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HomeMy WebLinkAboutpc8-9-11minutes KAUAI PLANNING COMMISSION REGULAR MEETING August 9, 2011, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair,Herman Texeira at 9:20 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 Ms. Camilla Matsumoto Mr. Wayne Katayama Absent and excused: Mr. James Nishida Mr. Caven Raco Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: The first item on agenda is the approval of the agenda; could I have a motion 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 approve the agenda, motion carried unanimously by voicO vote. RECEIPT OF ITEMS FOR THE RECORD Chair: I would like to also have a motion for the receipt of items for the record please. Ms. Matsumoto: Move to receive the items. Mr.Kimura: Second, Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto arud seconded by Jan Kimura,to receive items into record, motion carried unanimously by voice vote. MINUTES—MEETING OF JULY 12,2011 Chair: Has everybody read the minutes? I need a motion please. Mr. Kimura: So moved. Ms. Matsumoto: Second. Planning Commission Minutes August 9,2011 1 AUG 3, 0 2011 Chair: Any discussion on the minutes,if not all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve meeting minutes of 7/23/11, motion carried unanimously by voice vote. Chair: Those of you who havo the agenda in front of you we are kind of modifying,we are changing the order of the agenda and that is instead of item A we are going to go right into the subdivision report. SUBDIVISION Mr. Kimura: Subdivision Committee Report, committee members present Commissioner Kimura, Matsumoto, and Blake. General business none, communications none,unfinished business none, new business, tentative subdivision action, 5-2011-21, Kukui`ula Development Company, Hawaii, LLC, TMK: 2-6-019:022, 023, 024,was deferred. Tentative subdivision action request, 5-2006-12, Visionary LLC, TMK: 3-7-003:020, approved 3-0. Tentative subdivision extension request, 5-2006-24, D. R. Horton/Schuler Homes, TMK: 3-7-003:020, approved, 3-0. Tentative subdivision extension request, 5-2206-27, Grove Farm Properties, Inc, TMK: 3-3-003:041, postponed. Tentative subdivision extension request, 5-2006-44, George Hoffberg, TMK: 4-3-003:004, deferred. Tentative subdivision extension request, 5-2009-01, Alexander Baldwin Properties, Inc., TMK: 2-1-001:003, 051, deferred. Tentative subdivision extension request, 5-2009-21, Grove Farm Properties, Inc., TMK: 3--3-003:041, approved 3-0. Chair: Thank you, is there a motion to approve the subdivision report? Ms. Matsumoto: So moved. Mr. Blake. Second. Chair: It has been moved and seconded, is there any discussion on these matters, if not I certainly would like to ask a few questions if I may. Number one is why the deferrals on these matters? Mr. Kimura: Most of these properties need to be worked out with Public Works and the Water Department. Chair: They had requested extensions so why were they not given extensions to work on these... Mr. Kimura: They were given extensions. The deferral and postponed was...hold on, Dale is coming. Chair: I seem to be the only one that is confused. Staff Planner Dale Cua: Mr. Chair, in regards to item D.1 a and D.2-d, both applications were deferred due to legal matters regarding those two applications. Chair: Excuse me Dale, the applicant did not request a deferral? Staff. No. Chair: This is just a departmental thing. Staff: Yes. And then for item D.2.e it was deferred, the applicant was absent. And then for the postponement for D.2.c the committee members actually took action on this particular extension request back in February so this particular application was inadvertently listed on the agenda. Planning Commission Minutes August 9,2011 2 Chair: Okay. The item 2.d,the extension was granted? Staff: Item d... Chair: B as in bravo. Mr. Kimura: Yes it was. Staff: B, yes. Chair: 2.b was approved, the extension was granted? Mr. Kimura: Schuler Homes, yes. Chair: In this case it was their last; this is going to be their last extension request? Mr. Kimura: We hope so. Chair: Okay but that was mentioned in the staff report. Staff: Yes, that was the department's recommendation. Chair: So that was approved by you folks. Mr. Kimura: Yes. Chair: The question I have is between items 2.a and 2.b; they are in the same general area. Staff: Yes. Chair: 2.b is actually one of the blocks, one of the subdivision blocks that was accepted some time back. Staff: Correct. Chair: So the other blocks in that area, Grove Farm has come in for extensions on those blocks, right? Staff. Yes. Chair: Okay, thank you, anyone else besides, me that have any questions on that? If not thank you for your information, I appreciate it. There being no further discussion on the matter, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve Subdivision Committee Report, motion carried unanimously by voice vote. Chair: Just to let the public know that we have two business matters and we have to go into executive session. The executive sessions should take about half hour. GENERAL BUSINESS MATTERS Executive Session: Pursuant to Hawaii Revised Statutes Section 92-4, 92-5(a)(4) and (8) and Kauai Cojmt�Charter Section 3.07(E) the Office of the County Attorney requests an executive session with the Planning Commission to provide a briefing regarding legal 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. Planning Commission Minutes August 9,2011 3 .................__. ............................... .......... ... Executive Session: Pursuant to Hawaii Revised Statutes Section 92-5(a)(2 and 4)the purpose of this executive session is to discuss matters pertaining to the evaluation of the Interim Plannina Director. This session p ertains to the Interim Director's evaluation where consideration of matters affecting privacy will be involved. Further, to consult with legal counsel re ardin powers, duties, privileges, and/or liabilities of the Planning Commission as it relates to the evaluation of the Interim Director. On motion made by Camilla Matsumoto and seconded by,Tan Kimura, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 9:24 a.m. Meeting was called back to order at 11:47 a.m. Chair: We will be changing the order of the TVRs in Unfinished Business, we will be taking the Summers Special Permit first. UNFINISHED BUSINESS Special Permit SP-2011-34 to permit use of an existing single family residence for Transient Vacation Rental pLiWoses as permitted by County of Kauai Ordinance 904 in Moloa`a, Kauai, approx. 300 ft. west of Moloa`a Road, further identified as Tax Map Key 4-9- 13:23 and containing an area of 9,714 sq. ft. =Summers Revocable Famaly Trust. rHearings Office Special Meeting 8/5/11.1 Chair: I would like to ask if there is anybody in the public wishing to testify on this item, not the applicant yet,just the public. We just want to receive public testimony as required by law. There being none I would like to ask the Commission if we have any questions, you have reviewed the application and do you have any further questions of either the Planning Department and/or the applicant? Mike what I want you to do, do we need to summarize a little bit for you folks or are you familiar enough with this particular case? Would you like a brief summary? Mike could you just give us areal brief,just update us, not update but give us a brief summary on this project please. Staff Planner Mike Laureta: Do you want me to put up the map and start from there, location map? Chair: You have one available? Staff: A thousand scale. Chair: Why don't we don't that then so that we can brief the Commission and then we will give the applicant a chance to come up. Staff. Information, the subject property is located in the Moloa`a, it is actually adjacent to and mauka of the very first application that came before you, David Houston. It is located by this red pin, Kuhi`o Highway, Moloa`a Valley, even though it is districted State Land Use Ag. by the State the whole valley is zoned Open to recognize the constraints within the Valley. The subject property is not a CPR it is a legal lot of record. It is small, approximately 9,714 square feet in size. The applicant has satisfied the requirements of Ordinance 904 and the notification requirements. The provisional nonconforming use permit was issued January 31, 2011. The Special Permit requirements, the property is less than the required 5.0 acre size that is necessary for Ag. dedication. The property is 9,714 square feet in size or .22 acres in size so Ordinance 904 standard No. 3 is applicable which is the size, shape, topography, location or surroundings of the property or other circumstances did not allow an applicant to qualify for an Ag. dedication or inhibited intensive Ag. activity. Planning Commission Minutes August 9,2011 4 Agricultural activity does exist on the property however, a number of fruit and flower trees have been planted for personal consumption and use and enjoyment by the guests. The property was inspected by the department and Engineering Department, based on the soil types and ratings there are limitations applicable to this property, high water table, subject to flooding. Internet advertising, Moloa`a Mahena Hale,exhibit 5 is attached to your staff report and the agency comments are attached. Are there any questions? Mr. Blake: What are the constraints present that supports the Open District in Moloa`a? Staff. The flood designation for the entire Valley, the soil constraints, it is E class soils and the soils exhibit a high water table, it floods occasionally. The soil productivity rating is an E, A to E, best to worst, so it is not good soil and the high water table and poorly drained soils. Mr. Blake: So the flood constraints are from mauka or makai? Staff. Mauka to makai. Mr. Blake: In other words the flood threat from mauka or from makai. Staff. Both, it is a drainage area too, the stream, Moloa`a Stream, the flood zone designation as draining and then you have some designation of the tsunami inundation. Chair: Mike does that drain back up once in a while? Is there any blockage to that drain as you approach the ocean closer to the shoreline? Staff: It would be seasonal as in all the streams on the island during certain seasons it blocks up with the sand plugs and eventually it will blow out with heavy rains. Chair: Anyone else? Any other Commissioners have any questions of Mike? Mr. Katayama: Is this the same water system that services the Houston facility as well? Staff. Yes, private. Mr. Katayama:. So as the number of users, does this change the number of users on that system or the capacity of that system? Staff: What changes? Mr. Katgyama: By granting the TVR does that intensify the water demand? Staff. No. Mr. Katayama: And is there a requirement on maintenance on that system? I think as we were going through the Houston application representation was made that there was a collective, 3 or 4 units,that were serviced by a private water system and the maintenance of that system was provided through I guess one of the owners. And as we intensify the use to third party exposure does that change? Staff No it doesn't,the use doesn't change. Mr. Kata ama: For domestic water use? Staff. No it doesn't. Chair: Anyone else? The.ce being none, Mike, could you provide your conclusion and your recommendations please. Mr. Blake: I have one question, how far is the hydrant from this residence? Planning Commission Minutes August 9,2011 5 t Staff. If you look at exhibit 2 of staff report it shows the location of the subject property and across Moloa`a Road there is the location of the fire hydrant. Chair: Does that satisfy your question Hartwell? Mr. Blake: How much distance is that? Is that 300 feet? Staff. This is a reduced map so the scale is a bit off. Let me ask the applicant's representative. Do you have the distance to the hydrant from the applicant's property? Mr. Mamaclay: That doesn't come to my mind from my memory but Mr. Blake if you look at exhibit D it will show you graphically the distance of the nearest hydrants. It is on this map here. I believe it is within 300 feet, for the record, Bryan Mamaclay, authorized agent for Mr. Summers. Chair: Thank you Bryan. Mr. Mamaclav: Exhibit D, there are 3 or 4 maps so it shows graphically where the hydrants are in relation to Mr. Summer's property shaded in yellow. So that hydrant right along Moloa`a Road,I believe it i§within 300 feet. Chair. Hartwell, no further comments? Thank you Bryan, we can go ahead and have the conclusion and the recommendation by Mike. Staff. The evaluation covers the provisional permit considerations, the Special Permit considerations and I will start with the conclusion (Staff read conclusion and department recommendation, on file). Staff also has one additional condition to impose but we will do that afterwards. Chair: Does the Commissioners have any questions conditions just read by the planner? Mr. Katayama: Mike in condition 7 what determines the minimum insurance coverage? Staff: As previously explained for the Houston application the staff determination was those TVR properties that had difficult access which means they didn't have 24/7 access to a roadway they would be paying 3 million. For those that had access directly to a County standard road or paved road,there were no access issues that would be 1 million. Mr. KatUa a: And is that per occurrence? Staff. Good one. Mr. Katayama: I guess we need to add that language. Mr. Jung: Well the policy would be under their existing policy and we would be an additional insured. So normally these things are on an occurrence basis but if that is something you want to put in you can certainly do that. Mr. Katayama: And on condition 16 you amended that? Staff: Yes, based on the comments received from the public hearing and the realization that yes,this is not a CPR, that language "in the subject CPR unit" should be removed. Mr. Katayama: So we need to make an amendment for that. Staff. Yes. Chair: As read. Okay we can go ahead and just make an amendment as read by the planner. He has made the change already, correct. Planning Commission Minutes August 9,2011 6 Staff: Yes,I read it. Mr. Jung: I would wait to make any amendments until there is an actual motion. Chair: So we will duly note that. Jan do you have any comments? Mr. Kimura: Condition No. 8, Special Permit shall be renewed every two years, why two years and not one? Staff. This template follows the Maui template; the one year is the transient vacation nonconforming use permit is renewed every year; the Special Permit will be renewed every two years. That means any permit approved will be coming in fb�renewal of either the TVR permit every year and the Special Permit every two years. So at the second year we will find out if all the conditions of approval are being satisfied or have been satisfied or whether or not any problems are being created in the immediate neighborhood. Mr. Kimura: Ian, if I decided to make a condition to change do I do it now or do I do it after we close the public hearing? Mr. Jung: The hearing was closed on this so I would wait to make any amendments until after... Mr. Kimura: There is a motion. Mr. Jung: Well once the applicant speaks you guys will enter your discussion and ultimately make a motion. Chair: Anybody else, Hartwell. Mr. Blake: Going back to condition No. 7, is there any reason why the County doesn't require a policy to read that the County is co-insured along with the owner? Mr. Dahilig: It is probably best to refer that question over to the County Attorney to answer. Mr. Jung: I was just tracking my memory on this we had this issue with Houston. It is just in a policy so it won't necessarily have the County listed as an additional 'insured it is just to ensure that they do have a policy. And so that policy then if there is any claim against the County that policy will ensure that we can have that indemnification provision. So a co-insured, it is hard to have co-insured or additional insured when the County actually has no interest in the property so it is normally done with like a lessee type situation or you issue a license for the County's property to be used by another group. Mr. Blake: But every time something happens the County gets sued for even just for granting the permit. Mr. Jung: And that is why we require that they file an indemnification agreement and ghat is condition 12. Mr. Blake: Well how is the County to be informed if the applicant does not maintain the policy? Mr. Jung: If they don't have a policy then they would be in violation of one of the conditions. Mr. Blake:. I know but the policy lapses, something happens, we can say well you are in violation so we are going to jerk your permit but it is too late already. Planning Commission Minutes August 9,2011 7 Mr. Jung: Well we can require them an additional condition to suggest that when they come up for the renewal they have to provide evidence that they still have insurance on the property. Mr. Dahilig: It is something procedurally that first off when they do give us a copy of the policy the policy has to extend past the date of the permit in terms of when the first Special Permit would lapse. Then if they were to come in for a renewal we would ensure that on an annual basis that a copy of the policy or renewal policy does have an expiration date th<<t goes beyond or ends at the date that the renewal would be good for. So it would be part of our procedures under section 8 if we were to extend this we would have to ensure that compliance with all conditions including condition No. 7 would be met. Mr. Blake. Well that is well and good but if t�e policy lapses and we don't know that and the use continues and there is a problem then it doesn't matter that they have agreed to indemnify us we are still scrambling for coverage. So is there any problem with having the policy read that if it is in danger of lapsing that the insurer contact the County? Mr. Dahilia: Certainly. Mr. Katavama: Well isn't that the advantage of being named on the policy is that if there is any change in the status of that policy you are notified? Mr. Jung: Yes but from what I understand when you get additional insured you generally get that additional insured only if you have an interest in the property. Here we have no interest in the property and we likely don't have any liability on the issuance of this permit but the problem is you never know what types of lawsuits come down so why not protect ourselves now. But if you guys want to get into the details of insurance Matters and the County's liability we are going to have to take that up in executive session. Mr. Katayama: I guess by that very reason by granting the permit we do have interests in the property. Mr. Jung: No, legal interests in the property as ownership interests. We don't want to create the County as having an interest in the property. Mr. Blake: Well I can understand that but if we can include a provision that the insurer must inform the County of nny lapse or change in the coverage prior to that happening then I think...is there any problem with us requiring that? Mr. Jung: No. Mr. Blake: The second thing I wanted to ask about was condition No. 12 where it says "Indemnification shall be submitted for approval within 30 days froin the date of approval of the Special Permit and shall be recorded within 60 days." Why don't we require that immediately before as a condition of the permit being approved? Mr. Jung. Well you don't want to have them spin their wheels though, it could either be approved or; denied. Mr. Blake: True but we are going to approve it subject to submission of these indemnifications, I'm sorry, approve subject to submission of approval and recordation of the indemnification agreements and the insurance policy. I'm just trying to make the County Attorney's job easier prospectively. Mr. Juniz: Well that is sort of inherent that they are going to have to do that anyway because they are mandatory conditions. Mr. Blake: So if it is approved today they can start using it today? Planning Commission Minutes August 9,2011 8 Mr. Jung: They could but they have to submit it. I see your point and if you want to change it... Mr. Blake: I always think about the guy who buys a car and so the liability transfers from the dealer to the owner, he drives out and as soon as he hits the highway, bang and the car isn't covered because he hasn't contacted his own insurance company. I am just trying to out of an abundance of caution to keep the County covered if that is possible. Chair: So that is another condition you can look at, maybe we can take a short break. Mr. Jung: Before we start getting into the details you might wapt to let the applicant... Chair: I wanted to ask the applicant's representative if you have any comments in regards to the conditions just read and then your own testimony that you want to present to the Commissioners. Mr. Mamaclay: For the record, Bryan Mamaclay, authorized agent for Mr. Summers. I . would like to leave any questions on the conditions after perhaps the conditions are amended or revised. At this time if I may I would like to read into the record my letter of testimony dated August 9. 1 believe the Commission was just handed the letter this morning. "On behalf of the applicant the Planning Commission has the authority to approve this petition under existing County legislation. Since 2000, section 4.28, 2.b, of the Kauai General Plan, as guided by a Citizen's Advisory Committee, has envisioned and encouraged the adoption of quote, development standards and permit processes for regulating alternative visitor accommodation structures and operations in Residential, Agricultural, Open and Resort zoning districts, end quote. No. 2, the criteria and development standards set forth by the adoption of Ordinance 904 have been met by the applicant and therefore implements this vision of the Kauai General Plan particularly in the Agricultural District. Finally, I trust that the Special Permit petition dated February 3, 2011 and my written testimony dated August 5, 2011, convinces you that a transient vacation rental at this location will not compromise or maybe I should say may not compromise the Agricultural District for the following reasons: No. 1,the applicant's 9,714 square foot lot along with the associated physical constraints such as flooding, soils, are such that the property is not conducive for an economically viable agricultural operation. Never the less the owners are making a sincere effort to grow and provide edible foods for self enjoyment and their guests staying at the home. Moloa`a Valley is physically a grandfathered defacto Residential Subdivision that preexisted our zoning laws. Based on the smaller nonconforming lot sizes in the immediate neighborhood this area is characteristic of a Rural District rather than an Agricultural District. The surrounding quote Residential area, end quote, has not been know for any historical or intensive commercial agricultural endeavors. Transient vacation rental use should not change the function and use of the residential structure and therefore should not adversely affect surrounding property. The recently approved TVR owned by Mr. David Houston is situated on abutting property to the northeast. And I would just like to add if you look at page 12 of the petition that I crafted there is a photo of Mr. Houston's home on that page. So Mr. Houston's home is in the foreground and you will see Mr. Summer's home in the background. And finally, as evidenced by current trends in our visitor industry and recent amendments to Hawaii Revised Statutes, Chapter 205, 4.5, rblating to agricultural tourism there will be a desire for alternative visitor accommodations in all zoning districts as a means to provide varying environments and experiences for transient visitors. And with that said the applicant humbly requests your favorable action and I am open to any questions at this time. Mr. Kimura: I have a question. Has this TVR ever had any complaints to the Police Department? Mr. Mamaclay: Not that I know of Planning Commission Minutes August 9,2011 9 Mr. Kimura: Not in the past at all? Mr. Mamaclav: No. Chair: Anybody else? I would just like to bring your attention to your third paragraph when you mentioned that the surrounding residenti�Ll area has not been known for any historical or intensive commercial agricultural activities. I just wanted to mention the fact that I believe in years gone by prior to the General Plan there must have been intensive taro farming in that area and I would consider that intensive agriculture. Mr. Mamaclav: I agree with you. When I was doing this petition I tried to scour out any available aerial maps and taro did come to my mind because I think this area maybe could have been raising taro. So if any that would have been the crop that would have been grown there. Chair: I am just familiar with some of the Kuleana families that lived there previously. They didn't necessarily live there but they owned those Kuleana lots and they farmed, they lived elsewhere and went to Moloa`a and farmed their taro plots. Mr. Mamaclav: Yes, so if anything it was more for personal and again for some commercial sale. ` Mr. Kimura. Has the applicant ever considered renting long term instead of going for a TVR? Mr. Mamaclav: I think part of the reason why they bought this place was that this is a special home to them because they spend some time there too as well. So I think that could be a reason why they didn't want it long term because they want to go there and spend the time there too. As I say this is like their local home away from home. Unless Mr. Summers can clarify that but I think that is part of the reason why they didn't want to go long term. They wanted that flexibility to enjoy the home on their own. Mr. Kimura: That particular home. Mr. Mamaclav Yes. Chair: Anybody else? If not,prior to making a motion would you want Mike to go ahead and revise the conditions as we have discussed? There are a few conditions that need to be...I just got advised by our attorney that we go ahead and call for the motion. Mr. Katayama: So moved. Chair: So moved to approve? Mr. Katayama: Yes. Chair: Is there a second? Ms. Matsumoto: Second. Chair: Any discussion on this? Mr. Kimura: I would like to make t'n amendment on one of the conditions. Instead of saying that this Special Permit shall be renewed every 2 years, condition No. 8, it should be reviewed every year. And my reasoning would be that in case there are any problems with any type of complaints on that TVR, on the Special Permit, that the department has a heads up on it right away, I year instead of 2 years. I just feel 2 years would be too long in case there is a problem going on. Planning Commission Minutes August 9,2011 10 Mr. Dahilig: The department would have no objection to that. I don't know about the applicant but the department would have no objection. Chair: Any other conditions? We can vote on this individually, for now are there any other conditions that we want to look at besides No. 8? Mr. Jung: Why don't we take them up... Chair: I just wanted to discuss all the conditions and then go ahead and take them up individually if that is okay. So at this point any other conditions that we want to look at? Mike, you mentioned that condition No. 16 is going to be changed as you read to state that you are taking out the subject CPR,right? Staff: Yes. Chair: So No. 16 is going to be revised for your information to delete"subject CPR". Any other condition we want to look at? Mr. Katayama: Just a clarification, so under condition 12 can the applicant continue to operate the operations or do they have to cease and desist until the hold harmless identification is approved and recorded? What is the intent of the department? Mr. Dahilig: As the attorney mentioned part of it was that the actual process of reviewing what the indemnification agreement that is going to filed says and then actually executing it and then bringing it over to Honolulu for filing was going to take some time and so that is why that is in there. I don't think the department would be adverse to including a provision that the operation cannot commence until the document has been recorded. Mr. Kataama: The permit would not be in effect,the Special Use permit will not be in effect until this is done. Mr. Dahilig: The department would not have any objection to that. Chair: So we need to revise that section Wayne? Mr. KatUaama: Well I... Mr. Jung: I would be leery of imposing that type of condition. Mr. Katayama: It is the intent that because it takes time to record these things that the applicant is probably operating it as is so that should not change until all these conditions are met or these recordation's and then the permit will be in effect. Mr. Jung Well as of right now the condition requires them to indemnify the County we just have to get the terms of the agreement done so they are technically required to indemnify the County. Mr. Dahilig: I think from an exposure standpoint there can be conditions subsequent to having the actual permit go into force and affect so if the attorney wants to elaborate on why he is leery on it but the department would not be adverse to it. Mr. KatUama: The intention is not to change the way the TVR is being or the property is being managed because of this condition but at the same time I guess if the permit is in effect that we don't want to be exposed for a window. Chair: Mike, do you want to weigh in? Staff. I just want to mention for Ian,the provision permit, the TVR provisional is already in effect and they have been running,they have been operating now so the timing part is,the Planning Commission Minutes August 9,2011 11 TVR part they have been operating and all of a sudden if you are going to call a stop to it I am not sure how legally,.. Mr. Jumz: I would have to evaluate that. Mr. Katayama: That is not the intent; the intent is to keep it going so this thing does not become a break. Mr. Jung: In the next applications we can look at requiring it up front but as of right now I would prefer to discuss it in executive session because it opens up issues of liability of the County. So I am hesitant to make any amendments to this particular condition at this point. Mr. Dahilig: I guess I would say that right now based on ordinance 904 what we have is a provisional permit, provisional certificate, I am sorry, and that does go forward. But whether the active start period of the Special Permit to transfer over from the provision permit to the new certificate and the Special Permit would be contingent upon recordation, again you heard legal counsel but it is a condition that I think can fly and would not be adverse to including it. Chair: Any other comments? Ms. Matsumoto: There was a concern about condition No. 7, 1 think we wanted to say something, amepdxx ent that about the insurance. Didn't somebody say something about wanting to be notified, Hartwell. Mr. Blake; That the policy contain a condition that requires the insurer to notify the County in the event of any change or threat of lapse to the policy. Mr. Jung: I think we are getting lost in here. The way we normally handle conditions is we amend them one by one so if someone is keeping track... Chair: I am trying to keep track. Mr. Jung: I think you should go in order, one by one, rather than jumping around because it is more efficient. Chair: We will do that then, we will amend them one by one so the first one that we are if we are doing it in order would be item No. 7 that was just brought up. So you wish to... Mr. Juna: There has to be a motion to amend. Chair: We need a motion to amend this condition. Mr. Blake: I move that we amend condition 7 to include the requirement that the insurer contact the County of Kauai prior to any change or threat of lapse to the policy. Chair: So we need to actually modify it to read exactly...before we do that I just wanted to ask Bryan if you have any comments concerning this amendment? Mr. Mamaclay: t am going to be jumping around so on this particular amendment here... Chair: I will be asking you for each amendment your concerns. So for item No. 7 do you have any concerns about that condition proposed? Mr. Mamaclay_ No. Chair: So can we go ahead and structure the language so we can read it exactly how it should be modified. Staff. Can I make a comment to address that concern. Based on my experience with DLNR when we had to require and enforce that kind of condition the insurance certificates run Planning Commission Minutes August 9,2011 12 for a year. So if Jan's proposal for No. 8 stands where you renew every year you will fall within that one year period before the insurance lapses. So at the time that you come in for the renewal on the year they have to have a new one showing. The certificates run for a year. If the Special Permit runs for a year you are on the same clock. And the second part is having notification of an agency not listed on the certificate is going to be extremely difficult I would think. Mr. Blake: So what did you do in DLNR? Staff I am going to tell you right here, the insurance issue, the renewal issue, was the main problem, you had to have a tickler system that would flag it at the 10 or 11th month prior to expiration. If you know the notice of expiration is coming, you had enough time to react. In this case if the permit runs for a year and you have to renew it every year and the insurance runs for a year and you have to renew it every year, at the time that you come in for renewal you have to have a new certificate. Mr. Blake: So if it runs for a year how early would a prudent applicant come in for renewal? Mr. Dahilig: They are already mandated to come in 30 days before. Mr. Kimura: So they should be covered by the insurance then. Staff. Yes. Mr. Jung: Normally all these homes do have insurance. I think what Mike's context is that this is DLNR's land that they are requiring people who get issued license to use the land are required to get additional insured. It is a little different situation because these people probably already have policies out on their homes for these applicants. Mr. Kimura: Wouldn't it be up to these applicants to figure that out? Mr. Dahiliz Yes. Staff: Let me also say that in this case the applicant already has a certificate at 3 million. In anticipation,he has the certificate already so in this case he has it but it doesn't co-name the County. Mr. Dahilig If the Commission decides to approve today the NCU certificate,the permanent one, not the permanent one but the non-provisional one along with the Special Permit would be dated the same day. So because of the renewal process we would see this thing 30 days ahead of schedule. Chair: At this point we don't need to amend No. 7, if No. 8 is... Mr. Kimura: I want to make an amendment to No. 8. Chair: So instead of working with 7 right now why don't we just go to 8 because that might take care of the problem so with that in mind I would need a motion for No. 8 please. Mr. Kimura: I would like to make a motion to amend condition No. 8 reading this Special Permit shall �e renewed every year and take out the renewal of every two years. Chair: Okay instead of every year could we say annually? Mr. Kimura: Annually. Chair: Annually or every year, whatever is best,the language. What do you think Mike? Staff, Renewed annually on the anniversary date of approval. Planning Commission.Minutes August 9,2011 13 0 Chair: Is that okay? Mike that being the case could you just reread that first part for us so that there is no ambiguity. Staff: "This Special Permit shall be renewed annually commencing from the date of Planning Commission approval by the Planning Director or his designee." Chair: Everybody is comfortable with that? Staff: This was previously discussed that the renewals rather than come to the Commission will go to the Planning Director or his designee. So the renewal will be every year commencing from the date of Planning Commission approval. Chair: Bryan, as just read, how do you feel about.those? Mr. Mamaclav: No objections. Chair: If that is the case... Mr. Kimura: I don't know if this is appropriate but can we have some kind of...if there is a police report on any and all particular, well I guess we are talking about this one, TVRs that it be part of the renewal? Mr. Jung: I think it is quite difficult to get police reports if there is no criminal action. Mr. Kimura: I mean just to check if there is, if there is a report. Mr. Juniz: I have to research. I remember dealing with this situation whether or not police reports are in and of themselves public record. Mr. Kimura: I am not talking about just this particular TVR but any Special Permit that comes before us. Mr. Jung: Any police reports? Mr. Kimura: I mean if there is... Mr. Jung: Any complaints? Mr. Kimura: Any complaints to the Police Department. Mr. Dahilip: What it would look like is upon renewal the department would check to see if the conditions of approval being met, now for instance if there is a police report concerning noise... Mr. Kimura: Why would the department...I feel the applicant should get the,produce the police report if there is any. Let's put the burden on the applicant. Mr. Dahilig: Well we get into self incrimination types of things. Mr. Jung: The thing is... Mr. Blake: It is public record. Mr. Dahilig: But for them to have to... Mr. Kimura: I mean you know it is part of the process. Planning Commission Minutes August 9,2011 14 Mr. Jung: First of all you are dealing with two different agencies and so if there is no criminal complaint lodged by the Prosecutor's office then most often the police report doesn't see the light of day so no one would know. Mr. Kimura: What if there is a complaint these guys made noise, too much noise, they had one complaint, nobody would know unless the police report is present. Mr. Jung: But the police report, we would have to have a concerted effort with the Police Department to have them refer all complaints... Mr, Kimura: That is why I am asking for the applicant to provide just to show that they have been abiding by all the laws. Is that acceptable, no, yes, what? Mr. Jung: No. Mr. Kimura: No, okay. I just thought I would ask,you say no,no. Mr. Dahilig: Maybe the question posed to the applicant, would he object to a condition like that as an affirmative duty to report any police notice. Mr. Mamaclay: I believe there is adequate controls at this time Commissioner Kimura that if you look at there are these house rules that govern impacts such as nuisances such as noise, when should noise end, at 10 o'clock. I believe these are adequate measures to control any nuisances. The people who stays there are aware that they need to be good neighbors so I can only hope that this will not be a problem and that the house rules are enough to govern. Mr. Dahilia: So Mr. Mamaclay if the department were to propose a condition like that would the applicant object to the inclusion of a condition like that? Mr._Mamaclgy: Yes. I think that would be a cumbersome requirement. Chair: Mike, do you have any? Staff: Yes, condition 10 is clear... Mr. Kimura: I withdraw my request. Mr. Blake: Before you withdraw it, neighborhood considerations are one of the things we have to determine. Noise historically has been the most prevalent complaint so if as has been represented on numerous occasions you are trying to give your vacationers and `Ghana Aloha, etc. type feeling; then why is it cumbersome to have the applicant provide us with complaints about their jerk clients? Mr. Jung: They can certainly provide us with complaints regarding their jerk clients but the issue here is you are working between two County agencies, one the Police Department and the other the Planning Department. The Planning Department will certainly evaluate any complaints that it gets but if we require them to provide us all police reports that may not result in any type of criminal complaint or criminal violation then 'those police reports won't necessarily see the light of day. If there is a report to the Planning Department the Planning Department will certainly evaluate that when they look at the renewal but if you are talking specifically police reports then it is difficult to have this concerted effort between the police and the Planning Department to review every single noise violation that may be on some kind of violation without any criminal prosecution. Mr. Blake: That means that Planning Department would never see anything, right? Mr. Kimura: But it is still a violation, right? Mr. Jung: It is not a zoning violation per say. Planning Commission Minutes August 9,2011 15 Chair: Mike, do you want to weigh in now please? Staff: To Commissioner Blake and Kimura, condition 10 addresses your concerns to respect the neighboring residential properties. "Guests shall be informed that elevated noise activities or amplified music shall not be permitted after 10 o'clock. These limitations shall be incorporated in the welcoming notice posted within the dwelling and within any and all contracts and advertisements for use of the structure from the date of this approval. Copies of the documents shall be provided to the department." It these TVR uses go beyond this the relief for the community, for the neighborhood, for the neighbors, will be the department. Once we get the complaint the department will act on it. The police have a very limited opportunity to enforce noise,they don't have noise meters, have they been trained in the use of noise meters. The department will get the first complaint. That is why this condition was crafted. All the TVR uses that exist now had unrestricted issues, the parties were going on,the parking was going on all over the place. By this condition we will be the first ones to find out, we will be in contact with the applicant and we will be the ones to address that and we can bring it right back to the Commission on the first one, so we would be the ones because it is a Planning Department condition. We are hoping we get it first because we will jump on them first. Chair: Thanks Mike. I want to bring up back to the amended motion that is still on the floor and so do we have any further discussion on...we don't have a second on that amended motion? Who made the original motion? Mr. Dahilig: Jan. Chair: We don't have a second on that motion,you seconded it? Mr. Katayama: Second for one year. Chair: For one year and then we went into the discussion phase. Do you have any more comments on that particular thing? If not I would like to call for a vote,roll call please. Mr. Dahilig: On the amendment? Chair: On the amendment,just for 8. On motion made by Jan Kimura and seconded by Wayne Katayama, to amend condition No. 8, motion carried by the following roll call vote: Ayes: Blake, Kimura, Katayama, Matsumoto, Texeira -5 Noes: None -0 Absent: Nishida, Raco -2 Not Voting: None -0 Chair: Do we have any other amendments? So therefore based on No. 8 being clarified it will be annual I think it kind of takes care of No. 7. Are there any other conditions we wish to amend at this time? Staff. Condition 16. Mr. Kimura: 16 was amended already, right? Chair: We just discussed it but we need to formally vote on it, 16, why don't we do 16. 5 Mr. Kimura: So moved as read. Ms. Matsumoto: As amended. Planning Commission Minutes August 9,2011 16 Mr. Kimura: As amended by staff. Mr. Jung: Mike why don't you read it. Staff: "Should any property interest be transferred or sold the Planning Commission shall be notified prior to the closing of the sale." Chair: I would assume that you have no problem, Bryan, with that? Mr. Mamaclay: No problem. Chair: Call for the motion. Mr. Kimura: So moved. Ms. Matsumoto: Second. Chair: Any discussion on 16, if not roll call please. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to amend condition No. 16, motion carried unanimously by the following roll call vote: Ayes: Blake, Kimura, Katayama, Matsumoto, Texeira -5 Noes: None -0 Absent: Nishida, Raco -2 Not Voting: None -0 Chair: Any other amendments we wish to discuss? Mr. Blake: What was the disposition of questions regarding No. 12? Mr. Jung: 12, we will leave it as is now and I will reevaluate it and see if we can get something a lithe more timely but it is sort of difficult because they don't get it recorded until there is an actual approval. If there is a denial there is no sense in doing it so let me work on something for you guys. Chair: Go ahead Bryan. Mr. Mamaclay: I do have concerns on condition No. 12 in the last paragraph where the applicant will only be given 30 days to submit the indemnification agreement because I am just trying to visualize what it will take to get that. I believe there may be an attorney involved for doing the indemnification and I take it that the County will have to review to make sure it is palatable and to your liking. Mr. Jung: Yes, we have a form template we use for other projects which I will work on and have a sample to distribute. Mr. Dahilig: And if you read it only the submittal has to be within 30 days and once you get it back as approved by the department that it meets the requirements then you have another 60 days from there. So it is not 60 days from the date of approval it would be 30 days and then a period review and then 60 days from there. Mr. Mamaciay: But the County will be reviewing the document to make sure it's okay so it may take longer than 30 days. Mr. Jung: We will have a sample form available. Mr. Dahilig: And as stated by the condition the department would review it. Planning Commission Minutes August 9,2011 17 Mr. Mamaclav: Thank you. Chair: That being the case we can go back to the main motion now to approve as amended. Staff: Staff has one more condition to insert and this condition is based on what our enforcement, what our inspectors are running into now regarding website advertising for those legal and illegal operators of TVRs. And basically the language is "The TVR number and street address shall be reflected in any website advertising." Mr. Jung: Maybe correct that and say any advertising be it web based or newspaper based. Staff. Website or newspaper... Mr. Jung: Any advertising. Staff: Any advertising. Chair: So Mike could you read that? Staff. "The TVR number and street address shall be reflected in any advertising." Chair: So that would be condition what? Staff. 17. Mr. Dahilig: You may want to ask the applicant again. Chair: Excuse me Bryan have you heard the proposed 17`11 condition? Would you like Mike to read it again? Mr. Mamaclav: Yes if he could. Staff: "The TVR number and street address shall be reflected in any advertising." Mr. Mamaclav: I do have one concern is because I verified with Mr. Summers that because this is an unnamed road per say, it is called Moloa`a Hui Road, I don't think there is a street address to this home. So if there is an alternative address if that could work. Chair: Could you say if applicable? Mr. Jung: There is no street address? There has to be a street address. Staff: There has to be a street address, every house has a street address. Mr. Tom Summers: For the record Tom Summers. I have a letter from the Engineering Department stating that I have no physical address. Moloa`a Hui Road is my street address, I have a TMK and a lot number but they didn't issue me EL per say street address arid I have a letter verifying that. Mr. Junz: Why don't we do TMK then. Mr. Dahilig: Commissioners this is something that is new to me that hasn't been made aware yet to me and I would maybe suggest taking this off the table and revisiting how we can approach this better because this does pose a problem. I would hate to be in a position that would in terms of making haste on a condition like this especially since it involves what my inspectors need and also in terms of privacy and those types of issues that we should probably take due diligence on this rnatter. Planning Commission Mindtes August 9,2011 18 Mr. Blake: Can we ask the applicant how the Fire Department, ambulance, Police Department finds or locates his property? Mr. Summers: The maps and everything shows my house at the end of Moloa`a Hui Road and that is what my address is, is Moloa`a Hui Road. If someone asks I would just have to tell them but there is no physical address because Engineering said they didn't give me one. Ms. Matsumoto: How about a sign, do you have a sign that says your name? Mr. Summers: Yes. Ms. Matsumoto: What does it say? Mr. Summers: It says Summers Hale right on the house. Mr. Dahilig: Given this matter and the complexity of it I would hate to be in a position to rush out a condition on this without really understanding what the issues are with my inspectors. Chair: So we will be eliminating 17 for now. Mr. Dahilig: The department would not propose that condition. If a Commissioner wishes to propose it then that is certainly their Kuleana. Chair: Does any Commissioner wish to make a proposal for condition No. 17? Mr. Blake: We are not precluded from adding this condition later are we? Mr. Dahilig: No. We could revoke or modify it. Mr. Blake: So we could take final action on this right now and still come up with something like 17. Mr. Dahilig: Certainly. Chair: That being the case that kind of answers our question then, any other discussion, if not we would like to take a...I'm sorry we already took public testimony on this matter. I'm sorry I won't be accepting that right now. I would like to have roll call on this matter please, this is for the main motion as amended. On motion made by Wayne Katayama and seconded by Camilla Matsumoto,to approve staff recommendation as amended,motion carried unanimously by the following roll call vote: Ayes: Blake, Kimura, Katayama, Matsumoto, Texeira -5 Noes: None -0 Absent: Nishida, Raco -2 Not Voting: None -0 Commission recessed for lunch at 1:10 p.m. Commissioner Jan Kimura was excused at 1:10 p.m. Meeting was called back to order at 2:24 p.m. Special Permit SP-2011-10 to permit use of an existing single family residence for Transient Vacation rental purposes as permitted by County of Kauai Ordinance No. 904, in Kilauea, Kauai, approx. 3,400 sq. ft. west of Kauapea Road and Kilauea Lighthouse Road Planning Commission Minutes August 9,2011 19 intersection, further identified as Tax Map Key: 5-2-5:31, Unit A and containing an area of 4.149 acres =Michael J. Piwe. [Hearing's Officer Special Meeting 8%5/11.] Staff Report pertaining to o this matter. Staff Planner Mike Laureta: I will locate the property for the Commissioners utilizing this thousand scale rzap. Our first one this morning was in Moloa`a Valley, Kuhi`o Highway going towards Kilauea, the roadway from Kilauea Lighthouse Road going to Crater Hill, its intersection with Kauapea Road, the subject property is located here with this red dot right above Secret Beach, Kauapea Beach. A quick synopsis,the property is comprise of a two lot CPR, the owner owns unit A which is 4.149 acres and unit B is 1.30. Authorization has been provided by the owner of unit B. The applicant has satisfied the requirements of ordinance 904. The provisional permit was issued by the department on February 4, 2011. For the Special Permit requirements the CPR unit is less than the required 5.0 acre size necessary for Ag. dedication however approximately 30% of the unit is used for nursery operations. At the present time the applicant is developing his own plan to continue and expand the existing nursery operation which was started prior to 2008 by the owners of the adjacent property. Agricultural activity, yes, a bonafied agricultural operation exists on the property. The property was inspected by the Planning Department on May 2, 2011, no violations exist. Soil productivity ratings, there are B class and E class soils on the property. The soil on the property is less than 0 to 8% slope with some rocky outcrops. Internet advertising is exhibit 4 and that concludes staffs findings. Chair: Anyone have any questions for Mike, any of the Commissioners? There being none, Mike, as you mentioned this property was previously utilized for what kind of agricultural activities? Was it part of Kilauea Sugar Company's operation? Staff, Yes. Chair: So this was an intensive sugar cane... Staff. The history. Chair: The history of this property. There being no further questions I would like to call on the applicant's representative. Mr. Glen Hale: Good afternoon Commissioners, my name is Glen Hale, I represent the applicant Michael Piuze who is the owner. He wanted me to especially convey his regret for not being able to be here personally at the meeting, no disrespect intended toward the process. He is a trial attorney in California, he has had a trial scheduled for 5 years now that took place this weekend and he just simply was not able to get away and so he has asked me to appear on his behalf. I am going to try to be brief and then see if there are any questions but the main thing that I am able to sense from the process is that the application, the staff report on the application indicates that the applicant has met all of the requirements. In addition to that there is a letter of support from a resident of this particular subdivision supporting the application. We are aware of no complaints of the subdivision members or subdivision residents. We are aware of no objections from the.Department of Water or the Department of Transportation. And it is my understanding the staff report concludes with the recommendation for the approval. So with that we would respectfully request the Commission members to approve this application and I would like to answer any questions that you might have at this time Chair: Anyone? Go ahead Wayne. Mr. Katayama: Just a quick clarification, in your submission in section 4,paragraph 3, so 43, it states that approximately 305 of the subject property or about 1.4 acres on limited common area element that comprises the subject property is in agricultural use. What does that mean it is on the limited common element area that comprises the subject property? Planning Commission Minutes August 9,2011 20 Mr. Hale: I think the way you could view the use of the 'phrase limited common element is to think of the unit in the CPR project and that would be a mare technical legal phrase to use to refer to that pnit or the area that the physical structure has the right to use. So when it talks about the limited common element it is just talking about that 4.12 acres that is part of this particular unit's application. Mr. Katayama: Is it part of the entire CPR unit of that 5.5 acres? Mr. Hale: You mean the Ag. use? Mr. Katayma: Yes. Mr. Hale: The Ag. use that we are commenting on and that is part of the application only pertains to this particular unit. Mr. Katayama: Which is unit B.? Mr. Hale: Unit A. Mr. Katayama: So that is part of the total unit,the 1.4 acres is part of... Mr. Hale: It is part of unit A, correct, and it is my understanding too Mr. Piuze purchased this property in November of 2010. Subsequent to that he has been looking at different ways to augment the Ag. use. He hired Peter Norberg who is a North Shore farmer and Ag. consultant who has developed a plan for him to expand that use into other areas of the proprety. The question that wE,is asked earlier about the use of the property prior to, the farming use of the property, I am not so sure they were ever able to commercially use this particular part of the property for sugar cane or other types of commercial. crops because the middle of it is a deep ravine and the sides of it are up on some ridges. And so what has been done over the years by the prior owner is to develop this series of terraces with an irrigation system that uses to the best of that property's ability the topography that is there to grow various landscaping ornamental plants for the nursery operation that is ongoing. Chair: Do you have any more? Mr. KatUama: Not for the applicant. Mr. Blake: Hove old is this CPR? Mr. Hale: This particular project, the declaration was recorded in 1991, probably one of the earlier projects on the island,November of 1991. Mr. Blake: And the dwelling to which this application applies is on the 4 acre portion of that CPR. Mr. Hale: That is correct. The other unit,unit B has not constructed a unit yet so this is the only dwelling on the lot. Chair: Any more questions Hartwell? Mr. Blake: So this application is based on specifically what conditions for putting a TVR in Ag. land, is this Ag. land? Staff. State land use Ag., County zoned Ag. Mr. Blake: And so it is originally 5 acres, right? Staff. It still is considered one parcel,parcel of record. Planning Commission Minutes August 9,2011 21 Mr. Blake: So it's 5 plus acres. And so what specific conditions took it out of Ag. and into transient vacation rentals? Staff Nothing, it is still in A.g. It is a farm dwelling and the agricultural use exists. Mr. Blake: How long has the TVR use existed? Staff. Prior to 2008. Mr. Hale: The prior owner purchased the property in January of 2007 and operated a vacation rental there and documented that use for the purposes of this application. And then my understanding is that the use of this dwelling for vacation rental was ongoing by the prior owners before that. How long before that Commissioner Blake I don't know. Chair: Cammie, do you have any? We can get back to you Hartwell. Ms. Matsumoto: It is a little bit cut off but in exhibit D I guess it is the photos of the potted palms, those palms are going to be...the intention is to plant them? Mr. Hale: Well the intention is to sell those for individuals to plant. Ms. Matsumoto: So they will remain in those pots. Mr. Hale: Yes. Chair: Caf1 you describe the nursery operation and as you said Mr. Norberg, Peter Norberg, right? Mr. Hale: Correct. Chair: Plans to what, to expand the nursery or further develop the nursery? Mr. Hale: Currently the operation, we had him do a count and it has about 650 plants. We would have to minus out of those, some of those palms that you were looking at in the pots but for instance red and pink ginger, helakonia and tea leaf, there are about four or five hundred of those plants on these terraced areas. Let me just backup a little bit more, the intent is to expand the acreage by double and there is already 50 high pressure sprinkler heads on six different lines that go along and parallel the slope on this property. With those terraces those are connected by some pathways where the workers can walk and access these plants and then there is a'utility road down in the bottom of the ravine. Mr. Norberg's plan essentially is to double that and plant a little bit closer together and expand the area. I am not sure if that addresses your question. Chair: It gives me an idea of what he is doing. Mr. Hale: He has proposals for mArketing that and cdnnections for Mr. Piuze to further pursuing that business. Chair: The property was purchased, it seems to me this property has turned over a few times, the ownership has not remained with the sole owner for very loiig. In 2007 or 2008 someone purchased the property and subsequent to that was purchased again in 2010. My question is I would assume that when this property was purchased in 2010 it was purchase for quite a sum of money meaning that the purchase was not made...I would assume that it would be difficult to conduct viable agricultural activities on this property based on the investment that had to be put in. The return on investment would be very poor I would assume if you were just looking at an agricultural activity. This is very expensive property I would assume along Kauapea Beach. Mr. Hale: What is the question? Planning Commission Minutes August 9,2011 22 Chair: The question is how viable can this agricultural activity be based on the investment put into the property? Mr. Hale: I think I see the point of your question although there is certainly no way to make the Ag. operation pay for the cost of the property. The topography of the property precludes for instance commercial or commercial Ag. operations, there is not enough flat land in this particular area. So the intent of this is to comply with the Chapter 205 of the Hawaii Revised Statutes to be engaged in a viable agricultural endeavor which it is and which the planning staff found when they went and did the inspection. And then in terms of what is going forward, Mr. Piuze has looked at the property and engaged professional help to further that and do the most that he can, the best that he can to use it for activities related to agriculture. And by the way in actually visiting the property one of the things this does in connection with meeting the General Plan requirements which advocates keeping the Garden Island character cif these properties is that when you go on to the property it is a beautiful well kept manicured garden and it has that aspect of it that is conveyed to those tourist who come to the island to stay. The hillsides are planted, there is no erosions and in a way I believe that this is being a very good steward of the land and using it in the best way possible for the Ag. uses that it can be used for. Chair: You mentioned something about a roadway, is there a roadway going down to the beach? Mr. Hale: No, there is no roadway going down to the beach. Currently the road accessed through a neighboring parcel and that is from Kauapea Road. Chair: Whoever is renting the TVR, how do they access the beach? I would assume that is one of the reasons they want to rent that particular unit because it is on Kauapea Beach or very close to it. It is a real draw to have that wonderful, beautiful beach adjacent to your property. Mr. Hale: Well 'it's not adjacent to the property; there is a parcel in between this parcel and the beach. Chair: Any other questions? Mr. Jung: I think you are referring to the beach access that is in controversy. It is actually further up Kauapea Read more to the east than this particular one. Chair: If there are no further comments from our Commissioners and questions., thank you very much. At this point I would like to ask if there is anyone in the public wishing to have any comments? This not a public hearing we already had that but we are open to pudic testimony. There being none what would the Commissioners like to do? Before we do that, thank you, could we have your final recommendation and conclusion Mike? Mr. Katayama: Before we do that I have a question for the Director. We are, the presumption here is that the permitting rights are transferable. Mr. Dahilig: That they run with the land, yes. I mean the permitting rights,the actual... Mr. Katayama: So even if the applicant hasn't demonstrated historical use and the property met the criteria that still transfers. Mr. Dahi4: The presumption is that the use runs with the land also. Chair: I need some kind of motion to, oh Mike, I am sorry, go ahead, could I have your conclusion and the recommendation. Planning Commission Minutes August 9,2011 23 r Staff: Would the Chair like me to in terms of consistency include the changes that were done with the previous application and include the changes with this application? Chair: Yes. Mr. Blake: All of the changes? Staff. Well there were only... Mr. Dahilig: Just to be clean about it because this is a separate application let's just read through the thing as is and then we will proposed those departmental amendments or chaii�ges similar in nature to what you have seen based on Commission concerns. Staff Planner Mike Laureta read conclusion and department recommendation (on file). Chair. Mike, one clarification please, instead of reading all of the proposed conditions if you could just read those that are number one, different from the last, there are a few changes, right, in these conditions from i;he last application and then any other... Mr. Dahilig: Maybe if we can just go through virtually conditions 1 through 6 the Commission has seen, condition No. 7 is 1 million dollars versus 3 million dollars because it is attached to a County standard road. The department will make a recommendation to the Commission to amend No. 8, if there is no objection from the applicant concerning renewal on an annual basis and then the rest of the conditions are virtually the same. We do have a condition 17 that maybe Mike can pass out and read to the Commissioners concerning notice and advertising. That would be our recommended conditions to the permit.. Chair: Mr. Hale, while we are waiting for No. 17 to be fully completed do you have any other comments in regards to the other conditions that have been set forth? Mr. Hale: No, the only comment I would make on No. 17 is the last sentence that reads "A copy of the revised website advertising," and I think given the change that you have made in the first sentence that you might want to take out website just to make it consistent. Chair: So noted. Mr. Dahilig; So Mike if you want to read the condition. Staff. Okay, 17, "The Transient Vacation nonconforming registration number and site address shall also be reflected on any advertising. A copy of the advertising reflecting this condition shall be sgbmitted to the Planning Department within 30 days of the approval of this Special Permit." Chair: Is that okay? Mr. Hale: We have no objection to that. Mr. Dahilig: So Commissioners should there be a motion on the floor to approve we would request an amended condition based on the amendments to No. 8 and addition of No. 17. Chair: So if it is a recommendation for approval it should contain that language as amended. Mr. Dahilim: Yes Chair. Chair: I am awaiting some kind of motion. Ms. Matsumoto: Move to accept the amended changes in conditions No. 8 and 17. Planning Commission Minutes August 9,2011 24 t Chair: So this is to approve and to include the conditions 8 and 17. Mr. Katayama: Second. Chair: Wait one second; is there a problem with the language? Mr. Dahilig: The Commissioner had said it was for approval with the amended conditions. Chair: It has been approved and seconded, is there any discussion,there being none I would like to have roll call please. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve staff recommendation as amended, motion carried unanimously by the following roll call vote: Ayes: Blake,Katayama, Matsumoto, Texeira -4 Noes: None -0 Absent: Nishida, Caven, Kimura -3 Not Voting: None -0 Mr. Hale: Was that the motion on the amendments or the motion on the application? Mr. Dahilig: The whole thing. Special Permit SP-2011-16 to permit use of an existing_single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Moloa`a, Kauai, approx. 2,500 sq. ft. northeast of the old Kuhi`o Highwgy and Moloa`a Road intersection, further identified as Tax Mafia Key 4-9-12L2W, and containing an area of 1.71 acres of the overall 2.52 acre site= i�erti, o Associates, LLC. [Postponed 7/12/11, Hearing's Officer Special Meeting 8/5/11.] Staff Report pertaining to this matter. Staff Planner Mike Laureta: To locate the property for the Commissioners using the 1,000 scale zoning map, Kuhi`o Highway, Moloa`a Valley, State Land Use Ag., with an underlying County zone Open. The subject property is located by this red pin. It is not located within the drainage or flood zone of the valley however it is located mauka of the first two applications already approved, Houston and Summers. This project is located on the slopes on the right hand site of Moloa`a Road. This is a two unit CPR,'both Iots are owned by Levorn Sparks by way of a family trust who has authorized this application. The provisional nonconforming use certificate was issued January 31St of this year, all the requirements of ordinance 904 have been met. This property is 1.71 acres out of a total of 2.52 acre parcel. The property is less than the required 5.0 acre size necessary for Ag. dedication. The property is 1.2 acres in size and has an approximate slope of 17% which is borderline slope constraint district which is 20%. Ordinance standard No. 3 is applicable where the size, shape, topography, location or surroundings of the property or other circumstances did not allow an applicant to qualify for an Ag. dedication or inhibited intensive Ag. activities. However Ag. activity does exist on the property and the applicant has planted and maintained an extensive amount of flower and fruit trees on the unit despite it being 17% sloped. The property was inspected by the department on April 28th, all structures and uses exist via permit, no violations exist. As can be seen by the soil type the soil productivity rating on this property is a class E which is the worst type of soil there is for farming but the applicant has devoted a tremendous arhount of energy in making this property as useful and yielding as it is. The soils on the property, pohakapu, silty clay loam, permeability is moderately rapid, runoff is slow, erosion hazard is slight. Internet advertising is exhibit 5 and that would conclude staff's presentation. I am available for questions. Planning Commission Minutes August 9,2011 25 Chair: Any Commissioners? I would like to ask the applicant to come forward please. Mr. Levorn Sparks:. Thank you Mr. Chairman, I am Levorn Sparks representing myself. I appreciate your time,this has been a long day for all of us, thank you very much. Chair: Any comments, any questions? Mr. Levorn Sparks: Actually I think the professional planners have reviewed what it is that we have done and the intent and I think they have pretty much stated everything that I know that can b;s stated. And I have stated the remainder from our perspective to you during the previous meeting that we held last Friday which is now a matter or record and I am not sure what else I could state that really would be helpful. Other than I have notice some legitimate concerns on the part of the Planning Commission about trying to have some semblance of control so that we don't have problems on our island that we all hold sacred. I think that is a big deal. And caution is good and so I don't resist that. I am aware of one thing that I am not sure that everybody has looked at the same way I have and that is when you give us these permits they are conditioned they are not granted,they are conditional. Whether that is for one year or two years as Mr. Kimura was concerned, I am not sure that is relevant because they are conditional. If somebody is mismanaging their property by right you can pull the permit. And so I think the timeframe perhaps you could even lengthen that as they do in other states they give what is called a conditional use permit and it is forever but if you violate any of the conditions you instantly lose whatever rights you were given. And I think that is important that the Planning Commission realize that you have that right and you have the policing authority to be able to do that and so I am not worried about me, I own this property and it will be maintained to the best of our ability. But I, like you,worry about others and I think this is a good concern that you have vocalized. Chair: Any Commissioners have any comments they would like to make, any questions of the applicant? If not,thank you. I would like to call on the public if they have any...anyone wishing to testify, any comments? If not, Mike, would you like to provide your conclusion? Staff. The synopsis would be the same, the conditions are identical. The changes as proposed by the department would be for condition 8,would be renewed annually... Chair: Mike,No. 7 would be 3 million or would it be l million? Staff. This would be 1 million since this property abuts Moloa`a Road and is easily accessed. Yes, 7 is 1 million, 8 would be annually, and because it is a CPR 16 would stay and 17 would be the advertising. Chair: Thank you, do you have any comments in regards to these conditions?' Mr. Sparks: If that is the way you want that is fine. Chair: Any further questions by our Commissioners? If not I would like to ask you for a motion. Mr. Katayama: Motion to accept as amended. Chair: Motion to approve instead of accept. Mr. Katayama: Approve as amended. Ms. Matsumoto: Second. Chair: Any discussion on this, if not I would like to have roll call please. Planning Commission Minutes August 9,2011 26 On motion made by Wayne Katayama and seconded by Camilla Matsumoto, to approve staff recommendation as amended, motion carried unanimously by the following roll call vote: Ayes: Blake, Katayama, Matsumoto, Texeira -4 Noes: None -0 Absent: Nishida, Raco, Kimura -3 Not Voting: None -0 PUBLIC HEARING (NONE) NEW BUSINESS For Acceptance into Record-Director's Report(s) for Prdiect(s) Schedule for Public Hearings on 8/30/11.. Use Permit U-2012-01, Special Permit SP-2012-02 and Class IV Zoning Permit Z-IV- 2012-01 to permit the construction and operation of a zip lining outdoor recreation area. The stagier area for the zip limn activities is proposed to be.located at that area eg nerally referred to as the K616a Mill, located approx. 2,600 ft. east of Ala Kinoiki Road further identified as Tax Map Key 2-9-002:001. The zip lining outdoor north of that area generally referred to as the Koloa Mill, further identified as Tax Map Key 2-8-001:001 and 2-8-002:001 and affecting an approx. 2.66 acres =Koloa Zipline, LLC. Staff Report pertaining to this matter. Use Permit U-2012-02, Variance Permit V-2012-01 and Class IV Zoning Permit Z-IVY_ 2012-02 to permit the construction and operation of a telecommunication facility that includes a; 120 ft. high stealth mono ine a mono pine designed to look like a pine tree and associated equipment at a site located on a cane haul road approx. 500 ft. north of the..cane haul road's intersection with Kaumuali_ i highway and Aakukui Road intersection, fiulher identified as Tax Map Key 3-4-005:018, and affecting a 2,500 sq. ft. portion of a 25.42 acre,parcel = Verizon Wireless. Staff Report pertaining to this matter. Use Permit U-2012-03 and Class IV Zoning Permit Z-IV-2012-03 to construct a single family residence on a parcel located along fhe northern side of Waikorno Road in Koloa, situated approx. 250 ft. south of its intersection with Weliweli Road, further identified,as Tax Map Key 2-8-009:018, and containing,a total land use area of 12,721 sq. ft. =Peter Thielen Construction. Staff Report pertaining to this matter. On motioh made by Camilla Matsumoto and seconded by Wayne Katayama, to accept reports into the record to be scheduled for Public HeariAg on 8/30/11, motion carried unanimously by voice vote. For Acceptance and Finalization--Director's Report for Shoreline Setback Activity Determination. (None). ANNOUNCEMENTS The next scheduled Planning Commission meeting to be held at 9:00 a.m. at the Lihu`e Civic Center, Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street, L-1hu`e, Kauai, Hawaii 96766 is on Tuesday, August 30,2011. Planning Commission Minutes August 9,2011 27 ADJQURNTMENT Commission adjourned the meeting at 3.15 p.m. Respectfully Submitted. Lani Agoot Commission Support Clerk Planning Commission Minutes August 9,2011 28