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HomeMy WebLinkAboutpc01-25-11minutes KAUAI PLANNING COMMISSION REGULAR MEETING January 25, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, James Nishida at 9:17 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. Hartwell Blake Mr. James Nishida Mr. Caven Raco Ms. Camilla Matsumoto Absent and excused: Mr. Caven Raco Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: On the approval of the agenda we are going to delete item D.l and move that to a separate time although I am going to be asking for public testimony in case anybody wants to speak on that and we are going to move the executive session to the end of the meeting. So can I have a motion to approve the agenda? Mr. Kimura: So moved. Mr. Matsumoto: Second. Chair: Moved and seconded, all those in favor say aye, opposed, motion carries. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve the agenda as amended, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Jan Kimura and seconded by Camilla Matsumoto, to receive items for the record, motion carried unanimously by voice vote. MINUTES—MEETING OF DECEMBER 14, 2010 On motion made by,Ian Kimura and seconded by Camilla Matsumoto, to approve minutes of December 14,2010, motion carried unanimously by voice vote. GENERAL BUSINESS Request(11/3/10) from Walton Hong,to amend and extend Special Permit SP-2001-5 Use Permit U-2001-8 and Class IV Zoniniz Permit Z-IV-200I-10 to amend conditions of the permit, Tax Map Key 2-7-001:001, 2-8-001:003, 2-8-022:0282-9-001:001, 2-2-003:001 2-9- 003:006 3-4-001:001 and 3-4-006:00lKoloa—Kauai ATV LLC Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report(on file). Chair: Questions for Lisa Ellen? FEB D S 2011 Mr. Blake: Can you use a pointer on the map to show where the trail is and where they want it to be? Staff: I would like to actually ask the applicant to point out the existing trials and I have prepared maps of the ones they have requested. Mr. Walton Hon>7: Thank you, good morning Commissioners. First of all this is Maha`ulepu Valley and our existing routes that we are allowed to go, go up this way and come down through Maha`ulepu Valley. This is the new, approximate new location of the Maha`ulepu Quarry and we are concerned because the trucks come in and out of the valley at the same time the ATV riders are on this route. So to avoid this conflict we wanted to eliminate this portion of the route and substitute it with a route that comes down from...right now there is an advantage point that comes down here and drop down the here,just to about here to the back side of CJM Stables. And then what they will do at that point is part the vehicles, walk down about 100, 150 yards to the bluff line overlooking the Maha`ulepu shoreline. They will not be on the shoreline. And then would take a view and then from there they would continue that tour back to the staging area. Mr. Kimura: That red line is the existing trail right now? Mr. Hong: That is correct. Mr. Kimura: How close to the stables will you guys be? Mr. Hong: Right on the backside of the stable. As you go to the stable you turn off the main road and then you go the stable and there is one road that goes straight to the stable and there is one that skirts on the mauka side of the stable. We will follow that. It is actually like there is arena where the stable is at, we will be on the backside of that. Mr. Kimura: So my question to you is how far away are you from the horses? Mr. Hong: On the roadway right next to the stables. Mr. Kimura: Because horses and ATVs do not get along. Mr. Hong: I would agree with you but the only activity within the stable area we would be affecting if anything would be the arena if they have events. Mr. Kimura: Yes but what I am saying is that horses and ATVs, motorcycles,machinery, they don't get along. Mr. Hong: I can appreciate that Commissioner. Mr. Kimura: And with the stables being there for x amount of years it would be kind of inconsiderate for us to put those, I guess cowboys, at risk with ATVs being up close and personal with them. Mr. Hong: The only response I can give is we haven't had any response at all from the stables. I think they know what we are doing. Mr. Kimura: You think they know? Mr. Hong: I haven't had direct contact with them Commissioner. I have seen cars that have actually driven to where we are going to park and I have never seen a horse there. I have been there maybe two or three times, we were walking it to see where it is. In all honesty I did see some horse droppings along the rocky ledge of the bluff line over here so I don't know where they come from the stables. I think they come from this side coming up this way; they don't go over the roadway. But we are going to be at least 150 yards away from the people who will be walking,not driving their vehicles to the shoreline. Planning Commission Minutes January 25,2011 2 Mr. Kimura: I would like to get input from CJM Stables as far as ATVs being next to the stables and how close to the trails and horses will the ATVs be. I just don't want to approve something and we are liable for somebody getting hurt. Ms. Matsumoto: 1.have another question. So this is one scenario that is being presented. Staff. That is one of the requests. There were three total requests. Ms. Matsumoto: My question is about this particular trail, did you explore other paths? Why did you choose this? Why don't go somewhere else? Mr. Hon>T: When the people take the ATV tours they expect something unique, something different, something adventurous. Because of the conflict with the quarry we are more concerned about conflict with the equipment and the heavy trucks coming in so we said okay, we will delete that, what can we do to substitute and is a fair substitution? And we looked at okay, we recognize that a view of the Maha`ulepu coastline is something different, something unique but we didn't want to go down to the beach because that would definitely conflict with the beach goers. So we went around and Iooked and saw the stables and okay what if we get to that point of the rocky bluff line with the shoreline in the distance? Now that would give the riders unique experience and at the same time not interfere with the use of the Maha`ulepu Beach and that was the reason we chose that. Mr. Kimura: But you would still be interfering with the horse rides,right? Mr. Hong: This is Mr. 011ie Rivera who is one of the principals with Kaua`i ATV and he knows the scheduling of his tours versus the stable. I will let him respond to that. Mr. 011ie Rivera: Good morning Commissioners. I talked to Jimmy before I started to go over there and I walked with him and where we are going, we are not going to be on the same trail that the horses are we stop before where he does his tours. There is a parking area, our turnaround area before getting to where he gets out with the horses on the tours so there is not going to be a conflict to be on the same trail with the horses. Mr. Kimura: So when you talked to Jimmy he said it was okay? Mr. Rivera: Jimmy at the time said it was okay. I went and talked to him when I was just scouting the area. Ms. Matsumoto: I also have the same concern about horse and machinery because we volunteered to clear land for the school as a project and I had parked my car along the side of a trail. And this was a trail, I don't know if this was part of the stable's path but there were horses that came by and we were sharing the path. And a horse brushed against my car and it was fine, I didn't think anything, but I was very surprised because the horse's hair actually scratched my car permanently and it shook the car. So there are two very strong...there is the machine and then there is also the horse and I just felt a little bit unsafe with that. And the car was parked. I would like to have also some kind of written authorization from the stables to make sure that they are okay with the path. Mr. Hong: We will address this issue definitely. Ms. Matsumoto: Horses are very large creatures and they are very powerful. I love them it's just that they are not small and insignificant. Mr. Kimura: If they are not trained right horses can spook very easily. The reason I say that is I have been riding for over 20 years, 25 years and like I say if they are not trained well they will spook on just about anything,paper package,plastic bag, more so with vehicles, motorcycles, ATVs, dune buggies, cars. Not so much cars but loud vehicles so that is my main concern is the horse spooking. If you can get a written agreement from Jimmy saying that its okay then okay. Planning Commission Minutes January 25,2011 3 Mr. Texeira: Can you tell me something about the entire tour, the length of the tour, exactly the tour it's self, the ATV tour. Does it take you through the tunnel and does it take you mauka of the Kaumuali`i Highway? Mr. Rivera: Right now we have two tours, one they call the three hour tour, Koloa, and the other one is the waterfall tour that we go up to Kahili cold pond and both travel through the tunnel and only one goes up to Kahili side. The one we choose an alternative route when the weather is so severe, it is raining and we cannot make it all the way to the cold pond so we choose this side to stay in the Koloa area. Mr. Texeira: So the two tours that you do, one is for three hours and that three hour tour takes you across Kaumuali`i Highway... Mr. Rivera: The three hours is only across the tunnel and we turn around by the shooting range, the police shooting range and we go down to the Waita Reservoir. Mr. Texeira: And the second tour takes you across to the waterfall? Mr. Rivera. Yes. Mr. Texeira: So are you proposing two waterfall tours? You have one existing one now and you proposing another one? Mr. Rivera: It is one waterfall on the way before the highway and another waterfall is very close to the trail and that is where we are proposing to make a stop at that one too. Mr. Texeira: So going back to the tour again, one is a three hour tour that doesn't take you across Kaumuali`i Highway, right? Mr. Rivera: Right. Mr. Texeira: Then the second one is how long? Mr. Rivera: The second one is four hours,the one that goes to the waterfall. Mr. Texeira: So one is three and one is four. Mr. Rivera: Yes. Mr. Texeira: Now if you were to eliminate that route that is proposed,the substitute route, what would be the difference in the timeframe? Mr. Rivera: Actually it is pretty much the same time, we keep it in the three hour tour as an alternative route because we cannot like I say right now no use in the Maha`ulepu Valley for certain reasons but the amount of time will be the same we go with the guests. Mostly on this one it will be more informative about the cave and the Maha`ulepu shoreline and that is where we would probably take more time in talking about and taking photos on the shoreline of Po`ipu. Mr. Texeira: On each tour how many ATVs do you utilize for each tour? Mr. Rivera: We maximize 12 vehicles, ATVs or dune buggies and we have two tour guides. Our vehicle is not really loud and they are (inaudible) so the speed limit we travel in that area is about 15 miles per hour or even less when we are on those trails. This is not a wild ride this is a scenic view tour. Chair: Can you describe the protocol that you guys use to move the ATVs? I have seen how you do it but I think you should describe how you set up the tour. I think you guys give a talk at the beginning. I guess you are going over rules, some of the safety things you guys have. Planning Commission Minutes January 25,2011 4 Mr. Rivera: When the guests check in we give a safety spiel how to operate the equipment and the rules of the road, They have to sign and print on paper how the rules are and even we emphasize a lot on the safety to not allow anybody to go wild or the rider, we can remove him, we tell him he is removed. It's not safe to be on the tour. We say this is not a wild ride this is a scenic tour so safety is our main goal in that. That is why all our vehicles have (inaudible) for safety. Chair: When they go out on the tour I see you have like a couple different employees with you. Mr. Rivera: Yes our tour guides (inaudible) look over the rider and see how they do. They are concerned where they go, give them the spiel of the place and make sure they are riding under safety guidelines. Chair: I didn't understand some of your answers to Herman so how many different trail routes do you have? Mr. Rivera: Right now we have two. Mr. Chair: And you are asking to replace one of them with another one? Mr. Rivera: A portion of one. Chair: So the one that goes, you provided this one, right? So the Maha`ulepu one bluff route, the one that goes by CJM Stables, is that an alternate route only used during rainy weather or is that going to be permanent? Mr. Rivera: That can be permanent and mostly is going to be used when we cannot make it into the waterfall for the bad weather. Chair: So it is not going to be part of the tour every time you go out on that particular tour. Mr. Rivera: We haven't done it for a while, using the Maha`ulepu Valley for safety but probably we are accessing that tour once a day in the morning. Chair: So how does the whole length of that...Lisa Ellen, you have them a copy of the map? So that is the total length of the tour that you are,the Kauai ATV,LLC trail to cost? Mr. Rivera: No this is only a portion, the route that we would like to take going down to Maha`ulepu. It is a lost less than the one we have right now with the Maha`ulepu Valley. This is the existing right now. It is all the way around the valley. The quarry is over here so we would like to not go over here in this area and just come in this portion right here, straight from here to here. This is already existing, it is only from here to here. Chair: So trace the whole route. Mr. Rivera: The Koloa tour, we do this and go through the tunnel, around, and come over here and do back to the staging area. In bad weather the four hours we used to take the same, go around here, go up to here and do not continue all the way here but turn around and come back. So this is pretty much an alternative we were using for the four hour bad weather rain and there is a lot of bad weather and rain and you cannot go over here because the stream, too much water. Chair: So for the next meeting if we could get the different routes you would be using, separately, the whole...incorporating the new one so that we can get an idea of what the new route you would be taking for the different trail rides. Mr. Rivera. Okay. Planning Commission Minutes January 25,2011 5 Ms. Matsumoto: Hove many tours do you have a day? Mr. Rivera: Right now, we used to have six tours, three years ago. Right now we maximum get two or three tours, summertime we can get up to five tours but from June to September is the busy time. Right now if we max five tours but it's not. Chair: Any other questions for the applicant? The 150 yards,up on the bluff you are going to say 150 yards, what is the reasoning for staying 150 yards away? Mr. Hong: The idea was not to stay away for any particular reason, only because as you come to the end of the existing roadway there is a natural area to park the ATVs. Cars can go down, I have seen fools go down and it's pretty rocky, pretty rough and we thought do we really want to take ATVs all the way down to the shoreline? We will let them park where there is an area where the vehicles can be parked without blocking anybody else and that is the reason for the selection, it was more the natural features there than anything else. Chair: Does the horse trail go along the coast there and go along that road? Mr. Hong: As I have said I have seen horse droppings along, part of my application had a picture of what it looks like and I have seen droppings along here but I didn't see any droppings on the roadway but of course I wasn't looking specifically for droppings on the road when I was walking down to see what the area looked like to the shoreline, that is when I saw the droppings. We can get -more information for you. Ms. Matsumoto: I would like to see their trails as well, their routes. I would like it... Mr. Kimura: Overlapping theirs. Ms. Matsumoto: Yes. This is a good start. You have your trail in red, if we could see theirs in another color on the same map. Mr. Hong: We will try to get information from CJI*iI as quickly as we can. Chair: Lisa Ellen, can you go over,well I had some questions about activity versus use, Walton can answer too but I thought if you could go over it first,the requirement for the Conservation Use permit. How does that work,they got something from OCCL saying because it is driving across...that was in the packet? Staff: Yes sir. That was actually solicited to the Office of Coastal and Conservation Lands during the previous land use, LUC amendment. They determined that just in traversing the conservation they did not require a permit from that letter, from Mr. Lemo's letter of December 10, 2004. I don't know that they would be required to have a CDUP. The Conservation District is actually just below this, it is a bluff line area so from the maps that I have read and reviewed the Conservation District along the coastline is outside of it. It is located within the SMA. I am not sure if I answered your question. Chair: Wasn't it related to the tunnel though too and then are we going to require another letter from them saying this is outside...have things changed at OCCL? Staff: The recommendation does get reviewed and after it goes through the Planning Commission, whatever the decision from the Planning Commission does go to the LUC so they would have that chance to review it at that time. Chair: After we pass the extension. Staff: I believe so but I could ask counsel. Mr. Jung: I think you solicited comments from OCCL before this though, right? Planning Commission Minutes January 25,2011 6 Staff. I actually solicited from LUC. Mr. Jung: So when it's over 15 acres you have to get County approval first and then get second approval from the LUC so it will get kicked up because the area in use is greater than 15 acres. Chair: So approval of this is going to require another approval by LUC. Mr. Hong: That's correct. Mr. Kimura: Does anyone else share this road? Does the public have access to this trail or road that you guys are planning on using? Mr. Hong: Yes the public does have access. I have seen cars,people driving, and tourists, locals driving there and parking and walking down. Some of them,actually drive over the last leg of this road right to the shoreline. Mr. Kimura: So what is the difference between the machinery, of course they are bigger, but you are concerned about the quarry. With the road that you guys are proposing isn't there going to be more vehicle access to it? Mr. Hong: I think the difference is when you operate the quarry you have huge machines, dump trucks and things going back and forth. Mr. Kimura: I understand that but as far as more vehicles on the road, wouldn't the public road have more vehicles being on the road versus the quarry road? Mr. Hong: We would stay on private trails or private previously haul cane road expect for the one portion we would cross...I am trying to describe this, as you go past the Hyatt there is a road that hits towards Maha`ulepu,that is a public road, we would cross that road, we would be traveling maybe a very short distance along that road to get across to the other side to where the stables are. Then we would follow that roadway that leads to the stables and then cut off before we hit the stables. Mr. Kimura: Do you guys have comments from the Koloa Neighborhood Association? Mr. Hong: No we do not. Mr. Kimura: Hartwell are you on the board? No? Okay, can you guys have comments from them too please? Mr. Hong: I don't know how often they meet. Chair: Mike, do you want to address this? Mr. Dahilig: Ultimately I wouldn't say it is compulsory but the more input in an application or a request for an amended application is always helpful so if that is a guiding principal I am sure the applicant is getting that message and they can do what they need to do. Mr. Kimura: I am not trying to pick on you guys or anything I just want to make sure the public is aware of what is going on. Mr. Hong: We will address an inquiry to the Koloa Neighborhood Board. Whether we get a response or not, I don't know. Mr. Kimura: Okay,thank you. Ms. Matsumoto: And that road that runs past the Hyatt belongs to Grove Farm I believe. Mr. Hong: I believe it is a private road and Grove Farm has allowed the public to access it. Planning Commission Minutes January 25,2011 7 Staff: May I add one more finding really quickly? I did pass out a map of the cave reserve. This is an SMA minor permit that was issued to Dave Bernie and does promote the trail growth, the restoration, there is another part of the trail guide because there are markers on it, they do encourage the public to park above the area that is part of the minor permit that was already issued to Mr. Bernie. And I think they are just bringing them to what this is which is the trail head. I just happened to pick it up on my site inspection,just so you know. Mr. Kimura: Who is Mr. Bernie? Staff. David Bernie is a local author and Paleontologist I believe. There is a little biography on...Pale-ecologist. I am just reading what is presented on what is on Mr. Bernie's literature. But he does a permit to do that and the boy scouts did do the trail improvements and it is a walking guided trail, self guided trail. Mr. Arryl Kaneshiro: Good morning Commission, I am Arryl Kaneshiro, Grove Farm. I just wanted to clarify all of the roads in that area is private roads, we own it, we allow the public to use them and access them during the day. So I just wanted to make that clarification. Mr. Hong: Commissioners, since after Bernie's name was brought up we do have a letter from Dr. Bernie and I guess this is his wife in support of this application and I would like to turn it over to the staff. Chair: Hartwell. Mr. Blake: We have a tax map was appended to the November P letter and according to the exhibit it says where the ATV route will occur. How do you know where, by looking at this map how do you know where the ATV route will occur? Mr. Hong: Well the tax map says where the amended route will occur and the parcel... Mr. Blake: So how do you differentiate on this map the present route and the proposed route? Mr. Hong: This was done by trying to locate where the stable is and from there where the different landmarks are. You can see that that map parcel No. 9 is a golf course so it is at the end of the golf course, we know that. So we are using certain landmarks to try to identify it as best we can and that is the best way we can find it. Once you get off the map it says plat 03,then you are looking at Maha`ulepu which we are not coming to Maha`ulepu. Mr. Blake: This map is a representation of the totality of where the route is and where you want it to be? Mr. Hong: No. The intention of the tax map was to give you an idea of the location of where we are going to go and then from there I have the other exhibits like the Google map that show and try to depict better where the routes are. I know it's not the best blow up of the Google but it's the best I could do from Google Earth. Mr. Blake: Since you are coming back can you use the tax map with two different colors to show where you are and where you want to be? Mr. Hong: What we will probably do is the colored photograph that was given by Lisa Ellen this morning, I think probably is the best depiction that we can ever get rather than coming off a tax map Commissioner Blake. I think that is probably more helpful to the Commission and I congratulate Lisa Ellen for preparing this map because I understand it was done using GPS. And the map does provide TMK lines, as you can see from that photograph you can see where the golf course ends which corresponds with the tax map, kind of a two fingered fork where it says on the tax map, parcel No. 9, it would be right at this point on that color photograph. And then from there we are right past there so just about that point. Mr. Kimura: I have a question. Planning Commission Minutes January 25,2011 8 Mr. Blake: Lisa, do they have a copy of the Kauai ATV, LLC trail to post? Chair: I think so. Mr. Blake: If you look at that copy I take it that the blue line is the proposed route, is that correct? Mr. Hong: That is correct. Chair: Portion. Mr. Blake: And the portion of the trail you mean to delete from your...or the portion of the tour that you mean to delete from the tour if the blue line is approved consists of the red line? Mr. Hong: No,the red lines I believe represent tax key parcels. The area that is going to be deleted is actually off this map, off to the upper right. Mr. Kimura: Will the ATV, if the proposed trail is approve how far from the golf course will the ATVs traveling and will it affect the golfers on the golf course, your coastal trail? Mr. Hong: For the very short portion when we go back onto the main road that leads to Maha`ulepu would be on the main road. Mr. Kimura: I am not familiar so I am just asking how far, 100 yards, 50 yards, 20 yards, 10 yards? Mr. Hong: For a portion of it we are right next to the golf course where the existing road is, the golf course abuts the existing road. Mr. Kimura: You are still not answering my question,how far? Mr. Hong: I would guess a couple hundred feet, maybe a couple hundred feet. Mr. Kimura: Again does the Hyatt know what is going on? Mr. Hong: I don't believe so because I don't think we are affecting their operations at all. Mr. Kimura: You don't think the noise from the ATVs will affect the golfers? Mr. Hong: Well the ATVs are muffled,they make no more noise than an automobile and if automobiles traveling on that road affect the golfers then I guess they would affect the golfers. I don't think it is anything significant. I would like to say no different than perhaps people golfing on Wailua Golf Course next to the cars traveling Kuhi`o Highway, they hear the cars. But the ATVs are not like motorcycles that aren't muffled, they are muffled. Mr. Kimura: Yes, I have three. Mr. Hong: Okay. I don't think there is going to be an affect. Mr. Blake: Going back to the Kauai ATV, LLC trail to coast map, where the blue line ends short of the coastline what is that white area in there right above the blue line? Mr. Hong: That would be the old quarry, old Maha`ulepu quarry. Mr. Blake: And the new quarry is where? Mr. Hong: If you look at this map it is really up in this area here. Planning Commission Minutes January 25,2011 9 Mr. Blake: So it's off the map. Mr. Hong: Off the map, that is correct. Mr. Blake: And there is presently no activity at the old quarry expect for restoration. Mr. Honiz: I don't know. I represented Glover Honsador on that. I understand they have shut it down but there may be some processing. I am not sure exactly, there is no more quarrying though as far as I know. I may be mistaken I just don't know. Mr. Kaneshiro: Arryl from Grove Farm. I think they are in the process of shutting it down. They have two years I think to shut it down or August of this year to shut it down. I know they are not doing a lot of quarrying out of that quarry anymore. Mr. Hong: Just to address potential concerns this route that we have taken with the existing road by the stables is quite a ways away from the old quarry and you actually have to hike to a bluff overlooking into the old quarry. So we will not be affecting the old quarry whatsoever. Mr. Dahilig: I think Walton, what I am hearing from the Commissioners and Commissioners correct me if I am wrong but this proposed trail goes actually into an area experiences more intensified human use compared to where these other trails are going. And there are certain elements like the golf course, like the stables, like people that are going to the beach that maybe the go around would be helpful to have an evaluation of what types of noise impacts and also activity impacts would be incidental to having the ATVs go on this route. And maybe having that conveyed back to the Commissioners in terms of what are the decibel levels and those types of things just so that I think some of the concerns about the noise of ATVs and disturbances to uses that are already going on in the area I think would be helpful for their evaluation. Mr. Hong: I am not sure how to respond to that. Chair: Just to clarify, Jan, they contacted and got a response back from Po`ipu Bay Golf Course,the Hyatt golf course, if we would get something from them rather than decibel levels. Mr. Kimura: If we got their okay as far as the golfing experience. To please one business and then ruin another, it just doesn't make sense. I am not saying you are going to ruin the whole golfing experience but just that certain hole where you are passing. Mr. Hong: We will try our best to do that. Chair: Any other...? Ms. Matsumoto: It looks like from this map that we are looking at the only way for you to get to I guess the coast would be that route. It doesn't look like there are other options to take you for instance away from the stables or farther away from the stables. Mr. Hong: The problem is that we don't want to go down to the Maha`ulepu beach it's self. Ms. Matsumoto: I know that. Mr. Hong: We want to stay away from that so that puts us in a limited corridor and then we have the golf course and then we have the stables. So we are trying to find a way where we can give the riders a view of the shoreline with minimal impact to everybody else and we determined that that was probably the best route we could find because it uses existing roadways, it doesn't require any kind of improvements. We are just going to follow the existing roads, they are already there. Planning Commission Minutes January 25,2011 10 Ms. Matsumoto: Because I am looking at the white areas, that is the old quarry, and that is going to be, it won't be in use so would it be possible for you to say for example access a view of the coast from by going either through it or around it? Mr. Hong: No because of the topography. The quarry is pretty low and this trial is on a bluff, actually if you hike up there I am going to guess it's a pretty good drop to the quarry floor. Ms. Matsumoto: Thank you. Mr. Kimura: I just wanted to make a comment. I am all for the total guest experience, it will always bring them back if they have a great time here and that is what it is all about, trying to give the tourist the best experience we can on Kauai to have them return. But we also have to put into consideration that with your proposal it will affect two different businesses as far as the trail rides and the golfing. If you guys can somehow work that out with the owners of those establishments I don't see a problem with it myself. I just have to put them into consideration. Mr. Hong: I have that on my check list. Chair: Hartwell, do you have the site location? We can take a break and make sure that you know exactly where the site is. Commission recessed at 10:07 a.m. Meeting was called back to order at 10:24 a.m. Chair: I think where we are at is we are going to need some better maps of the routes, old and new, and I think if we could get a location...the whole route and the end too. Like the waterfall,the location of the waterfall and we had some questions...any questions about the waterfall? Mr. Texeira: Can you describe exactly where the waterfall is,the situation, trails and accessibility right now? Mr. Hong: The waterfall we are talking about is right off the existing route, actually if you didn't know it you would pass right by it. But what we want to do it stop and maybe hike 30 or 40 feet to look at it. It is not a big waterfall, it is probably I am going to say 10 or 12 feet in height and then get back on the ATVs and continue the route. It is on the makai side of Kaumuali`i Highway pretty close to the underside of Halfway Bridge in that particular area. Mr. Texeira: You cannot access it from the main highway? Mr. Hong: Not on public roads you would have to go over private roads to get there. Mr. Texeira: But there is a private road from the main highway that goes past that waterfall? Mr. Hong: Let me see if I can describe it. As you go on the Hanapepe side of Halfway Bridge if you notice there is one place with large gates on both sides of the highway, if you turn on the left side heading in the makai direction you follow that road which is a private road and you make a couple turns and you head down towards the direction of Halfway Bridge. It's right in that vicinity. Chair: Can we get a picture of the waterfall it's self• Mr. Hong: I think I have one some place in my files. Chair: And then the picture of the trial that you have, it looks like an existing trail that you are cleaning up. Planning Commission Minutes January 25,2011 11 Mr. Honiz: That is correct. That was for the old ditch men before when they used to raise cane in the area and all we want is to clean it up and make it safer. Chair: So none of the proposed uses that you are proposing are going to create any new trials, you utilize existing trails and existing roadways. Mr. Hong: That is correct. Mr. Texeira: So the trail that you are proposing or that ditch man's trail right now, you are going to be driving on there. Mr. Hong: No. They will be on an existing road, they will park on the side and get off and walk down this trail to see the waterfall. Mr. Texeira: And they will be looking from above the falls? Mr. Hong: No they will be actually walking down more to the base of the falls. Mr. Texeira: And what will be at the base of the falls? Is it going to be cleared? How are you going to treat that area? Mr. H_ ong: Right now it is fairly clear of vegetation. There are some towering trees like a canopy but other than that we are not going to do anything in there. Mr. Texeira: You are not going to propose any portable toilets or anything of that nature? Mr. Honl;: No. Mr. Texeira: They won't be having lunch down there? Mr. Hong: No. They are not even going to be entering the water at the waterfall it is just to look at it, photograph it if they want to and come back up and get back on the vehicles and continue on with the tours. Mr. Texeira: That would be an exclusive provided by Grove Farm, exclusive agreement that no other ATV or anybody else would have access to that waterfall? Mr. Hong: I can't speak for Grove Farm. Mr. Texeira: Grove Farm is right here. Mr. Kaneshiro: Right now it is exclusive, they are the only ones that have wanted to use the waterfall or utilize the waterfall so as far as it goes right now they are the only ones with the use of the waterfall. Mr. Texeira: Do you plan to give them an exclusive contract or are they just going to use the waterfall? Is it kind of open ended as far as you guys are concerned? Mr. Kaneshiro: It's pretty open ended. We will allow them to use it. If there is another better use for it we can't say we are not going to let anybody else use it but for right now we have no other interested parties in it. Kauai ATV is probably the best ones who are using it anyway right now so we have no plans for it. Mr. Texeira: So Kauai ATV will be up-keeping and you guys won't be touching it at all. Mr. Kaneshiro: No, Kauai ATV will be up-keeping the area. Chair: Any other question for the planner or the applicant? Planning Commission Minutes January 25,2011 12 Mr. Blake: I just wanted to say that I read Mr. and Ms. Bernie's letter and I commend Kauai ATV for its joint efforts with the Bernie's to keep this place pristine, thank you. Chair: See you folks next time then as soon as we can schedule it. Anybody in the public want to speak on this agenda item? Seeing none... SUBDIVISON Mr. Kimura: Subdivision Committee Report No. 10, committee members present,me, Cammie Matsumoto and Herman Texeira. General Business,none, Communication, none, Unfinished Business,none,New Business,tentative subdivision action, S-2011-1 for Princeville Golf Course, LLC, QEB III, LLC, TMK: 2-3-006:022, 045, approved 2-0. I wasn't there I had to recuse myself on that particular agenda item. Tentative subdivision action extension request, 5- 2007-02, Falko Partners, LLC, TMK: 5-1-003:006, 009, 011, 013, 017, 018, 022, and 029, approved 3-0. Tentative subdivision extension request, S-2007-38, SVO Pacific Inc, Kauai Blues, Inc, TMK: 2-8-016:004, 2-8-015:043, 044, and 082, approved 3-0. Can I have a motion to approve? Ms. Matsumoto: So moved. Mr. Texeira: Second. Chair: Moved and seconded, discussion? Mr. Blake: I have a question. This was on Falko Partners,just for clarification on the County findings background portion of the report it says that"once executed by the respective parties the applicant can obtain final subdivision map approval by the Planning Commission." Now if they have map approval but they don't have the infrastructure installed yet they can start selling lots. Chair: Right. Mr. Blake: I know they have to put up a bond I believe. Mr. Dahilig: Yes there are a number of requirements as well as recording requirements before they can actually go ahead and sell the lots. In this particular case it does lead to that but they still need to have it recorded with the Bureau of Conveyances as well as added on the maps and also post bonds, etc. So there are a number of post final actions that need to be required before they can sell. Chair: And if they bond it they cannot get a building permit until the infrastructure is in place or can they get building permits? Mr. Dahili : You mean in terms of actually putting in the infrastructure or in terms of going vertical? Chair: I was talking about a house. Mr. Dahili : As far as I understand they cannot until they put in everything they cannot go vertical. Mr. Blake: So no building permits for any lot in the subdivision until all the infrastructure is... Mr. Dahili l7: Part of it is if there are no tie-ins obviously the Department of Health is not going to sign off on things like water tie-ins or sewer tie-ins, etc., same as with the Water Department. So all that infrastructure is critical towards the building permit actually being signed off by the respective departments and if none of that infrastructure is in there, for health and safety reasons they are not going to approve these things. Planning Commission Minutes January 25,2011 13 Mr. Blake: I note on the bottom of page 3, second to the last paragraph, it says "In furthering considering the request it is noted that the applicant should have the construction plans recertified annually with the affected approving government agencies in order to assure that construction standards identified in the plans are current. Also that the applicant should submit an updated construction cost estimate to the reviewing agencies for their review and approval. As a result the bond for the improvement should be adjusted according to the updated construction cost estimate." So if they are not going to...why are they putting up a bond at all if we are not going to issue subdivision approval, final approval, until they are done? Chair: No, they received final subdivision approval so they can sell but you cannot get a building permit for the house until the infrastructure is in place. Mr. Dahili : There are still a number of items that still need to be...so you can have the final approval but there are still a number of conditions that still need to be ticked off. For example up in Kealia they have final subdivision approval but they haven't put in the infrastructure so certainly there are some issues with respect to filing. I don't want to go into those things but let's say all the paperwork is clean, they can actually sell these things off but they cannot go vertical on any of it because the subdivision has not been, or sorry the infrastructure has not been put in yet. And it is also right potentially for the Commission to come back and in and say hey you guys did not meet your end of the subdivision agreement bargain therefore we can try to take action and pull back on the final subdivision approval. Chair: But the only way they got the final subdivision approval was because they posted the bond for the estimated amounts. Mr. Blake: That was my concern, not with Falko specifically but generally. I wanted to subdivide (inaudible) so I submit all my plans and everything is stamped and it goes through all the agencies and everybody puts a good housekeeping stamp of approval on it but I haven't actually dug the trenches yet to put the electrical, sewer, water lines in. I receive final subdivision approval and because I want to sell lots and start to recover some of my costs I put up a bond to finish the infrastructure. Now, what if I never finish the infrastructure? Then it becomes our duty,the County's duty to put it in for their customers? Mr. Dahili : That is a good question Commissioner. The County has the option to pull the bond. The bonds are always written in the County's name but whether the County chooses to actually take on the responsibility of putting in the infrastructure for defaulted or defunct project becomes a policy call essentially whether the County wants to assume that responsibility. So when you do your conditions of approval for the subdivisions the condition requiring the bonds which is codified in the ordinance is something that is meant to protect the County in the event that they do want to go in and let's say build a park as part of the infrastructure requirements or put an extension on a road that is like a connecter road. But it really at that point becomes a discretionary call whether the County wants to assume and let's say put in waterlines and roads for 1,000 homes on private land,the County may not want to do that, to facilitate a defunct project. So it really becomes a case by case situation. Mr. Blake: And that is the thing that concerns me. This is what a 15 lot subdivision I think, not tremendously large. Still, depending on terrain and so forth it could be really expensive to put the infrastructure in. So subdivision lots are sold, the subdivider for whatever reason is not putting in his infrastructure so now everybody looks at the County and says you have the bond, you do it. Okay we do have the bond, we could do it. What do we get for all this extra work that we have to do? We have hiring freezes now, we hope we don't have to do furloughs anymore so it's not like we have guys sitting around looking for projects to go finish for people who don't finish themselves. Mr. Dahili : That is correct. Mr. Blake: I think I have had two personal experiences with bonds being called. We always lose money. It has never been a perfect wash and we eat it. Planning Commission Minutes January 25,2011 14 Mr. Dahilig: And I think that is part of what comes into the policy calculist when a bond could be potentially pulled on a project because of the developer's default and in certain situations the County says yes, and in certain situations the County says no. Your experience previously with those two subdivisions was probably telling about the risk the County assumes once they want to take over the construction of infrastructure. So that really does come into play when those discussions do come up and there are a couple developments right now that are in default and obviously there is pressure from those that have purchased lots to actually try to facilitate some type of County pull. But ultimately what is weighed on the County and I don't know if the County Attorney wants to weigh in on this, is what is the benefit to the public, what is the risk to the public, and does this project continue to make sense for the overall land use and planning aspects of the island. Mr. Blake: That is exactly what I am concerned about. If you come in and apply to develop and you are within the four corners of the law we have to issue the permit and we do. But as soon as you want dispensation from the County, less parking, less landscaping, different kind of drainage or whatever then the next question is the public getting for this? And to me that is a paramount issue when it comes to development even before they decide they cannot go through with their obligations. And so if we have to pull the bond then that should be worth something to the people. Mr. Dahilig: I agree Commissioner and in the alternative also what we have been exploring in-house is if bonds lapse or there are other conditions in the subdivision agreements that are defaulted as a consequence of a defunct project, whether the department should move forward in actually trying to revoke final approval through some type of contested case hearing before the Commission. So it is unusual but at the same time we do take seriously the duty that we have to make sure that the obligations that these applicants come in with,the subdivision agreements that they do sign are followed through with and executed and not just left to rot. So that is something we are exploring and we have had discussions with Dale in-house about whether there are certain projects that maybe we do need to look at coming and initiating some type of(inaudible) cause before the Commission. Mr. Blake: And again that is why, I mean I feel for someone who has put their life savings into acquiring a lot that is kind of disappearing and that is why I get concerned about extension after extension after extension. Is it getting better or are we just postponing the inevitable? I don't know how to answer that but often times it seems like if you come in and say you have been making a good faith effort to clear the site and whatever, I need another year or two or three or five and it hasn't been a rigorous exercise in justifying why you need the extension. But when you are coming on two, three, and more extensions then you start to wonder if you haven't sold any lots then no harm no foul. But if you have sold lots then you have all these other people involved and who do they look at? The one rock in existence and that is the County. Mr. Dahilig: It's true. Mr. Blake: So I am just concerned about that and I just like to express my concerns so that the word gets out that it's not automatic and if you can't then it better be some reason that is beyond your control, not just run out of money. Mr. Texeira: This is a follow up. I think it is a very good point that you made Hartwell. I just want to know, as a Commission, instead of just expressing our concern what can we do about it, what can we recommend or is it out of our hand? Mr. Dahilig: I think it falls under the responsibility of the department to monitor the compliance with these subdivision agreements. And certainly once it becomes time for us to enforce these agreements we will be having discussions with the Commission and letting them know about what our monitoring has revealed and whether subsequent action needs to be taken by the Commission to rectify these defaults. So we hear the message that the Commission is concerned about follow through with meeting the subdivision obligations as well as the bonding of projects and whether the level of scrutiny that needs to be involved and whether a bond is pulled or not and the policy considerations that are taken into calculations. I hear you Planning Commission Minutes January 25,2011 15 Commissioner and it is something that we are slowly trying to get in to a grove in terms of evaluating those projects that are outstanding and need to be notified that they are in default of their agreements. Chair: Other questions? Mr. Kimura: Who sets the amount of the bond? Mr. Dahili : What happens, it is a complicated process where the required infrastructure is actually brought to a certain level of design and then from there is valued by the number of entities, other agencies like Public Works, Water, and from there that sets the amount of the actual...and Building Division, they set the amount of what is the fair market value to construct something like that. Mr. Kimura: Do they take into consideration that if these guys fail to build the infrastructure that they kind of up the amount for the cost it will cost them say five or ten years from then? Mr. Dahilig: It's a guesstimate that is done at the time and I can't speak for the other departments how they come up with these values and I don't know if they actually take into account some type of inflationary factor or cost of construction factor. In some situations it actually may be less because of the way the construction market is right now so it may have been valued at a high before the 08 crash and now because people are looking for work it actually could be cheaper. So it is a moving target and certainly it is not an exact science but it is a guesstimate at the time that the subdivision approvals are bundled. Mr. Kimura: But they do take into consideration that when they do have to pull the bond that the cost will probably be higher, right? Mr. Dahili a: It is likely and especially as Commissioner Blake had mentioned, when you do start pumping money through the State Procurement process as well there are obviously some factors that may accelerate or increase the costs as well. And that is again part of the risk of the County assuming responsibility for installing some type of infrastructure that wasn't done previously and if it is not completed then the County may be on the hook for change orders, unforeseen environmental circumstances, etc. Mr. Blake: I was reassured to see that the County can require them every year to update the costs and I think there should be a tickler system on that as soon as we start to wonder about whether it is going to get done or not so that it does get done. Mr. Dahili : Part of it is also just a consequence of, the Building Department permits, they do stale as well as, well I can only speak for Building that I know but they do stale after a certain amount of time and so that is why they have to come in also as a matter of the ordinance to come in and actually update their plans and update the costs. Chair: Okay, moved and seconded, all those in favor of approving the subdivision report say aye, opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to approve Subdivision Committee Report No. 10, motion carried unanimously by voice vote. UNFINSIDHED BUSINESS Zoning Amendment ZA-2011-2 (Draft Bill No. 2380)to Sections 9-2.13 & 9-3.4 of the Subdivision_Ordinance, Chapter 9 of the Kauai County Code (1987), as amended relating to exemptions from infrastructure improvements involving the consolidation of lots and approval of preliminary subdivision map respectively=Kauai County Council. [Hearing continued 11/23/10, closed 12/14/10.1 Supplemental Director's Report pertaining to this matter. Planning Commission Minutes January 25,2011 16 Postponed. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4. 92-5(a)(4) and 8 Kauai Coun Charter Section 3.07E of the Office of the Count Attorney requests and executive session with the Planning Commission to provide„a„briefing regarding legal issues related to the implementation of Kauai County Charter Section 3.19. This briefing an consultation involves the consideration of the powers duties, privileges immunities and/or liabilities of the County as they relate to this agenda item On motion made by Herman Texeira and seconded by Camilla Matsumoto, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 11:15 a.m. Commission adjourned the executive session at 12:15 p.m. CONINTUED PUBLIC HEARING (NONE) NEW PUBLIC HEARING (NONE) NEW BUSINESS (NONE) ADJOURNMENT Commission adjourned the meeting at 12:15 p.m. Respectfully Submitted. Lani Agoot Commission Support Clerk Planning Commission Minutes January 25,2011 17