicant's representative please. Mr. Jonathan Chun: Good afternoon, Jonathan Chun. With me also today is Thomas (inaudible)the caretaker for the property. I would like to point out in the guest house there is no kitchen. It shows a counter and a refrigerator,there is no stove there, there is no cogk top, but I believe whoever drafted this labeled it as a kitchen fox whatever reason. It shouldn't have libeled that. But as confirmed by the inspection there is no cooking facility. Mr. Kimura: So there never was one? Mr. Chung: I don't know. I wasn't there. Mr. Kimura: Was there ever a stove or full kitchen in there?. Unidentified Speaker: No there has not been a stove or full kitchen. There is a sink, some people would call it a kitchenette I suppose but there is no stove, no cooking facility,just a sink and a refrigerator. Mr. Kimura: There never was? Planning Commission Minutes December 13,2011 34 Unidentified Speaker: No. Chair: Any other questions of the applicant? Mr. Kimura: I commend the owner of this property for doing some ag. He really is doing ag. Unidentified Speaker: We certainly are sir. Chair: Thank you, anyone from the public wishing to testify on this application? Jonathan, before I call on the public I just wanted to ask you, you reviewed the comments and recommendations of the staff,the director's report? Mr. Chun: Yes, we reviewed the comments and recommendations and we have no opposition. We agree with those colditions. The only comment I would like to make on the last condition Mike regarding encroachments. I would maybe suggest putting in encroaching improvements and the reason why I am saying that is being an ag. use and I have represented both farmers and people around there, sometimes some people could get upset that your large fruit trees cot}ld overhang on somebody and I don't consider those encroachments. So I want to avoid any kind of fight between agriculture uses, especially our client, and somebody else that a tree if the branches are overhanging is not encroachments. So I would maybe encourage considering language encroaching improvements as opposed to just encroachments. And again that would be consistent with the ag. use of the property. I think the State law kind of encourages and basically says you shouldn't put any restrictions that would restrict ag. use. Mr. Kimura: Well if the trees branches is going into your neighbor's propb; ty and the leaves are falling into their property you would think... Mr. Chun: The only State cafe recorded on that is the Hawaii Intermediate Court of Appeals stated that trees overhanging which is leaves and branches falling on a neighbor's lot is not an encToachment basically. And that at any time a neighbor on his own if your neighbor's branches or leaves are falling on their property has the authority to go over and cut the overhanging branch and that is it. But it is not an encroachment. As opposed to the Intermediate Court of Peals said if however the tree that overhangs causes property damage, roots start invading and start damaging the foundation of a house and so on, that becomes an encroaching issue and in that one the neighbor has the authority to demand that the owner of the tree remove the roots of the trees that are causing damdges and if they don't do that you can do it yourself and charge the owner. I am trying to avoid problems between neighbors and I think the intent of the Commis:'ion or the department's recommendation is encroaching structures which.I think that has been a concern one some of these ag. lots. I gather that is what the concern was. So I didn't want the Commission and the department getting involved In that kind of specific issues if that is what the concern of the Commission was. Mr. Kimura: It wasn't just structures it was hedges,plants. Mr. Chun: Then the general rule in the Intermediate Court of Appeals which has not been overturned yet is that leaves and branches are not considered encroachment because the property owner can al*ays, the neighbor at their own cost can always just cut it themselves. Only if it causes property damage that it becomes a legal issue at that point in time. Chair: Thank you Jonathan,Mike, are you able to read in some kind of language in regards to the recommendation made by Mr. Chun? Staff: Well I have experience that there is a County ordinance regarding overhanging trees and leaves and stuff and iP the one neighbor complains to the other neighbor fix it, clean it, cut it, and if he doesn't you can present him with the bill. There is a County ordinance that my dad used so I know it's there. Planning Commission Minutes December 13,2011 35 Mr. Chun: I believe the one you are making reference to is the one about the street frontages. Staff No. It is side property line, huge trees. Mr. Chun: I can look at that but there is an Intermediate Court of Appeals case on the issue. Staff. It will cause an issue between the neighbors so if the applicant can control their vegetation withopt impacting their'neighbors that is one less thing to worry about. Mr. Kimura: I don't think that is asking too much. Mr. Chun: It's not I just did want to have an issue escalate on the permit side between agricultural users. Mr. Kimura: Or the applicant just needs to trim his trees back. Mr. Chun: It is just that we are trying to encotirage agriculture use. Chair: Thank you Mr. Chun. So Mike how do we resolve this? Staff. Cut his trees. Mr. Dahilig: The condition delegates authority to the department to essentially resolve the issues between... Staff: Agriculture or improvements. Chair: Very good, anyone from the public wishing to testify on this application? Seeing none we are back to the Commission for... Mr. Katayama: Move to accept and approve. Ms. Matsumoto: Second. Chair: Any discussion, if not could we please have roll call. On motion made by Wayne Katayama and Seconded by Camilla Matsumoto, to approve staff report, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Raco -1 Not Voting: Vacant -1 Special Permit SP-2011-24 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No904 in Kalihikai (`Anini), Kauai, mauka of and adjacent to `Anini Road, approx. 430 ft. east of the `Anini Beach Park further identified as Tax Mgp Key 5-3-4:20 and'containing a overall size of .25 acres = Weatherwax Family 2000 Trust; FHearing's,Officer_Special Meeting Public Hearing held 11/29/11. Supplemental No. 1 Director's Report pertaining to this matter. Staff Planner Mike Laureta: The applicant's representative is Harvey Cohen. This Special Permit for a single family transient vacation rental located,on State Land Use Ag. District is for a 3 bedroom, 2 bath farm dwelling and consisting of 2,116 square feet. This property also has a 1 bedroom, 2 bath ADU mauka of the structure. A permit is also being sought for this unit independent of this request. it is located in Kalihikai, it is a parcel of record approximately .25 acres in size,the zoning is Open. In terms of agricultural activity the pour Planning Commission Minutes December 13,2011 36 soils and large existing Ironwood tree dominate the rear of the property however the applicant has fruit 4nd flower trees planted in the side and front yards for personal consumption and enjoyment by the guests. The Planning Department's inspection, there were no zoning or use violations for the single family residential structure. At the public hearing there was no adverse public testimony from the surrounding neighborhood. The applicant reiterated the information contained in their application and there being no further discussion the hearings officer closed the public hearing. And staff would recommend the addition of condition 21 which would be the encroachment condition, other than that all the other recommendations are standard and this concludes staff s presentation. Chair: Any questions of our plannor Mr. Laureta. There being none I would like to call on the applicant's representative please. Mr. Harvey Cohen: Good afternoon, Harvey Cohen on behalf of the Weatherwax Family Trust. Just quickly by way of background the Weatherwax family purchased this property in the year 2000. The property has been an active vacation rental since 1993. Since 1993 both the main house and the accessory dwelling unit have been in existence. The property as Mike indicated or the applicant has complied with all of the internal regulations with respect to the ordinance. The property, there have been no complaints with respect to the operation and I am certainly available to answer any additional questions with respect to this application. Chair: Any questions of the applicant's representative? Mr. Kimura: Is this the ADU? Mr. Cohen: This is the main house. Mr. Blake: The main house and the ADU are separately advertized and rented out as transient vacation rentals? Mr. Cohen: That is correct. We submitted two separate sets of financial documentation as per the requirement of the ordinance,two separate logs of rental activity predating 2008. It has always been that way. When my client purchased the property it was being handled the same way by the former owner who built both the main house and the ADU. Chair: Any further questions of the applicant? Mr. Kimura: I am just curious, are you willing to limit the rentals to just one or one at a time? Mr. Cohen: Unfortunately not. Again both properties have been operated independently for years and I did have that discussion with my client and he is not willing to place that condition on there at this time. I did have this discussion though. Chair: What do you mean independently? Mr. Cohen: Two unrelated parties occupying both structures potentially at the same time. Mr. Kimura: What type of ag. do you have going on there? Mr. Cohen: As mentioned by the staff report it is fairly litnited in terms of its scope, mostly personal consumptive type ag., fruit trees and I know the guests do enjoy... Mr. Kimura: When you say limited you are talking how much, how many trees do you have there? Mr. Cohen: There are approximately 20 trees on the property. Over the years there is a plumeria tree in the front and again it is not...the question with respect to commercial activity, over the years the applicant has allowed people to come and collect plumeria to make leis. Again they don't charge for that type of use but it is in my mind agricultural use.none the less, Planning Commission Minutes December 13,2011 37 pretty community oriented as well. It is a quarter acre lot and with definitely sub.*-soil conditions, sub-standard soil conditions excuse me. And the applicant has agreed with respect to the condition imposed or suggested to be imposed by the department that he bolster the existing ag. with the understanding that thqt is going to be a process to build that up over time. But there is certainly commitment on the part of the applicant to do that. Mr. Katayama: This property is a half acre lot. Mr. Cohen: It is a quarter acre lot. Mr. Katayama: It is a quarter acre lot in total. There is a main house and additional ADU that was built there. Mr. Cohen: 1988, I'm sorry, in 1993. Mr. Katayama: This is for the Director, why are we treating this as two separate TVRs because they are on the same property, both units are joined, one as a principle residence and the other built as an ADU. Why are we treating them as two independent units? Mr. Dahilig: The difficulty here again is that this is interfaced with the Real Estate Commission law pertaining to CPRs. Given the..: Mr. Katayama: This is not a CPR, it is an ADU, one property with a primary dwelling with an ADU that has been added. Mr. Dahilig: Sorry, my apologies. The reason why it is treated separately is that when we look at ADUs it is considered additional density on the property and so eyen though you have one, you are allowed essentially two single family units. And so giveri that that is why they are treated as two separate applications because the u§e.was limited to a single family dwelling that was for transient vacation rental purposes. Mr. Katayama: But in this case they are inseparable, you can't transact just one unit. Like in a CPR there are stand alone units that could have separate owners. In this case the property is in this case both the primary unit and ADU need to be transacted together. Mr. Dahilia: Not necessarily. Mr. Katayama: He could sell the ADU and not the principle residence or vice versa? Mr. Dahilig: There are ways you can. I don't want to go into too much deal discussing that for public record but there are ways that that can be accomplished where these things could be severed. Staff. But the application information according to 904, both structures were operated independently of each other; both had separate guest logs so they were both being operated independently even though they are on the same property. Chair: By the same owner. Staff. Yes, by the Weatherwax family, one property, two structures. Mr. Kimura: This is almost the same thing we went through this morning, right, ADU, two different properties. I mean it was CPR'd. Staff One was CPR'd, this one is not. Mr. Kimura: He has an ADU and... Mr. Dahilig:ig: True. Mr. Kimura: So basically this is the same thing that we went through this morning. Planning Commission Minutes December 13,2011 38 Staff: Okay. Mr. Kimura: Thank you. Mr. Cohen: Chair, if I may to Commissioner Kimura, I think there is a distinction and that is that this morning if I understood coixectly the applicant built the ADU himself and I think there was some concern as to whether or not what his intent was when he built that. In this instance the ADU has been in existence prior to my client purchasing the property back in the early 90's. Mr. Kimura: But the intent is still the same, renting it out as a TVR. Mr. Cohen: Absolutely. Mr. Kimura: Thank you. Mr. Dahilig: Commissioner Katayama, is the concern regarding having two TVRs on the same property related to issues concerning too much concentrated impact of that type of use in a particular area? Mr. KatMama: Yes. Mr. Dahilig: And would you think that it is in the best interest of the County to look at avoiding these types of concentrated TVR uses within a very small area like for instance a quarter of an acle? Mr. Katq'ama: That would be my initial reaction is that again stepping back And looking at its totality doe's it make sense. Mr. Dahilig: And you would think that having such dense vacation type of uses wolild be contrary to the purpose of the State Land Use law? Mr. KatUama: You could lead me there. Mr. Dahilig: Thank you. Chair: And this is in the State Land Use district and our concern is agricultural use. Mr. Cohen: I would point out Chair that again this is a relocated Kuleana that was moved to the street so the ag, zoning really predated its current location. It is County Open zoned so I think the ag. issue is probably secondary to the density or the intensity in this case. Chair: Mike, can you discuss that a little bit what was just mentioned. Staff. Which part,the relocated Kuleana? Chair: The fact that it is in the State Land Use district prior to and now it's in the Open district. Staff. No, it has always been in the State Land Use Ag. district but it has always been County zoned Open. Chair: So it has always been that way? Staff Yes. Mr. Cohen: It came from a different location in what I would consider a more; agriculturally intensive area and when the `Anini lots were subdivided it was relocated. It brought with it its State Ag. classification but the CZO has designated that area Open. That was my point, not that the State zoning has changed, rather the location of the property has changed Planning Commission Minutes December I3,2011 39 and for whatever reason...in certain ways it is probably ripe for rezoning that entire `Anini neighborhood afea but that is not what is before this board today. Mr. Blake: Does the fact that this is a relocated Kuleana still in the ag. district in any way, is there some special consideration as not really being an ADU? Because we had this discussion in the first matter this afternoon that ADUs were meant to relieve the housing crisis and that was a long drawn out year, I don't know how many years it took to get that passed. And as I recall one of the major objections was that ADUs weren't going to be used as ADUs, excuse me, `Ghana wasn't going to be used as `Ohara. But the fact that there was a housing shortage, severe housing shortage, militated against `Ohana designation and it became additional dwelling unit because it would still be available to address the housing shortage. So now we have a standard dwelling and we have an ADU which if it was built as an ADU and got ADU permitting was built to relieve the housing shortage. And now we are taking it out of the housing or now we are formally recognizing the fact that it was never meant to do that by the owner and putting our stamp, good housekeeping stamp of approval on it wl ich to me just doesn't hang. Chair: That is the way I read it. Staff: Those comments would apply to the second application,the ADU, right, not the main dwelling. Chair: Right. Mr. Kimura: So this particular application, the main dwelling is in the back and the ADU is in the front? Staff. No, opposite,the main dwelling is in front,the ADU is in the back. Mr. Dahill : So Commissioner Kimura.just to understand if the department needs to refine its recommendation, would you say that although ADUs were permitted and the purpose behind ADUs was for general housing that the nature of the TVR use is unsuitable for the original purpose which was the ADU use? Mr. Kimura: Yes. Chair: Do we have any more questions of the applicant? Mr. Katayarna: Mr. Cohen, I am reading the exhibits, both the principle residence and the ADU have the identical rates. I am just looking at... Mr. Cohen: I am not familiar with the rate structure. The main house is two bedroom and the...I'm sorry the main house is three bedroom, two bath, and the home in the back, the other dwelling unit is one bedroom, two bath so that is the distinction I arrf familiar with. Chair: Any other questions? If not,thank you Mr. Coheri. Anyone from the public wishing to testify on this application, seeing none what are the desires of this body? We need to have some kind of motion. Mr. Dahilig: Commissioners, in light of the Commission's concerns and the issues raised by Commissioner Katayama with respect to concentrated use the department would be willing to suggest a condition that TVR use on the parcel shall be limited to oneessee or tenant at a time. And just for purposes as stated on the floor that would limit the amount of dense TVR use to one at a time essentially. Mr. Katayama: How does that impact the other application pending before us? Mr. Dahilig: What would happen in this particular...because it is not CPR'd the condition would be attached and be applicable wholly to the whole lot or record. I don't know if the Attorney wants to weigh in on it but that would be a suggest condition and I would presume that would be over the objection of the applicant. But given the Commission's leanings on.this, this may be something that the Commission may want to entert ain as a mitigating measure. Planning Commission Minutes December 13,2.O 11 40 Mr. Blake: I have a concern. Most TVRs or up to now anyway, its one TVR unit on a parcel of land. Now we have an application for two TVR units on a parcel of land. Like you say we could deny it t6tally, we could grant one and not the other, but I don't see any reason for saying we will grant a TVR use for the who property and you can pick and choose which one you want to rent. It is one or the other. The ADU should stay ADU because philosophically, practically,politically, and on and on and on that is why you had ADUs passed. Mr. Dahilig: I guess that is in accordance with what Commissioner Kimura's thoughts concerning the unsuitability of an ADU to be used as a TVR. I posed it out there just as an option for the Commission to be addressed as a mitigating measure but whether that is the appropriate mitigating measure that is for the Commission's entertainment. But we are willing to support such a condition if the Commission would like to put that on as a condition. Chair: Do the other Commissioners share the same view? Mr. Kimura: Yes. Chair: I am still waiting for a motion. Mr. Kimura: So do we put both of them together or are we going to coo them separately because it is on the same property with back to back TV?ks, we are talking about the same units. Mr. Dahilig: Maybe out attorney can... Mr. aunt: I would have to think about this for a minute because there are two applications on the table, one permit would...according to what the Director is proposing the Commission to entertain one permit would be issued to the parcel of record allowing the two units to be utilized either together or separately but rented out only once at a time. Did I get that? Chair: I will be calling for a ten minute recess. Commission recessed at 4:00 p.fr1. Meeting called back to order at 4:21 p.m. Mt. Blake: Let me ask a question, would the evidence for the main residence be exactly the same as the ADU except for the size of the facility! Mr. Dahilig: You mean in terms of the size of the house Commissioner? Mr. Blake: I am talking about the same evidence, the same general evidence. Staff. Yes. Mr. Jung: I think before there is any discussion there should be a second. Chair: I am calling for a second. Mr. Blake: Second. Chair: Now we can entertain a discussion. Mr. Blake: So after we act on the main residence then we are going to open it up again for the same testimony and evidence on the ADU. Staff: Yes. Mr. Blake: Can we dispense with the ADU at that moment or do we have to go through the whole exercise if we were so inclined? Planning Commission Minutes December 13,2011 41 Mr. Dahilig: There are two separate applications one of which is before deliberation and the Commission should only be deliberating one at a time if for nothing else for record keeping purposes. Mr. Blake: Where is the other one? Mr. Dahilig. It would be the next item on the agenda. Chair_ Any further discussion? Are we clear on the motion? Mr. Dahilia: So Commissioners the department would recommend if the Commission is willing to propose as a motion a condition, it would be condition No. 22, and we could get the applicant's representative objections on the record after I note this. But condition 22 would state that, "Transient Vacation Rental use on the parcel shall be limited to one lessee or tenant at a time." Mr. Kimura: You are talking about two TVRs operating as one at any given time? Mr. Dahiliiz: Yes because there are two on the parcel, only one tenant or lessee shall be allowed on the parcel at any given time. Mr. Blake: Let me try to rephr4se that to see if we are talking about the same thing. If we had one parcel with multiple units that had been utilized as TVRs in the past all now before us for separate permits then this green hotel so to speak could operate one today, another tomorrow, and another on each succeeding day for as many units as you have there, right, under that theory. Mr: Dghili Sp then we would add the condition no subletting would be allowed. Mr. Blake: And one would have to be done I mean the term of the TVR rental must be completed before you start the TVR rental on the second one. Mr. Dahilig: That is correct. Mr. Blake: And that would not pose enforcement burdens on the, additional enforcement burdens on the department? Mr. Dahilig: As part of the review in terms of the records we would have to reconcile the records of the property and ensure that what we are seeing as part of the renewal process is only one use at a time and if there is an issue there that we would go ire and ask for 1hodification or revocation of the permit at that point. Mr. Blake: I still firmly believe that what was...you know you dance with(inaudible) right, you wanted an ADU, you have an ADU, it should be an ADU. So even though i seconded the motion, well ate will wait to the vote. Mr. Kimura: So how would that affect advertisement on the two different TVRs? They would have to advertise just one? Mr. Dahilig. If they operate independently of each ether because both are still...let's say that the other one does receive the permit that is tied to the land they are still going to be subject to the conditions of the permit with respect to what is recorded. So even though you have two independently operating TVRs, essentially, if they choose to market it separately then only one can go at a time. Mr. Kimura: But then again it is an enforcement issue. Mr. Dahilig: It is an enforcement issue as with anything, the enforcement process has been a leaz..ing curve for the department. And so what conceptually we would have to look at is requiring e logs that come in, in`terms of what is being rented and to whom and what period would have to be reconciled for review and enforcement purposes. And if there is a problem Planning Commission Minutes December 13,201I 42 from the standpoint of not meeting the conditions then an OSC would have to be requested to the Commission. Mr. Kimura: But the applicant can still manipulate the logging, Mr. Dahilig: Right and if they choose to do that and submit it then they would be subject, if we find out, they would be subject to a criminal penalty. That is just the department's suggestion given the concerns of having two TVR uses within very close proximity of each other that is contrary to what typically Ag. use lands ar6 meant for under the State Statute. Mr. Blake_ We are getting farther and farther away from Ag. use. First there is one, now two, two if you do this but only if you do this, not if you do that. I mean keep it simple. Make it the way it was envisioned. That is my feeling, you get one and the ADU stays the ADU. So this being the application for the main residence I would be in favor of granting the main residence TVR status, period. Mr. Kimura: What if we put something in the main residence with this application saying that approval with condition of the outcome of the ADU application? Just a thought, because I don't want to make a decision on this which is unclear on the ADU and then they have two TVRs,two separate TVRs. Before I make a decision on this one TVR maybe we could.put a condition in there with the outcome of the decision on the ADU,just thinking out loud. Mr.11m& All I am going to suggest is that you guys take the two applications independently and I will leave it at that. Mr. Katayama If I could make a comment. I think that with the suggested additional condition and we could link the two once we take action on this on the second application that will really strengthen that ability to tie them together. I think I am okay with it and (inaudible), yes it does give the landowner some flexibility in managing that without pending the f,kDU so I think I can support the Director's 22nd condition. Chair: So that would be either unit then, right? Mr. Katayama: Well for the principle unit and when we act upon the next pending application we will probably talk about conditions to strengthen that linkage. Chair: I am a little bit confused. The principal residence would be considered what, a TVR or a...? Mr. Katayama: A TVR with conditions. Chair: And then the ADU would be... t Mr. Katayama: A TVR with really restrictive use conditions but they won't both be TVRs in this case. Chair: That is what you are saying basically, right? Mr. Katayamma: Hartwell is saying just the opposite. He is saying that he will grant one but not the other. Chair: And you are saying grant Both? Mr. Katayama: With covenants on the second one where they are married at the hi� where you can't treat it independently. I think that is what the Director is... Chair: But you are saying it is one TVR... Mr. Katayama: Two TVRs. Chair: But only one at a time. Planning Commission Minutes December 13,2011 43 Mr. Katayama: Yes. Mr. Kimura: For enforcement purposes maybe we can put it together where, both separately, but where you can only have one advertisement on the TVRs, on both TVRS,just one advertisement at any given time. So both TVRs would be used as one. Mr. Blake: See here is an application for one TVR and we are entertaining all these (inaudible) and combinations of how you can do one or two, one and two, on!ly two. I think we should just take our attorney's advice and act on them indeperidently. Mr, Dahilig Commissioners, maybe what I can do to aid the process because the department is technically a party to this application as well is given what has been said subsequently regarding the impacts as well as the uses that are involved with the two TVR units on the same parcel of land that maybe I would request a deferral of the item until the next Commission meeting to discuss with counsel apart from the Commission's counsel I whether it would be appropriate for the department to file a motion before the Commission to consolidate both applications and whether such a motion would be legal before the Commission's entertainment. I guess I would like the opportunity to consult with counsel apart the Commission's counsel on this whether such a motion would be appropriate. Mr. Blake: So you want a deferral. Mr. Dahilig: Request deferral on items E.5 and E.6. Mr. Kimura: Can we vote on deferral on both of them right now? Mr. Blake: We have a motion on the floor right now. Mr. Jun : There is an open motion on the floor to approve now so that would have to be withdrawn. Mr. Kimura: Right, after all that is said and done can we vote on both applications at the same time for deferral? Mr. Jung: No, it has to be separate deferrals. Ms. Matsumoto: I'll withdraw my motion. Mr. Katayama: I will withdraw the second. Mr. Kimura: I make a motion to defer. Mr. Blake: Second. Chair: Any discussion? Mr. Blake: We are not going to defer to the next meeting, right? Mr. Dahilig: It would be a deferral until January 10th. Chair: The next meeting. Mr. Blake: We are going to reconsider this on January 10th,the first meeting? Mr. Dahilig: Yes. Chair: Along with what is already on the agenda for January I0`h? Mr. Dahilig: Yes. Commissioner, given the (inaudible) that are similar for both applications and the desire by the Commission to based on the testimony to want to address I guess what is going on with both applications (inaudible), I want to see if it is possible again as a Planning Commission Minutes December 13,2011 44 parry to the application whether the department can legally file a motion for Commission entertainment to consolidate. And I need the opportunity to consult with counsel. We could go with one or the other, that is up to the Commission and I just put that out as a request. If the Commission would like to move forward then that is certainly within the Commission's prevue as well. Mr. Blake: So if we consolidate do we then have to act at that same time or does tl�at mean that the consolidation would be on the I0tn and the action would take place two weeks later? Mr. Dahilig: It would have to be the same day. Mr. Kimura: By then the counsel would come back with an answer for us. Mr. Jung: Well I think what would happi n if once Mike gets his own independent counsel then Mike would have the authority to file a motion to consolidate and then the applicant would either join or opposed that motion and then the Commission would render a decision on that motion. Mr. Dahilig: Unless counsel is willing to consolidate. Mr. Cohen: It is interesting beoause when we started the process we did file one application with,both properties on that. It was only after the department reviewed the application that They encouraged us to separate the two. So I guess for the record I think you can get to the same place today that you are talking about and I would even be willing to stipulate that the record made on the main house could be used on the ADU as well in answer to Commissioner Blake's concern that we would have To go through another hearing. But I would rather have an up/down vote on the main house, hopefully we would get a positive outcome on that, an up/down vote on the ADU and if you were inclined to give an up vote with a condition that the ADU could not be rented at the same that the other house was at least we could deal with it today. It seems like a difference without a distinction. We would just be going down the same road and just busy up your January calendar even more. Mr. Kimura: I am not an expert in the law. I would like to have counsel's opinion,on it. Mr. Dahilig: Well it is the Commission's call. Understanding it is what it is and if I guess independently I would have to ask the County Attorney to create a firewall at this point and request an opinion through the County Attorney's office whether even such a motion is appropriate. That would be the department's request for a deferral. Mr. Kimura: Okay, I have the motion to 'defer. Ms. Matsumoto: Second. Chair: Discussion again. Mr. Blake: I like what was proposed by counsel for the applicants, up/down, do it. I understand wanting to be, the Director's wanting to check this other avenue out but in the meantime it sits. And if it has to sit then it has to sit. Chair: I think the Plaianirig Director has recommended a deferral because he wants to get more information from counsel. It seems like it is a reasonable request. I understand what you are saying about the up/down vote. Ms. Matsumoto: And hopefully next time we won't have such a lengthy discussion, we won't have a need for it. Chair: Call for the vote, roll call please. On motion made by Jan Kimura and seconded by Camilla Matsumpto, to defer action to 1/10/12, motion carried by the following roll call vote: Planning Commission Minutes December 13,2011 45 Ayes: Matsumoto, Kimura, Katay,-ima, Texeira -4 Noes: Blake -1 Absent: Raco -1 Not Voting: Vacant -1 Mr. Dahilig: In line with that Commissioners the department would request deferral on item E.6 on Special Permit application 2012-34 relating to TMK 5-3-4:20 regarding the Weatherwax Family Trust. Mr. Kimura: So moved. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to defer action to 1/10/12, motion carried unanimously by voice Vote. Commissioner Kimura was excused at 4:30 p.m. Special Permit SP-2012-3 to permit use of an existing single family residence for Transient Vacation Rental pMoses as permitted by County of Kauai Ordinance No. 904, in East Waiakalua, Kauai, approx. 1,100 ft. south of the Waiakalua Street and.Kuhi`6 HighwaX intersection, further identified as Tax Map Key 5-1-5:28 (Unit l), and comprised ota unit size of 2.983 acres of a 10.006 acre parcel=Steve Hunt. (Hearings Offices S ep cal Meeting Public Hearing held 11/29/11.1 Supplemental No. 1 Directof s Report pertaining to this matter. Staff Planner Mike Laureta: The property is comprised of a 3 unit CPR comprised of applicant owned Unit 1 which is 2.983 acres, Unit 2, 3.24 acres and Unit 3, 3.7$3 acres, overall parcel size is 10.006 acres. Authorization has been provided by the owner of the other two units. This property is located in east Waiakalua. Agricultural activity, yes,the applicant started the Waiakalua Plantation Nursery in 1980 which produced 3 acres of ming arilla row crap bred rooted and shipped to wholesalers and hotels on the mainland. Additional acreage is in apple bananas which was sold to Esaki's Produce, Kilauea Town Market, and other small markets on the North Shore. Produce was also dried.and sold in small quantities. Green houses were erected for the purpose of propagating ornamental plants which are rented to restaraunts and hotels through the busiest Garden Island Plant Rentals. In 2004 applicant became ill with cancer and was forced for health reasons to cut back on large scale Ag. ope'rations. Applicant changed the Ag. business model from a full profit operation to a nonprofit model. The applicant continues to grow over 30 varieties of fruit trees and over 100 kinds of flowers and orchids. Minimal sales of dried fruit have continued however applicant has concentrated on donating almost all production to nonprofit and church programs. Applicant has also received awards for his agricultural efforts. This is reflected in exhibit C. The department conducted an inspection on November 14th and confirmed no use or zoning violations existed. At the public hearing of November 29'h a letter of general concern was received by the department on November 17ffi. The fetter writer also reiterated her concerns at the public hearing. The applicant's representative addressed.those concerns by letter dated November 28th which is exhibit 27. There being no further discussion the hearings officer closed the public hearing and the evaluation and proposed conditions of approlval are standard. This conclude> staff's presentation. Chair: Thank you Mr. Laureta, any questions of Mr. Laureta, there being none I would like to call on the applicant's representative please. Mr. Charles Foster: Good evening. This is a bonafied nonprofit. We have 100 percent of the income from the subject Ag. operation as well as the TVR operations have been donated Planning Commission Minutes December 13,2011 46 and have also been used to finance the applicant's nonprofit organization or least when they are involved with, which is dedicated to the environmental protection of the adjacent reservoir and the surrounding natural areas. The applicants have the f rst farm and the first commercial nursery mauka of the highway in Kilauea Farms and as the Director's report explains this property is still productively dedicated to agriculture. As stated the Hunts have won awards from the Governor and the Chamber of`Commerce for sustainable practices and.theirs is the only private property in the State to have received the Governor's Hawaii. Green Business Award. The subject property was part of a sugar plantation and the reservoir was historically used for R and R for the workers. And when the Brewer Company divided the property they put into the CC&Rs that that area was to be used for fecreation. And so the dual use of the property respects both the Ag. designation of the land as well as its historical use. And Mrs. Hunt's father, grandfather, worked in the sugar,cane fields and the Hunts are well aware of the importance of Ag. and the tradition of Ag. on Ag, lands in Hawaii. And they pledge to continue their agricultural use of the land and to continue using the income from both the agriculture and the TVR operations to preserve its agricultutal and rural character. Some of the closest neighbors wrote letters that you have in your exhibits stating that they have never had in some cases 20 years they have never had any complaint$ about any of the operations,the Ag. or the TVR operations. One final letter from a Decon of Calvary Chapel say for over 20 years the hunts have been donating fait to the church for...it says "The Hunts have always been extremely generous with donations of their produce and the property to the use of the church." We will take any questions, we will be happy to answer them. Chair: Any questions by any of the Conimissionets? Thank you, I would like to call on the public, anyone wishing to testify on this application please come forward. Seeing none, Mike do you wish too—again: the conditions. Staff: The conditions are standard. Mr. Foster: We have read the conditions and we have no objections. Chair: Thank you. Ms. Matsumoto' I have a question of the planner. In this application I am looking at this in here, it says "Hawai`i Honeymoon", is the advertisement for the property and I just wanted to make sure that you know we talked about weddings earlier today and then also the yoga,that is no commercial then? Staff: No. As long as it is part of the TVR registration that is fine, if it was independent of the TVR registrations that would be considered commercial. Ms. Matsumoto: Thank you. Chair: Anybody else? Mr. Katayama: Move to receive and approve. Chair: Motion to approve, to receive and approve, is there a second? Ms. Matsumoto: Second. Chair: Any discussion on the application, seeing none could we have roll call please. On motion made by Wayne Katayama and seconded by Camilla Matsu'moto, to receive and approve staff report, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Katayama, Texeira -5 Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Planning Commission Minutes December 13,2011 47 Use Permit U-2012-10 Class IV Zoning Permit Z-IV-2012-12 for development of an emergency generator facility and Variance Permit V-2012-7 to deviate from the requirements _noted in Section 8-3.5(d) of the Kauai County Code Q 987)relating to the maximum land coverage of a residential zoned lot, situated on the grounds of the existing Lihu`e State Office Building in Lihu`e, at the Eiwa Street/Hardy Street intersection. further identified as Tax Nap Kev 3-6-005:011, and containing atotal area of 66,k983 sq. it. =,_4tate of Hdwai`i DA . [Director's Report received 11/22/111.1 1 SWplemental No. 1 Director's deport. Staff Planner Jodi Galinato read supplemental No. 1 Director's Report (on file). Chair: Any questions for the planner? I would like to call on the applicant please. Mr. Gene Young: Gene Young, Belt Collins, we are agent for the applicant. Mr. Lloyd Maki: Lloyd Maki, Department of Accounting and General Services. Chair: Any questions of the applicant? Anyone from the public wishing to, this is a public hearing so I would like to open the public hearing. Anyone from the public wishing to testify on this application please carne forward, nobody so I would like to close the public hearing. I need a motion to close. Mr. Katayama: So moved. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by voice vote. Chair: In the interim, right now we want to defer this item, we will take it right back. We have to take on another matter because Mr. Raco is here. Class IV Zoning Permit Z-IV-2012-11 to permit the construction and operation of a solar power facilft on as property located on Aka Ula Road, approx. 0.25 miles southeast of the intersection of Aka Ula Road and Waialo Road Port Allen Kauai further identified as Tax Map Key 2-1-001:051, and affecting a portion of a 20 acre parcel =McBryde Resources,Inc. jDirector's Report received 11/22/11.1 Mr. Katayama: Mr. Chair, I would like to recuse myself. Staff Planner Kaaina Hull redd Director's report(on file). Chair: Any questions of the planner? Could I call on the applicant's representative please? Mr. Tom Shigemoto: Good afternoon, for the record Tom Shigemoto representing A&B Properties and McBryde Resources. I just want to thank the st4ff for its diligence in preparing the report and helping us through the process they have been great. In terms of providing renewable energy already McBryde has been doing this for 100 years at least. We have that large hydro on Kauai and then this is in addition to what we already produce. So we think it is a good project and we just ask for your consideration in approving it, thank you. Chair: Mr. Shigemoto could you just give us a brief overview of the project? Mr. Shigemoto: For that I have some experts who are better at doing that than I am so I am going to call... Planning Commission Minutes December 13,2011 48 Chair: Just a brief overview, whoever you want to call on. Mr. Brian McColly: Good afternoon, Brian McColly,VP for Project Development with Hoku Solar. We will be working on building the actual facility. Mr. Dan Sarge: I am Dan Sarge. I am the Vice President of McBryde Recourses. Chair: How does this project differ from the other solar projects proposed on Kauai? Mr. McColly: This project is certaiAly a utility scale project. There are not many like it, most of them are meant to offset an existing load, the facility consumes energy and they will install a PV system so it can offset what they are consuming. However this is a little bit different because it actually feeds directly into the utilities grid so it benefits directly over into the utility for power stability and in terms of offsetting fossil fdel consumption. Chair: Any questions of the applicant? Mr. Blake: Where exactly is this going to be sited? Mr. McColly: It is just in front of KIUC's existing power house in Port Allen. Mr. Shigemoto: Just east of the power plant and the County wastewater plant. Mr. Blake: What kind of fence do you envision putting around it? Mr. McCblly: That will be a 6 foot chain link fence and it will have 3 strands of barbwire on the top, about 7'feet qverall. Chair: Any other questions? Ms. Matsumoto: Why did you pick this particular site? Mr. Shigemoto: For two reasons, one it is in a very high solar radiation contour and secondly because it is adjacent to the'existing KIUC plant which is very convenient to transfer that power over to that plant. Chair: Is there a deadline for this project? Mr. Shigemoto: Right away. We want to get started as soon as we get all of our approvals. Hopefully we can be in production by the end of the year. Chair: Is that to enjoy some of the credits that might me...? Mr. Shigemoto: There might be some credits that will disappear at the end of the year so yes that is part of it. Mr. Raco: Wasn't there an application a couple years before this that had an industrial park? Is this the same spot, subdivision? Mr. Shigemoto: Yes this is the same site. I guess the company decided that this is a worthy enough project to cancel the subdivision. We just got an extension just in case this permit wasn't approved but if we do get the approval then we will for all interns and purposes do away with the subdivision. Mr. Blake: You are able to start construction with Kauai contractors? Mr. Shigemoto: I will let Brian or Dan...I believe we can but the engineering will be done by Hoku and as far as hiring a contractor it has to be somebody that has some experience in putting up these solar fields. Planning Commission Minutes December 13,2011 49 Mr. McColly: Certainly, as we build these it takes a certain amount of expertise pulling from all the islands in terms of engineering, construction, and also involves a fair amount of labor to get these in that labor is best done from guys on island to integrate these. This is like building a lot of structures so it is going to take a lot of labor and we will use all local labor for that. Staff: Just to add, Commissioner Blake, the department also has a condition under their recommended conditions of approval concerning local labor to utilize them to the extent possible within the confines of law. Chair: Anybody else? If not I would like to open up the public hearing, thank you very much gentlemen. I would like to open this up to the public;this is a public hearing, anyone from the public wishing to testify on this application please come forward. Seeing none do you have your conclusions? Staff. The conclusion and recommended conditions for approval are standard. Chair: I'm sorry can I just interrupt you? I am out of order. I need a motion to close the public hearing. Ms. Matsumoto: So moved. Mr. Raco: Second. Chair: Any discussion, all those in favor say aye, motion carried. On motion made by Camilla Matsurnoto and seconded by Caven Raco, to close the public hearing, motion carried unanimously by voice vote. Staff. As I was saying the conclusion and recommendation are standard format for this type of utility facility and it was delivered to the Commission two weeks ago. If the Commission wants staff to reread them we can do that but if not it can stand as is. Chair: If the Commission has no objection we won't be reading the report. I don't think we need to. Mr. Raco: With that, Chair, I will motion to approve Z-IV-2012-11, TMK 2-1-001:51. Ms. Matsumoto: Second. Chair: Any discussion, roll call please. On motion Made by Caven Raco and seconded by Camilla Matsumoto, to approve staff report, motion carried by the following roll call vote: Ayes: Matsumoto, Blake, Raco, Texeira -4 Noes: None -0 Absent: Kimura -1 Not Voting: Vacant, Katayama -2 Commissioner Raco was excused at 5:10 p.m. Chair: We are back to the previous application. Ms. Matsumoto: So we are back to Kauai Beach Resort. Chair: No, DAGS. As mentioned earlier we are on Use Permit 2012-10. Mr. Dahili,�z: Commissioners we need a motion to approve, there was a close of the public hearing but no motion to act on item F.2.a. Planning Commission Minutes December 13,�0I 1 50 Ms. Matsumoto: Move to approve Use Permit U-2012.-10, Class IV Zoning Permit Z-IV- 2012-12, TMK 3-6-005:001, State of Hawaii 17AGS. Mr. Dahilig: Just to clarify that also includes the variance permit as well. Ms. Matsumoto: And this includes the variance permit as Well, thank you. Mr. Katayama: Second. Chair: Any discussion, roll call please. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve staff report, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Katayama, Texeira -4 Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Use Permit U-2012-9, Class IV Zoning Pen-nit Z-IV-2012-10 and Special Management Area Use Permit SMA(U)-2012-3 to permit the construction and operation of a solar power facility on a property located on Kauai Beacii Drive, approx. 0.3 miles east of the intersection of Kauai Beach Drive and Kuhi`o Highway, Hanamd'ulu. Kauai, further identified as Tax Mab Key 3-7-003:015, and affecting an area of approx. 44;361 sq. ft. =Kauai Beach-Resort [Director's Report received 11/22/11.1 Staff Kaaina Hull read Director's Report (on file). Chair: Any questions for Mr. Hull? Seeing none is the applicant's representative here? Mr. Avery Youn: Good evening. I am Avery Youn and I will make it very quick. I just want to speak about connectivity. The applicant already has an interconnection application approved by KIUC and the project, .6 megawatts, is on a tenth of what the hotel consumes so it is only a partial of what the requirements are. If there is any extra electricity generated say on weekends and they have to go get what is called a buy back agreement with KIUC but that is because it is so low and it doesn't supply the entire facility that may not happen. There is a connectivity application already approved, only 10%of the total consumption and the improvements required;they only have to change the rrieter box actually. The transformers are already there, any questions? Chair: Any questions of the applicant's rep.? This is a public hearing, anyone from the public wishing to testify on this public hearing? Seeing none is there a motion to close the public hearing? Mr. Blake: So moved. Ms. Matsumoto: I just have one question. You mentioned the scope of the project, the size and the amount of energy it will produce,what made them decide on that amount? Mr. Youn: I'm not sure what made them decide on that but I think they are limited by space. If you look at that map it covers almost the entire parking lot. It is going to be similar to the Hyatt. It is on elevated structures so it will not take away any parking stalls. Ms. Matsumoto: So they did as much as they could. Mr. Youn: Yes and I don't think they want to put it on the beach side so it is kind of limited. Ms. Matsumoto: Thank you. Chair: Anybody else, if not... Planning Commission Minutes December I3,2011 51 Staff: Was the public hearing closed? Chair. I just closed the public hearing, no? Ms. Matsumoto: Move to close the public hearing. Mr. Katayama: Second. Chair: Discussion, all those in favor say aye,those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to close the public hearing, motion carried unanimously by voice vote. Staff: Similar to the previous solar application the conditions of approval recommended by the department are standard conditions of approval including but not limited to that condition concerning the use of local contractors and labor. Staff can repeat it for the Commission if it so wishes however they stand as is. Chair: I don't think so, thank you. Ms. Matsumoto: Move to approve.Use Permit U-2012-9, Class IV Zoning Permit Z-IV- 2012-10, and Special Management Area Use Permit SMA(U)-2012-3, TMK 3-7-003:015, Kauai Beach Resort. Mr. Katayama: Second. Chair: Any discussion, roll call please. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve staff report, motion carried unanimously by the following roll call vote: Ayes: Matsumoto; Blake, Katayama, Texeira -4 Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant "I Mr. Dahilia: Mr, Chair, before we get to announcements I just want to put on the record that I am very proud of my staff for taking home the instrumental award from the Holly Jolly completion as well as the best overall wreath which was 1001 cranes. So I would like to put that for the record and congrats to the attorney's office, our attorney braved the cold elements in a shirtless manner and was Rudolph and I have the video if you would like to see it after the Commission meeting. Mr. Katayama: Did we meet the standards of conduct for this community? Mr. Jung: The only standards that were met were the Fire Department was unseated for the first time in 10 years. Mr: Dahilig: Go attorneys! For Acceptance into Record—Director's Report(s) for Proiect(s) Scheduled for Public Hearing on 1%6/12. (NONE) For Acceptance and Finalization—Director's Report for Shoreline Setback Activity Determination. (NONE) ANNOUNCEMENTS Planning Commission Minutes December 13,2011 52 The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the Lihu`e Civic Center Moikeha Buildin g, Meeting Room 2A-2B, 4444 Rice Stre,et,Lihu`e, Kauai, Hawai`i, 96766.on Tuesday, January 10, 2412. ADJOURNMENT Commission adjourned the meeting at 5:20 p.m. Respectfully Submitted. c &- t Lani Agoot Commission Sup ort Clerk Planning Commission Minutes December 13,2011 53