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Home My WebLink Aboutpc7-26-11minutes KAUAI PLANNING COMMISSION REGULAR MEETING July 26,2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair,Herman Texeira at 9:06 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 Mr. Caven Raco Mr. Hartwell Blake Ms. Camilla Matsumoto Absent and excused: Mr. James Nishida Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: We have five members of the Planning Commission. We have both Jimmy is excused and absent and Wayne is excused and absent so we have five members of the Commission�o we have quorum so we can conduct business this morning. I would like to have a motion for the approval of the agenda. Mr. Blake: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Hartwell Blake and seconded by Jan Kimura, to approve the agenda, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to receive items in to the record, motion carried unanimously by voice vote. MINUTES On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve meeting minutes of June 28, 2011, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Executive Session: Pursuant to Hawaii Revised Statutes Section 92-4, 92-5(2)(4)and (8), and Kauai County Charter Section 3.07(E),the Office of the County Attorney request an executive Session with the Planning Commission to provide a briefing regarding Iegal issues related to the implementation of Ordinance No. 904. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Planning Commission and the County as they relate to this agenda item. Deferred to 8/9/11 Planning Commission Minutes July 26,2011 1 AUG 3 0 201 1 Executive Session: Pursuant to Hawiti`i Revised Stadtutes Section 92-5(a)(2 and 4) the purpose of this executive session is to discuss matters pertaihing to the evaluation of the Interim Planning Director. This session pertains to the Interim Director's evaluation where consideration of matters effecting privacy will be involveA_Further, to cobsult with le aig counsel regarding powers, duties, privileges and/or liabilities otthe Planning dommission as it relates to the evaluation of the Interim Director. Chair: This executive session will bk moved further down the agenda and we will have it during our lunch hour. COMMUNICATION (NONE) SUBDIVISION Mr. Kimura: Committee members present, me, Commissioner Matsumoto, and Commissioner BIake. Tentative subdivision extension request, Niu Pia Land Company, Ltd., approved 3-0, Grove Farm Properties, approved 3-0, Grove Farm Properties, 5-2008-4,Nia Pia Land Company approved 3-0, 5-200913, Grove Farm Properties Inc., approved 3-0, 5-2009-14 Grove Farm Properties Inc., approved 3-0, 5-2009-15 Grove Farm Properties Inc., 3-0. This is all tentative subdivision extension requests. Chair: Thank you. So before we proceed any further I would just to ask Dale as far as the three Grove Farm Properties extension requests, I would just like to get clarification as to its exact location. I am familiar with the fact that it is on Nawiliwili Road but the phasing of 1, 2, and 3 where does that project begin and end. Staff Planner Dale Cua: I have posted a subdivision map for one of the phases involving the development but at the very bottom of the map it identifies the whole project scope. Looking at this bottom half of the map Nawiliwili Road is noted in the upper half of this map here, the existing Ulu Ko Subdivision is situated here. Nuhou Street is in this location, this is the Pua Ko Subdivision. Right now Nuhou Street currently terminates here. The project its self will be located south of Nawiliwili Road, east of the Ulu Ko Subdivision, the subdivision in its self is the Waiola Residential Subdivision. In this development the proj ec}will be broken down into three phases. Phase I is a 90 lot subdivision that is noted here which is closest to Ulu Ko, phase II is in the middle portion of the subdivision which is primarily this area here, and the largest of the three phases is this section here,phase III which is a 109 lot subdivision which further extends Nuliou Road and eventually will hook up into Niumalu Road. Just for your reference the bulk sugar facility is in this location here so it is quite a big project area. So it is the lands south west of the bulk sugar and up the bluff. Chair: Any questions for Dale? If not do we have any questions for the applicant? If not does the audience have anyone wanting to speak on this matter? Mr. Kimura: So moved. Ms. Matsumoto: Second. Chair: All those in favor say aye, those opposed,motion carried. On motion made by.Ian Kimura and seconded by Camilla Matsumoto, to approve Subdivision Committee Report, motion carried unanimously by voice vote. UNFINISHED BUSINESS Letter of Transmittal, Status Report and Time Extension request by State of Hawaii Department of Transportation, Airports Division, as required by Condition No. 8 of Special Management Area Use Permit SMA(U)-2008-13, Shoreline Setback Variance SSV-2008-3, Tax Map Key(4) 3-5-001:008, Lzhu`e, Kauai =State of Hawai`i,Department of Transportation, Airports Division. [Deferred 7/12/11.1 Planning;Commission Minutes July 26,2011 2 Chair: In our last meeting they had requested an extension and we were awaiting comments from the DOT and we haven't received any so we will be deferring this matter. Mr. Dahilia: Yes Mr. Chair. Chair: Until the next meeting? Mr. Dahilig: I would say leave it open ended until we get some response back from DOT. Chair: We are not sure when we are going to be posting this again and that depends on when we get our correspondence from the Department of Transportation on this matter. I would like to enteltain a motion to defer this matter. Mr. Blake: Is this the Ahukini Dump? Chair: Yes. Ms. Matsumoto: Move to defer. Mr. Blake: Second. Chair: Discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to defer action, motion carried unanimously by voice vote. Special Permit SP-2011-27 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in the Wailapa Agricultural Subdivision, Kauai, approx. 2,700 ft. north of the Kuhi`6 Highway and Wailapa Street intersection further identified as Tak Map Key 5-1-5:15 (5) and containing an area of 1.445 acres of the overall 22.10 acre site=Bruce & Cynthia Fehring. Mearin clg bsed 7/12/11. Supplemental Staff Report pertaining to this matter. Mr. Dahilig: We are in receipt of a correspondence from Mr. Fehring withdrawing his application for a Special Permit due to medical reasons and I would ask that the Commission accept his withdrawal of his application. Mr. Raco: So moved Chair. Ms. Matsumoto: Second. Chair: Any discussion on that letter, if not all those in favor say aye, those opposed, motion carried. On motion made by Caven Raco and seconded by Camilla Matsumoto, to accept letter of withdrawal, motion carried unanimously by voice vote. Supplemental letter(6/23/11) from Walton Hong, Esq., to address concerns raised at the January 225, 2011 Planning Commission meeting regarding an amendment and extension request for Special Permit SP-2001-5, Use Permit U-2001-8 and Class IV Zoning .Permit Z-IV- 2001-10, Tax Map Keys 2-7-001:001, 2-8-001:003, 2-8-022:628, 2-0-001:001, 2-9-002:001, 2-2- 003:001 2-9-003.006 3-4-006.001 K61oa Kauai =Kaua`zATV LLC SS elemental Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read supplemental staff report(on file). Planning Commission Minutes July 26,2011 3 Chair: Are there any questions of the planner? If not would the applicant please come forward? Mr. Walton Hong: Good morning Mr. Chairman and members of the Commission, for the record my name is Walton Hong representing the applicant Kauai ATV, LLC. With me is 011ie Rivera, a member of the LLC. Also in the audience is Arryl Kaneshiro of Grove Farm in case there are any questions of Grove Farm who is the landowner. We have reviewed the staff report and if I may just to clarify some confusion about where the routes are going. I think it is kind of confusing what is happening and if I may approach, Chair? As requested by the Commission, they wanted a map to show the original routes and what we are changing. This map as you can see the red represents the original approved routes. The white represents the routes they are going to continue using, all of which follow the original approved routes plus a little If you notice there is no here because we are deleting this and replacing it with this. Now the Kauai ATV runs two tours, one, their regular tour starts off at the staging area, goes down to this cinder cone, goes back up here through the mountain's tunnel here and just before Kaumuali`i Highway terminates and they come back to the staging area. The waterfall we are asking to incorporate in that tour is just before Kaumuali`i Highway. It is actually about 20 feet off the trail but we don't have any stops there. This is the same waterfall that had an order to show cause by the State Land Use Commission when they created a viewing platform without permits and when they learned of their error that they needed a building permit they removed it immediately. The Land Use Commission was satisfied that they acted in good faith, didn't do it maliciously. So that is the regular tour. The waterfall tour starts from the staging area, goes up here past Waita, through the tunnel, under Kaumuali`i Highway, and goes to a waterfall here by Kahili. And this is where they will picnic and swim before returning back to the staging area. What we are asking is this,there are going to be times due to inclement weather when it becomes dangerous to go through in this area here because wind blowing, muddy roads, wet conditions, the stream i5 swollen or what have you. But we have to give them something else. So only at those times when we cannot go up here that right how we are using...instead of going up here they come down here and then go through Maha`ulepu Valley and return back to the staging area. As you know Glover Honsador opened up a quarry in this area here and that causes a conflict as they are coming here when they can't use this. And remember this is only a backup route when this is not available. So what we are asking is to eliminate this area here and replace it with a route from the cinder cone coming down along an existing road to the road where people use to go to Maha`ulepu,jump onto that road for a couple hundred feet, turn right by CJM Stables, go to the back of CJM Stables where the arena is this natural cut out area where they park the vehicles and then walk down to the bluff line here where they can view the Maha`ulepu coastline. We will not be approaching the Maha`ulepu coastline in any way so it won't affect the beach goers here at all. And then when they get done they go back to the staging area. I don't know if that answers the question or clarifies efficiently what the routes are to the Commission. If there are any questions I would be glad to'respond. Chair: Anybody have any questions? Ms. Matsumoto: When you go under Kaumuali`i Highway (inaudible). Mr. Hong: We go under Halfway Bridge. We don't go across the highway, it is too dangerous when you have ATVs. Chair: Anybody else? I have a question. So you are sharing that last let that you are talking about? You are kind of sharing that use with CJM Stables in terms of where their horses..? Mr. Hong: Well we go on the backside of the stable. We don't go in front of the stables. As you go down towards the stables there is a cut off road to the left, as you go down that road the arena where their events...on the right hand side. So we don't actually go onto the stable grounds its self. Mr. Kimura: Here you have a copy of the email from.Timmy Miranda saying that he also indicated that we would appear at the Commission's hearing to find out the horse's tour roads. Planning Commission Minutes July 26,2011 4 Mr. Hong: We informed him of the hearing today, he was unavailable and I think his tours and the staff planner Lisa Ellen can confirm this, his tours are all along the coastline here and does not crossover conflict with what we have here. Staff (Inaudible). Mr. Kimura: Will the ATV's mufflers be baffled for the sound? Mr. Hong: The ATVs are muffled. They have a governor up to 15 miles an hour at top speed. Mr. Kimura: (Inaudible). Mr. Hong: Only by the mufflers,that is all I can say Commissioner. All of the ATVs have mufflers. Mr. Kimura: I know they all have mufflers but what I am asking is if the sound will be baffled. Mr. Hong: I am not sure when you say baffled... Mr. Kimura: Maybe the applicant can answer that. Mr. Hong: If you are saying any sound suppressant equipment beyond the mufflers, no, the answer is no, they are not muffled. However we will say this,we recognize that the ATVs make the most noise when they are trying to accelerate to top speed. So what we are doing is, and the noise issue appears to be near the golf course and if I can address that in my presentation. Mr. Kimura: Sure. Mr. Hong: We are here before you for three things, one is to allow us to include the waterfall close to Kaumuali`i Highway as part of that tour. We need permission because that is an alteration to our tour or modification. Secondly is to as I said substitute that portion of the tour that goes into Maha`ulepu Valley for the short leg that goes behind the stables where they hike to the bluff line and look at Maha`ulepu coastline and go back to the staging area. And the third of course is to extend the Special Permit for additional five years. There was an issue as to noise and what we did is we got a sound meter and we went out right in front of the golf course, that one hole, and we took testing of vehicles, automobiles, trucks, as well as ATVs and we measured it at 20 feet distance and 100 feet distance. Now the sound meter unfortunately is not one of those five thousand sound meters that records everything but it was sufficient to measure any sound above 70 decibels, 70 decibels is usually a living room sound I believe. And if it was below 70 decibels the sound meter would just give a reading of L meaning low, no measureable below 70. And here is what we found, this was done over a 45 minute period and before we did the testing we did advise representatives of Kauai Loa Development that we are going to do this testing and they were invited to come and observe the testing because we didn't want them to think we were trying to fool anybody. We went out there and the testing was over a 45 minute period. At 20 feet distance we measure 15 automobiles registering from low to 72 decibels. We measured 2 trucks that measured from 73 to 85 decibels and 2 ATVs measured up to 76 decibels and 2 ATV buggies which is the bigger one, 2 passenger, measured at 70 decibels. So at 20 feet the ATVs are comparable with automobiles, quieter than trucks. At 100 feet all of the automobiles measure L, un-measureable below 70 decibels, 2 trucks and one was a diesel truck that made more noise measure 80 to 85 decibels. The 2 ATVs both registered L and the 2 buggies both registered L. So what we are saying is the noise we are making from the ATVs are comparable to automobiles driving past. Also we note that where they come off of the cinder cone onto the same road that people use to drive to Maha`ulepu Beach they only have to travel a distance of several hundred feet before the cut off behind the stables. So they are on that road only for a very, very short time. Planning Commission Minutes July 26,2011 5 And I did my crazy math calculations, at 15 miles an hour assuming they don't go top speed they are there for less than 30 seconds. And the most we are going to run is two or three tours in bad weather on that stretch so we are talking about 15 minutes total out bf an entire day where they would have this noise from the ATVs that is comparable to automobiles. So on that basis we don't feel that noise should be a concern. As I said we do recognize however that if you are trying to accelerate to full speed with the ATVs it is noisier than if you just putter along. So the tour leaders have been instructed not to accelerate along this stretch,just kind of putter along so you don't open up like a car opening up a car making more noise. So we think that this satisfactorily addresses the noise level. Kauai Loa raised an issue about debris and we are not sure what debris means because we don't stop or anything. If they are talking about.dust being raised from the ATVs I would submit that the automobiles and trucks traveling on that road create more dust than the ATVs would. So I am not sure what they mean by debris so I can't really respond to that. So that is the sound testing, limited exposure, as I said CJM Stables sent an email and it is on record in support. We have a non-objection letter from the Koloa/Po`ipu Community Association by Marty Kuala. We have support from the Hui Malama O K61oa by Ted Blake and we have non- opposition but concerns and suggestions from Malama Maha`ulepu by Beryl Blaich. And let me if I can respond to that real quickly. She says it should be kept quiet and I agree. It is a nice area. I have been down to Maha`ulepu Beach. I have been to the bluff line. The ATVs are not going to be noisy. It is not something like motorcycle racing or anything like that. So I don't think we are disturbing the tranquility or peace in the area of the immediate area of the bluff line overlooking the shoreline behind the stables. As to the Maha`ulepu shoreline you are not even going to hear them. And just out of curiosity a couple months ago I went down to Maha`ulepu Beach and 1 looked back towards the bluff line to see what I could see. And really you can't see anything. The people, because of the distance and I am going to guess is about half a mile or so, are barely visible. So you have people walking down to the bluff line, you are not going to see them at all. You might if they are wearing a bright orange shirt or something but other than that I don't think you are going to see anything that is going to be visibly intrusive. Ms. Blaich mentioned that we should park further away from the bluff line and walk down. She suggested where the road cuts off to the left we are going to use and park. Our response to that is it makes no difference however where we intend to park is a natural open area where the ATVs can safely park. If they have to park further away and have the people walk you are going to be parking righf where cars may be parking and impeding traffic so to me that is not a viable solution. And as I said because of the amount of noise the A rVs make it will not make any difference as far as the quietness or tranquility of the area whether we park before we hit the stables or park in the proposed parking area. The last point I would like to make is she asked whether we would consider opening the routes up to the public and she suggested one day a month or one day week. That is not in our control. Grove Farm owns the property and I think there are some serious liability concerns about opening up this expanse of land to the general public and to that we would have to say we cannot accept that as any kind of a condition. With that I would be glad to respond to any questions. If can't answer it I can have Mr. Rivera or Mr. Kaneshiro answer the questions. Chair: Anybody have any questions for the applicant? There being none, anyone from the public wishing to testify on this matter? I don't see anybody wishing to testify on this matter so could you give us your conclusion Lisa Ellen? Staff Planner read conclusion and department recommendation{on file). Chair: Does the applicant have any questions in regards to the recommendation? Ms. Matsumoto: I have a question. I think this might have been provided earlier but what is the distance of the whole tour, how many miles? Staff: You would have to ask the applicant. I did track it on a GPS tool but I didn't bring my cell phone with me and I couldn't tell you but I hope the applicant should be able to answer that question, sorry. Planning Commission Minutes July 26,2011 6 Chair: Would you like the applicant to answer that question? Ms. Matsumoto: Yes. Chair: Would you please come forward again? Mr. Hong: Depending which tour you take but the long tour encompasses about 22 miles total. Ms. Matsumoto: Round trip? Mr. Hone: Yes. Ms. Matsumoto: And the shorter one? Mr. Hong_ 18 miles. Mr. Rivera also advises that the eliminated portion would be about 3 miles and for that we would pick up about half a mile on the proposed new route by the stables, Ms. Matsumoto: And that portion there where you go under the bridge, approximately how much of a distance is that, from the bridge? Mr. Hong: From the bridge to where? Ms. Matsumoto: That little loop on the left. Mr. Hong: To the waterfall? Ms. Matsumoto: Yes. Mr. Hong: About a mile. Chair: While the applicant is up does anybody have any questions for the applicant? If not, thank you very much. I need a motion. Mr. Kimura: Motion to approve. Mr. Raco: Second. Chair: Any discussion on the motion, there being none could we have roll call please? On motion made by Jan Kimura and seconded by Caven Raco2 to approve staff recommendation, motion carried unanimously by the following roll vote: Ayes: Blake, Kimura, Raco, Matsumoto, Texeira -5 Noes: None -0 Absent: Nishida, Katayama -2 Not Voting: None -0 CONTINUED PUBLIC HEARING (NONE) NEW PUBLIC HEARING Special Management Area Permit SMA(U)-2011-3 for the construction of an additional dwelling unit, located in Po`ipu, Kauai, Tax Map Key 2-8-018:005 =Karen & Brent Olsen. Supplemental Report pertaining to this matter. Staff Planner Lisa Ellen Smith read supplemental report (on file). Chair: I would like to have the applicant please come forward. Planning Commission Minutes July 26,2011 7 Mr. Chun: Good morning Mr. Chair and members of the Commission, Jonathan Chun. and Brent Olsen on behalf of the applicants. Thank you for allowing us time to present this project to the Commission. We have reviewed the preliminary report by the staff and we have no comments of suggestions oii that. We agree with the statements and evaluation contained in the report. Basically we are here to answer any questions the Commission might have or the staff might have for this matter. Chair: A Commissioner wishing to... Mr. Kimura: Do you plan on using this house as a TVR? Mr. Chun: The ADU does qualify so I think there is going to be a plan or I think there is a potential intent to treat it as a TVR. Once the ADU is approved and constructed they will file their registration for that. We can't do that now because it hasn't been completed. The first dwelling, is that a TVR now? Mr. Chun: No not now, it hasn't been completed. The applicants might, depending on what goes on, might be staying there themselves but if they don't stay in the main house then they will be actually applying for the TVR. Mr. Kimura: Can I recommend a condition now or later? Chair: Later. Mr. Jung: Just so the Commission is aware this is within the visitor destination zone. Mr. Kimura: I understand that. Chair: Anyone else? Ms. Matsumoto: Just looking at this map, exhibit C, which one is it? Mr. Chun: The lot? Ms. Matsumoto: Yes. Mr. Chun: Exhibit C, the lot is noted as parcel 5, it is TMK 2-8-018:05. Actually it is lot 4 but it is parcel 4 on that TMK map. Chair: Any further questions Cammie, anyone else, if not thank you. I would like to call on anyone from the public wishing to testify on this application. Mr. Dahilig: Mr. Chair we do have one individual signed up for this agenda item, Lawrence Chaffin, Jr. Chair: Please come forward. Mr. Lawrence Chaffin: Good morning Planning Commission members, staff, my name is Lawrence Chaffin Jr., sometimes know as Larry. I am an adjoining neighbor and I am quite concerned about the project even though Karen and Brent Olsen are good friends and I wish to maintain a cooperative, good,friendly,neighborhood relationship. I do have some photographs taken recently but not sense the second floor has gone up and I am more than concerned that it is not as described by Mr. Chun as a plantation style house. This area is a tragic development of lack of understanding of water flow. Water does flow downhill and we are between Pani and Kaui Road off of Hooni Road. Our property floods badly after the major storms. The road Hooni Road floods so much that cars get stuck and it is a major problems and it is only after the County approval from the Core of Engineers to pump to the street, pump from the street to the ocean that the problem gets resolved. And this development is creating more water drainage and the photographs indicate where the land contours have been changed and the grade has been raised and fill has been added. That is my concern. Since the photographs have been taken a second floor has been put on and I question whether it is a plantation style house. It is a large, Planning Commission Minutes July 26,2011 8 looming project and I am very concerned. But I am most concerned about the water and they are just creating more water drainage downhill. That is about it. I think is a major concern,the flooding. Chair: Do any Commissioners have any questions? Mr. Raco: Good morning Larry. Which lot is your lot? Are you north or south of him? Mr. Chaffin: There lot is in red and our house is there. We have, under one house to provide flooding drainage, a pit that is 40 feet wide, 70 feet long and 9 feet deep. The water fills that above about 2 feet. Mr. Raco: So if I hear you right your only concern is the flooding. Mr. Chaffin: Yes. Mr. Raco: And you are okay with the two structures. Mr. Chaffin: I think it is high time the County recognizes the flooding problem and attempts to do something rather than just continuing the development upstream and letting the water come down. Eventually someone is going to get killed on Hooni Road when it floods. Chair: Thank you, anyone else wishing to testify on this matter? Mr. Ian Stone: Good morning, I am Ian Stone and I own the property just mauka of where Brent and Karen are developing. Also my dad and I own the property down on the corner of Hooni Pani Road, 2211 Pani Road. We are in support and what Brent and Karen are proposing and don't see what they are doing as adding to the flooding problem that happens down there. They are being very responsible,they are doing what is needing to be done as we see and are just happy with what they are doing. My father was the one, Leslie Stone, who owns 2211 Pani Road and has done a lot to the beach park design after the restoration and there was extensive work done about that flooding that happens down there and it isn't what Larry is contending to be the problem. The Olsen's house won't add to that. The way he is doing his drainage,the way he doesn't have hardscapes in any of his plans, he is not taking down to the road and running it into the street he is taking care of it locally and that is the way to do it as we see it. Chair: Anyone else wishing to...before you leave any Commissioners have any questions,thank you very much. Anyone else wishing to testify on this matter, there being one we are still awaiting comments from the public works department, we haven't received any yet. Before I proceed any further does the applicant wish to respond to any of these comments? Have you seen the photos and would you like to take a look at them? Mr. Chun: Thank you Mr. Chair, Jonathan Chun again for the applicant. I haven't seen the photos but Larry was nice (,nough to call me yesterday and let me know that his concerns were regarding the flooding. I do have a little bit of background also on the flooding and I will add to it that the County as part of its overall project in that area has a retention basin pretty close to Mr. Chaffin's house that I believe when it was constructed was intended to resolve that problem. I think that is the ditch or the culvert that he is making reference to. The rainwater is intended by the County to collect there and that is exactly where it collects. Unfortunately it happens to be right next to Mr. Chaffin's property so when the rainwater collects as it was designed to do it does impact his property. The rainwater and the runoff problem was there for a long time, it was there prior to this house, it has been there prior to any developments of the other houses. It is just the way the natural flow of the property is for that area. Again the County did try to address that a wb.ile ago by putting in the detention basin next to Mr. Chaffin's property but that is where it is,':that is where the natural flow goes. We were aware of that, my client Mr. Olsen points that all areas of the four sides of the property will be enclosed by rock walls. The existing Pani Road already has a rock road in front of them that was built back in the 60s probably and the rest of the property is going to be surrounded. That is going to retain most of the runoff from that property anyway. The only potential place where Planning Commission Minutes July 26,2011 9 runoff could come from would be from the driveway but as shown on the plans the driveway is not going to be paved. The plans show grasscrete but I checl�ed with my client today and he said he is going to take out the grasscrete and use a grass installation process which we checked with Planning and it has zero lot coverage calculations. So basically the percolation factor from the driveway will take care of any additional runoff from that property because it will not be hardscape it will be grassed instead. Also I want to add that from Public Works side when the initial building permit was applied there was a general comment by the Public Works Department that any additional runoff would be handled onsite and that is what was designed to be done. Any additional runoff from the property is designed to remain onsite. So again while there might be a flooding problem with Mr. Chaffin's property because his probably is one of the low points in that area it is not because of this property and it is not because of this development. This development will comply with the comments of Public Works that any additional runoff will be handled onsite. There is limited hardscape, there is no hard driveway to collect any of the runoff, the driveways will be grassed so any rain or runoff from the property will be absorbed into the ground. If you have any questions regarding that we will be happy to answer them. Mr. Dahilig: Mr. Chun, I have a question regarding the usage of the properties. Are the units intended to be Ltsed for transient vacation rental use? Mr. Chun. For the ADU more than likely it will once it is completed need to be registered as a TVR. Mr. Dahilig: Will the other unit be used as a residence? Mr. Chun: It could be used as a residence for a long time resident. Mr. Dahilig: But it will not be used as a TVR or it may be used? Mr. Chun: We are Aot sure. Depending on, one, if it is going to be rented whether we can find a long term rental And the other one is the applicant themselves might want to stay in there. Mr. Dahilig: And you are aware of the issues concerning County Charter section 3.19 with respect to more than one... Mr. Chun: Yes. Mr. Dahilig: Do you have any comments on that? Mr. Chun: We are still waiting to see what the final ordinance will come out with but again there are issues in the existing ordinance, not issues but there are concerns raised in the existing ordinance which might be resolved in regards to this property. Again,we are aware of that but like everyone else we are trying to see exactly how the ordinance comes out. Mr. Dahilig: And just for the record this SMA permit is not covered as one of the permits under the Charter Amendment. Mr. Chun: Right. Chair: Anyone else has any questions of the applicant, Hartwell. Mr. Blake: So this development will not exacerbate the drainage problem that Mr. Chaffin is presently experiencing? Mr. Chun: It should not. Mr. Blake: We all hope that it should not. And you said you are going to have rock walls around the property. Planning Commission Minutes July 26,2011 10 Mr. Chun: There is an existing rock wall fronting Pani Road on the property now. There is an existing rock wall on the south boundary of the property which is the low end of the property so again the two existing walls act to retain any flows from that property right now. On top of that they will be building two new walls on the north and east side. Oh, it exists on the east so just one more on the north side which is the higher end of the property which doesn't add or subtract anything on the flow. But the existing wall on the south and the existing wall on the east which is in front of Pani Road, or west, will already address that. Mr. Blake: So at the present time does it pond within the property behind the walls? Mr. Chun: Not that the applicant is aware o£ Mr. Blake: It percolates. Mr. Chun: Yes, my client says that he believes that because there is nothing there that most of the runoff right now percolates into the ground and that in one reason why there is no design for a hardscape. Chair: Lisa Ellen,you wanted to comment on that? Staff: I had a really quick additional question regarding the rock walls that are existing, I am sure the applicant signed the ADU clearance form and is aware that in the future should the County need to road widen which is designated on the applicant's site plan, that rock wall in the front would have to comedown the applicant's expense. I just wanted to make sure that their signing the ADU clearance form conveyed that understanding. Chair: There was a road widening agreement that was executed by the client but again the rock wall on Pani Road where the road widening was an existing wall that was built in the 60s. We didn't build it, it is a dry stack wall, there is no concrete. Mr. Blake: I noticed from Mr. Chaffin's pictures that the grade has been raised where the house is going to be built and so whatever rain falls on the house flows...isn't absorbed by the ground under the house. Mr. Chun: The houses are on the high end anyway. The existing plans that were submitted for Public Works just raised that grade a little but the existing flow still goes toward makai and that is where again the existing wall there stops if from going further to the next property and also that is where the grasscrete is going to go anyway and that is where it is going to collect. Mr. Blake: The driveway is on the makai side? Mr. Chun: Yes. Mr. Blakel: So if it starts to pond within the lot won't it all be directed to the driveway out onto the road? Mr. Chun: The driveway its self is not a hardscape so there is no funneling affect. He is going to have to have a 100 year flood to get something like that done. But the existing rainfall will be handled onsite by the lack of a hardscape; it will be basically the way it is now. Other than there will be grass there is bare ground and that is why he agreed to take out he grasscrete, he is going to use some other type of grass, I guess grass installation process. But he was checking with the Planning Department and that was not going to be considered as any kind of lot coverage. As you know grasscrete is 50 percent lot coverage. Ms. Matsumoto: I have a question about the grading, how much was it raised? Mr. Chun: What happened is he cut on the east side and then he took the soil from the east side which is closer to the tennis court side and he raised the north side which is on the higher side anyway by 8 inches...it raised it about 8 inches to a foot, 8 inches in one corner to a foot and a half on another corner. He said it was designed so the existing drainage pattern is Planning Commission Minutes July 26,2011 it maintained still. He said that was part of the plan that was submitted that was approved by the Public Works Department. Chair: Thank you Jonathan, Lisa Ellen would you like to give us you conclusion and recommendation please. Staff Planner read conclusion and department recommendation (on file). Chair: Do the applicant have any questions or concerns about the conditions? Mr. Chun: No. Mr. Raco: Motion to approve SMA(U)-2011-3. Chair: Is there a second before we have discussion? Mr. Blake: Second. Chair: Discussion on the motion? Mr. Kimura: I would like to amend the conditions that there be only one TVR,period at one time. Chair: As represented, does the applicant have any... Mr. Chun: I don't believe we represented there will be one I said that we are going to be applying for the ADU which is this one, will more than likely be a TVR when it is completed and we haven't applied yet because the ordinance says it has to be a single family dwelling and it hasn't been completed yet. But once it is completed an application will probably be filed. The second house, the main house which is not part of this SMA might or might not be. We are aware of the Charter Amendment and we are aware of the pending ordinance. The most I can say is we will comply with any ordinance that comes out from the Charter on that. But technically the main house is not part of this SMA. Mr. Jung: Commissioners, I would caution imposing such a condition unless of course the Director feels that a TVR use in the SMA would increase the impact so I think you maybe want to get commentary from the Director on that. Mr. Dahilig: I guess given the comments by the County Attorney's office maybe it is prudent that before we impose such a condition I would formalize it in a request for a formal opinion from the County Attorney regarding this matter and ask for a deferral on the item. Chair: You heard the testimony from our Planning Director,that might change the motion. Mr. Raco: You want to defer? Mr. Dahilig: I would ask that given the request of the additional condition there does seem to be some legal issues that the County Attorney is possibly raising so I would like to formalize the request with the Commissioner and send it up to the County Attorney's office for a formal opinion and in the meantime as for a deferral on the item until we get back a response. Mr. Raco: So the zoning is VDA which he allowed to do. Mr. Dahilig: Zoning is VDA. Mr. Raco: But being that this is for a Special Permit for the ADU as soon as he gets his ADU he can then come for a...it depends on the ordinance. Mr. Dahilig: That is one possibility and I think right now everybody is and I don't want to promote gambling but is hedging their bets on what exactly tl.is will look like if it is passed Planning Commission Minutes July 26,2011 12 through the Council. But in the interim section 3.19 of the Kauai County Charter does control and there is some elements that are still unresolved as well as there is the prerogative of the Commission to impose additional conditions to minimize affects on the ocean environment as set for by Chapter 205A of the Hawaii Revised Statutes. So whether this is within the Commissioner's prerogative to impose such a condition, I believe it does have merit and that it would best be resolved by sending a request to the County Attorney's office. Mr. Raco: What would be the process if he does get his approval today and he gets his ADU approved with his TVR? When he is done completion of the project if he wanted to I guess turn over the main house into a TVR so then there would be a total of two TVRs,what process is that? Would he have to come in for another SMA permit, without talking about the ordinance? Mr. Dahilig; It is a good question and at that point it becomes a jurisdictional issue between the Council and the department and so I would be hesitant to speculate exactly what happens if such a circumstance would occur. And maybe that is something else we can ask for clarity from the County attorney. Mr. Jung: That is fine, we can do that but ultimately it is going to be whether or not there is a policy call on if there is an impact on the SMA based on the objectives and guidelines established in 205A. But we can certainly address those questions. Mr. Blake: I understand from the representations made by the applicant that they intend through construction of the makai stone wall that the water that collects in that lot should be flowing out onto the road. Also that the driveway is not going to be a hard surface and therefore percolation should take care of anything that might have gone out to the road had it been a hard surface. But if you have enough rain the ground gets saturated and it will run out anyway and so I would like, and I am not sure exactly how to phrase this but include a condition that specifically addresses drainage off of that lot. And that drainage off of that lot shall not exacerbate the problem that already exists makai of this property. Chair: We are kind of going in all kinds of directions here. Mr. Dahilig: What may be prudent is these evaluations concerning the runoff, have they been reviewed by a civil engineer? Mr. Chun: I don't believe so. Public Works is on the approval of the initial main house and had a general comment which they always do in terms of ruaaoff; any additional runoff from the project will be handled onsite. I think that is the standard condition that Public Works put on. For Commissioner Blake, if you want to put a standard condition that reflects that, then I think that would be consistent with Public Work's comments is that generally any development that any additional runoff has to be handled onsite. So in other words you can't make worse the situation that exists now. Mr. Blake: The other thing that concerns me is if both residences are TVRs and the owner does not reside there, if there is a problem it is even more difficult to rectify when you are dealing with somebody that isn't on the property. Mr. Raco: The CZO reads right now that within the VDA how many units are you allowed to have on a parcel this size? Mr. Dahilig: It depends on the zoning so I guess this one qualifies for an ADU which again in this case it would be two. Mr. Raco: So going back to Jan's comment that being that he is in the VDA when he does build this ADU and the main house technically the main house and right now the ADU are allowed to be TVRs, right? Mr. Dahilig: Under the County regime but this particular permit is a State permit that the County has been delegated authority under 205A. Planning Commission Minutes July 26,2011 13 Mr. Raco: Which is the SMA. Mr. Dahilig: Which is the SMA. Mr. Raco: But the impact and the visualization of the SMA will already be there because of the two houses already being built so what would the impact be? It will be the same. Mr. Dahilig: 205A also entertains some elements of use and so beyond just the physical look of the building it also entertains how just like our standard use'ermits there is an element of use that is considered in the evaluation. So that is where I think the Commissioner may be going on is from a State evaluation standpoint does the potential of having more than one TVR on the property comport with 205A. Chair: You have your original motion, seconded, discussion, this is a proposal to defer and get some consultation from the attorney's office. Mr. Raco: Could we recess? Chair: We could recess, did you want to continue? Mr. Raco: I am just kind of wobbling back and forth. I know the SMA says the use but to me when I read the SMA it is an impact on visual aspect as far as use too. But being that he has already, he can only build two houses and the impact will be there and the use is already in VDA what more are we trying to look for? I know probably Jan's idea is how many, ultimately, correct me if I am wrong, how many TVRs can he have and can he have the second house be a TVR. And if he can then I think that answers your question. Mr. Jung: I think one of the things you should take into consideration is it still will remain a single family home, whether or not it is re4ted short term or long term that is where you have to make that distinction of whether or not they impact the SMA. That is what I think you guys have to analyze. Mr. Raco: To me the impact will still be there. Mr. Kimura: What it is, instead of having two TVRs going on at the same time I am asking for just one at any given time. Mr. Raco: Which is in, right now, today's CZO he is allowed to have two, right? Mr. Dahilig: He is allowed but again that is a County regime standpoint and there is some argument that 205 could trump the County regulations. Mr. Raco: So it is up to you Chair, if you want to... Mr. Kimura: If you guys want to recess. Mr. Raco: It is up to you guys. You guys can recess, if you want me to... Chair: At this point you don't want to defer you want to continue? Mr. Raco: I can defer. It is up to Jan, he is the one who asked the question. Chair: We also want to include the condition that Hartwell asked so we can either defer or continue on. Mr. Jung: The level you guys are at right now is public hearing so if you wanted to continue the public hearing, close the public hearing, it is up to you. Chair: At this point I would like to get a motion to close the public hearing. Mr. Kimura: You have a motion on the floor already. Planning Commission Minutes July 26,2011 14 Chair: Can you take back your motion? Mr. Raco: I will take back my motion. Mr. Kimura: I take back my second. Chair: So what I would like to do right now is can I have a motion to close the public hearing? Mr. Kimura: So moved. Mr. Raco: Second. Chair: Discussion, all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Caven Raco, to close the public hearing, motion carried unanimously by voice vote. Chair: At this point why don't we just take a 10 minute recess and determine which way we want to go. Mr. Jung: Actually I would caution the Commission that deliberation has to be on open floor so if there is any recess we can discuss anything. Mr. Kimura: I make a motion to defer. Ms. Matsumoto: Second. Chair: Any discussion on the deferral? If we are going to defer the deferral will be to the..? Mr. Dahilig: The next meeting. Actually let's defer it until I get an answer from the County Attorney's office, a formal opinion. Chair: So that deferral is open ended. Mr. Dahilig Open ended, yes. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made b�Jan Kimura and seconded by Camilla Matsumoto, to defer action, motion carried unanimously by voice vote. Commission recessed at 10:35 a.m. Meeting called back to order at 10:50 a.m. Use Permit U-2011-16 and Class IV Zoning Permit Z-IV-2011-16 to construct a new health care facility and storage building on a parcel located along Kiuule Highway in Lihu`e, immediately adjacent to the Kauai Veteran's Center, affecting a parcel a rox. 3.29 acres in size, further identified as Tax Map Key (4) 3-6-002:024 =Kauai Veterans Council. [Director's Report received 7/12/11.1 Supplemental Staff Report pertaining to this matter. 1 Staff Planner Dale Cua: Before I start with the Director's report I will briefly go up to the board and identify the project site if you don't mind. The map we have here is a site plan of the project area. The existing Veteran's Center is here right in the middle; this is Kapule Highway along the frontage of the property. Adjacent to the property to the south is the current soccer field and to the north of the project site immediately adjacent to the project is the State Planning Commission Minutes July 26,2011 15 Judiciary facility that is here. Situated to the rear of the property will be the proposed Veteran's Clinic. The rendering you see there is a rendering of the project. Staff Planner Dale Cua read supplemental staff report(on file). Chair: Any questions on the staff report? There being none I would like to call on the applicant. Mr. Bill Honjo: (Inaudible). Please rise please, and of course we have our representative from the Veteran's Affairs here also to testify. Mr. Chair and members of the Planning Commission my name is Bill Honjo, the President of the Kauai Veteran's Council representing 12 Veteran's Organization. The Council is in support of Use Permit U-2011-16, Class IV Zoning Permit Z-IV-20I 1-16. I would like to state that it has been the wish and dream of all veterans of Kauai to have a one-stop veterans service center where he or she can come to and take care of their service connected business. The vision is to have a location where veteran's organizations can have their meetings, a museum to perpetuate the meriiory of their service, a State Office of Veteran's Affairs, and a place where veterans can leisurely meet. And to complete this particular dream we need a permanent state of the art medical and counseling facility that is proposed today. For the last ten years the Council has been planning for the Veteran's Administration medical and counseling facilities on the Kauai Veteran's Center property. The Council has worked hard to get the support of the Veteran's Administration, the US Senator's Inoye and Akaka. Most recently the Secretary of Veteran's Affairs, General Shinsake has visited the project area and was impressed with the location and the one-stop service concept. The Secretary spoke of having more community based outpatient clinics nationally in that veterans do not need to travel far to receive medical treatment. He said Kauai could be the showcase and first in the nation to have a one-stop service center. In closing I humbly request for your favorable (.-brisideration for the construction of a permanent state of the art outpatient clinic and counseling facility with land for expansion that will serve Kauai veterans for years to come. And for the technical portion I will leave it up to Mr. Ron Agor. Mr. Ron Ac-,or: Hello Commissioners, my name is Ron Agar. I am really here just to answer any questions you may have. Chair: Anyone have any questions? Mr. Kimura: This doesn't concern this but I just wanted to take the opportunity to commend Officer Garcia for his outstanding work at Kapa`a School. I don't think anybody realizes the kind of job he does up there. I just wanted to take the opportunity to say that. Chair: Any other Commissioners wishing to comment? Mr. Blake: As Colonel Honjo said this has been a long time dream of the veterans and veteran's organizations here. And I remember when Senator Leihua Fernandez with her father's assistance was able to secure the Convention portion and we had been working on having the medical facility collocated with that ever since that time. So this is a dream come true and it is going to really, I know that it is going to be appreciated deeply by the veterans and their fain.ilies that they are able to come here because one-stop makes it so much easier than driving all over town. Even with the new Lihu`e Town Core Plan going into affect. This is great, it is just great. Ms. Matsumoto: I would like to eco that as well. For me I am thinking that it is a way to appreciate what veterans have done for us and if they can have a place for themselves I think that is a wonderful...as you say a dream come true, they most certainly deserve it. Chair: Anyone else, if not thank you. I would like to solicit some comments, concerns from the public,anyone wishing to come forward to testify on this item please come forward. Mr. Craig Oswald: Aloha and good morning. I am Craig Oswald. I traveled here from Honolulu this morning. I work for the United States Department of Veterans Affairs and more specifically here it Hawaii we are known as the VA Pacific Island Health Care System and our Planning Commission Minutes July 26,2011 16 health care system spans all of the Hawaiian Islands and also extends to Guam and Sipan and the (inaudible) and American Samoa. My position at the VA, I have been here in Hawaii since 1991 and presently I work in the administration and management of our health care system but I also direct our strategic planning activities. I was invited by the Kauai Veterans Council to be here this morning and am grateful for that invitation. I wanted to share briefly a little bit about the VA here on Kauai and also our future plans and how they are certainly in sync with the proposal you have just heard. We operate several community based outpatient clinics which we refer to as CBOCs. We have had a CBOC here on the island of Kauai as many of you know actually since 1988, it was located across the street from Wilcox Hospital in leased space and it was collocated at that time up until just recently with another organization of the Department of Veterans Affairs called the VA Vet Center which is a readjustment counseling service,part of the VA but separate from our VA Health Care system. In addition the VA assets that are here on island include some veterans benefits counselors that visit the island and work here in advising and taking claims from veterans about their benefits. We are excited about this project,the Kauai Veterans Council is a very key stakeholder organization that we listen to and work with collaboratively to try to understand the veterans needs and how we can help fill those. And we have been in dialogue with them now over the last few years about this particular collocated one-stop shopping if you will,project. More specifically from the VA's perspective the project would involve our CBOC which in the fall of 2010 many of you might have seen that we moved our clinic over near the Kukui Grove location in what I think you refer to as the Solypsus Building and we were able to expand in lease space our clinic and additionally include some additional staff and other functions which we were proud to be able to do. So we have moved from our Wilcox Hospital location. This project,the collocated project will allow us once again to expand the square footage of our clinic which we know we are going to have to do to keep up with the demand from veterans here on Kauai as well as enhance services that the VA is committed to providing. We plan for the VA Vet Center that is still located across from Wilcox Hospital to come and be a co- tenant and once again work alongside our clinic. We think that is a very good model of care that we would like to pursue. The State of Hawaii Office of Veterans Services also has some staff that are here on island that we would plan to fold into the facility. In addition,the Veterans Benefits Administration is committed to having at least one and possibly two full time VBA counselors that would be here on island. And this is a significant step for them because as many of you may know in the past they have made itinerate business from Honolulu seeing veterans by appointment. So they are very committed to an outreach form of disbursing their counselors and basing them on island. So this would be the functional use of the property. Our clinic would continue as an outpatient facility where there would be no overnight stay,there would be no surgery, and more intensive such as those performed. But we would continue to perform the outpatient primary care,mental health care,we have a robust tele- medicine program that we run out of our clinic now as well as visiting medical and surgical specialists that many times visit in person from Honolulu. So that would continue to be the scope of our effort as well as partnering with local area providers. The site its self falls within the delineated area that we have decided for ourselves here oii the island would be a good location for such a project. We have studied the veteran demography here, we realize Kauai is sort of spread out in one direction and spread out in another but the delineated area that we have set for ourselves,the project meets the VA criteria. I want to share with you we currently have a capital asset project and business plan that is in Washington DC that seeks construction funding. In our world this type of project falls under what is called a minor construction project, a multi-million dollar construction grant that we would receive from our VA central office. So the VA is prepared if we can get that approved we are prepared to build the facility and then to have these different organizations I mentioned and functions take place. I would take any of your questions. I hope I haven't told you more than you needed to know. Chair: Thank you for the information,we appreciate it. Planning Commission Minthes July 26,2011 17 Mr. Raco: In regard to the VA would the VA be opposed to building a LEED or green building? Mr. Oswald: This building will be, I am not an expert in that area but it will be LEED certified. There are different levels but we are very much heading in that direction, in all of our new construction there are all sorts of requirements and opportunities for us to do that. Even in the leased space that we are in right now at Solypsus there are several LEED features that the VA funded and supported for that particular facility. Mr. Raco: So this building will be a LEED certified building. Mr. Oswald: Yes it will be. Chair: Anybody else? My question to you is on a side bar a little bit,how many veterans on this island will be impacted by this? How many veterans on island do we have? Mr. Oswald: Probably about 5 or 6 thousand veterans. We have some projections for the future that show that your veteran population while it is going to be modestly increasing you will continue to increase. But the amount that we are planning for is probably around 5 to 6 thousand. Right now we have I will throw out maybe around 2,500 users so in any given year we will have about 2,500 veterans that receive direct services through the clinic. We have a much larger number in the higher 3 thousands that are enrolled and in our world that means they are signed up and are able to receive health care they may just not visit in a particular year. Right now we are serving about 2,500 people a year out of our current facility. Chair: Does this affect the wives and the children or just the direct veterans? Mr. Oswald: Primarily just the direct veterans. There are a couple of provisions in VA where dependence of what we call 100 percent service connected veterans may receive services through VA but the lion's share of everything we do here on Kauai is directly for the veterans. We do have the opportunity and we have been dialoguing with the military and also the tri-care medical insurance program that operates on behalf of the military, they are interested in the potential that we might be able to serve their beneficiaries out of this clinic. These would be people that have eligibility under the tri-care medical insurance program and in those cases that includes not only military members but also dependants but that is just kind of in the talking stages but it could come about to help. Chair: One more question, do you have funding for this project already or you have to seek it? Mr. Oswald: Currently we have a strategic capital 'investment program within the VA, it goes by the acronym of SKIP and the cycle we are in right now, we have applied for funding in FY 11 for roughly just under a 10 thousand square foot facility. The local area leadership, our network leadership which is based in the bay area is strongly in support of the project and right now the project documentation that we submitted is in Washington DC and the leadership in Washington are making decisions, they are actually scoring projects and making decisions about the funding allocation. We expect that we might be receive word of whether we are approved or not some time later this fall but definitely by January or February and that is the way the VA cycle works. What it entails is an 11 submission, fiscal year 13 design funding, and construction to start in 14 and probably conclusion and opening in our fiscal year 15 is the way it works. Mr. Kimura: Do you guys plan on using local contractors for your project? Mr. Oswald: Generally it is a competitive process open to everyone. We have in the past throughout the pacific used a lot of contractors that are based in Hawaii and in Guam and so on. Mr. Jung: It is a Federal project. Mr. Oswald: We go by all Federal acquisitions. Planning Commission Minutes July 26,2011 18 Chair: Anybody else wishing to have any questions, if not thank you very much, anybody else from the public wishing to testify? Mr. : Good morning, it has been a long time since I have appeared before any type of board or Planning Commission or whatever. My name is Joe Munachika and I served in the military for 23 years and I retired in 1978. During my long association with people in the military and been associated with people here on Kauai that were veterans there is a real concern because some of our veterans need help medically. And not only will this facility be helpful for veterans that served but I think the community should show their appreciation because these people are deserving of a facility such as what is being panned. I'm sorry, I get really emotional because I am one of these people that is considered to be kind of stable but I think I have problems because of my association to the time that I served in Vietnam. I wasn't aware of it but there are incidents that happen to me that I cannot control emotionally. So this health center is not only going to help other veterans but personally it is going to help me because I need some help because like I said I always considered myself to be a real stable person but I do know I do have some problems. Not only for me but I think a lot of people here in the back from tfle veterans group also are deserving of a building such as this. So whatever considerations that you can make for this group will really be appreciated and like I said the veterans,they deserve it,thank you. Chair: Thank you, anybody wishing too...ifnot thank you. I would to have a motion to close the public hearing please. Mr. Kimura: So moved. Chair: Any second? 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 close the public hearing, motion carried unanimously by voice vote. Mr. Dahilig: Dale, rather than read the recommendation if I could maybe ask the applicant to come forward. Have you taken a look at the conditions as outlined in the Director's report? Mr. Aizor: Yes I have and I have no objections. Chair: Are we ready for the motion? Mr. Kimura: Move to approve Use Permit U-2011-16 and Class IV Zoning Permit Z-IV- 2011-16, Ms. Matsumoto: Second. Chair: Any discussion? Mr. Raco: Is there any condition that we can put in that the LEED certified as represented by the applicant? Mr. Dahilijz: We can include a condition No. 11 that encourages the applicant to utilize LEED principles and attempt to seek LEED certification at a minimum. Mr. Raco: So moved as read by the Director. Ms. Matsumoto: Second. Chair: All those in favor say aye, those opposed,motion carried. Planning Commission Minutes July 26,2011 ' 19 Mr. Raco: Did the applicant have anything to say? Mr. Agor: No, we don't have any objections to that request. On motion made by Caven Raco and seconded by Camilla Matsumoto, to add condition No. 11, motion carried unanimously by voice vote. Chair: We have to go back to the main motion. Mr. Kimura: Move to approve as read by the Director, as amended. Ms. Matsumoto: Second. Chair: I would like to have a roll call please. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve staff recommendation as amended, motion carried by the following roll call vote: Ayes: Blake, Kimura, Raco, Matsumoto,Texeira -5 Noes: None -0 Abent. Nishida, Katayama -2 Note Voting: None -0 Commission recessed at 11:25 a.m. Meeting called back to order at 11:40 a.m. Use Permit U-2011-17 and Class IV Zoning Permit Z-IV-2011-17 to improve an existing pedestrian way as a shared use path for pedestrians and bicyclists starting from the Kuhi'b Highway/Kawaihau Road intersection to Grove Park in Kapa`a, for a distance of approx. one- half mile L2,570 linear feet), affecting,a parcel approx. 12.831 acres in size, and further identified as Tax Man Key(4) 4-6-014:030 (por.) = County ofKaua`i, Department of Public Works. [Director's Report received 7/12/11.1 Supplemental Staff Report pertaining to this matter. Petition dated July 19, 2011 by Waldeen Palmeira, Noelani Joseelin and Likookalani Martin on behalf of Hui na Makdiwa o Wailuanuiaho`ano requesting intervener status pursuant to Chapter 4 of the Rules of Practice and Procedure of the Kauai Planning Commission (For Oral Arguments and Action.) Chair: We are going to run this item until lunch whenever that is, it may be 12 it may be 12:15, we don't have a definite time but we are going to run it and then break for lunch and then come back and continue the hearing. Commissioners we have received a petition for intervention in this case. Because we have received this petition we will be conducting proceedings on this matter pursuant to section 1-6.11 of the Rules of Practice and Procedures of this Commission. Therefore we will handle the intervention matter before the Planning Department's presentation 4nd the opening of the scheduled public hearing. May I have the counsel for the petitioner, counsel for the applicant and counsel for the departzient please come forward. Thank you for coming forward everybody, could you state your names for the record starting with the County? Mr. Mauna Kea Trask: Aloha Chair, for the record Deputy County Attorney Mauna Kea Trask on behalf of the Planning Department. Mr. Douglas HaiK. Douglas Haig, Department of Public Works. Planning Commission Minutes July 26,2011 20 Ms. Mona Clark: Mona Clark, Deputy County Attorney for the Department of Public Works. Ms. Waldeen Palmeira: Aloha, Waldeen Kahulu Palmeira, Hui na Makaiwa o Wailuanuiaho'ano. Mr. Likookalani Martin: Likookalani Martin, lineal descendant, Wailuanuiaho'ano. Chair: This is from Ms. Palmeira and Mr. Martin. I believe this is your petition. Do you have anything else to add at this point? Mr. Martin: I have read the statements of the counsel Trask and I appreciate them in that they made me sharpen my pen a little bit and I have actually copies of a little more detail into my standing with respect to a lineal descendant and the entire project. And something written in regards to my very brief comments in the application to intervene. Chair: Is this something you wanted to pass around? Mr. Martin: I would very much like to, may I? Ms. Palmeira: Excuse me, I have a question. As you have asked whether there is something more to add, yes, I would like to know whether we will have the opportunity to add more to this record at this point. Chair: You could but you won't do it right now. Do you need to add it right now? I just wanted to since Mr. Martin submitted this did you want to go ahead and speak on this item first or did you want to...how did you want to direct this? Ms. Palmeira: I believe that Mr. Martin wanted to address some concerns first and then I would like to address the Commission. Chair: Fine. This piece of information that you passed out to us could you highlight this for us, this is quite a bit. Mr. Martin: I will just summarize some of the points in here. As you can see I am a participant to the consultation 106 in the Wailua area for various projects there as a lineal descendant Wailuanuiaho'ano and also the clans of Kowelo. I go through that in the second paragraph to show you my relationship to that specific area and then in the third paragraph I am commenting on the issue of the landownership of which I did mention a case (inaudibl)Ag. Business vs. (inaudible) on the Big Island. Counsel has furnished me with a copy of the printout of the court and I would like to just buttress this paragraph in reding from the printout that the plaintiff was seeking in that (inaudible), seeking title to the land court award via paper title and adverse possession. The court recognized the defense put on by Mr. Kuamoo who unfortunately could not authorize me in writing to represent them because he has suffered a heart attack. And Saturday I was verbally in contact with Mr. Ha`a. But the essence of this is that they have pointed out a discrepancy in the paper chain of title, the paper chain of title that the plaintiff s expert could not explain. The court is unwilling to give title by way of paper because that discrepancy is major, in other words a dead person cannot convey property. The expert could not explain why the conveyance would have occurred some two or three,years after the death of a person. The court noted to defense (inaudible). So title adverse possession but not by clear paper title which brings my position into that in that adverse possession would not eliminate any rights that were vested either as native tenants from the time,I think I have articulated two specific tax map keys that there may exist clouded title with fraudulent conveyance on various TMK's included in this application. Again as with (inaudible) business, clear paper title, adverse possession. I bring this point so as not to eliminate any prior rights of usage or occupancy on these parcels. On the second page and again I am just saying that my specific concerns in the Wailua area should be afforded to other people in the event that they can identify themselves as either Planning Commission Minutes July 26,2011 21 users or having some interest in various parcels throughout the area. My main concern is to maintain stable grounds and to prevent harmful acts that would cause damage to the environment, interfere with any activities of any of the living beings whether they are flora, fauna,or human in fact. In this last page I have afforded you a copy of an unclassified memorandum for State Governors which was sent January 20, 2010 from the United States, State Department. I have taken some of those words out of that letter that I have given to you to make you aware that as Counsel Trask pointed out that I was attempting to litigate sovereignty,not at all,not pretending to be the King, although if there was only one Mohican left,well,I guess then that Mohican would be it. But I am actually referring to that my inherent sovereignty already exits under various statutes,Unites State statutes as an example,Historic Preservation Act and NEPA which section 4(f)applies in this case. So therefore I can have my sovereignty now. I have been brought up to speed with these types of proceedings because of the professionalism of Ms. Waldeen Palmeira. I can see how her participation end my participation but specifically her participation can really enhance the integrity of the Commission that it is perceived that a full record does exist. Not to prolong or broaden the issues in any way that would be not pertinent. And I were a Commission such as yours I would be very grateful for the participation and the guidance that Ms. Palmeira through Hui na Makaiwa can offer,thank you very much. Ms. Waldeen Palmeira: Aloha. First of all I would like to ask whether there would be a presentation on the part of the applicant or not durilig this proceeding. Mr. Jung: The intervention proceedings will occur first and then it will move into the staff report that was previously provided. Ms. Palmeira: I'm sorry, could you repeat that? Mr. Jung: The intervention proceedings which we are in right now,these proceedings will be dealt with first and the Commission will take action on whether or not to allow the intervention or not and then they will move into the reading of the staff report. But I believe you have a copy of the staff report. Ms. Palmeira: Thank you. Again this is for,Use Permit U-2011-17 and Class IV Zoning Permit Z-IV-2011-17 for Federal Aid project number CMAQ0700(049), also referred to as Federal Aid Project STP700459. First of all Hui na Makaiwa o Wailuanuiaho'ano seeks petitioner status in this proceeding regarding the Lydgate to Kapa`a bike path. We understand that this particular segment if you will of this project involves the use permits that are under consideration. However I need a clarification also on the SMA that is attached to the use permit application because on the application it refers to SMA(U)-2008-08 on several items and that clarification, I just ngeded to point out that there needs to be clarification of which SMA permit this use permit that you are seeking is attached to because the Lydgate to Kapa`a bike path is of course,my understanding,it is SMA(U)-2008-1 and the Setback Variance 2008-1. Do you understand my comment? Chair: No, could you further clarify it if you could? Ms. Palmeira: There are a few documents which refer to SMA(U)••2008-08 and that is not a,well I would like clarification of where that number,where that SMA permit is located because the Lydgate to Kapa`a bike path SMA(U)-2008-1 is the permit that was issued in 2007 and also in 2009. There was a modification of the permit in 2009. So I believe that if you are going to permit another part of this project at this point given that,with the full intervention that we would like to have in order to cover the fall record of what is involved for violations of environmental and historic preservation review, including section 4(f),NEPA and other statutes. This is in relation also to the Kuhi`o Highway short term improvement project of which we are in consultation with Federal Highways at this point and it also involves Wailua.Beach and the section 4(f). There are many, many issues that we would like to have provided to you however to begin with the use permit, I mean the SMA permit that is ihdicated in these documents provided to you, for example, on the...I can point out the exact place where this is found,on page S 1,work covered by SMA permit, SMA(U)-2008-08,work in road right-of-way. Also on page 2 of the exhibit(d), for example, states SMA(U)-2008-08. Planning Commission Minutes July 26,2011 22 ....................................... . ...... Inaudible Speaker: It should have been the SMA permit 2008-01, it was a typographical error. Ms. Palmeira: Well the typographical error is repeated a few times in the application and also in some of the, like I said,page 51. 1 did try to find that at the Planning Department as well last week and of course that referred to a separate permit. And I did actually speak with Doug Haig yesterday however I did want to know that we are talking about SMA(U)-2008-1 and Shoreline Setback Variance 2008-1. Mr. Juna: Just for the Commission's clarification this particular permit is for a use permit because it is within the Special Treatment Public Facilities District. It is outside the SMA so it doesn't trigger the SMA. Ms. Palmeira: However in certain portions that does cross Kuhi`6 Highway, that is in the SMA that is referred to the 2008-01. And the reason I bring This up is because the entire project is under a Federal Aid project, the number that I did read earlier, it is a Federally funded project. So I would like clarification that the previous use permits, SMA permits that are attached to this one Federal project...in other words you are looking at the permitting of the Kawaihau spur. I understand that. However the entire project which is funded by Federal Highways involves the entire project which includes SMA(U)-2008-1 which goes from north of Wailua River, in fact south of Wailua River involving the cane haul bridge all the way to Kawaihau spur. So I would like to make clear that although this is a segment of the larger project that the approvals and any approval of any consideration of the use permit should be done because it was done within the context of an environmental assessment that was under the same Federal Aid project. Also, one of the points that this brings up is the case of segmentation. And just for the record within the Special Management Area involved in this Federal Aid project, the Lydgate to Kapa`a path,there are,three SMA projects that were permitted by the Planning Commission. Of course one is the Wailua cane haul bridge project which is directly segmented to the Lydgate to Kapa`a bike path and the Kuhi`6 Highway short term improvement project which is segmented to the Lydgate to Kapa`a bike path on Kuhi`6 Highway. And at this point I would like to mention a few of the statues which are in violation which have not been done correctly in the Lydgate to Kapa`a bike path project. However before going into that, again, our purpose is to seek intervention in order to provide the Commission with the full details of the proceedings before you because we are talking about in our estimation significant impacts to the environment. which are not reviewed within the application before you. If I have the time, I am not sure how much time I have at this point to fully go through that application with you as far as the rules of this Commission or whether...because also this morning...I am not sure when the Commission received... Chair: Excise me, in order to look at the time constraints, in your presentation how much more time will you need do you think? Ms. Palmeira: I believe it would take a little time. Chair: So what I am going to do is I am going to allocate some time constraints, 10 minutes per person so I will give you 10 minutes. I could come back to you later on. Ms. Palmeira_ Initially we would like to ask that this item is deferred because of the need to provide additional information to you and also because some of the submittals that were presented this morning to us would allow the Commission additional time for the consideration of this petition intervention. I would just like to say something quickly on the Kawaihau spur, basically just the point on the spur on its self is that the FEA, the actual EA stated that the project is not expected to cause substantial impacts and that the Kawaihau spur is not a preexisting travel way mauka of Kawaihau Road. In view of this area it is clear that it is possible that there would be extensive typographical impacts to that area and change of character and the surrounding natural areas. I believe that the design and the structure it's self in steel and in concrete does not fit into the character•of that area for example grading, retaining walls, fencing as the area is it says surrounded by a natural place of great beauty. However this structure it's self in my view, in our view, does not fit into the area as the existing area and ch�,4acter of that area. Planning Commission Minutes July 26,2011 23 We believe that the use permit application is incomplete and that the secondary impacts including view plane that would be affected in that area is highly under estimated. Also one thing that I wanted to point out and ask is that the applicant in this case is tine Department of Public Works,Mr. Dill;however I would like to know why Kimura International who was the applicants on the former, on the entire project are not here or are not the applicants of this particular portion. Basically one of the main statutory and substantive laws that was violated with this project is section 4(f) of the Department of Transportation Act of 1966. This involves usage of areas that are protected under section 4(f)and Wailua Beach is a section 4(f)protected property. A is a historic property and that is also found in the originAl documents by which these lands were under the organic act then became into the State of Hawaii but it is designated as a section 4(f)protected because it is a historic site. Now the area through this process Federal Highways and the applicant Kimura InternAtional and County of Kauai failed to identify the historic properties and the historic use, not only historic but cultural uses of Wailua Beach. These involve traditional cultural properties and religious properties and the usage of these properties. This document was signed by Donald Fujimoto of the County of Kauai as owner of Wailua Beach and that is a fact that is disputed and also because of the fact that this is a very, again, substantive law which the usage is you are not allowed to use a section 4(f)property,change the usage, from a traditional property to a highway corridor unless there is absolutely no other prudent or any other means to have this project done there. What happened is there is actually an evaluation process that takes place and that evaluation is missing the essential information of the identification of the historic properties and cultural properties and the usage. And there is a Heiau and there is a usage on Wailua Beach which was not identified by the County of Kauai prior to the section 4(f). So that is a very legally vulnerable situation for this project and right now in the Kuhi`6 Highway project the last consultation which was on April 6' and 71h and actually will be held tomorrow. In the last meeting Mr. Paul Harker of Federal Highways stated that yes,this process is not complete,that section 4(f)will be reevaluated as well as the NEPA document,National Environmental Policy Act. In fact this project under the cane haul bridge project had a categorical exclusion. Categorical exclusions are not sufficient for areas of historical significance as Wailua and so there will be a NEPA document,EA document done under the Kuhi`o Highway project at this point even though in order for that project to go forward. And again I am giving ybu this information because the bike path is attached to the Kuhi`6, is segmented to the Kuhi`6 Highway project. There is also a problem in that there is a so called planter that is situated on the highway, it is about 6 to 8 feet wide, it is situated in the design and the problem with that is that there was some kind of an agreement from the County to the Friends of Coco Palms. Now this planter, we don't know where and how it got into the design, it did not appear on any environmental assessment. However the use of 6 to 8 feet width of Kuhi16 Highway in a very limited area which is the historic district, to me it implies secondary impacts because it involves the change in character and it involves the fact that the width of the planter excluding the width of that planter would actually allow for more room on that highway. We have other major points, again because there were 3 SMA permits granted for that area, one involving this project,there was no overall identification of the cumulative adverse effects and the significant impacts. And one of the significant impacts has to do with the water system and the Clean Water Act. So there are again permitted under 2 separate Army Core of Engineer permits,when you look at the history of the NPDS permit in Wailua including the fact that we have problems with sewage in that area there is a great need for restoration in this area which we are and will be involved with. So at this point I believe that there are several outstanding problems involving...I didn't even go into the historic preservation yet and if I have another opportunity to speak I will. Chair: Do you want to summarize your position? Ms. Palmeira: Our position is that this use permit should not be granted at time until this project becomes in compliance with various problems and statutes including a supplemental EA that is ongoing right now for a section added from Papaloa through I guess it is the Waipouli Resort. There ar'e a number of ongoing and not completed actions like I just mentioned the Planning Commission Minutes July 26,2011 24 supplemental EA, a traditional cultural properties survey which could perhaps eliminate the section 4(f) and the ilsage of Wailua Beach. There are many outstanding violations and the completion of a NEPA document by Federal Highways for the Kuhi`6 Highway. Again this is a significant historii;district and all of the cumulative impacts and adverse effects to the water system by which we would be so greatly adversely affected as lineal descendants and as native tenants of these lands which are of great cultural,religious,historic,41 significance to all native Hawaiian,lineal descendants and also to the public for whom also deserves fresh, clean water and historic properties that are maintain. And not only maintained but are not destroyed through a project like this. Again thank you for your consideration of our petition and we would like to be able to ,Tare more with you. Chair: Thank you,Ms. Clark? Ms. Mona Clark: The County Engineer has joined in the Planning Director's opposition and therefore I think it would be most efficient use of the time for the Commission if I.allocated my 10 minutes to Mr. Task if that is acceptable. Mr. Mauna Kea Trask, Members of the Commission,as stated in the Planning Director's opposition first off the Director believes that the intervener's request should be denied as their petition for intervention just fails as a matter of law. They did not as the rules mandate provide any information to substantiate their claims. As you know per their pleadings from reading them as well as listening to Ms. Palmeira today under rule 1-4-1 through 4 the interveners,they don't provide any basis for their claims they just state I guess legal conclusions and other platitudes relating to what we describe as quote/end quote, Hawaiian rights. I think you all can guess what they are referencing however it is incumbent upon them to clearly state to you what they are saying and they don't do that. The department argues that under 1-4-4 it is mandated that they do that and because they failed to do so they fail to correctly intervene. Second,we also state that under 1-4-2, 2 and 3, to allow them to intervene in this proceeding will render the proceedings inefficient, unmanageable, and/or their intervention will not aid in the development of a full record and will overly broaden the issues. And I think this is made patently clear by Mr. Martin and Ms. Palmeir4's presexitations today. Mr. Martin cites (inaudible)vs. Hikia et. al. which is like you said a third circuit case which is from the Big Island. It is un-citable and the reason the department provided you copies of the Ho`ike printout is that this case cannot be cited. It is not an appellate case either I see or the Supreme Court, it is just a circuit court case. In looking at the facts of this essentially(inaudible)Business was a holder of property that they got from I forget which one of the big five,maybe A&B, and they petitioned for, it was like a Kauai title action(inaudible)paper title through adverse possession. A claim of right was raised by the defendants in that case as Mr. Martin stated. I don't know the specific facts because it is difficult to seek per Ho`ike records but it is clear that in that case (inaudible)Business was granted title through adverse possession. But that has no bearing on this case so Mr. Martin's presentation today just shows you that to allow him in is a matter of course will over broaden these issues. You are going to be asked to reference cases that are un-citable from other circuits which have pertaining to this because per exhibit 1 of the department's exhibit list County tax records clearly show this is a State parcel. So there is not going to be a question of paper title as it applied to the successor of a sugar cane industry,which is not going to be the case. The department although in order to deal with this is assuming they are bringing up crown land related issues which is why the department cited(inaudible)Kamehameha V as well as Maui Land and Pineapple as well as the Jon Van Dyke book who owns the crown lands. But again that is not stated in this petition for intervention. There is nothing mentioned about crown lands. They leave you to guess that it is and as you know this Commission has no authority or power to essentially render a Kauai Title judgment. You can't say whether or not the State owns or controls that parcel. And if they want to contest that they can go to circuit court and create a Kauai Title action,they are entitled to do that but it is not within your Kuleana to do that. Furthermore, as stated in the opposition any claims related to successors in the interest of Kamehameha III were already disposed of in the 1800s. It went from Kamehameha III to the fourth and to the fifth,and to King Luna Lilo and then to King David Kalakaua. And so any claims based off King Kamehameha III were taken care of by his own will and that is a matter of Planning Commission Minutes July 26,2011 25 fact,that is a matter of law,that is nothing that can be overturned,nothing that can be questioned. And then moving on to Ms. Palmeira's presentation, I mean again she fails to specifically state anything about any laws to back up her judgment she just claims that it is illegal. That is all she does. She provides no evidence,provides no unique statutory citation. She quotes entire chapters of laws. She quotes the entire SMA Chapter 205A. She quotes the entire Historic Review of 343. She quotes the entire 1966 Department of Transportation Act. That doesn't narrow the issues that patently over broaden them. She also asks you to look at the entire 106 process, she has gone on at length about Wailua Beach,the highway corridor, Kuhi`o Highway short term project,the Cane Haul Bridge project, design of planters in the Coco Palms area, water system and Clear Water Act, and the Papa to Waioli spur,none of which has anything to do with the Kawaihau spur. They have actually demonstrated to you today that they will ,over broaden these issues; they will make the record unmanageable. Because the issue at hand here is clearly stated by Ms. Clark, is whether or not under Kauai County Code section 8-9.2(a) 1,the improvement to the current pedestrian path to achieve ADA compliance and make it accessible to bicycles and pedestrians is a public or quasi-public use. That is the simple issue at hand. Will an already existing path, and they are questioning the legality of a path that already exists,the question is whether or not that path that already exists with the improvements of ADA to make it more accessible, is That in the public interest essentially. The department would argue it is and the determination of native Hawaiian gathering rights,the determination of successors of crown lands,the determination of unrelated third circuit court cases have nothing to do with ADA improvements to an existing path. Apparently there is a 106 process going on tomorrow that they are going to be a part of, that they arse involved in,and they are contesting. And that is fine. Maybe that is the appropriate venue for this argument because this is not the appropriate venue for this argument. The department acknowledges their passion,the department acknowledges Hawaiian history,the department is very sensitive to that. Again the scope is so narrow in this issue,the decision to be: made is so specific to a single spur and ADA improvements they are on that these larger issues that do involve sovereignty arguments,that do involve sovereignty arguments,that do involve Hawaiian history,that involve questions of justice have nothing to do with this proceeding. So the department would ask you to deny the petition for intervention today. Let this small little issue go away and let the larger issues be litigated or decided upon in the appropriate venue and that is essentially our position. If you have any questions I would be happy to answer them. Chair: Before I open it up to questions by the Commissioners I would like to give Ms. Palmeira and Mr. Martin an opportunity to;respond to the statement by Mr. Trask. Mr. Martin: I will respond. My comments that are written down is not to broaden the issue but to bring to your attention what is applicable with what Mr. Trask mentioned. And title issue is, well the thing that came out while Mr. Trask was speaking was my interests are quite separate from the general public and they are distinctly separate from the general public,nothing against the general public. In that particular area I have walked that trail, I have walked that trail around flood times, look for laau, it is a very rare tree in that area and fished along the area. And what I would be very concerned about as an example when the bike path went through the area along Kapa`a by the Library I asked you what happened to the park benches. I do not see an area where the local people how they used to go there. What happened to the drinking fountains? Really, it is in that area,in other words how is this going to affect a residential community? A recreation in a residential community you are going to have people traveling up there at any time of the day. Right now it is pretty much you walk up to the hospital, it is used rurally. But when you have visitors and when you have any type of person going into a residential area I think it is something very important to consider. I don't feel the issue is broadened and I specifically mentioned it that I bring up the issues in Wailua because they do apply and can apply and may be applied in the area that we are talking about today in the spur and in other areas. I am not shot gunning anyting and with respect to sovereignty issues I will take mine now. As I see it my rights individually and rights collectively as a lineal descendant,a distinct separate from the general public exist under,they are there to process under the existing law. I don't have to wait for the legislature of the corporation to give me that right, something that they do not possess. Planning Commission Minutes July 26,2011 26 That is all very political. I am not trying to be in no way being political. I am being specific to vested rights. And the comment was made by what authority do I have to represent the heirs of Kamehameha III, I represented them in filings in the United States Supreme Court and if it wasn't directly specifically from them as Alberta Kaa spoke with me on the phone this weekeftd, as native tenant, as a subject lineal descendant,I have every right to...it is like Robin Hood. And I am not saying this jokingly. Until the return of the King those rights still exist for the people. The King cannot diminish it,no one can diminish them,they are vested. And I appreciate being able to comment on it,thank you very much. Ms. Palmeira: I would just like to mention again a few of the statutes that were violated in this project. Again we are talking about one spur of one segment which is the Lydgate to Kapa`a bike path project which is one segment of a larger path project which goes from Nawiliwili to Anahola. At some point in time and this may be a point in time to maybe at least express this is that that is actually segmentation. And whether that is upder 23CFR771.111,this is segmentation because you did not study the secondary impacts and on the coastal in particular and this area in Wailua coastal areas are cultural areas. The impacts to the coastal areas have not been looked at however this is what is being looked at, at this point, with the Kuhi`6 Highway project. You are taking a usage which has been there and is there and is actually a religious usage,traditional practice,traditional cultural usage.' And that is the word according to Maryann Neighbor of Federal Highways when she gave a short description of section 4(f) of the last section 106 meeting. Again it is a substantive law,this project has not followed the law,they did not identify the usage,they did not identify the historic properties. We are in the process of that identification at this point and even in this process we are being excluded. This involves discrimination. Again segmentation and that citation involves Kuhi`6 Highway short term improvement project,Federal Aid project NH056-150, Kuhi`6 Highway short term improvement project, Wailua cane haul bridge Federal Aid project NH056-151,US Army Core of Engineers file 2007- 00280,and also the US Army Core of Engineers file for nationwide permit No. 14.,two times in Wailua. And there are NPDS source points which I believe go against the General Plan and these source points,point areas,directly onto Wailua Beach, I believe there are 3. And there is the other drainage that is involved which is attached to the Lydgate to Kapa`a bike path project because it is on the makai side of Kuhi`6 Highway and I believe again segmented through the engineering of the projects. The other side of the highway we have the historic fish ponds which we again that is another area that is off limits to the Kuhi`6 Highway drainage for the...Again there is a history and a cumulative impact and adverse effects situation that is occurring in that the adverse effects to the significant historic property,many of which are perhaps shall I say are eligible for the National Historic Register. In fact that is one of the processes that we will be discussing in the next meeting and perhaps following that because when these projects first went through,this section 4(f)and the NEPA categorical exclusions, and NEPA,National Environmental Policy Act of 69, section 10442USC4332(2C)did not take into consideration the impacts on historic and cultural properties. Now for example the fish pond,the fact that there is an engineering plan to have drainage from the highway go into the fish pond is a direct project impact which would denigrate this property. And again related to the Lydgate to Kapa`a bike path project on the other side on Wailua Beach,this NPDS permit and pollution points are directly on the beach. And for us that is a nonnegotiable type of situation. This is a historic,religious, and cultural,property that belongs,the usage and so forth. According to Chapter 8, article 19, CZO, article 20.5,the standards, a use permit may be granted only if the Planning Commission finds the establishment, maintenance, operation of the construction, and you know that statute. Chair: Ms. Palmeira, I am sorry for interrupting._. Ms. Palmeira: I will just end that it will not cause any substantial harmful environmental consequences on the land of the applicant or on other lands or waters and will not be inconsistent with the intent of this chapter and the General Plan. 'here are a multitude,of inconsistencies and discrepancies and violations because there was no environmental impact satement in which NEPA, section 201, sorry, in which NEPA would analyze the cultural resources and that process was not done to avoid impacts. So again we have petitioned to intervene to seek the opportunity to provide a fuller record, a full record. One last example is when changes were made to the Planning Commission Minutes July 26,2011 27 SMA last year in 2010 when there was a relocation of the path from Wailua Beach to the highway but it is still on Wailua Beach. In fact it is on the most sensitive part right makai of the rock wall. Well these old plans were modified; the plans were modified for various portions however the planner Michael Laureta and Doug Haig did not bring that whole change to the Commission which I believe is a large major change in the SMA. And instead of bringing it to the Commission because of the intensity of the change which involves also the placement of a concrete barrier on Kuhi`6 Highway and for example that has to do with view plane and it has to do with access and other usage which was not covered under SMA 2008-1. So again our petition is to bring forth information for you to make a better decision that is within the statutory and regulatory requirements of Federal, State and County lawful use of these permits,thank you. Chair: Thank you very much, we will be breaking for lunch right now and we will come back at about 1:40 and at that point we will be asking the Commissioners if they have any questions in regards to the testimony. Commission recessed for lunch at 12:35 p.m. Commission went into executive session at 12:45 p.m. Commission adjourned the executive session at 1:50 p.m. Meeting was called back to order at 2:00 p.m. Chair: I am calling the meeting back to order, at this point I would like to ask the Commissioners if they have any questions for the petitioners and for the respondents. Mr. Blake: If the applicants are not permitted to intervene what avenues are left open to them to participate in the process? Mr. Jung: Through HRS 92 we are required to allow them for public testimony through the public hearing process so they can testify as to what impacts they believe the project will have versus if they become interveners then we go through the contested case proceeding where they would be a party to the contested case and they would submit testimony. So what stage of the proceedings are we in right now? Mr. Juna: We are at the intervention proceeding on whether or not to approve them as interveners. So if they are granted as interveners then we go into Chapter 6 contest case and we go through the process of a contested case where we take testimony and then they do a findings of fact, each side does a proposed findings of fact, conclusions of law, and then the Commission will take action on. If they are denied intervention status then it goes on to the normal process where the Director's report will be read,then we will entertain public testimony through the public hearing process, the item will be up for action without any proposed findings of fact or conclusions of law. Mr. Blake: So the main issue with regard to the petition for intervention is that their interests differ from the public, the interest of the general public? Mr. Jung: Right. Mr. Blake: And the burden of proof is on them to show that. Mr. Jung: Correct, and the burden is by the preponderance of evidence. Mr. Blake:. And that preponderance being more likely than not. Mr. Jung: Right. So as each side has argued, the petitioner has argued they have a property interest and have concerns about the process that has been in play for the other permits that were issued versus what the department and applicant are arguing that the assertions that are being made aren't specific to the particular area in Kawaihau District. And they argue that the intervention would only overly complicate the issue that is before this body and the particular Use permit and Class IV Zoning permit. Planning Commission Minutes July 26,2011 28 Chair: Are you satisfied with that answer, anybody else? Mr. Kimura: The aye would be for intervention or against intervention? Mr. Jung: Given the petition is for intervention it depends on how the motion is made to either approve it or deny it. Mr. Kimura: I just wanted t6 clarify that. Chair: Anybody else,if not I will ask all the parties to step back please so that the Commission can deliberate. Mr. Blake: So do we discuss the evidence at this time? Mr. Jung: Yes, now is the time where you can discuss and deliberate the merits of what they each argued in terms of for or against intervention. Mr. Blake: The petitioners put forth a wrath of information. I mean I couldn't follow it to tell you the truth. There were a lot of things that were cited and cases and laws and international laws and so forth and I got lost trying to keep track of it. But basically as I understand it Mr. Martin is claiming certain property rights as a lineal descendant of Kamehameha and as such as a property owner I believe what he is saying is that his interests differ from the interests of the public at large. Ms. Palmeira talked about the international law and other laws that she felt were germane to this issue and as best I could determine based on those laws we don't have the authority to act independent of whoever those laws apply to. The difficulty that I have right now is if, with regard to what Mr. Martin was arguing, if he is a lineal descendant we are not the body that determines that. That would be determined by on Kauai the Fifth Circuit Court and I didn't hear any representation that the Fifth Circuit Court has stated that he is a lineal descendant and therefore has private property rights in the portion of Kauai that the County plans to act upon. And with Ms. Palmeira again although there are based on what she said there are these laws that apply to this type of situation again I haven't heard any finding by any court whether it is the Fifth Circuit Court or an international court that says x marks the spot on Kaua`i that this law applies to. And so I don't doubt the sincerity of their application or the concern that they have with regard to representing the interests that they believe they represent better than the County but I don't see myself where they have a standing to make that kind representation today before this body. And that is my problem with the petition. Chair: Anybody else wishing to...if not I too would like to comment if nobody else is. I found it very difficult to understand and I did speak with them and jhst mentioned the fact that I need clarity. I have been confused. I think one of the problems is that we are dealing with a specific issue and they brought out a bunch of issues relating to the bike path from Wailua to Kapa`a and I found it difficult to understand what was trying to be transmitted to us. I was hoping that we would stick to just the issue of just the spur in Kapa`a, that particular issue. Anybody else, that being the case I think we are ready for some Kind of motion. Mr. Jung: Again Commissioners you options are either to grant the petition for intervention and move into a contested case or deny the petition for intervention and go to public hearing. Chair: When would that public hearing be on the agenda? Mr. Jung: The public hearing is scheduled for today so it would be right after this. Mr. Kimura: Do we need to make a motion on denial or approval? Mr. Jun . Of the petition, correct. Chair: Or deferral. Planning Commission Minutes July 26,2011 29 Mr. Jung: If you need more information you could also defer it. Mr. Kimura: I make a motion to deny. Mr. Raco: Second. Chair: Any discussion on this agenda item, there being none could we have a roll call please. On motion made by Jan Kimura and seconded by Caven Raco, to deny the petition for intervention,motion carried unanimously by the following roil call vote: Ayes: Blake, Kimura, Raco, Matsumoto, Texeira -S Noes: None -0 Absent: Nishida, Katayama -2 Not Voting: None -0 Mr. Jung: Given that there is a denial of the petition the Commission could ask the department and the applicant to do a decision and order articulating that denial. It is just a formality that our rules under Chapter 4 require. Chair: Mr. Trask and for Ms. Clark, you shall prepare the decision and order denying the petition and have it submitted to the Commission Chair and have the Commission authorize the Chair to execute the decision and order to be submitted to all parties. Mr. Trask: I will do that your honor. Chair: Can we have the Planning Department give their presentation. Staff Planner Dale Cua read supplemental staff report(on file). Chair: Dale, I am a little bit confused, could you specifically clarify exactly where this path is going to be as it goes up Kawaihau Road? Staff. If you see the area that is in your color photo that you have here, the area that is dashed is the project its self. Chair: The one in yellow? Staff. Yes. Chair: The whole yellow thing? Staff: Yes. Chair: It goes up the old trail and goes by Gore Park? Staff: Right. Chair: And then it meanders to where after Gore Park? Staff: It just connects to the roadway on the upper side. Chair: And goes back down Kawaihau Road? Staff If you are looking at the illustration that you have in front of you this are towards the middle is on the upper half of the bluff, so then it snakes down to the area in grey which would be near the Kawaihau Road highway intersection. You are familiar with the existing path, right,that goes up? Planning Commission Minutes July 26,2011 30 Chair: Yes that narrow path that goes up. Staff: Right, so it is an improvement of the existing path. Chair: That's it? Staff That's it. Chair: Why does it snake around like this over here like it shows? If you just take that existing path it is pretty straight up, it kind of veers off to the right. Staff It needs to be engineered in a way such that it has to be ADA compliant but I will let the applicant... Mr. Jung: I don't know if the applicant wants to come up and explain but it does have to meet certain slope requirements for ADA. Mr. Kimura: The beginning of the path starts there and then they kind of snake off to the right and it comes back down because they cannot go straight:up. Chair: I understand. Doug,please, this is mainly for my edification. Mr. Doug Haig; Doug Haig, Department of Public Works. Our intent is to follow the existing path as much as possible but in order to provide ADA grades which will be...because we are connecting with elementary school, Mahelona, in addition to the community so we really wanted to make this as universally usable as possible. Chair: How do you connect this to the elementary school? Mr. Haig: The existing sidewalk on Kawaihau. We have extended this project actually beyond Gore 'ark and it connects to the sidewalk. But that is not part of th(�permit. The Use permit is specifically for the section that deviates from the existing path and that is the section of the elevated boardwalk. In order to maintain ADA grades and actually bicycle grades we need to do switch backs to get across that gulch. And actually we are staying on the south side of the gulch primarily so that is why you are seeing the zig-zag. If you look at those houses, those are the houses on the top on the left hand side, those are the first houses coming down Hudley Heights and then when it stops dropping off that is when we first jog. And then we comeback into Kawaihau right where that big turn is when you are going up Kawaihau, the first turn and that is where the existing path comes to the highway,that is where we connect back. The existing path connects to Kawaihau,that is where we connect back there.Now the other improvements are part of other permits. Chair. You know that dirt mound,the trail as you are going up, the old trail, the one that still exists, there is a dirt mound, it is a dirt hillside. Mr. Haiiz: Yes. Chair: To the left as you are going up that trail, to the left is that hillside, right? Mr. Haig: Correct. i Chair: Are you going to do something to that hillside? Mr. Haig: No because that is outside of the lot. I believe and I am not sure, that is not part of the lot that we are in, that is either part of the road parcel or part of the private property parcel. But out lot doesn't go into that dirt mound, the lot that this permit is concerned with. Mr. Kimura: This trail kind of goes towards, well the one they want to put in goes towards the KPAL building that we approved. It goes below the KPAL building, it goes north and then comes around and kind of switches back because over there it is more gradual. Am I correct Doug? Planning Conimission Minutes July 26,2011 31 Mr. Haig: Yes it is staying on the south side of that gulch because you have that gulch and KPAL is up on one side and there is planner future elderly housing up on that north side of the slope and then we are doing our improvements on the South side of this gulch. So we are not actually going across the gulch we are staying on the south side of the gulch. But we are in the gulch because to get up that hillside... Chair: So you are not going to stay on the path, you are not going to follow the path. Mr. Haig: No. Chair: That is what I am thinking you guys are going to go and make a bikeway on the existing path which is kind of steep and as you were saying you can't do that because of the ADA compliance requirement makes you have to do switch backs. Mr. Haig: Correct. Chair: So the switch becks would be on the Kealia side of the old path. Mr. Haig: Correct. Chair: So that is in that little gulch in there and then you are going to come back and end up at Gore Park and then come back the old path. Do you come back to the old path at all? Mr. Haig: Yes. Chair: What happens to the existing path? Mr. Haig: As soon as we get a good grade on the existing path that is where we connect back to. So if you are coming down from Kawaihau we will stay on that existing path until it starts getting too steep and then we start our... Chair: Yes, it is the last 50 feet or so. I understand that. Mr. Kimura: What is the total length of this path? Mr. Haig: We are looking at 2,570 feet but this is actually the total distance from Kawaihau to Gore Park. The actual footage of the boardwalk I will have to look in my application and see if I can get that number for you. Chair: So what happens from Kai,yaihau Road to the beginning of the path? Mr. Haig: That was covered under the original SMA permit and so what we are doing to take you from the bike path on the makai side of Kuhi`o Highway we cross on the north side of the Kawaihau/Kuhi`o Highway intersection with a pedestrian crosswalk. And then we go along the north side of Kawaihau Road and we have agreements with the property owners because we are making like a 10 foot fairly level path so we have to modify the two driveways there to allow for this elevated section and we have worked with them on that and come up with agreements. Chair: So you will be traversing right on Kuhi`o Highway when you cross as you said on the north end of the Kawaihau/Kuhi`o Highway intersection. Mr. Haig: It will be a crosswalk. Chair: There will be a crosswalk north of that but to get to that crosswalk? Mr. Haig: We will connect on, on makai side? Chair: No, mauka side, right? Planning Commission Minutes July 26,2011 32 Mr. Haig,: We will have a shared use path that goes along the north side of Kawaihau Road up to the current place where that existing pedestrian path starts. Chair: Isn't it kind of steep though? Mr. Haip,: It is. Chair: That property that boarders the highway it is kind of like a Dill. Mr. Haig: It is a hill but we have enough room in there to make it work. We are having to put some grade walls on the existing properties because as you mentioned those properties slope up right away so we do have some grade walls as part of the construction to make it work. Chair: I understand it better now. Mr. Kimura: Is this what it is going to look like? Mr. Haig: That is a graphic representation. Mr. Kimura: Isn't it going to be kind of dangerous crossing right here? Mr. Haiiz: That is one of the challenges. Currently there is no safe place to get from the Kawaihau neighborhood to the Kaua`i/Kealia bike path or to the beach or to Kapa`a Town. Looking at everything it was determined that that north side of that intersection would be the best place to cross. We are looking at potentially providing some flashing lights within that crosswalk to provide additional safety. Mr. Kimura: So this whole back hillside here north of the path will have to be cut down so that the... Mr.. Haig: Actually we,re okay with our improvements_ We don't need to cut into that hillside. State Highways has been trying to cut that hillside for a long time to improve the line of sight for the left hand turn off of Kawaihau but the property owner has great emotional attachment to that property. Mr. Kimura: Because right now if you turn right on Kawaihau Road it is kind of sharp if you are coming from the north. So if you put your crosswalk, I don't know, it is kind of coming out on an angle so how are you going to have your crosswalk there? Mr. Hain: Like I said we come across and we have to modify the drainage inlet and stuff there to make it so the crosswalk is safe because there is drainage coming down Kawaihau Road. And then we wilt have grade walls on the north side of the path as it goes up Kawaihau which makes the transition between the grades. There is enough room there to do it. Mr. Kimura: I was just trying to visualize it. Mr. Haig: Yes and it was a challenge. We went out and surveyed it several times to make sure we had it right. We are taking out some of the Ironwoods on that first property but our agreement, we reached air agreement with the property owner, we will be replacing it with alternative landscaping to provide their privacy. Their grandfather had planted the Ironwoods so we minimized,we kind of work as closely as we can to try to keep everybody happy but we came to an agreement and so that is how we are getting by that first property. Mr. Kimura: I am just trying to visualize the line of sight coming from the lower...trying to catch the pedestrians crossing in the crosswalk. Chair: Thank you. Just to let the public know that one of our Commissioners was excused, Caven, so we have 4 Commissioners right now so we have a quorum. Is there anybody from the public wishing to testify on this item please come forward. Planning Commission Minutes July 26,2011 33 Mr. James Alalem: For the record my name is James Alalem. I am the caretaker for the Wailua area,take care of the Heiaus 4nd I have permission to take care all the Heiaus and especially the Wailua area because of the landowner. I would just like to share with you guys that none of the Hawaiian sovereignty or issues was ever relinquished. Our Queen Liliokalani made sure of that. We never did give up none of our titles to the lands or anything. When the lawyer was talking he said we had to prove all these things, well I have this book if you guys want to ever read it I will lend you guys this book, and in here I have a lot of documents. The most important thing I would like to share with you guys is it talks about the color of law. The judges,the attorneys,the police, they are all working in the color of law because that is the oath that they took and it is in here in the book if you guys really want to know the documents and everything in there. It is the truth, it is not made up like the lawyer or attorney says that we only talk about it, it is here,black and white. As I stand here before you guys, well not stand but sit here before you guys and I look in the back of you guys there are two flags. These flags represent the maritime law which is again just for education that we are standing in a foreign country. Put born and raised here my allegiance is to my country which is the Hawaiian Kingdom. And it is still here, it never go nowhere. Then you guys say that we have to prove. Well we don't have to prove because it is all here in black and white. If you guys look on the computer you guys can find all the information. We are not the attorneys, the attorneys are smarter people that are supposed to go to school and know this stuff. But I just wanted to make sure that you guys know that the attorneys, the lawyers,the policemen, when they take an oath it is all under the color of law. So we need to know the truth and we need to live by that truth. And this bike path thing is not the truth. Like Waldeen, God knows I have been with her for a long time and she has made me realize that what she is talking about is all the truth. This bike path that they are building is all lies, a fagade, it is running under the color of law protected by the attorneys and whoever. With that, I thank you. Again if you guys wart to see all these documents that I have here, it is up to you guys,"it is the truth. Chair: Thank you, Mr. Martin. Mr. Martin: I wanted to know, quasi-use,how far does that extend? Now you have ADA people, you have pedestrians, you have bikers. What does that mean, quasi-use? I wonder if someone from the Planning Department, what does that allow, quasi-use? Mr. Dahilig: Can you point to a specific... Mr. Martin: I am asking the question. Mr. Dahili�z: In what reference to the Director's report are you...? Mr. Martin: I am just listening to the Planning Department. Mr. Junl7: I think I can answer that question. With the Special Treatment District it is a constraint district within the CZO, with our Comprehensive Zoning Ordinance, and when there is this Special Treatment District a Use Permit is triggered so when the Commission evaluates the proposal they want to make sure that the use has a public function or a quasi-public function. And quasi-public function means that it has to be related to some kind of public good. So the question the Commission has to evaluate is whether or not this Use Permit, when you look at a Use Permit you look at the compatibility test of whether or not the structure that is going in will be compatible with the neighborhood and it fulfills the requirement that there is a public use. And the bike path will be open to the public so it does have that public function. So that is when they refer to quasi-public it has to have some relation to public use. Mr. Martin: My next point I wanted to bring up was the concern about the environmental effects of the zig-zag and just from the diagram 1 saw of what it would look like going from mauka to makki, raised pillars and walkways, it seems like it is going to be visually quite a shift from what we are used to. That that is would be good but it seems very intrusive and what kind of provisions for runoff. I was here for the big flood, the 100 year flood, and even on less than 100 year floods you have a tremendous amount of water coming down in that area and that consideration in that planning be given to that area which is a funnel, that area is like a funnel. Planning Commission Minutes July 26,2011 34 The other point, ADA compliance, I can see okay you have a steep grade, sometimes I think that you would really want to accommodate if there are people with disabilities. I have some disabilities too. And then maybe the decision between well we are going up to Mount Everest so we want to make it ADA compatible so we are going to zig-zag up the side of the thing. But the most important thing if I may continue is the traffic congestion and really the question brought up by one of the Commissioners, I think Kimura, was what happens, how do you get across the road? And that was my question too. How do you get across that road? Already you have Kawaihau coming down, you have the other road, you have a crosswalk going across there, you have people coming out going north and you have people almost...that place is almost like an off-ramp from a freeway and getting on the freeway as you are coming out of Kapa`a. Which to me will congest, could congest and endanger unless you are putting in a stop light, it could be very endangering to vehicular traffic that exists already, to pedestrian traffic trying to cross that area. Because if you are talking about making it to accommodate a lot of people you have going to have people crossing over there all the time. It may be a time to just reconsider. I mean I walk up the path; I have stayed up in Mahelona, nice to have a little bit of path. But to have such an extensive use created for that area I think is something really, you really better consider it because again from the congestion. People come, if I know the place I slow down to 25 miles an hour. If you don't they are hitting that place at 30 or 40 miles an hour and it could very much increase the danger of collisions of vehicles and people, pedestrians, and that is the nature of my comments, thank you very much. Chair: Anyohe else wishing to testify? Ms. Palmeira: Thank you for your consideration earlier of our intervention petition. I would like to know whether this Use Permit, again, is within the Special Management Permit 2008-01. Is there someone who can tell us which Special Management Area permit this Use Permit...because the connector is at Kuhi`o Highway in Kapa`a? I am not sure if you can answer that now. Staff: For this project this particular project just requires a Use Permit and Class IV Zoning Permit. In reference to the Special Management Area, this particular project is outside of the Special Management Area and therefore didn't require an SMA Permit. Mr. Palmeira: Okay because it is on the Special Management Area Permit application on exhibit A which is part of the SMA 2008-01. And the area of Kfihi`o Highway in Kapa`a as you are crossing Kuhi`o Highway, is that not a Special Management area? Staff: In researching the department's maps the extent of the SMA terminates at the Kuhi`a Highway right-of-way, it doesn't go any further mauka of the highway. Ms. Palmeira: Okay well it is listed on this map. I just wanted to know if there was a Special Management Area Permit involved in this Use Permit. And I would like to clarify, when some of the laws that I spoke of earlier again it applies to this project and this Use Permit because this is a Federally funded project, the Lydgate to Kapa`a bike path. I was not speaking about international laws, section 4(f) of the Department of Transportation Act National Environmental Policy Act; these are laws thht are required for this project to have funding under the Federal Highways from the Department of Transportation. These are not international laws. For clarification this project needs to be in compliance with the Federal, State, and County laws in order to receive funding for this Kawaihau spur and this is the reason why this Kawaihau spur is directly attached to the entire Lydgate to Kapa`a bike path, it is a part of it. And so for clarification again and for your information these are not international laws that I spoke of And one more thing I would like say, I do not agree at all with many of the...in the permit application involving for example irrevocable commitment or loss destruction to natural cultural resources, it says no. Yes I believe there is going to be some of that involved. This is not an existing path it is prior to that existing path. When you pick 4nd choose which laws you are going to follow, for example ADA,you are trying to make a path that is ADA compliant however with other parts of the path you are not trying to be compliant with other Federal laws. And that is the problem that we have and we will continue to get to the truth and to get the Planning Commission Minutes July 26,2011 35 Federal Highways and the State who are actually responsible for this project for this compliance...if I could just have one more minute? Under the Use Permit application the proposed project will not adversely impact natural cultural resources, again,there was no real archeological inventory survey of that hill and that pu`u there on Ka.waihau was well known for moikeha, for an area that involves cultural resources as well. For view plane there are going to be affects. Again we are not opposed to the bike path; I am not opposed to it. I just feel like the use of that land with this switch back and pillars as well as runoff as Liko had mentioned, again without doing a full environmental assessment and an EIS for something, a massive and large structure such as this on those properties without a full archeological inventory and understanding of the area is in our view not a good use. Just one more thing under No. S, it says involves substantial secondary impacts and again it say no. Almost everything in here is denied. And again one last thing, it cites section 106,we did not have section 106 which is another Federal obligation for this project. Have any site survey revealed any information on historical archeological resources, it say no. Well the reason why there was no information on historic or cultural resources revealed is because the study was not done. In other words by not following the processes and the correct reviews you do not achieve the information in order to avoid impacts to cultural resources in areas of significance. And again for clarification Commissioner Blake, I was not talking about international laws, these are Federal Highway laws. And again for you information that we are opposed to this because it is also a part of the larger project for which there are a multitude of these violations existing at this time,mahalo. Chair: I have a question, you mentioned the cultural resources, you mentioned the moikeha, are you specifically referring to what area when you say cultural resources? Ms. Palmeira: On the bluff there it is known to be an area that was inhabited. Chair: What bluff, Kawaihau Road on the top? Ms. Palmeira: Yes. Chair: By where exactly? Do you know where Dr. Kim use to live? Ms. Palmeira: I know where....well... Chair: It is right on the bluff, as you are going up the path it would be right at the top, right across the park. Ms. Palmeira: I would need to refer to someone or some specific documents however I have come across those documents in the past. However the 6(e) of this project did not go through an archeological inventory and to just be clear the time that these projects were originally given I guess approvals through the 6(e), Historic Preservation Review, and at this time the State Historic Preservation Review Division is under a high risk status by the National Park Service because it has been shown that irreparable harm and a lack of following the National Historic Preservation Act has taken place in this report that released last year in March, 2010. And so a lot of the resources, a lot of the actual laws that need to be complied with under the National Historic Preservation Act have not been followed in Hawaii and we are hopeful that certain changes will take place to improve that situation. However this is one of the projects I believe that had taken place at that time where there was to AIS. There was something called an Archeological Assessment and that is different because that is basically a review, a literature review, that does not take into consideration something called HAR 13 276 which is a consultation process for the purpose of collecting information in order to use the Historic Preservation Review process to either identify certain significant sites that would be not eligible for this kind of project for example because there is too much damage to the historic site. So that is just...or in other cases certain areas would be reserved because they are burial sites for example. So again our organization Hui na Makaiwa o Wailuanuiaho'ano stands opposed to the Use Permit being approved. I believe that the community needs additional time to be able;to even understand this project and the magnitude of what this structure would do to the environment and to the character of the community, mahalo. Planning Commission Minutes July 26,2011 36 Chair: Thank you, anyone else wishing to... Unidentified Speaker: Can I come up? Chair: Before you come up I just wondered if there was anybody else, could you just make it a short summary please. Mr. Alalem: I just wanted to remind that member of the public law 103154 which was signed by President Clinton that gives up back our rights again. Also another proof that we still have our rights is with the Hawaiian Constitution, our Hawaiian Constitutional law which is supposed to be our kingdom law which is traditional and custom ' pp g customary rights. The State (inaudible) and shall protect all rights,customary and traditionally exercised for the substance cultural and religious purposes that(inaudible) attendance who are descendants of the native Hawaiians who inhabit the Hawaiian Islands prior to 1878. But today the attorneys they only go up to the annexation,the annexation never did happen because it is all again a lie. With that,thank you. Chair: Thank you very much, could you just summarize too please? Mr. Martin: On the last page of my submittal I am referencing the memorandum for the State Governor. I would like to just read it. It has to do with,this is in January 20,2010, a letter comes from the State Department referencing 4 treaties that the United States was signatory to. Now before the United States and the State Department signed those treaties and I have it articulated here,they had to be sure that they could be followed, that US laws,that existing laws could uphold the obligations of the United States. I think Ms. Palmeira has made it absolutely clear, as clear as day and night that there are laws that apply in this case and by referencing this permit number,the various Historic Preservation Act,referring to the high risk status that SHIM is under right now and the relationship between the Federal funding that is attached to this particular portion and through the whole permit requires, it requires consultation. Now if that isn't plain,if I can understand it and I am not an attorney, I think that it would behoove the board to understand it. I cannot see that to no accept this...because this is down to all levels, 4t the very end it say expressly,the United States expressly urging the United State to make government officials,the judiciary Federal and State law enforcement, officials, teachers, social workers and the public in general aware about the responsibilities of the State party,in this case the United States, under the various conventions. Because implementation of these treaties may be carried out by officials at all levels of government and you are officials at a level of local government,Federal, State insular, and local. This is what the United States and the State Department expects. This is why this letter was sent to the Governor last January and it was kind of kept quiet until you can't keep things like this quiet. And I will say there is a citation process that goes along with these treaties and once again I very much just bringing up this point to say that if you don't know then you should know. We really should make an effort and I have attached,you can go on line off of this letter, I have attached a copy of it,to become familiar because it is the general public's responsibility and it is from the State Department. This is like sovereignty now and I feel like in this project the National Environmental Policy Act,Historic Preservation Act, Clean Water Act, and the consultations that are afforded there should be adhered to. And once again,thank you. Chair: I would like to have you entertain a motion to close the public hearing please. Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: Any discussion,all those in favor say aye,those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura,to close the public hearing,motion carried.unanimously by voice vote. Chair: Dale could you please read the conclusion? Planning Commission Minutes July 26,2011 37 Staff Planner Dale Cua read conclusion and department recommendation(on file). Mr. Dahill If I could before we get into the recommendation if I could ask the applicant to come forward. The department's recommendation is for approval, have you taken a look at the recommendations for conditions? Mr. Haiz: You are asking me to comment on the recommendation? Mr. Dahilig: Yes, on the conditions as part of the recommendation, do you have any objections to the conditions? Mr. Haig: I have no objections to the conditions. Chair: I would like to ask for a motion please. Mr. Kimura: Move to approve Use Permit U-2011-17 and Class IV Zoning Permit Z-IV- 2011-17. Chair: Is there a second? Ms. Matsumoto: Second. Chair: Discussion, any discussion on this, if not call for the vote, roll call please. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve staff recommendation, motion carried by the following roll till vote: Ayes: Blake, Kimura, Matsumoto, Texeira -4 Noes: None -0 Absent: Nishida, Katayama, Raco -3 Not Voting: None -0 NEW BUSINESS For Acceptance into Record—Director's Report(s) for Projects s Scheduled for Public Hearing on 8/9/11. (NONE). For Acceptance into Retort—Director's Report for Shoreline Setback Activity Determination. (NONE). ADJOURNMENT Commission adjourned the meeting at 3:00 p.m. Respectfully Submitted. -T- Lani Agoot Commission Support Cle Planning Commission Minutes July 26,2011 38