HomeMy WebLinkAboutpcmin042611 KAUAI PLANNING COMMISSION
REGULAR MEETING
April 26, 2011
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair, Herman Texeira at 9.13 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
Mr. Wayne Katayama
Absent and excused:
Ms. Camilla Matsumoto
Discussion of the meeting, in effect, ensued:
APPROVAL OF THE AGENDA
On motion made by Hartwell Blake and seconded by James Nishida, to approve the
agenda, motion carried unanimously by voice vote.
RECEIPT OF ITEMS FOR THE RECORD
On motion made by James Nishida and seconded by Hartwell Blake, to receiver
items for the record, motion carried unanimously by voice vote.
GENERAL BUSINESS MATTERS
Annual Status Report and Request for Extension of Permits and Modification of
Conditions for Class IV Zoning Permit Z-IV-2008-5, Use Permit U-2008-2; Special Permit SP-
2008-2, Tax Map Key 1-8-001:001, Manawaiopuna Falls, Hanapepe Valley, Kauai =Island
Helicopters Kauai, LLC.
Staff Report pertaining to this matter.
Staff Planner Kaaina Hull read staff report(on file).
Chair: Are there any questions of our planner? There being none could I call on the
applicant please.
Mr. Walton Hong. Good morning Mr. Chairman and members of the Commission. For
the record my name is Walton Hong representing the applicant Island Helicopters Kauai. With
me in the audience and will testify after me are Kurt Lofstead and Bonnie Lofstead who are the
owners of the business. As the staff report indicated this permit request is for three things, one is
for the extension of the permit for an additional 2 years, secondly to submit the annual report and
have it accepted, request an extension and request a modification to condition No. 10 to extend
the permitted landing time from-25 minutes to 40 minutes. Let me touch upon that first because
that is I think the easiest. What we found was 25 minutes is adequate if you don't have people
that are impaired or handicapped or the weather conditions are perfect and they can land, shut
down the machine, walk up to the falls with the pilot, escorted by the pilot, view the falls, come
back to the aircraft, board it, and take off all within 25 minutes. What they found is that they
have had instances where for example you have a person that is disabled and needs more time to
get up to the falls and get back. Also in case of very bad weather in the past, the grounds might
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be slippery, you can't rush people because we are afraid they might slip and fall. Keeping in
mind they are wearing these booties that are required to protect against bringing in unwanted
seeds to the site.
So what we are asking is that the landing time be permitted to be extended to 40 minutes.
This is not to say they will take the extra 15 minutes they are requesting but just in the event
something like this happens the applicant will not be held in violation of that condition. I think
the record will clearly reflect that they have been very, very religious if I use that word, in
following the conditions of the permit. So we just don't want to do anything that says you had a
violation of the permit. So we think in the interest of public safety extending the landing time
from 25 to 40 minutes is reasonable. It begs the question though, so what is to rush them? Well
very frankly the more they spend time on the ground the less flights they have per day. So it is a
disincentive really for them to stay on the ground any longer than necessary but they have to
balance that against the public safety escorting people to the tours.
As the staff report indicated the permit may be extended provided that adverse impacts
are not generated that affect the public health, safety, and welfare, as well as the surrounding
environment and conditions of approval are complied with and there is no change in public
policy regarding helicopter landings. In the event the applicant applies for an extension the
applicant shall conduct an updated flora and fauna study and present their findings to the
Planning Commission. These are the conditions imposed on the applicant and I believe that we
have more than adequately addressed and met those conditions. We have shown that there are
no adverse affects that have been generated by this activity over the past 2 years. There have
been absolutely no complaints from anyone and there is no showing there has been any impacts
to the surrounding environment. This is borne out by the updated flora and fauna study that we
did at considerable expense to us. These studies were attached as exhibits B and C to my letter
of February 22°d.
Now Mr. Knox does recommend that we adopt particular additional prevention measures
if you would,that is included in your staff report as recommended changes or additional
conditions. We are in support of that. In fact if I can say so,to show how quickly they react to it
this is a sample and I can leave the Planning Department a copy,the recommendation is we have
flash cards and the pilots be trained to recognize invasive species. This is what is now being
kept in each of the aircraft and what it shows is the different species that may be considered
invasive so the pilots can recognize if it is there on their flights they will notify someone and
hopefully they will take care of the problem. If I may I would like to present this to the staff.
We also don't believe that there has been any change in policy of the County regarding
helicopter landings of this nature to justify denial of the extension request. If this becomes an
issue I would like an opportunity to respond on this point in greater detail if necessary. In the
interest of time, I just noted for the record that is our position, there is no change in policy for
reasons I can state later if necessary. I would like to end by again pointing out that we have
operated at this particular site for 2 years with no complaints, no findings of adverse affects from
the landing,we have complied with everything required of us. We fly out of Lihu`e following
normal flight paths so it is not additional noise or deviation from the flight paths. And I am not
sure if Kurt or Bonnie will testify this activity has resulted in a deduction in the number of flights
per day because they spend more time on the ground now rather than continually flying on tours.
With that I would also like to offer to the Commission, this would be a letter from Gay &
Robinson Inc. in support of the application. If I can read this into the record if I may, "Kaua`i
County Planning Department, To Whom it May Concern, Gay & Robinson Inc, and it's wholly
owned LLC, Gay &Robinson Tours LLC, collectively referred to as G &R, are writing this
letter in support of the renewal of Island Helicopter's landing permits at Manawaiopuna Falls. It
has been almost 2 years since Island Helicopters commenced landings at Manawaiopuna Falls
and G & R has been extremely pleased with the operations. Island Helicopters has followed all
stipulations set forth by G& R and the Kauai Planning Commission and has kept the area in
excellent condition and free of rubbish. G& R fully supports the renewal of Island Helicopter's
landing permits at Manawaiopuna Falls, thank you very much for your consideration,
Respectfully Submitted, Charles Okamoto, President."
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April 25,2011
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The other letter that I have is from Sue Kanoho of the Kauai Visitor's Bureau. It is
addressed to you Mr. Chairman. "Herman Texeira, Chair, Kauai Planning Commission,Dear
Chairman Texeira and members of the Kauai Planning Commission,the Kauai Visitor's
Bureau,KVB Board of Directors, offer their support for Island Helicopter's application to extend
their permit to land at Manawaiopuna Falls in Hanapape Valley,Kauai. Island Helicopters
continues to be a partner in good standing with KVB as we market our island visitor industry.
We have received very positive feedback from our visitors,travel agents,as well as the media on
this specific Manawaiopuna Falls experience. The coverage this tour has garnered for Kauai
has been substantial and provides the opportunity to showcase our unique natural beauty. Should
you have any questions regarding this letter please do not hesitate to contact me",and gives the
number. I would like to offer these as part of the record and with that I will be glad to respond to
any questions or we can wait until both Lofsteads have testified and then respond to questions at
the pleasure of the Commission.
Chair: What is your pleasure? Do you want them to come up now?
Mr. Hong: Why don't they come up first and then we can respond to all the questions at
once.
Mr. Kurt Lofstead: Good morning. My name is Kurt Lofstead,my wife who is with me
today and I own Island Helicopters. First we would like to thank the Commission for taking the
time to hear our application to renew Island Helicopter's landing permit at Manawaiopuna Falls.
It has been 2 years since our application was approved and during that time we feel that this
landing has proved very rewarding for not only Island Helicopters but also for the island of
Kauai. Before we explain why we feel this way for those who are new to the Commission I
would like to give a quick background of Island Helicopters and review the process we went
through to be granted the original approval. Bonnie and I started Island Helicopters in 1980. We
are the sole owners and always have been. I was Vice President and General Manager and Chief
Pilot of another helicopter company for seven and a half years prior to that, some of you may
remember Kenai Helicopters. I personally have approximately 29 thousand pilot hours and a
perfect safety record.
Island Helicopters is a small company by choice,we operate 2, six passenger A-Star
helicopters. We have never operated more than 3 helicopters at a time since being in business.
We began the permitting process for our landing at Manawaiopuna Falls five and a half years
before the application was approved in 2009. We had never landed or advertized landing on our
tours in remote areas prior to receiving all the required permits. We wanted to make sure that we
followed all the rules and completed all the tasks asked of us by the Planning Department and
Commission as did the landowners,the Robinson family. This included a fall environmental
impact assessment which we completed. We had several Kauai residents give written and oral
testimony on Island Helicopter's behalf as well as written testimony of support from the Kauai
Chamber of Commerce, West Kauai Business and Professional Association,and Kaua`i's
American Medical Response and Kauai Visitor's Bureau to name a few. We are members of
the Kauai Tour Aircraft Helpline and were instrumental in its formation. We take flying
neighborly very seriously that we live on Kauai. I personally offered to be part of a non-paid
task force committee for the new Kauai County helicopter which was recently purchased. I did
not bid on this contract however offered my 37 years experience flying helicopters in Hawaii as
community service.
Our landing area is on private property Ag. land owned by the Robinson family. Our
flight path to the falls is the same flight path as a regular flight around the island and that of the
majority of the other helicopter tour companies so in fact no new areas are over flown. Our
landing area is deep within the Hanapepa Valley over three and a half miles from any resident or
the nearest residence and has several steep canyon walls blocking any noise from extending
down the valley. Our approach or take off from our landing cannot be seen from any public
place on the island. We land on a small grassy area, shut down the helicopter and escort our
passengers on an existing flat trail along an irrigation ditch that is approximately 150 yards to the
base of the falls. The passengers take pictures and the pilot gives a brief history of the area. The
total time from landing to take off is 25 minutes. There is no food or drink offered and there is
no swimming allowed. Each passenger prior to boarding the helicopter is required to wear non-
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April 26,2011
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slip disposable shoe covers that we provide. These are to protect against the spread of the alien
spores that may be on their footwear.
When I checked last with the Planning Department we had not negative comments to our
landings over the past 2 years or complaints that have been submitted to the department. We
have also provided 2 helicopter flights to Manawaiopuna Falls at the request of the Planning
Department for observation of the area, one in 2010 with 3 planners, one yesterday with Kaaina
Hull, both flights reported to me that no discrepancies were found. Now I would like to have my
wife Bonnie summarize what these tours have had or are having on our company on Kauai and
after that I would be happy to answer any questions the Commission might have.
Ms. Bonnie Lofstead: Good morning. My name is Bonnie Lofstead and as Kurt
mentioned we are the owners of Island Helicopters here on Kauai. As are all aware the
downturn of the US economy has affected all of Kauai for the past several years. The visitor
industry although often debated in this room is a major component of our entire County. I would
like to offer a list which is exhibit 1,which you will get later, of not only all aircraft companies
but just the helicopter operators who have gone out of business since 1980 when we started
Island Helicopters. Of the current 7 Kauai helicopter operators there are only 2 helicopter
operators that have been in business since 1980. In the past 31 years we have been in business
22 helicopter operators have gone out of business. Of the 7 current operators we are one of just a
few who are actual Kauai residents. We are constantly working to keep our employees busy
and our customers satisfied. We continue to operate only 2 helicopters on Kauai and we do not
operate on any other island.
It is a very expensive operation and we are at work every single day to keep our operation
safe and well. It is important to this testimony to communicate to the Commissioners that prior
to our approval for the permit to land at Manawaiopuna Falls Island Helicopters struggled to
keep its 18 employees. Some of our employees have been with us for over 26 years. Many of us
have raised our children and are now grandparents as we work alongside each other year after
year. Please take note, in the past year we have added 2 more employees to our team, as well,
we have reduced the number of our daily flights by as many as 6 flights per day around Kaua`i.
We testified in many previous hearings that this would be the case and indeed it has happened.
Our waterfall tour is a longer tour do to the stopover at the waterfall. It is the reason why we
have reduced or decreased the number of flights we could normally take around the island
effectively decreasing actual over flights of Kauai with our company.
During the past two years we have not only offered Kama`aina rates to all Kauai
residents and active military personnel but we have also given out nearly 100 complimentary
seats to Kama`aina who now have had the chance to experience the beautiful and inaccessible
waterfall. Additionally, we have provided both complimentary and discounted flights to many
travel writers,journalists, travel agents, travel show productions, and celebrities from around the
world to promote not only Island Helicopters but also the island of Kauai. Kurt has flown and
filmed along with other media productions and an Australian TV show, radio show host,
Japanese travel shows and recently a segment for ABC's the Weather Channel. I have traveled
to New York City and to Los Angeles to meet with travel publications,writers, and editors, to
promote Kauai. All of these promotions are positive for Kauai and help the visitor industry.
Kauai will be promoted in the upcoming May issue of Sunset Magazine. We flew four different
people from Sunset alone to encourage the press for the visitor industry on Kauai. These
promotions are worth hundreds of thousands of dollars in media promotions and have cost the
County of Kauai nothing as we have provided the seats, the space, and the time to each and
every media forum we are offered.
We have followed the guidelines to our permit perfectly and have played fair. This last
set of required environmental studies which resulted with no negative impacts cost Island
Helicopters approximately 25 thousand dollars. In the form of promotion to our Kauai island
and the visitor industry, Island Helicopters has donated generously to the community. We are
grateful for the opportunity to hold this permit. As well we feel we are good citizens. In closing,
as stated in the Garden Island, on February 6, 2011, when tourism does well Hawaii also thrives
with more jobs and opportunities for Hawai`i's people. We have included a sample selection of
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April 26,2011
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published editorials written about and promoting Kauai as a result of our waterfall landing tour,
thank you.
Chair: At this time do we have any questions from our Commissioners to the applicant?
Mr. Kimura: The amount of time that was conducted for the survey of the birds and
mammals if I am reading correctly, was it just two hours, 0700 to 0900?
Mr. Hona: I believe that is the standard protocol, it is what the consultant said he needed.
Mr. Kimura: Do you think two hours is enough for the amount of time the choppers are
flying in and out?
Mr. Hong: It is not choppers are flying in and out during that period of time, I think he
comes down, he lands, he shuts off the machine and he goes and he walks around to see what he
can find in so far as animals.
Mr. Kimura: Wouldn't it make more sense that they are there while the choppers are
flying in and out to do their survey to see the actual effect to the birds and mammals there?
Mr. Hong: I am not sure how to respond to that because as I said we pick a consultant
who is an acknowledged expert in the area and he tells us what he wants done for him to conduct
his study.
Mr. Kimura: Well he might be an expert in that particular area but what about with the
choppers? Is he an expert with being involved with choppers flying over and doing the survey at
the same time?
Mr. Hones As far as choppers flying over,while he is there and Kurt can correct me if I
am wrong, other tour helicopters do over fly the site. They can't land but they do over fly the
site and point out the waterfall to the people so it is constant over this waterfall that even while
we are on the ground or not on the ground there are still tour helicopters over flying this
particular site. So during the time that Mr. Bruner was there, there would have been helicopters
over flying the site anyway.
Mr. Kimura: What about when the choppers are landing? I mean he is there when the
choppers are...it has already landed, what about doing the survey when the choppers are flying
in to land? It makes no sense.
Mr. Hong: I don't know how to respond to that Commissioner Kimura, I can only say we
hire a consultant and he tells us this is what I need to do. If he said okay,take off and come back
and land again and I will see what it is. He never made that request, he said bring me to the site,
this is the amount of time I need and he came out with this study.
Mr. Kimura: Well personally I think a onetime survey of two hours is insufficient for
me. That is just my opinion.
Chair: Anybody else?
Mr. Raco: Walton, I had a question regarding your reasoning to get approval to exceed
the 25 minutes to 40 minutes. Did you say that it is to provide handicap access?
Mr. Hong: No, it is to accommodate people. You can't say provide handicap access
because it is a dirt trail. I am not sure if we had anybody in a wheelchair but there are elderly
people for example that need more time. If you are there and walking with a cane or you are
elderly and you can't rush we want to accommodate those people and also in the event that the
trail is slippery because of let's say it rained the night before. You want to be careful you are not
rushing people because you know you have 25 minute time limit. And it is only during those
particular times, it is not to say that we intend to use 40 minutes every time. I think giving the
scenario now we can accommodate within the 25 minutes but there may be,instances where we
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April 26,2011
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need the additional time and that is all we are asking so that we are not in violation of the permit
because somebody say you took 35 minutes, you took an extra 10 minutes and you are only
allowed 25 minutes on the ground.
Mr. Blake: I would like Ms. Lofstead to summarize how this Manawaiopuna Falls tour
has been beneficial to the island of Kauai. I think that was his statement that it has benefited the
company and the island.
Mr. Hong: I think because of Manawaiopuna Falls we have had a lot of people in the
travel industry that come out that would not normally take a helicopter flight or they have done it
already on other tours just circling the island. And because of the nature of this tour, landing at
the falls, going up to the falls which is a very spectacular tour,they end up raving about it and
they write about it. And by writing about it and you can see from the attachments to Ms.
Lofstead's testimony that this in turn generates a lot of publicity, favorable publicity for the
tourist industry on Kauai, it promotes Kauai. And this is something that is not costing the
County any money but the County is benefiting from this exposure if you would.
Mr. Blake: So in 25 words or less the benefit to the island is the exposure that this
specific tour has generated amongst travel writers.
Mr. Hong: 25 words that is a fair statement. If you look at one of the pictures,the
second to the last picture, and the reason I like it is because first of all it is someone whose name
we have heard about, Carrie Underwood,who is in this picture. But I think what is more striking
is look at their feet, they are wearing the blue booties that every person is required to wear and as
I said Island Helicopters has been very,very strict in adhering to this policy, no ifs, buts, or
maybes. I don't know, maybe you can ask the planner but when he went out, I don't know what
happened, I wasn't there.but where you required to wear the booties?
Staff. Yes, the booties are required. They were handed out when I went up to the falls
as well as staff that went out for the annual inspection last year was also required to wear the
booties.
Mr. Blake: So at the present time how many active landing sites, interior sites exist on
Kauai? This is one of them, Robinson's botanical garden or recovery garden for rare and
endangered plants is two, how many others are there?
Staff: Commercial operation sites there is just two right now. That is not counting the
other two I believe on the Napali Coast that are strictly for emergency purposes.
Mr. Blake: Are those currently being utilized commercially?
Staff: No and in fact the permits are not as I understand it from DLNR,those are not
allowed to be used commercially they are strictly for rescue operations.
Mr. Blake: So as far as commercial tour operations there are two on the interior of our
island.
Staff. Correct.
Mr. Blake: When the last applicant we here for an interior landing spot my recollection,
well I shouldn't say my recollection of the whole body's action but I felt that we should not grant
any further landings, interior landings at all until we have a policy that addresses interior
landings.
Staff: I think at that time the department spoke to the notion of possibly proceeding
through with an ordinance change or an ordinance proposal and currently that is just about in the
finalized portions. We are working with the County Attorney on that and we should be
submitting that to you folks shortly.
Mr. Blake: So that is in the pipeline.
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April 26,2011
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Staff. Correct.
Mr. Blake: The ordinance that will govern hopefully applications for interior landings.
Staff. Well it is a proposal for an ordinance. If the Commission decides to act on it and
introduce it as well as take action on it here and then it would go on to the County Council and
be subject to County Council review and approval or action and ultimately if it gets that far, to
the Mayor's signature as well.
Mr. Blake: My concern is that less than 6 months ago we denied an application and then
now we are extending an application. And I understand and appreciate that Island Helicopters
has an impeccable record of compliance and flying neighborly. I personally have heard no
complaints about their operation and I believe sincerely that they are an asset to the island.
However I am not comfortable with the recent denial and the request or action to extend that we
are dealing with right now.
Staff When reviewing these types of permits the department's
review/evaluation/recommendation as well as the Commission's review/evaluation, and action
are done on a case by case situation and you are not beholden to one application because of your
action on another application. If you find that this proposal or this specific one before you right
now,this proposal for an extension, is indeed compatible with those residing in the area if there
are people residing in the area as well as the environment then you can take action in the
approval. If you feel that it is not compatible then you could either take mitigative actions or
outright deny. But in this case as was in the other case it is on a case by case situation. On the
previous application a decision was made denying the permit and a decision and order was
drafted, reviewed by the applicant,not objected to, and ultimately signed by the Chair and was
issued. That does not behold you to action on this application in the same manner. It is within
your capacity to review it and it is actually your duty to review it on a case by case basis.
Chair: Are you through with your questions, Jimmy.
Mr. Nishida: Kaaina,the landing site for this application is on an existing service road
for the diversion for the irrigation system, right?
Staff: It is on a road, a private road that is primarily used for maintenance operations
within the Gay &Robinson operations at this site. Not at the helicopter site but at the property.
Mr. Nishida: A little clarification on Hartwell's question on the definition of interior.
What we are talking about is agricultural state Ag. lands because State conservation land
helicopter flights are prohibited, right?
Staff: There have been statements made to that effect that DLNR is not going to entertain
those types of applications however we haven't received anything in writing to that effect. Like
I said there are emergency landings that have been permitted as well as they do allow certain
types of landing operations to occur within the conservation district particularly for species
preservation. So they are permitted by DLNR under certain situations.
Mr. Nishida: And in this particular case it is on Ag. land.
Staff. In the case before you right now, correct, is on State land use, agricultural.
Mr. Nishida: Is the falls it's self in conservation land or is it still within the agricultural
district?
Staff. The falls and the majority of the trail are within the State land use conservation
district.
Mr. Nishida: And a permit was gotten, do you need a permit from the State? That was
the one about trails didn't...
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April 26,2011
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Staff. The applicant did submit a request regarding what types of permits were needed
concerning the trail an viewing of the falls and DLNR came back essentially ruling that
traversing the land does not require a conservation district use permit.
Mr.Nishida: And then your interpretation of the recommendations from the survey
consultant, do you see the recommendation as actual removal of the existing invasive species or
prevention to the propagation, further propagation of the invasive species that they found?
Staff: Could you repeat that question again?
Mr. Nishida: Because you include tentative conditions it seems like when I read that
there wasn't a requirement to remove existing invasive species. The way I read it, it was Iike
going to stop further propagation of that and then some things like the milk weed, it is a flower
that easily passes the seed around the place. When I read the recommendation from the
consultant I thought he was recommending removal of the existing invasive species. And then
when I was reading the tentative conditions it seemed like that wasn't part of that.
Staff. Currently in the conditions there is no mandate to remove invasive species from
the landing site. That can be of course amended to require the removal and to what degree
would be at your discretion whether it is immediately on the trail, near the vicinity of the trial, or
excuse me, within the vicinity or on the trial that is located in the State land use, agriculture as
well as the landing site. We don't have any or I should say the Planning Commission does not
have any jurisdiction over the waterfall area nor the trail portion that lies within the State land
use conservation district.
Mr. Nishida: When you went up to the site, I went up there once and I am not sure
exactly where the site is but how far do you think it is reasonable the extension to 40 minutes
from the walk from the landing site to the falls viewing area?
Staff. At this time we don't have any objections to it, nothing has been raised necessarily
to the affect that 40 minutes is going to impact the site in a negative manner. When staff went to
the site of course it was a relatively short walk, it is a relatively short walk however it is, you can
understand if there are individuals who may need a bit more assistance or time walking on the
trail but we don't see any problems with extending it to 40 minutes. The landing site is the
landing site.
Chair: Wayne, do you have any comments or any questions?
Mr. Katayama: Just one question, does this application, permit run with the applicant or
is it with the landowner or the parcel?
Staff. As the County Attorneys have stated on record before zoning permits run in fact
with the land and not necessarily with the owner or the lessee. If the permit is approved it runs
with the land and stays with the land. Now this particular, the applicant or lessee has signed
exclusive landing rights with the owners of the land so in essence the permit stands with the land
but with the exclusive rights the applicant before you is the only company or individual that has
access to the site to use it for commercial landings.
Mr. Kimura: Two questions for the applicant, I am looking at this picture here, how long
is the hike from your landing pad to the waterfall, to and from?
Mr. Hong: Which picture?
Mr. Kimura: Maybe you can answer it?
Mr. Lofstead: It is about 150 yards.
Mr. Kimura: How long would that take, 5 minutes?
Mr. Lofstead: Probably somewhere around that.
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April 26,2011
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Mr. Kimura: So it is 10 minutes total.
Mr. Lofstead: When you land you shut down the helicopter and unload people so that
takes a few minutes,maybe 5 minutes to get everybody out and another 5 minutes getting them
back in to get the seat belts on and all that. And then the walk up and back,you could have 5
minutes both...
Mr. Kimura: So basically we are looking at 5 minutes to take pictures.
Mr. Lofstead: Yes,
Mr. Kimura: Just about from what you are explaining to me, 10 minutes to get in and
out, another 10 minutes to get and from.
Mr. Lofstead: It depends on the people, if they are older it takes more time, if they are
younger they hop right out so it is right about that time, The 40 minutes is not a big deal, we just
didn't want to rush some people and if it is 25 minutes then 25 minutes is fine. It is just once in a
while you get somebody that is a little slow walking and we want to keep everybody together in
a group so we just thought if in a rare occasion that this would happen we wouldn't be held
accountable for going over the time limit.
Mr. Kimura: I just wanted to get justified why you wanted 40 minutes instead of 25 and
that explains a lot.
Mr. Lofstead: The extra time just in case somebody needs,the slower walkers up to the
falls and back.
Mr. Kimura: My next question is for the planner. Will it be possible in the future if we
do approve the extension that we put something in the conditions saying that they have a survey
of the birds and mammals say twice a year, say four hours each, leave the biologist there four
hours. Two.hours there while the helicopter is landed, it is kind of hard for me to swallow that
they are doing a professional survey. I know the biologist is the professional but do you know
what I am saying?
Staff: I don't think the Planning Department has any objections to that but in terms of
Director and the County Attorney, I am not sure.
Mr. Kimura: Do you guys have a problem with that?
Mr. Lofstead: I went up each time with the two different flights and I talked to John Ford
for the flora and also Bruner and both of them stated to me that they saw no change and there
would not be a problem. As far as that happening twice a year,monetarily it is expensive. This
cost us 25 thousand dollars. That is why if it is something we had to do or we could get a letter
from the people that we took up stating that there was no impact and going twice a year would
not serve a purpose and submit it to the Commission.
Mr. Kimura: What about hiring a student that is going through the program.
Mr. Lofstead: I'm sorry?
Mr. Kimura: What about hiring a student that is going through the program to be a
biologist and just leaving them up therefor a couple hours. I am sure they are not going to cost
25 thousand dollars because it is a learning program for them. I am just thinking out loud.
Mr. Dahiliz: Commissioners I did mention this to Commissioner Kimura,part of the
reason...
Mr. Lofstead: Sorry, my ears are plugged, hiring a student, we get professionals from
Honolulu, these people have done it for years and we thought that would be the best way to go.
If there were students or something like that I have no objection to that. What it does, the first
Planning Commission Minutes
April 26,2011
9
one we took it took 5 hours or so on the flora and so the helicopter sits for 5 hours so that is out
of commission for 5 hours. Anything that we can do to do it right we will do. If it is overkill,
that is something else too but if we had students go up and they were qualified we are all for that.
Mr. Kimura: Just trying to cut down the cost at the same time trying to get a good
survey.
Mr. Dahilig: I think Commissioner, part of the concern we would have is the sufficiency
of the study and part of it is that they are not qualified or they are not registered as professional
biologists. I think that would be our only concern with that is if we were to have some kind of
monitoring done by a non-professional. And again just for the Commissioner's information part
of why these supplemental studies are in the report is that we had asked pursuant to the Hawaii
Supreme Court ruling in the Kualima case to determine whether the previous environmental
assessment that was done pursuant to 343 was still a valid environmental assessment. And so we
do have that hard look rule from the department to determine whether the findings in the EA are
sufficient so that is where these supplemental studies come in,just for the Commissioner's
information.
Mr. Lofstead: The credentials of these people we took up, you might check on too
because they are very highly qualified so that is one of the reasons we went to them.
Mr. Kimura: So that 25 thousand dollars that you mentioned, was that just for the
survey? You are not charging them for the flights.
Mr. Lofstead: The surveys were over 14 thousand dollars just alone, paying for the
surveys plus we had over almost 9 hours of helicopter down time plus the flight time where the
helicopter would have been flying on tours. So it actually ran over that amount, direct cost to us.
Mr. Kimura: Thank you.
Mr. Raco: In your response to the time that you need to spend more time at the landing
site how many flights have you denied people on not recommending taking the ride because of
the access?
Mr. Lofstead: We haven't had to deny, what we do is when they call we tell them what is
happening and what the trail is like, we say flat somewhat uneven surface,there are rocks so we
haven't had anybody show up that we couldn't give a ride to because we told them ahead of time
what the situation was.
Mr. Raco: So if the visitor knows about the trail and what to expect why would the
additional time be required then?
Mr. Lofstead: Well sometimes they feel that they can move faster or the speed in which
they move is normal speed or they think...we just don't want to push people that is the only
thing. Some people walk slow but they don't want to miss the ride up there and we are not going
to make them move faster and have them trip or something like that. Again,the 25 minutes, it
was just a thought that I thought would be good if we could fit it in. It doesn't help us at all
because we don't want to stay up there 40 minutes. We can only 5 of these a day on a helicopter
and we stay up any longer we would have to cut down on that. So it doesn't behoove us to make
it any longer. There may be one flight of 40 minutes maybe every 3 days or something,possibly.
Again, if that is a concern we can just strike that and stay with the 25 minutes, it is not a problem
for us.
Mr. Blake: On exhibit 1 of Ms. Lotstead's presentation there are 22 helicopter companies
closed since 1980. How many helicopter companies are operating today?
Mr. Lofstead: I believe 6,7 companies.
Mr. Slake: Are any of those listed here or are they not listed here?
Planning Commission Minutes
April 26,2011
10
Mr. Lofstead: Not listed here.
Mr. Blake: My understanding from the first time that Island Helicopters appeared before
us was they had already conducted their environmental studies and so they came prepared which
I thought was commendable because we didn't have to ask them to go back and do things. It still
concerns me thought that we are extending almost immediately having denied someone so what
else sets us apart from the previous application or the recently denied application?
Staff: It is a different site.
Mr. Blake: That is obvious, what else?
Mr. Dahilig: I think in looking at the totality of the circumstances when we look at the
performance of executing the permit conditions as well as the fact that there have been no
complaints to the department as well as the fact that a full environmental assessment has been
done on this in comparison to the other project. And again, noting that each Special Permit
application does need to be evaluated in a silo so these are on a case by case basis. But I think
again, the past performance of the use indicating no violations as well as the fact that a lot of the
environmental concerns have been allayed through a formal 343 process and then also given
the...I guess if you want to touch on the 40 minute issue, the 40 minute thing was not something
that we thought was an enhancement of the impact because it is essentially 15 minutes on the
ground, it is not 15 minutes of rotor wash or 15 minutes of noise. And so that is why you see our
recommendation as an extension. I am acutely aware Commissioner of the Commission's desire
to want to move forward with some type of zoning policy on this and that is something that
Kaaina is working on with respect to some type of ordinance to address these types of uses on
lands. But we think in the interim that 2 years is a reasonable extension and given the policy still
needs to be enacted and the track record of the company given its compliance with the existing
permit conditions given by the Commission back in 09.
Mr. Blake: Are you able to give us any indication of when you think this will be before
us, the proposed ordinance, a realistic one?
Staff. We could have that potentially, the language actually within the next week or two
however given publication requirements of course it would take probably in June some time at
the very earliest given requirements for notification and publication in the media.
Mr. Blake: So we are looking at May and June.
Staff. Just because of publication requirements it could happen in May, language, I
would say language for that ordinance would be available next week, week or two,however as
far as it being open to the public and having a hearing for that ordinance the earliest it could
possibly happen would be June.
Mr. Blake: And then we will go over it and massage it and sprinkle our holy water on it
and then it goes up to Council.
Staff: Pending action by this Commission, correct, it would go up to Council.
Mr. Blake: If this application is extended for 2 more years and there is a possibility that
the ordinance will take effect prior to the 2 year time limit although that is assuming all the
planets line up. And so just because or in an effort or concern for consistency I would like to
amend any recommendation for extension to be 2 years or upon adoption of the new ordinance,
whichever happens first so that we are not faced with an ordinance that may have a lot of
inconsistent provisions with the existing permits.
Mr. Dahilig: Not revealing what would be our policy recommendations on the matter
because there are models that can be employed with respect to how to regulate this type of
activity, if you are looking at it from a standpoint of they would be required to come in for
another review or extension versus the permit lapsing I think that would give the Commission
Planning Commission Minutes
April 26,2011
11
and the department a little more breathing room if some type of condition were to be imposed
rather than just a strict 2 year.
Mr. Blake: The same would go for the applicant, right, it is not going to lapse but we
want to look at it again in light of whatever happens, if anything happens.
Mr. Dahilig: So essentially a Commission review would be triggered to and maybe I can
work on some language and after the Commission's discussion maybe take a short break and we
can come up with some language for that.
Mr. Hong: Just a few comments if I can. First of all I hear where this is going and it is
somewhat bothersome for several reasons. One is the practical standpoint, if we don't have a
definitive time when this permit can run to how do you market? You pay for your advertising a
year in advance, you run your ads and you start booking tours and it would be kind of hard to
book tours if there is an unknown drop dead date. That is from the practical standpoint. The
other point I would like to make and I was trying to see if I could not make it but I guess for the
record I need to and that is what is the policy now? What is the policy now in so far as
helicopter landings of this nature? And I think the policy is set forth as expressed in law,two
that I can point to right off the bat. First of all the State law and I when I say that Chapter 343,
HRS, which is the environmental impact assessment, environmental impact statement provisions,
that there may be helicopter landings in remote areas. And that is why when 342, 343, I don't
remember the exact section, does state if you have helicopter landings the conservation district
that may affect the conservation district you need to go through the process of 343 and that is
exactly what we did. We went through that process, it was a very lengthy process, it was an
expensive process and it ended up with the County issuing a FONSI or Finding of No Significant
Impact. But the point is that the State statute,by referencing helicopter landings and requiring an
environmental assessment I think does recognize that helicopter landings in remote areas are a
possibility.
Further, the policies if you would are contained in among other documents the Kauai
General Plan. There was a document that went out for public hearings and years of workshops
and whatnot and was finally adopted by the County Council signed into law by the Mayor. And
I would like to point out that section 4.2.8.3 of the Kauai General flan,pages 4-17 and 4-18,
contain the following policy statements with respect to outdoor recreation; "Simplify zoning and
permitting procedures for the operation of outdoor recreational activities on private lands.
Clarify the definition of outdoor recreation to include but not be limited to bicycle and horseback
riding, hiking, off-road sightseeing, fishing, camping and other such uses which are dependent
on open lands. Such uses shall not displace agricultural use and shall not involve unrelated retail
services." I think we fall within that policy. "Manage beach parks, resource parks, rivers,
beaches, and other natural areas according to the following policies in order of priority."
Conserve resources,we are not destroying any resources, we are landing on a 2,000 square foot
landing site in the middle of a valley three and a half miles from the nearest residence. "Provide
for use by the general public and 3, allow for group use including commercial tours and
equipment rentals within conservation limits."
I think this is a policy that we fit into that is stated and contained within the General Plan
of the County. Now in so far as the CZO, Comprehensive Zoning Ordinance,the purposes of the
agriculture district are set forth in 8-7.1 of the Kauai County Code and that says, "To protect the
agricultural potential of lands within the County to ensure a resource base adequate to meet the
needs and activities of the present and future." Our proposed activity is not inconsistent with
this. B) "To ensure a reasonable relationship between the availability of agricultural lands for
various agricultural uses and the feasibility of these uses", and C), "To limit and control the
disbursable of residential and urban use within in agricultural lands." Again I would submit with
all due respect to the Commission that we are not at odds and this particular use is not
inconsistent with the policies as set forth in these various laws of the County.
On the contrary, I think we are consistent with it. And until there is such a change by law
duly enacted by the Council, signed into law by the Mayor, I think and again with all due respect
to Commissioner Blake, I think we are putting the cart before the horse. Let it change first if it is
going to change. We don't know whether it is going to change. But to say we are going to go on
Planning Commission Minutes.
April 26,2011
12
a basis that it might change, well we can go on the basis that it might not change,we don't know.
So all we are asking for is we have operated for 2 years, we have advertising, we have bookings
and we have done nothing wrong. We have met every requirement imposed on us and let us
continue for another 2 years. And coupled with the benefits that this particular tour is bringing to
the island in promoting tourism and the island in whatever travel magazines and documentaries
and what have you,thank you.
Chair: Thank you, Kaaina, if it is the Commission's desire can we just take a short
recess, we will make it a caption break.
Commission recessed at 10:23 a.m.
Meeting was called back to order at 10:45 a.m.
Chair: At this time we want to get public comment so if you can go back and we can call
you back up if we need to. Is there anybody in the public that wishes to comment on this
application you can come forward at this time? There being none we are going to move forward,
is there a motion to amend, is there a motion to adopt? We have some amendments but prior to
that is there a motion to adopt?
Mr. Blake: So moved.
Mr. Nishida: Second.
Chair: All those in favor...I'm sorry, at this point are there any amendments we wish to
entertain?
Mr. Blake: I would just like to know what the planner has come up with based on our
previous discussion.
Staff. Concerning the policy change or ordinance adoption referred to previously in
Commissioner Blake's discussion, condition No. 10 could be amended to state the following,
well actually it would be stricken and would be replaced with the following language, "Should
there be any policy change or ordinance adoption by the County of Kauai relating to helicopter
landing sites the subject permits shall automatically lapse after the 2 year extension and it shall
not be extended."
Mr. Blake: After the 2 year extension. Read it again please.
Staff. "Should there be any policy change or ordinance adoption by the County of Kauai
relating to helicopter landing sites the subject permits shall automatically lapse after the 2 year
extension and they shall not be extended."
Mr. Blake: So if there is a policy that says there is no interior landing that is it, 2 years
and pau.
Staff. After the 2 years, correct.
Mr. Blake: And if the policy is articulated such that there can be interior landings this
permit lapses and this applicant would have to reapply?
Staff. Correct.
Chair: Anybody have a problem or concern with this amended condition?
Mr. Nishida: We don't have a motion to amend.
Chair: Not yet.
Mr. Nishida: I will wait for discussion until after you have a motion.
Planning Commission Minutes
April 26,2011
13
Mr. Katayama: So just a question,there is no ability to renew in absence of a new
policy?
Mr. Dahilig: The way it is written it does leave it open so it is a trigger point that
automatically creates a lapse based on a condition.
Mr. Kataama: I understand that. In the event there is no policy established by the
County relating to criteria for interior landing does the applicant have the ability to renew the
permit.
Mr. Dahilijz: That is the way it is written.
Staff. Commissioner Katayama I actually think you bring up a good point and I would
stand corrected, in order to establish that potentially the existing language in condition No. 10
would not be stricken, it would actually remain in place and then the language that I just read
would be added to it. In essence if there is no policy change or ordinance adoption then the
existing condition No. 10 would remain as follows and there would be the ability for them to
come back after the 2 year extension time is up.
Chair: Are there any other conditions we wish to look at? Condition No. 5, the staff has
recommended that we change it from a period not to exceed 25 and to accept 40 minutes, that is
the new recommendation by staff. Is there any problem with that, is that okay?
Mr. Raco: Is it recommended by the staff or is it requested by the applicant?
Mr. Dahilig: It is requested by the applicant and we concur and proposed it as part of our
recommendations. And again we thought it was a reasonable request given the fact that the on
the ground time doesn't in essence create more impacts because it is not as if the rotor wash is
going to be there an extended amount of time because of the 40 minutes.
Mr.Nishida: Chair, we have a motion to approve the staff report, right?
Mr. Dahilig: Yes.
Staff: Was the motion made to approve the staff report?
Chair: They didn't even.read their conclusion.
Mr.Nishida: Where are we at now?
Chair: When we finish this I was going to ask him to go ahead and read his conclusion
and recommendation prior to...
Mr. Nishida: So we are not voting on amendments.
Chair: Not at this point,just information. Do you want to go ahead and make your
conclusion?
Staff: You want the conclusion and recommendation?
Chair: Yes.
Staff Planner Kaaina Hull read staff recommendation(on file).
Mr. Raco: I have a question for the planner, in regard to condition No. 16 why would the
applicant need to power wash the landing site and trail?
Staff: I would ask the applicant to discuss why exactly power washing is occurring.
Planning Commission Minutes
April 26,2011
14
Mr. Hong: Thank you, in recognition of the concern that we are bringing in seeds and
spores and whatnot we are obligated to go up and clean the site every so often, cut down the
vegetation so the helicopter can land, preserve the trail in a safe, reasonable condition. That
includes bringing weed whackers for example up to the site. The present practice of the
applicant now is that all of his weed whackers are power washed before they take it up to the site
and power washed when they come back. This is to avoid the probability if you would that there
would be hitch hikers if I can call them that from plants to the site.
Mr. Raco: Do you want to rewrite that condition? Because the way I read it, it is saying
to power wash the landing site.
Staff. Power wash the actual site.
Mr.Nishida: Don't they power wash the helicopter too?
Mr. Lofstead: The helicopters are washed every night.
Mr. Nishida: Not before going into the site.
Mr. Lofstead: Not the whole helicopter. We inspect the helicopter and it lands on a
cement pad. Then our weed whackers, the equipment we use are exclusive for that operation.
We don't use them at home or different areas; it is only used for cutting the grass up there.
Chair: So would you object to us modifying condition No. 16 to state that power
washing, the weed whackers or what other equipment you need to power wash instead of power
washing the landing site and trail?
Mr. Lofstead: No.
Mr. Hong: I think it is a matter of semantics, it says "The applicant shall continue the
ongoing practice of cleaning eg., power washing." That refers in the consultant's report about
power washing the equipment we take up to clean the site, "And weed whacking the landing site
and trail." That is two separate things, we will continue to weed whack but the first phrase is
referring to cleaning the equipment that we are taking up to weed whack and we have to power
wash those.
Staff: To further clarify we could just amend the condition to state, "The applicant shall
continue the ongoing practice of cleaning and removal, eg.,power washing, and weed whacking
the landing site and trail as well as power washing, cleaning and maintenance equipment."
Mr. Raco: No. You cannot power wash the trail. Why would you want to power wash
the trail and the landing site, it is vegetation. We should probably just say power wash the
equipment prior to use of at landing site for cleaning and maintaining the site.
Staff: That is what I recommended,power washing of the equipment, not the trail.
Mr. Raco: You just said power wash the landing site.
Chair: Can you read it again just so we can have a clarification.
Staff. "The applicant shall continue the ongoing practice of cleaning and weed whacking
the landing site and trail as well as power washing and cleaning maintenance equipment."
Mr. Raco: You don't need that first part, right, you are still power washing the trail and
the landing site.
Mr. Hong Can I make a suggestion. I think the confusion is there is one sentence with
two different things in it. If we say the applicant shall continue the ongoing practice of cleaning,
eg. power washing, which we know what that is, as well as weed whacking the landing,trail, and
Planning Commission Minutes
April 26,2011
15
site. So the word"and" before weed whacking would be substituted with"as well as" and I
think that shows there are two different things we have to do.
Chair: is everybody comfortable with that?
Mr. Kimura: I have a question. I have a problem with condition No. 10. I want to put
the word"only"back in there.
Chair: Is this the appropriate time? Should we do it now or should we call for the
motion?
Mr. Dahilig: There is a motion on the floor so you can take, we want to take each item as
amendments, motions to amend.
Chair: But we are not at that point right now, we need to have the motion.
Mr. Dahilig: There still is a motion that is on the floor.
Chair: Has it been seconded.
Mr. Dahilig: And it was seconded.
Mr. Nishida: What is the motion Mike?
Mr. Dahilig: It was to adopt and approve the staff report as recommended.
Mr. Nishida: So let's just start with the first amendment because I would like each
amendment to be voted on separately. So the first one was, what was the first one Kaaina?
Chair: Item 5.
Mr. Kimura: Condition No. 5.
Mr. Nishida: I am good with the 40 minutes so I think we have an amendment.
Chair: So we have to have a motion on the amendment then. Is there a motion to amend
item 5 or to accept it in as it is presently prepared for us? There is no...
Mr. Blake: You want a motion to amend?
Mr. Nishida: What is the motion Kaaina?
Staff. It was to accept the department's recommendation which under the department's
recommendation is that 40 minutes is allowable.
Chair: Right, so do we want to change condition No. 5?
Mr. Kimura: Well a motion to accept.
Mr. Blake: The recommendation of 40 minutes instead of 25 minutes, right?
Chair: Right.
Mr. Blake: I move to accept the department's recommendation relative to No. 5
permitting a 40 minute landing time as opposed to only 25 minutes.
Mr.Nishida: We don't need to vote on that because that is the recommendation.
Mr. Dahilig: Any motion to amend would be to strike the recommendation.
Planning Commission Minutes
April 26,2011
16
Chair: So if you accept it—so the next condition is item 10.
Mr. Kimura: So now do I make a motion?
Chair: Yes.
Mr. Kimura: I would like to make a motion to change the wording that we stroked out
the word"only". I want to put it back in.
Mr. Raco: Chair, if I may, I guess my issue with that original condition is not to strike it
and leave it as is in that my opposition to this application the very first time was to allow this
application only be for 2 years. If the Commission moves ahead and approves this application,
for my fellow Commissioners, I will be voting against the application because I think this
application and that condition specifically was put in there for temporary use and not to exceed 2
years and that is my discussion.
Chair: So it is getting confusing but the motion is to restore the word"only", all those in
favor...
Staff: Excuse me, I believe with the language that we previously discussed concerning
policy changes or ordinance adoption that this is also where that language would be included in
condition No. 10.
Mr. Kimura: So I withdraw my motion?
Mr. Dahili-g: I think right now, based on the motion that is on the floor we have not
recommended an amendment to this condition we have proposed something for the Commission
to entertain but it is not a recommendation so the only motion on the floor I would say is the
word"only".
Chair: So we have a motion for that.
Mr. Katayama: May I make a comment on that. By maintain the word "only"the next
sentence becomes sort of contradictory because then it excludes any renewal and I don't know if
that is the intent. Commissioner Raco says he views this as a 2 year use permit and I don't know
if that is what the intent of the applicant given the conditions of to continue to resurvey of the
flora and fauna and other kinds of updates subject to the policy on criteria for granting interior
landings.
Chair: I would like to take a short recess. This is getting a little bit too out of hand.
Commission recessed at 11:05 a.m.
Meeting called back to order at 11:30 a.m.
Chair: We are back to condition No. 10 and that is Jan's motion to include "only" and
therefore we have a motion and a second and we had discussion on this item so I will be calling
for the vote, all those in favor say aye, those opposed,we will call for a roll call.
On motion made by Jan Kimura and seconded by Hartwell Blake, to amendment
condition No. 10, motion was denied by the following roll call vote:
Ayes: Kimura, Blake, Raco -3
Noes: Nishida, Katayama, Texeira -3
Absent: Matsumoto -1
Note Voting: None -0
Chair: Are there any other motions we want to discuss at this point? If not I would like
to call for the main motion.
Planning Commission Minutes
April 26,2011
17
Mr. Blake: We accepted the conclusion. We amended certain portions of the conclusion
so that is it?
Mr. Dahilig: You voted down 10 so it was Jan's motion to include the word"only"
contrary to our recommendation which is the main motion and so the Chair was calling for any
further motions to amend.
Chair: So we are back to the main motion, so that being the case I would like to take a
roll call on the main...
Mr. Katayama: We need to make another amendment.
Chair: We need to make a motion, the main(notion right?
Mr. Dahilijz: The floor is open to any Commissioner to make any other amendments by
motion to the main motion.
Mr. Katavama: I am willing to hear or entertain the staff's amendment to condition No.
10 pursuant to the discussion related to the landing policy.
Chair: So would you like to please read it?
Staff Condition No. 10 would include the language represented in the report as well as
the following language, "Should there be any policy change or ordinance adoption by the County
of Kauai relating to helicopter landing sites the subject permits shall automatically lapse after
the 2 year extension and they shall not be extended."
Mr. Katavama: That is the last sentence?
Staff Correct, it would be after"present their findings to the Planning Commission."
Chair: Is there a motion?
Mr. KatUama: So moved.
Mr. Blake: Second.
Chair: Any discussion, let's take a role call on this please.
Mr. Dahilig: This is a motion to amend condition No. 10 to include the language read by
Kaaina relating to a policy change.
On motion made by Wayne Katayama and seconded by Hartwell Blake, to amend
condition No. 10 with language as read by the planner, motion carried by the following roll
call vote:
Ayes: Kimura, Blake, Raco, Katayama, Texeira -5
Noes: Nishida -1
Absent: Matsumoto -1
Not Voting: None -0
Chair: We are back to the main motion, is there any discussion on the main motion?
Mr. Raco: Chair, as a Commissioner I will be voting against the approval of the
application,the reason for that in my explanation of reading the use permit that this helicopter
landing is detrimental to the peace and comfort of the general public.
Chair: Thank you, any other discussion, if not I would like to call for the question, roll
call.
Planning Commission Minutes
April 26,2011
18
On motion made by Hartwell Blake and seconded by James Nishida,to approve
staff report as amended, motion carried by the following roll call vote:
Ayes: Nishida, Blake, Katayama, Texeira -4
Noes: Kimura, Raco -2
Absent: Matsumoto -1
Note Voting: None -0
Status Report of Compliance Q/18/11 from Frances Yamada Wilson Okamoto
Corporation(Authorized Agent),relating to Condition No. 10 of Special Management Area Use
Permit SMAaD-2008-11,Tax Map Keys 4)2-6-002:012 &2-6-003:003, 020.Kukui`ula,
Kauai=Kukui`ula Development Company (Hawai`i),LLC.
Staff Re
l7ort pertaining to this matter.
Mr. Katayama: Mr. Chair, I have a conflict.
Chair: Duly noted.
Staff Planner Dale Cua read staff report (on file).
Chair: Are there any questions of our planner? There being none I would like to call on
the applicant.
Mr. Lindsey Crawford: Good morning Commissioners, Lindsey Crawford, Kukui`ula
Development Company for the record.
Chair: Do you have any reaction to the planner's...
Mr. Crawford: No action, nothing to add, Dale has covered it. It is an annual report that
we do every year.
Chair: Are there any questions of the applicant? There being none what are the wishes
of this body, is there a motion? Sorry, again I am ahead of myself, is there anybody from the
public that wishes to comment on this application? There being none what is the wishes of this
body?
Mr. Raco: Motion to approve.
Mr. Blake. Second.
Chair: Any discussion, all those in favor,those opposed, motion carried.
On motion made by Caven Raco and seconded by Hartwell Blake, to approve staff
recommendation, motion carried unanimously by voice vote.
Chair: The next item on the agenda, we are revising the agenda a little bit and we will
doing the Subdivision Report,
SUBDIVISION
Mr. Kimura: Subdivision Committee Report, committee members present,myself and
Commissioner Blake. General Business none, Communications none, Unfinished Business
none,New Business,tentative subdivision action, S-2002-21, O`ma`o Ranch Lands, LLC, TMK:
2-7-003:005, approved 2-0. Final subdivision action, I am going to read all the numbers, all the
dates all together, it all considers the bike path, it is all the same thing so I am going to read it all
at once. S-2011-4, S-2011-5, S-2011-6, S-2011-7, S-2011-8, and S-2011-9, approved 2-0.
Mr. Raco: Move to approve.
Planning Commission Minutes
April 26,2011
19
Mr. Kimura: I have one more, tentative subdivision extension request S-2009-8, KMN,
LLC,TMK: 4-1-006:017,approved 2-0, and that completes my report.
Mr. Raco: Motion to approve.
Mr. Blake: Second.
Chair: Any discussion on the subdivision report? There being none I would like to call
for the question, all those in favor,those opposed, motion carried.
On motion made by Caven Raco and seconded by Jan Kimura, to approve
Subdivision Committee Report, motion carried unanimously by voice vote.
Commission recessed at 11:27 a.m.
Meeting called back to order at 11:41 a.m.
Informational Presentation by the Planning Department regarding the Six-Year Ca ital
Improvements Program and the Planning Commission's duties and responsibilities related to the
program.
Staff Planner Marie Williams: Good morning Planning Commission Chair and
Commission members. I will be providing a brief presentation about the Six-Year Capital
Improvements Program or Six-Year CIP and I believe this is in response from an actual request
from you for more information regarding the Planning Commission's role in this program. The
presentation is improving the Six-Year CIP process, as for a quick overview I will be presenting
some background information about the Six-Year CIP and then speaking to how the Six-Year
CIP fits in with our County's planning framework and then also presenting some of our initial
recommended changes to our current Six-Year CIP planning process. Some of you might have
seen this report before, it is our Six-Year CIP document and to summarize our Six-Year CIP is a
rolling compilation of proposed County projects such as new facilities and infrastructure and it
has been used for many years, an administrative planning tool. I would also like to clarify that
this is not the annual CIP budget that Council deals with every year this is more of a short term
planning document.
First I wanted to go to the County Charter because it is actually speaks a lot about the
Six-Year CIP program. Section 14 which is the Planning Department's section it reads that"The
Planning Commission shall prepare a capital improvement program with the advice of the Mayor
complementing and reflecting State and Federal programs for the County and also regarding the
functions of the Planning Director, (c)reads, "Consolidate the list of proposed capital
improvements contemplated by several departments in the order of their priority for the County
and also the Six-Year CIP is very much tied into the General Plan. Our Charter reads, "The
General Plan shall serve as a guide to all future Council action concerning land use,
development, regulations,urban renewal programs, and expenditures for capital improvements."
Furthermore, in our finance section of the Charter it also refers to the Six-Year CIP and it reads,
"The Planning Commission shall prepare the capital program for each of the ensuing five fiscal
years predicated upon the request of several agencies and based upon the Finance Director's
statement of monies likely to be available and the amount of bonds which the Mayor believes
would be proper for the County to issue."
Also, our General Plan ordinance No. 753 also refers to the Six-Year CIP and it reads,
"All actions and decisions undertaken by the County Council and the County Administration
shall be guided by the Vision Statement policies and the implementing actions of the General
Plan and this includes the Six-Year CIP." The General Plan ordinance also provides some
guidance on how this should be done, it reads, "In consultation with other departments the
Planning Department shall establish a systematic method of organizing capital improvement and
service priorities to be used in the formulation of the Six-Year CIP and the Planning Department
shall review the annual CIP and each County budget submittal for conformance to the stated CIP
priorities every year." And then our actual General Plan document also refers to this program
and again reiterates that the policies in the General Plan will guide the County in making
Planning Commission Minutes
April 26,2011
20
revisions to land development regulations and deciding on zone changes and development
permits and in setting strategies for capital improvements.
Here is a flow chart of our County's planning framework and you can see that our
General Plan is what guides our development plans, our special area plans like the Lihu`e Town
Core Urban Design Plan, our public facility plans, and ultimately guides amendments to our
CZO and this affects the permits that are issued. And then you can see where the Six-Year CIP
program falls in that these plans ultimately will provide some guidance County investment. Not
only does our General Plan provide some guidance to our Six-Year CIP process but our
development plans and special area plans can do that too and of course here is a list of all the
plans and the regions they are associated with. And as you know many of these plans are
outdated but they are what are existing right now. And I wanted to give you one more recent
example and that is the L-ihu`e Tpwn Core Urban Design Plan which was adopted last year and
in it, it does provide guidance as to what capital improvements should come into place if we are
going to actually implement this plan. This is taken from the actual plan and you can see that
they have a very detailed schedule about the projects that will need to be implemented if this
plan will come to fruition. And just to summarize,the Six-Year CIP includes new non-
maintenance projects only and it really is an integral part of the County's long range planning
program for how the Charter envisions our planning program to be. The General Plan guides are
long range planning program of course and it is supposed to guide how the County invests its
money in infrastructure. The Six-Year CIP can help departments align their proposed new
projects with the General Plan and moreover it shows how we are trying to implement the
General Plan as well.
We have come up with some initial changes that would take place in the next financial
year as it is too late to implement any changes in this financial year to our CIP process of course
but we are hoping that when we do go out and solicit project proposals from departments that the
proposal needs to address consistency with the General Plan, development plans, or a special
area plan. We will also submit the report to the Planning Commission for their review per the
Charter and then the report as it usually is, is attached to the Mayor's annual budget proposal
which is sent up to Council. And as for an initial timeline keeping in mind that we want this
report to be a resource for the Mayor's office and when he is developing our budget and so
sometime this summer,perhaps July, we will do a call for new CIP projects, and then there will
be a submittal deadline in the Planning Department. We will review what the proposals are in
tandem with the Mayor's office, Department of Finance, and other agencies as well and then we
will have a report that we submit to you and then our final report will be provided to the Mayor's
office as a tool for them when they are doing their budget. And then finally in March when the
annual budget ordinance is provided to Council this report will be attached to it. That is the end
of the presentation,thank you.
Chair: Are there any questions of Marie?
Mr. Blake: Is the path for CIP projects to get to the Planning Department to be placed in
a cohesive program or presentation for the Mayor through Public Works?
Staff: Public Works is one of the agencies that do submit proposed projects to the
Planning Department for inclusion in the actual Six-Year CIP program.
Mr. Blake: So does every department that has a non-maintenance CIP project submit
theirs to the...?
Staff: That is how it has been done in the past. Through the Planning Director a memo
has been issued to every single department saying now is your change to submit any proposed
projects for the Six-Year CIP and then they are all compiled in a single cohesive document.
Mr. Blake: And that is now or was it taking place before?
Staff: It was taking place before, not every year because this is a very time intensive
process it can take up to 6 months from the call for projects to having a final CIP document.
And so I think that might have affected whether or not this program was done every year.
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April 26,2011
21
Mr. Blake: So what is in front of the Mayor on this year's budget pursuant to this
planning?
Staff. A Six-Year CIP report was not finalized this year and part of the reason for that
was because the County has hired a CIP manager through the Mayor's office and on their side
they are trying to improve how the management of CIP projects takes place. And we have been
working with them to integrate the Six-Year CIP into that new process as well.
Mr. Blake: Will there be one presented this year?
Staff. No, it is too late for that. The capital budget has been submitted to the Council
already.
Chair: I just want to reiterate that the Planning Commission will be more involved
beginning fiscal year 2012/2013.
Staff: That is our intention to come more into compliance with the County Charter.
Chair: Are there any suggestions for our planner in regards to the CIP program that is
being done by the Planning Department?
Mr. Katayama: What is the threshold of CIP projects that is imbedded into this plan?
Staff: The cost threshold or could you clarify?
Mr. Dahilip,: I think it is anything that would rely on either general obligation bonds that
are issued by the County or any new projects that would be funded out of the general operating
budget of the County.
Mr. Katayama: I can see how this thing would become very tedious and time consuming
but if it is more directional where you set thresholds that would substantially impact
infrastructure or delivery of capacity or changes in capacity. I guess the question is, is this just
barely focusing on County level or is it inclusive of things like State, Federal, and private
investments that impact General Plan or density types of issues?
Staff. It is limited to new County projects that the County would be funding for example
the maintenance of a road would not be included but if a new road was proposed that would be
appropriate for the Six-Year CIP.
Chair: Could you expand on that? Sorry, I can ask my last.
Mr. Blake: I understand that the process of getting from conception to final passage can
take a long time. What I would like to see though is as soon as somebody conceives of a
necessary CIP plan that it get floated to the Commission with that caveat that this is being
considered so that by the time we do see it and don't like it there has been a lot of sunk costs in it
already. To just kind of keep us apprised, the Police want a new parking lot or Fire Station needs
to be built. You hear all these rumors and often times that is as far as they ever get and the next
thing you know is that they are being built. So if this carne to us early and it doesn't have to be
with all the T's crossed and I's dotted. I think that would be valuable in carrying out the Charter
directive.
Staff That is our intention to involve this Commission at a point where it makes sense
and we can have the final report that the Commission is happy with.
Chair: Anybody else?
Mr. Katayama: More of a question, in terms of long term planning resources how much
time does this process presently occupy?
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April 26,2011
22
Staff: It is a lot of time because you have to coordinate requests and meetings with a lot
of different departments but that is why we will in the next few months we will also be as the
presentation pointed out, we are looking to improve our process perhaps by streamlining it. We
are going to evaluate how other County Planning Departments conduct their Six-Year CIP
planning process and perhaps result in a more streamlined simplified process that is even more
useful. That is our hope.
Mr. Katayama: For the Director, what is the end game or the value of this process for the
Commission and the Mayor, how do you perceive that?
Mr. Dahilig: The end game is a more robust discussion of CIP projects that are up for the
budget ordinance in terms of how they comport with the General Plan and the other plans that
are on the books throughout the County. And whether the investment that the Counties would be
making either does match let's say the construction of a road in this area or doesn't. What has
been the lingering question is how does that come into play before the budge process is even
crafted, the budget ordinance is even crafted for the upcoming fiscal year. So what Marie is
suggesting is getting out in front of the...once these projects start getting selected and making a
proposal is essentially saying these are the ones that make sense for this fiscal year. Now
whether the Mayor or the Council decides to listen to the advice of the Commission based on the
CIP report becomes a political process from there but that is essentially what it has been as a
recommendation.
Chair: If you don't mind could I ask a question? Marie, on page 7 of your tentative
timeline has this tentative timeline changed as compared to past CIP developments?
Staff: From my understanding in the past often this Six-Year CIP planning process went
on at the same time as the actual budget process and I think there were some problems about the
overlap. It makes sense to want the Six-Year CIP to be consistent with what the County actually
submits to Council but again we think that the Six-Year CIP should perhaps be more of a tool for
the Mayor and Council to use and evaluating whether or not a proposed project is consistent with
our long range plan and program with the General Plan.
Chair: In regards to Hartwell's proposal that we get involved with the process earlier if
possible it seems like your timeline from July to October isn't a very lengthy timeline to get all
of these things submitted to the Commission. Is it possible to begin this timeline let's say in
June, a little bit earlier? I know that the fiscal year begins July 1 and therefore is that why you
start the new process at the beginning of the new fiscal?
Staff: Yes but we can definitely start earlier. We just want to provide enough time to the
departments to submit a proposal to consider the request and submit their proposals.
Chair: This would just be a recommendation if we could start the process a little bit
earlier so Planning, as Hartwell suggested, could be involved in the process a little bit earlier.
And I don't know if that is reasonable or not but maybe something you can look into.
Staff Thank you.
Chair: Are there any other questions for Marie, if not thank you for a wonderful report,
we appreciate it. We are moving D.1 in front our executive session so at this point we will be
discussing the application D.1.
UNFINISHED BUSINESS
Use Permit U-2011-6, Variance Permit V-2011-1 and Class IV Zoning Permit Z-IV-
2011-6 to permit the construction and operation of a telecommunication facility that includes a
165 ft. high stealth monopine a monopole designed to look like a pine tree) and associated
equipment at a site located on a cane haul road approx. 90 ft. north of the cane haul road's
intersection with Kaumuali`i Highway intersection, said intersection is located approx. 1.7 miles
west of the Kaumuali`i Highway and Kipu Road intersection, and approx. .40 miles north of that
area generally referred to as Halfwa y Bridge, further identified as Tax Map Key 3-4-001:003,
and affecting a 600 sq. ft. portion of a 2,668.037 acre parcel=Sprint/Nextel. [Director's Report
Planning Commission Minutes
April 26,2011
23
received 12/14/10,hearing closed 1/I W11, deferred 2/8/11, application denied 2/22/11,
Reconsideration Granted and Action Deferred 3/22/11 Deferred Action based on vote to
reconsider, 4/12/11.1
Supplement No. 3 to Director's Report pertaining to this matter. Received 4/12/11.1
Letter(3/30/11) from Carl Young addressing concerns raised at the previous Planning
Commission meeting. [Received 4/12/11.1
Staff Planner Kaaina Hull read Supplement No. 3 to the Director's Report(on file).
Chair: Do we have any questions of the planner?
Mr. Blake: Every time this has come up before us we are talking about the potential
intrusiveness or potentially intrusiveness of the monopine or mono whatever kind of tree it is
going to be. I have always wondered exactly what it is going to look like on the ridge top where
the applicant wishes to site the antenna so that you could look at the antenna in and amongst the
trees that are there already. So are you able to show that? Have you seen that Kaaina?
Staff. The applicant submitted for each proposal, for when it was at the 165 foot level as
well as the 150 foot level and the 145 foot level.
Mr. Blake: You have a picture of it?
Staff: The applicant can show you during the slideshow presentation.
Mr. Carl Young: Good afternoon gentlemen of the Planning Commission, Mr. Chair,
thank you again for reconsidering this application and allowing me to come back again. To give
a, I don't know how far you want me to go back but just a brief review, this is the proposed pole
for Verizon that they have received permitting for already. Their objective is to cover the tree
tunnel which is here and we are proposing our site here, originally it was for 165 feet. Another
proposal that we had been requested to take a look at was a proposed site for the Kauai Humane
Society, that is not yet built, it was something that was proposed. The idea is to cover this little
over 3 mile stretch here, it goes a little further than that but the main objective is to cover this
area. It is a gulch. The challenge that we have is that the other sites don't see it because of this
dip in the road. This is the Halfway Bridge here. As I explained previously the reason we are
choosing this location,this is basically the only place it works. We would prefer putting it
somewhere closer but power, the closest power we could find is at Halfway Bridge that feeds the
quarry. There is no power up in the hills; there is no power anywhere else so we literally have to
bring it about a quarter mile from this location here just to get the proper height.
One of the problems we also face is that the road away from the highway actually begins
to go down as you move towards this gap so unless you put this site actually right on the hill,
right next to the highway, the road outside of that actually begins to go in a downward direction.
So the cane road on the side here actually begins to drop down which is a challenge as well. If
you go in the back here, this back location, it actually drops first and then it goes back up. In
order for us to find a location back here we would have to bring power about 2 miles to even
begin to think of something back there. And that 2 mile length to bring power is already a
problem. To place the power up in these hills here or place the site up on top of the hills is also a
very big challenge as well; the power is over a mile away. So the access to utilities was a very
big problem.
In the right hand side is the cane road that I had mentioned before. This actually begins
to go down as opposed to going up here and here is the gap here, Halfway Bridge is back here,
Lihu`e is here. So in each of these pictures you will see a map here indicating where the photo
was taken from so there.will be an arrow on the side here pointing where this was taken from.
So we are here at Halfway Bridge, you can see the bridge here; it would not be visible from this
location. As you get closer this is the illustration of what it would look like at 165 feet, it would
be visible if you looked at it,it would probably blend in real well and we are getting a little
closer here. This is what it would look like at 145 feet, it would drop it down about 20 feet. I
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April 26,20I 1
24
think there was a question prior as to the height of existing trees. These trees here we did go
back and measure them,the trees,the ironwoods here are 150 feet. The elevation on this side, it
goes up about 20 feet,the ground just rises up and these Albesia trees measure between 110 and
130 feet. So in all it comes to about 150. We did measure, as you get closer it would be visible,
this is what it would look like at 165 feet, 145 it would drop down.
There is a bit of an optical illusion,these trees look like they are at the exact same
distance. This group of trees is actually closer to 70 feet away from this tree so it drops back
further so this tree here measured about 85 feet and is closer to this corner. And over here is the
ironwood so it does drop back another 70 feet but it appears like it is closer but it is actually
further back. And the tree its self is another 70 feet back, the stake tree is 70 feet back. This tree
is approximately 140 feet closer than that tree,because it is two dimensional it doesn't really
show it that well. So if you were to drive right next to it, look to your right, it would be visible
by this cane road. This tree is 100 feet, over 100 feet,about 110,it's about 85 feet. This is what
it would look like we believe at 145 feet. So as mentioned before this ironwood tree is actually
further back than this tree. This is the measurement that we took of the ironwood as you
approach so it you go back here these are 150 feet and you add another 20 feet of elevation
which does begin to drop as you get to the cane haul road.
Coming from the opposite direction, coming from the Waimea side, this is where this
photo was taken,it would begin to appear through the trees. This is what we believe it would
look like at 145 feet,this is the ironwood tree that was pointed out earlier at 145 feet. These
trees measure 13 5 feet or more and on top of the hill,this is what we believe it would look like at
this point. And this is what it would look like at 145 feet. So mentioned earlier there is a ridge
here that we are trying to pass the signal through to get towards Halfway Bridge. In order for us
to locate a site anywhere else, if we went back here on this hill the closest we would be able to
locate something would be 2 miles away and bringing the power to that location just eliminates it
from consideration. The cost is way too high. Already bringing the power a quarter of a mile,
we got a quote from the Kauai utility company, they said it would cost us 115 thousand just to
bring the power on poles to this location. This is the original site that was considered with
Verizon,the landlord doesn't want to consider negotiations at this time because of their existing
agreement with Verizon. The soonest they would discuss this with us would be when
construction starts and that is proposed for summer but we don't know when exactly that would
happen.
The other location that was proposed was Grove Farm so we were asked to go back and
try to look for another site other than this site here so we went back to both these landlords.
These are the only locations that will fulfill this coverage based on mapping done by the RF
engineers,nothing else works. Everything else is cost prohibitive. We can't locate it on the
mountain. If we put it here,there is actually one site back here that you are probably familiar
with by tree tunnel but it is blocked by this ridge. This entire ridge blocks this road here. So to
put one on top of the ridge here you would have to literally cut down part of this forest to make
an access road and then build a road to it and then bring the power about a mile to the site. So
that is not possible. And then also it would actually be more visible at this location up on the top
of the hill. So going towards the Seventh Day Adventist Pre-School this is what the view looks
like. There are currently 150 foot pine trees there,existing, and we measured those at 150 feet.
This is what the view looks like coming from the Waimea side. This is the sign for the Seventh
Day Adventist Church,this is the access road that goes into the back,the tree would be in the
back here somewhere.
Going back further, I did simulate it in,the tree line as an example this is the tree line and
it does go back down the road. This is a simulated pine tree at approximately 150 feet. That
would be the Verizon site. So this what it currently looks like,there is a large Albesia tree over
here,we estimate that is probably,possibly what it would look like if you happen to look down
this road quickly. This heading is wrong, it should be that this is the Humane Society and this is
the current view plane right now. There are existing utility lines in the way but there is a
mountain view here and that is what we estimate a tree at about 150 feet would look like now if
it were to be put in. And one thought to throw out is this tree, I believe, is actually more visible
even though it's further off the road because there is a larger viewing corridor. So you see the
mountains and you are actually farther away from it so it actually gives it a longer period to be
Planning Commission Minutes
April 26,2011
25
visible. As opposed to the one at Halfway Bridge, you are going very quickly,there is a tiny
viewing corridor and it is gone very quickly and it is closer. So when it is further away you will
actually see it longer. But that is another site that is not an option either as the letter from Grove
Farm indicated,they are not willing to enter into this agreement as well because they have
something in hand,they have an agreement with Verizon. Collocation at this time is not an
option for Sprint.
As mentioned before collocation is actually a cheaper option. It is much easier,we don't
have to go through the problems of zoning, construction, it is desirable but those sites are not
built. This is an example,my headings are wrong again, I'm sorry,this is an example out in
Wailua,this is the existing site that is going up next to the prison which is on this side and the
golf course is on the right. This is the K61oa Church site from Po`ipu Drive it is not visible.
From the bypass road it is. But you can see there are some utility lines there,these are existing
utilities, this is what was required before,this is what phone utilities do,cell phone companies
do. The concern Civil Defense has that Sprint has in requesting these funds for the Universal
Service Fund is that this is 4 major road, it is a highway and every highway is supposed to be
covered. It is only 3 miles but it is a main artery that connects L3hu`e. So the funding was
received from the Universal Service Fund justified that it will help provide emergency service
for this entire coast,the whole Westside and the South. There are other roads I understand, cane
roads,but it is a major concern and Civil Defense is on record saying that it will provide a
significant contribution to the public safety, is vital during and after disasters, does help to warn
and inform visitors and residents in nearby communities as well as relay information regarding
the needs of the public. And enhance stability of emergency responders to provide life saving
assistance to the public.
I think the last time I pointed out, I came and asked for reconsideration,just came off of
the tsunami and one of the things that happens is you are going to have these responders who are
going to rely on these communications. The first thing that happened in Ewa I heard, I wasn't
around at that time,they flew in people from Honsel immediately after Ewa and they made sure
that the cell phone service was put up right away. You can't string lines fast enough but you can
put up a cell site very quickly and it can cover miles at a time and they handed out emergency
cell phones. So when these lines go down the first thing they are going to do is reestablish cell
service immediately and it is going to be taking care of the needs of people on the road and it
will be an integral part of Civil Defense. Right now they work with Civil Defense every year to
make sure that all the phone companies coordinate with them for all their emergency exercises.
This was just an article from the Big Island, it talked about how there was grid lock,the roads
were not adequate. And for this 3 mile stretch the same thing happened out in Watsonville in
California and there were problems on Oahu. When there is grid lock you are going to have this
3 mile stretch which is about a 5 minute drive now and it is going to turn into possibly hours.
And the ability to locate people and help people and assist people through these communications
is a vital part of the service that is being provided. The projection for hurricane season is coming
up, 2013 to 2015.
So these are some of the things we have noticed that during the last tsunami we
understand that AT&T didn't work so that is one of the primary coverers of the island here and
one of the big problems that they have is they don't have enough capacity, even they don't have
enough capacity. Each cell site is limited in the amount of calls it can handle in an emergency,if
everybody calls at once the cell sites can't handle it. That is why you have overlapping coverage
a lot of times. They also only have one site which is very far away up on the mountain and in the
event of a hurricane there is a chance that that thing could go down and you won't have this at
all. Also some people are expecting that because they are going to acquiring T-Mobile that
service is going to improve. This hasn't been approved it is going to take at least a year and
during that time AT&T's services are going to freeze,they freeze their books and that is how
acquisitions work. I have been through the Sprint acquisition, FCC requires them basically to
provide their books an&during that time they don't improve their service at all. Wilcox does
have our antenna there for emergency purposes and there is other information available for 911.
Another thing that I did mention before,it does provide wireless services for emergencies and for
medical help. Oahu is providing wireless coverage for the ambulances right now to be able to
provide care in transit for people especially in rural areas. That is basically it.
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April 26,2011
26
Chair: Anybody have any questions?
Mr. Blake: Verizon is making promises but we haven't heard when they are going to do
anything.
Mr. Young: We can't rely on their testimony.
Mr. Blake: I believe you because when I got my first cell phone,that was over 10 years
ago they were promising to take care of the dead area in the tree tunnel and nothing has
happened since then.
Staff: Commissioner, I am going to actually speak to that point briefly. The department
actually received a letter from Verizon and they took issue with statements that had been made
publicly and on the record here about their company, specifically their site. And they just
wanted to reiterate that the reason they have been working to the time they have been working is
because they have been working specifically with DLNR and US Fish and Wildlife to
maintain...
Mr. Blake: Whatever their reason it hasn't happened and I remember going in there and
asking about that and they said don't worry, it is eminent.
Chair: Anybody else have any questions?
Mr. Katayama: Carl, do you have a landowner that is willing to execute an agreement for
that site?
Mr. Young: Yes we do, its Grove Farm.
Mr. Katayama: But I thought in one of the slides it depicted Grove Farm's reluctance to
enter into an agreement relative to their Verizon commitment.
Mr. Young: There are two locations, one is by the Humane Society, Grove Farm is the
landlord at that location, they are also the landlord at Halfway Bridge. Right now they have a
prior agreement entered into with Verizon for the Humane Society and so they are proposing to
build a site there. We were asked to in lieu of the site at Halfway Bridge which there is no other
prior commitment;there is no Verizon agreement there. We were asked to look for another site
to see if there is anything else that could work so we went back to both candidates that Verizon
was at, one was for Knudsen and one was for Grove Farm at Humane Society.
Mr. Katayama: I am not familiar with cell phone capacity, with the addition of your
tower how does that increase capacity during an emergency?
Mr. Young: In the event of an emergency, right now AT&T is the only carrier that has
coverage there at all so no one else has coverage, Sprint, Verizon. Verizon wants to build a site
there to have it so that would increase the capacity of cell phone users. AT&T, I don't know
what their plans are but they are probably likely to want to increase capacity there but currently
they are the only one that has coverage there.
Mr. Katayama: Is it unique to a subscriber for your system or is that cell site, will take
any signal and just as a relay, it is just unique to your subscriber?
Mr. Young: Correct. Every cell company is required to build their own network. There
is the possibility of collocation though and so other carriers would be invited and allowed to
locate their antenna on top of that tower. We did propose putting a second tower next to the
Knudsen tower but it is the policy of the Planning Department no to allow two towers and so
given that they felt it would have jeopardized their existing agreement. We would gladly go to
that location but that creates a compromising situation for the landlord.
Chair: Anybody else? I have a question if nobody else does, going back to that Kauai
Humane Society site what is the height of the monopine that was shown on the slide?
Planning Commission Minutes
April 26,2011
27
Mr. Young: I am estimating about 120 to 150 feet. I am not exactly sure how tall the
trees are but we estimated.about 40, 50, and they are set back but it is about there, about 120 to
150.
Chair: Are there any other dead spots on our main highways similar to the Knudsen
gap/Halfway Bridge 3 mile corridor?
Mr. Young: Not that I know of I think that is the last highway piece that has to be filled
from what I understand. It is a very large gap, 3 miles is a long gap for a highway not to be
covered.
Chair: Anybody else? If not, thank you. Is there anybody in the public that wishes to
comment on this?
Ms. Tessie Kinnaman: Good afternoon, Tessie Kinnaman for the record. I am speaking
as a member of the public. Enclosed is an article regarding the wireless industry dated,
newspaper clipping date February 12, 2011. The headline is Wireless Industry Tries Smaller
Antenna." "As cell phones have spread so have large cell towers, those unsightly stocks of steel
topped with transmitters and other electronics that sprouted across the country over the last
decade. Now the wireless industry is planning a future without them or at least without many
more of them, instead it is looking at much smaller antenna some tiny enough to hold in a hand.
These could be placed on lamp posts, utility poles, and buildings, virtually anywhere with
electrical and network connections. If the technology overcomes some hurdles it could upend
and the wireless industry and offers seamless service with fewer dead spots and faster data
speeds.
Some big names in the wireless world are set to demonstrate small cell technologies at
the Mobile World Congress, the world's largest cell phone trade show which starts Monday in
Barcelona, Spain", and that would make it February 14t, Valentine's Day. I would like to quote
the William Sweldon, President of the Wireless Division of Alcatel Lucent, the French/US
maker of telecommunications equipment. And I quote, "We see more and more towers that
become bigger and bigger with more and bigger antenna that come to obstruct our view and
clutter our landscape and are simply ugly." Having said that my humble request is to accept
staff's recommendation to deny the afore mentioned application, thank you.
Chair: Any questions for Tessie? If not, thank you. What is the pleasure of this body? I
have been reminded that the original motion from the last meeting is still in play and that is to
deny this applicant. So is there any further discussion on the motion to deny?
Mr. Raco: So there is a motion and then it continued?
Chair: Yes.
Mr. Dahilig: Because it is a reconsideration it reopens the last action so it is like you
postponed the last action without taking a vote and you are just taking it up again.
Mr. Katayama: For my background I have gone through the additional findings, both of
the additional findings, how is the public good weighed in, in the process in determining the
department's recommendation?
Staff. It is taken into consideration. The letter...
Mr. Katayama: Can you review that for me please?
Staff: Specifically the letter from Civil Defense that the applicant mentioned was taken
into consideration in reviewing it however it was just determined that while this is in fact a fine
site for or a compatible site for a telecommunication facility and that is what our conclusion is
that for a telecommunication facility this is an appropriate site. However given the height they
are proposing the height is not appropriate.
Planning Commission Minutes
April 26,2011
28
Mr. Dahilig: If I can dovetail on Kaaina's comments. This is a weighing exercise in
terms of this phase "public good"because our realm of the universe is to recommend things that
either comport or don't comport with our General Plan. And specifically when we look at what
has been the policy of the County is to preserve scenic corridors. How these scenic corridors are
preserved in weighing that with a lot of the other points that are brought up regarding the
benefits of a cell phone tower, it comes to the discretion of the Commission. Our
recommendation is that the public good of a scenic corridor is outweighed by the mass of the
pole. We are not recommending no based on the use of cellular service we are just saying that
the way the pole looks and the massing and the height is outweighing what is the public good of
maintaining a scenic corridor.
Mr. Raco: If we are going to start saying scenic corridors what corridors are they and
where are they?
Staff: For the most part it essentially is the highway and shoreline primarily and we are
talking virtually all of the highway. There are a few sections in it that I can't site specifically but
there are only a few miles if even that that are actually not designated as scenic roadway
corridors.
Mr. Raco: So if we have been putting these, if the department is saying that the
department has an objection because of scenic corridors, we have been approving these all along
the highways. What does this application make that different now? Like how the applicant has
shown Kalihiwai, the jail, Kilauea, these are all scenic corridors. It seems like what is the
change here because still we approved, the department approved ones that are next to the
highway and in the scenic corridor. Are we going to just say from now on all cell towers that are
near the highway or near the ocean or mauka are going to be denied? How do you guys
differentiate?
Staff: What we did for this specific application as we do with all the applications is
review on a case by case situation. Given the height,the silhouetting affect that it portrays as
well as the proximity to the highway there never has been a proposal for a telecommunications
facility of that height in the history of the County of Kauai. There may be with the exception of
one in Princeville as far as close proximity to the highway.
Mr. Raco: The jail one is close.
Staff: The jail one is fairly close but I believe that one is at 70 feet. And Carl can correct
me if I am wrong but I believe that is at 70 feet.
Mr. Raco: So it's the height then, not the scenic corridor.
Staff. The affect that height has on the scenic corridor. And then particularly the
silhouetting affect that it has given that there is no back drop.
Mr. Raco: So what is the minimum and what is the maximum if you are saying the
height? There has to be a minimum and a maximum, right? I guess what I am saying is there are
two kinds of standards here, where is the minimum and where is the maximum?
Staff: When reviewing it really goes by a case by case situation as we found with say the
site next to the Adventist School. They proposed a 150 feet and we found that or the Planning
Commission found that to be compatible given that it was located a significant amount of
distance from the highway as well as it had the mountain back drop essentially mitigating the
silhouetting effect of the structure. In this case given its proximity to the highway as well as its
height and lack of a back drop given certain view angles we found it to be too excessive.
Chair: Anybody else?
Mr. Blake: I am glad that we were given another pictorial view of what it is at 165 and
145 because to me the 20 foot difference is significant. Now there is no question that at certain
portion of the highway if you are looking for the trees and don't have your eyes on the road you
Planning Commission Minutes
April 26,2011
29
will see that monopine without question if you are driving quickly. So I believe that given the
natural disasters that we have suffered on Kauai and the fact that this is the only road between
the Westside and the Eastside and the only other way to get from K61oa/Waimea to Uihu`e is by
boat if this road is blocked. And 3 miles may not sound like a whole lot but if it is bumper to
bumper traffic it takes a while to traverse that much space. And again this is I believe one of the
most scenic portions of highway in the State of Hawaii. But given the (inaudible) of modern
existence I think that the 145 foot proposed pole does not significantly obstruct the scenic
properties on the highway.
Chair: Thank you. I would like to ask, Carl could you please come forward again? I
wanted to ask you a question. In view of the previous testimony in regards to that technology
improving to smaller monopines or whatever you want to call it, could you discuss that please.
Mr. Young: That technology exists, it's true, and they have incorporated in some areas.
It is extremely expensive. It does rely on existing poles so they attach them to existing utility
poles. The big challenge that the telecommunication companies have had with that is the utility
poles and the arrangements with the utilities poles is very difficult. Power poles,those
companies are extremely resistant to allowing you on their pole because of liability issues. So if
you go on one pole it costs about 3,000 dollars per pole. So when you have a distributed antenna
system like that it is unbelievably expensive. The same problems will exist though, you still
need power for each one of those, and you still need a base station for each one of them. You
also need the utility line for, telephone line for each one of them. So there is a challenge there.
You can go smaller and you can cover smaller areas with smaller antenna but you have to have
existing infrastructure. You have to have existing poles. So there are utility poles on the
opposite side...it also has.to be approved by the PUC. Whenever you go on top of, when you
share utility installations that process alone can take 2 years,jus that alone. So it has been time
and cost prohibitive at this time. It may change in the future but that application is not a simple
application it is very difficult to pull off.
Chair: So you foresee using this proposed pole for a while then.
Mr. Young: Absolutely. They are not going to invest this much money into that pole and
just change it quickly.
Mr. Nishida: I have a question for you; the motion is to deny, what does that mean?
Mr. Dahilii;: The last motion was to adopt the Director's recommendation which we said
denial and so if you were to support Mr. Young's request you would vote no on the motion and
then if that was the case then you need another motion to approve.
Mr.Nishida: Or you would work on the conditions or whatever. We would probably
have some conditions of approval.
Mr. Dahilip: Yes.
Mr. Nishida: So the first step would be the motion on the table.
Mr. Dahilia: Yes.
Chair: With that in mind, no further discussion, I would like to take a role call on this.
On motion made by Hartwell Blake and seconded by Caven Raco, to approve staff
recommendation, motion not carried by the following roll call vote:
Ayes: Kimura,Nishida -2
Noes: Blake, Raco, Katayarna, Texeira -4
Absent: Matsumoto -1
Not Voting: None -0
Planning Commission Minutes
April 26,2011
30
Mr. Dabilig: Commissioners I would ask that the Commission defer the item so that we
can prepare a Director's repott regarding the conditions for potential issuance of this permit.
Mr. Raco: What conditions are they?
Mr. Dahilig: There would be a number of conditions. We do have some set up already in
this case but we probably will need the deferral to finalize them and consult with the applicant.
Chair: Is there a motion to defer?
Mr. Raco: Why isn't the department prepared for that?
Mr. Dahiliiz: We do have draft conditions but we do need to defer the item because we
need to first concur with the applicant whether these conditions are suitable to him. If they are
not suitable and the Commission passes it then we end up with a situation where he could contest
the permit in court and so we need to make sure first that the conditions are properly negotiated.
As a matter of course we are not going to second guess the Commission to the point where we
are already telling the applicant here are some conditions in case they vote no. We don't want to
go that route so that is why we don't as a matter of course have these conditions already vetted
with the applicant ahead of time. We wanted to wait for the action of the Commission first.
Mr. Raco: So this will be heard or deferred to the next meeting.
Mr. Dahilig: Potentially or if Kaaina has the conditions we can take it over lunch but as a
matter of practice defer it until taken back up by the Commission.
Mr. Raco: So we could defer it to the next meeting then.
Mr. Dahilia: You could defer it to the next meeting or if we are ready as early as this
afternoon we could also.
Chair: Is there a motion?
Mr. Kimura: Question, because it was denied, we voted against it, so we vote on this
again?
Mr. Dahilig. You have to vote on it again one more time because now there are permit
conditions involved.
Mr. Kimura: So now it will be a motion to pass.
Mr. Dahilig: It would be motion to pass should the Commission entertain based on the
permit conditions.
Mr. Raco: So just to be clean can we just motion to defer and take up amain motion at
that time so it is all set in one day?
Mr. Dahilig: Yes, we just defer.
Chair: Do we have to say for the next meeting?
Mr. Raco: Should we table or defer?
Mr. Dahilig: I would say and maybe counsel wants to come in on this but the reason why
you would probably not want to recommend a table because then you would have to vote to take
something off the table versus if the Commission is ready, if you say that you defer until the
Commission is ready then that way there is not a formal motion that needs to be brought on the
floor to take something off the table.
Mr. Raco: I am just saying because you said this afternoon.
Planning Commission Minutes
April 26,2011
31
Mr. Dahilig: It could be ready.
Mr. Raco: If you are ready this afternoon with conditions I would motion to table.
Mr. Trask: I actually defer much to the Director as far as his prevue and his authority. I
would request that we defer this item until the next Commission meeting. There is a lot to work
on and there is still a lot that needs to be done today. That would be my recommendation.
Mr. Raco: Chair, if I may,motion to defer to the next meeting.
Mr.Nishida: Second.
Chair: Moved and seconded that we defer, any discussion on the matter? There being
none, all those in favor say aye, those opposed, motion carried.
On motion made by Caven Raco and seconded by James Nishida, to defer item to
5110111 Planning Commission meeting, motion carried unanimously by voice vote.
Chair: We will be going into the executive session right now and we will be having
lunch during the executive session.
Executive Session: Pursuant to Hawaii Revised Statutes Section 92-4, 92-5(a)(4) and
(8), and Kauai County 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 as they relate to this agenda item.
Commission went into executive session at 1:26 p.m.
Meeting was called back to order at 2:21 p.m.
NEW PUBLIC HEARING
Class IV Zoning Permit Z-IV-2011-9 and Use Permit U-2011-9 to operate a beauty salon
at property located in Waipouli, Kauai, approx. 125 ft. north of the Kuhi`o Highwayy and Ala
Road intersection further identified as Tax Mgp Key 4-3-009:036 and affecting a portion of
9,410 sq. ft. =Hunger Beauty Shop. [Director's Report accented 4/12/111.
POSTPONED
Special Permit SP-2011-4 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. 220 ft. west of Moloa`a Road, further identified as Tax Map Key 4-9-
14:21, and containing an area of.701 acres =David R. Houston.
Staff Report pertaining to this matter.
Staff Planner Michael Laureta read staff report(on file).
Chair: Are there any questions by the Commission?
Mr.Nishida: The Health Department said this was a private water system. By approving
this application we are saying that this water system is okay for transient vacation rental or any
other kind of use?
Staff. I think the requirement from the Health Department and Water Department, those
two go hand in hand because the Water Department wanted a copy of the deed that specifically
stated it was a private system or the applicant was supposed to approve something else...
Planning Commission Minutes
April 26,2011
32
Mr. Nishida: Complete a waiver and release agreement.
Staff: Yes.
Mr.Nishida: This looks like the Department of Water and Department of Health is
saying that we are not saying that this water system is safe or that we have anything to do with it.
So how does that affect the Planning Department approval, do you know what I mean?
Everybody is saying this is not ours, the guys that we depend on for clean water and the
provision of water are saying this is not ours. So when we approve it we are saying that it is
good, this water system is there and, you know what I mean?
Staff. Yes. I think it is with the acknowledgement that it is not a public system and that
State Health Department kind of backed out a little but by saying we do not regulate private
systems. So does the health and safety of a private water system, who manages or regulates that,
that is a good question.
Chair: Mike, could you address that one more time please for me in terms of the private
water system and the health and welfare of that system as it applies to the County and the
Planning Commission?
Staff. The State Health Department stated that they do not regulate private water
systems. I know that in a lot of remote areas County standard water systems do not exist so
alternatives such as catchment systems,private water systems and I think maybe there might be a
portion in Princeville that might have some of that. The question is who regulates private water
systems? The State Health Department doesn't, County Water Department doesn't, so that is a
good question. I can ask that and find out.
Chair: Is it incumbent upon the applicant to determine whether their system is safe or
not? Do we need for them to provide any kinds of records? I am not saying they do I am just
asking that question. Is that a valid question?
Staff: I think it would be even more valid if there was a description of the water system,
who provides it,who manages it and maintains it, who ensures that it is safe. That would go a
long way.
Mr. Nishida: My concern is that you know when you have somebody that is there
from...you don't know where they are from and they are there for a two week period or
whatever. If somebody is living like me, I live there,my water pressure drops a little bit. I know
I have a leak some place. I know where the line goes. I go over there and check the line, you
know what I mean, it is riot like these guys know what the water tastes like or if there is an off
taste to the water or anything like that. They are here only for two weeks. And when the owner
buys the property you go in and you get a report from the title company saying that this is a
private water system. In fact this one, I think the County is requiring on the deed that it be on the
deed.
Staff. That it isn't a County system.
Mr.Nishida: That it's not a County system. So that is my concern.
Mr. KatUama: Mike, when the applicant provided certain documentation that this was
indeed used as a transient visitor accommodation prior to a certain date was there an occupancy
certificate that accompanied that? In other words most third party type establishments because
you are dealing with the public you need to demonstrate you have met certain standards of safety
and government compliance whether it is general use tax, a certificate of occupancy, or whatever
it is, health certificate if you are providing a food establishment. Was that part of the
documentation packet?
Staff. That is not a requirement of the documentation packet however that is part of the
research that the planners and the inspectors do to ensure that all the improvements on the
property have permits and were developed according to County standards.
Planning Commission Minutes
April 26,2011
33
Chair: Anybody else? If not I would like to call on the applicant please.
Mr. Charles Foster: Thank you Commissioners, Charles Foster, counsel with Hempey
and Meyers and this is David Houston, the applicant. Commissioners, we appreciate the
opportunity to appear. As we all know we are here pursuant to the requirements of ordinance
904, the mechanism the County Council passed by which preexisting single family dwelling
TVRs are grandfathered after the County began regulating them effective May 7, 2008. Mr.
Houston has submitted a thorough and complete application addressing all the requirements of
904 and the rules and also a subsequent request for information from Planning. As we just
discussed there are no agency objections to the application, no violations on the property, no
complaints during the history of the rental,the lot has class (E) soil, it is smaller than an acre, the
size and the soil quality(inaudible) them intensive Ag. operations which is the standard set by
904. We have shown in the application that the use is reasonable and unusual and as for the
question of prior legality the lot in question was in existence prior to June 4, 1976. We would be
happy to entertain any questions.
Chair: Does any Commissioners have any question of the applicant?
Mr. Kimura: Mr. Houston, do you live on Kauai?
Mr. Houston: No sir, I live on the mainland and come to Kauai quite frequently and
actually have I think since 1982.
Mr. Kimura: What is you reason for the TVR besides your property is too small to farm?
Mr. Houston: There are several reasons some of which are economic and others of which
have to do with maintenance. I at one point in time had a home in Moloa`a that I did not have
any sort of rental program going with and I used it frequently enough to where I didn't want to
have full time renters and the consequence of not having people in the home resulted in
incidental damage by virtue of a storm which broke a window and then of course the damage
that follows. And that was probably back in about 1983 and as a consequence first retained
North Shore Properties to act as an agent for the purposes of vacation rental to insure not only
the safety of the house but as well the maintenance of the house because I found that was a better
to do it than me trying to do it from approximately 3,000 miles away.
Chair: We can come back to you, anybody else, Jimmy?
Mr.Nishida: Mike, somebody went to visit the property?
Staff. Yes. The department did inspect the property. It is in the staff report.
Mr. Nishida: It crosses a bridge, right, to get to the property. I was wondering about the
width of the bridge and the condition of the driveway,that kind of thing. Is that standard the
staff looks at and makes a determination on the access and all that?
Staff That is one of the considerations as we do the field inspections, first we are
looking for violations,we are looking for patterns of use, access is a narrow can't even say a
single lane but it is a small one lane wooden bridge. Even making reference to the tax map that
is the first thing that we noticed the stream that meanders into the valley changed its course and
is now butt up against the property line. The Moloa`a steam now meanders in this direction
towards the lot and then horse shoe's out and comes back around. The tax maps are old, we are
not interested in looking at the direction of the stream. We know that the single family residence
was constructed to flood standards. It is elevated as you can see by the photos. So it does meet
standards it's just over time nature does find its own course on the water course so that is just
something of note.
Mr. Nishida: I have a question for the applicant. So David that bridge, how was that
bridge constructed? You had an engineer design it? How did that work, that bridge over the
stream?
Planning Commission Minutes
April 26,2011
34
Mr. Houston: The bridge was constructed and permitted before I received the right to use
it. At one point in time there was an old road that goes back on the back side of the valley called
Government Road which was my access. For obvious reasons if you can avoid accessing that
way you would try to so what I had done was work with my neighbor, an individual by the name
of Jay Weatherford and he and I worked together to the point where I received an easement to
travel over the bridge that,was in existence on that parcel to access my parcel.
Mr.Nishida: Do you have a permit,plans and permit for the bridge?
Mr. Houston: The bridge was built long before I became involved with it but it was my
understanding it was a planned and permitted bridge and had been for at least a decade and a
half, two decades and is subject to yearly maintenance because part of my requirement is to pay
for the yearly maintenance so it is in other words in good shape.
Mr.Nishida: Mike, would the inspectors look at the bridge and then make a
determination whether it was safe like say for an ambulance or fire truck or something like that?
Staff. The quick answer is no. I can justify that by saying that the replacement Moloa`a
stream bridge is something DLN and the County worked together on to do with the help of the
Army Core of Engineers from PMRF. Was it to standard? Good question. The State and the
County split the cost for that bridge...
Mr.Nishida: That is this bridge here?
Staff. No. There is the other bridge that would have served the back side that he has
access to but that is the bridge that washed away. So what was replaced, the construction used
on his bridge, that bridge, is the same, it is elevated, it is structural, it is reinforced and tied
down. We wouldn't look beyond that.
Mr. Houston: And if I could add to that, when the Moloa`a stream bridge that was
sponsored by the County and the State was washed out the County actually with permission had
directed residents of the valley to utilize the bridge that I currently utilize and it is also utilized
by a full time resident that lives in the house directly adjacent to the bridge.
Mr. Blake: What is the footprint, how many square feet in the footprint of the house?
Mr. Houston: The square feet total is about 2,600 square feet, there about, it is a bit over
and in that I am referring to lanais,the actual interior of the house as well.
Mr. Blake: What types of farming have you tried there?
Mr. Houston: We have, and again I hate to use the word farming because I know that
people do it very seriously and from my perspective due to the size of the lot and where the
roadways are located,the footprint of the house,we do grows things. We will grow things
though in I guess more of a hobby or recreational fashion. It would not be possible to get huge
equipment across the stream in order to do any kind of serious sort of farming and also the land
area specifically would not allow for it. But we have grown bananas and we still have in process
banana trees. I had just planted not that long ago some avocado and I believe it would be papaya
but they are small trees obviously at this point, they just went into the ground maybe six weeks
ago so that remains to be seen as an experiment. The bananas seem to work well but up to this
point nothing really has worked that well so I am going to try it again and see what I can do. As
far as the avocados and the papayas but no guarantees. It didn't work before. I am hoping
maybe it works now.
Mr. Blake: So when you say you can't farm the land what exactly do you mean by that?
Mr. Houston: I mean practically it is literally too small,the soil quality is too poor,the
flooding for instance in the more recent tsunami, my property was essentially under a certain
amount of water so therefore had I had a great deal of crop in process I am certain it would have
Planning Commission Minutes
April 26,2011
35
been lost. But also the idea of the space it's self and whether or not it would be possible to
produce a crop that might be considered profitable and marketable would be I think unrealistic
on my part just because of the general topography and quality of the soil. And more importantly
the inability to actually have large scale operation that would actually pay for the effort involved
whether it be fertilizers, equipment, machinery, etc, or labor.
Mr. Blake: So are you maintaining that the agricultural effort has to pay for its self?
Mr. Houston: No, I am maintaining that the agricultural effort should be taken on with a
sincere spirit of success and I don't believe that the soil quality,the size, or in fact the location of
the lot in specific would really lend its self to that.
Chair: Do you have any other questions?
Mr. Kimura: When you bought the property was the house already existing?
Mr. Houston: No sir. I bought the property from a neighbor of mine.
Mr. Kimura: So basically you are saying that the property now is just too small for you
to farm on, am I correct?
Mr. Houston: Well I never really purchased the property with the intent of creating a
commercial farming operation. I purchase the property with the intent of having my home there,
sir.
Mr. Kimura: Pardon?
Mr. Houston: With the intent of having my home there. I never purchased the property
with the intent of creating a commercial farming operation.
Mr. Kimura: That answers my question for now.
Chair: Is there a length of time that you occupy the home yourself?
Mr. Houston: If it were up to me it would be consistently, unfortunately with work
demands and financial demands I would say that I am lucky if I can get over maybe once every
couple of months or so. And that is my goal. I wish I could get there more but I can't and
sometimes it will actually go to stretches longer than a couple of months depending on the work
schedule.
Mr. Kimura: So basically you bought the property, built the house,just for TVRs?
Mr. Houston: No. I bought the property, built the house for the purpose of being able to
enjoy it and live there and over the long time frame hopefully reside in it on a full time basis.
Unfortunately I still have a way to go before I hit the long term time frame where I am able
financially or economically to reside on Kauai on a full time basis. If I could do it today I
would.
Mr. Kimura: So you want to TVR this property to pay your mortgage. Is that what you
are claiming?
Mr. Houston: That certainly among other things. Among the other things would be I
think it is critical that the proper be maintained and I wish to avoid that blight on the community
which would exist if the property weren't maintained. And what I am talking about is when a
house is in disrepair, overgrown lawn, things of that nature, in fact the first property that I got in
Moloa`a was a piece of property that had been moved down there. It was an old plantation style
house and unfortunately the individual that moved it down there abandoned it after it had been
damaged by Iniki so as a consequence it became a blight on the community. That was the first
purchase I was able to make because I could afford it and went in and actually remodeled the
home and make it then acceptable and brought it back to standard. I do not believe that it would
Planning Commission Minutes
April 26,2011
36
be purposeful to buy a piece of property and then simply abandon it coming and going when my
schedule would allow which at the same point in time could open the door to literally a piece or
property abandoned in a neighborhood that then shows that it is abandoned with an overgrown
yard, damage or the other things that can be associated with that. So it was not built for quote
the purpose of a TVR but rather built for the purpose of myself. During the interim I wish to
maintain it and certainly I would be less than genuine if I said that it didn't assist in paying the
mortgage because it does and is that necessary, yes, it is. But it wasn't built for an economic
incentive so I could make money, that wasn't the reason.
Mr. Kimura: I have a hard time swallowing putting a TVR on Ag. land just to help pay
mortgages and maintain your property. Ag. land is for Ag. and whether it be soil not right or
property too small, Ag. is still Ag. to me. If everybody thought that way then everybody in
residential would have a right to put a TVR in there to help them pay their mortgage and upkeep
their property.
Mr. Houston: I can see the point and certainly that is why we have case by case
determination because we are in a situation where I have .07 of an acre. The soil quality is the
worst there is and it is in a flood zone. And realistically consider that parcel subject then to a
commercial enterprise or an enterprise involving agriculture really would deny the reality of the
subjective condition of that parcel, its soil condition and its size Which doesn't mean I wouldn't
enjoy growing things on the property and I understand what Ag. is for but I also understand that
certainly less than 5 acres, obviously less than 15 and frankly less than 1. That being said it is
probably better suited for something other than a pure agricultural purpose and that is why when
I became involved in this process I looked the rune 4, 1976 law and that seemed to make all the
sense in the world. Now post 76 obviously if there is an ordinance that requires then that a house
on Ag. be used only as a farm dwelling I certainly can understand that. Clearly that wouldn't be
the case in this initial application by virtue of the fact that it was subdivided prior to June 4, 76
but I understand what you are saying and I realize that that could be the situation if there were a
blanket rule but clearly there isn't a blanket rule and we have these hearings to establish
individual predicaments of individual property owners.
Mr. Foster: If I could add one point, until May 7, 2008 anyone is a residential area could
operate a TVR and that is why there were problems with that, that is why the County Council
made the amendments to the zoning code and that is what we are dealing with here as well, is the
grandfathering clause of 904 and its application to this application.
Mr. Blake: I have a question for Mike. Mike, what are the objectives thought to be
accomplished by 205 and 205A?
Mr. Dahilig: Commissioner, are you referring to the first prong of the five part test?
Mr. Blake: Yes. Either Mike can answer that.
Staff: To me I would rather have the HRS and I can print that our for you rather than me
trying...
Mr. Blake: Have you reproduced that in your application?
Mr. Foster: I have on page 12 of my application. The Hawaii Supreme Court has stated
with regard to the objectives sought to be accomplished by Chapter 205 that the interim State
Land Use guideline policies numerated in 205-16.1 and the Hawaii State Plan (inaudible), "As
planning objectives the avoidance of scattered urban development and the accommodation of
urban growth in existing areas...". It was an envisioned technique to, well the legislature
envisioned, we do not believe that the legislature envisioned the special use technique to be used
as a method of circumventing district boundary amendment procedures to allow the(inaudible)
infasion of major urban uses into agricultural districts. So the purpose is to prevent urban
development on Ag. land, in short.
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37
Mr. Blake: When I read the last sentence, "We don't believe the legislature envisions
special use as a method of circumventing district boundaries to allow(inaudible) infusion of
major urban uses into Ag. districts." To me a TVR is a major urban use.
Mr. Foster: I think the TVR is, what is there in terms of whether it is urban is there is a
single family dwelling and what the single family dwelling gets used for is single residence. So
a TVR doesn't change the quality of that. If we wanted to, I think the 205 is addressing putting
smaller than one acre lots and developing houses on that and putting a gas station in there and a
grocery store and things like that.
Mr. Houston: If I could add to that, when you consider the definitional term"infusion of
urban development" you have to consider what constitutes urban development and certainly a
single family residence on a plot that prescribed for a single family residence prior to June 4
1976 would be inconsistent with the definitional term of"infusion of urban development". And I
think as counsel has accurately stated when we talk about urban development in agricultural
areas if statutorily we are allowed single family residences then it would seem not to make sense
that a single family residence subject to living whether it be TVR or full time would not rise to
the level of urban development on the order of McDonalds, a gas station, 7-Eleven, Wal-Mart.
But I think when we consider definitional terms that is what we look to on urban development
infusion.
Mr. Blake: You have single family dwellings and they run the gamut from I have lived
here all my life to 30 days, 15 days, 10 days. This Waianae Coast case, what were the facts of
the case?
Mr. Foster: I don't think I recall the facts of that case.
Mr. Dahilig: Commissioner, this is the one regarding that the court was...I guess
somebody had come in and tried to Special Permit a large development that also included an
amusement park, residences, etc., and the Supreme Court found that this particular type of
development needs to go through the regular boundary amendment process.
Mr. Blake: So this (inaudible) infusion of major urban uses into Ag. districts dealt with a
large development.
Mr. Dahilig: Yes, you are looking at something, I don't know exactly where it was in
Waianae but it was (inaudible) of hundreds of homes as well as amusement recreational types of
things, etc. I don't want to use the phrase Mililani as a comparison but it was something that was
like a planned development.
Mr. Kimura: I don't have a problem with single family dwellings but I do have a
problem, this is just my personal opinion, but I do have a problem with TVRs on Ag. land
outside of the VDA. It's not so much about the single family dwelling it is about the vacation
rental outside of the VDA on Ag. land.
Mr. Foster: Let me address that. Let me back up to Waianae Coast and maybe Mike said
this, this was a 103 acre, it involved 103 acres. I don't know if Mike pointed that out but that is
the amount of land that was under development in that case.
Mr. Houston: And sir if I could speak with you about the concern referencing TVRs, as I
am sure the Commissionbrs are all aware this is a single family residence that a TVR or
otherwise would be used as a single family residence. In other words the character of the
property, the use of the property would be the same as far as living in the home. The TVR and
again this may be a big if and perhaps a concern of the Commission, if it is appropriately
maintained then I think you would defeat the issue as far as problems that might occur and I
wanted to add to that that in the entire period of time I have been involved in the process I have
not had one complaint from a neighbor, I have not had one emergency services call whether it be
fire, police, or medical. And more importantly the only concern I have had from a neighbor is
that one of the guys who was doing the lawn was accidentally mowing her lawn which she
appreciated the benefit of but she didn't want me to be changed with it. So that amounts to the
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38
total of impact that this TVR has had in the neighborhood. Quite frankly I can see in some cases
where if a TVR is not managed appropriately certainly you would hear about that from
neighbors, which could cause a problem. But because it is a TVR in and of its self I don't think
the character of that use necessarily defeats its purpose as a single family residence and in some
cases can actually add to the character of the neighborhood.
Mr. Kimura: What I am trying to get to is that it is still not,the TVR is still not related to
Ag.
Mr. Houston: That is true but that is why we have the exceptions and the ability for us to
come forward with the application which of course we have tried to submit in the most thorough
and comprehensive fashion possible because this is a special use permit and if it was directly
related to Ag. then of course we wouldn't be here. But under 904 we were given that
opportunity because of 205-6 and I think it is an appropriate consideration for your Commission
and hopefully the Commission regards 904 for what it says which is to consider and appreciate
individual circumstances in cases.
Mr. Nishida: 205, when we are talking 1976 and 205,those two things are the same time
so prior to 1976 we didn't have 205?
Mr. Mauna Kea Trask: Session Laws, Act 205 was 1963. I don't know at what part the
amendment was but there was a section 205 in 1963.
Mr. Nishida: This particular lot is different from some of the Ag. we are seeing in that lot
was in existence prior to 1976, right?
Staff. Yes, it is a Land Commission Award. This is an old lot.
Mr. Nishida: What does that mean as far as 205 and the agricultural use of the property?
Staff: Because the lot existed prior to 1976 two things occur, agriculture is not required
and a farm dwelling agreement is not required.
Mr. Nishida: So prior to 1976 what was there,was there a code? There was no Ag.
Urban,R-20, there wasn't a requirement for Ag.,that is all you know.
Staff: Only after 1976, any subdivisions after 76, any building permits processed after
1976 mandated compliance to 205.
Mr. Houston: Right and I think the purpose was after 1976 there was a lot of perhaps
urban development or things of that nature and so legislative intent ruled to the extent that pre-
1976 Ag. was not required even though it was zoned for Ag. you could but a single family
dwelling on that sort of subdivided lot versus post 76 which says to the otherwise absent farm
dwelling agreement.
Mr. Foster: I can point out the date June 4, 1976, it arises in HRS 205-5.6 and in that
section sub (a), lists permissible uses on Ag. land. Sub (b) says uses not expressly permitted in
(a) shall be prohibited except the uses permitted as provided in 205-6 which is the special permit
section and 205 A which is the nonconforming use section, and in addition to that, construction
of single family dwellings on lots existing before June 4, 1976. Now in(a) single family
dwelling units need to be farm dwellings, they have to be used in conjunction; they have to be on
and in conjunction with a farm. Under 205-5.6(b) that is not the case, houses on lots that existed
prior to that day can simply be single family dwellings,there is no agriculture requirement. So
anything that a person who owned a single family dwelling could do anywhere else they could
do with that dwelling on the Ag. lot.
So for instance they could live on it even though they weren't working a farm. They
could rent it long term to someone else who could live in it and before March 7, 2008 they could
rent it short term for instance as a TVR. And so that is where the grandfathering comes in that it
was the right of the property owner at that time to TVR it and the right of the property owner in a
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39
continued lawful use that existed prior to the effective date of a zoning restriction which is
zoning restriction of March 7, 2008. That is constitutionally mandated under the State and
Federal constitutions. So that is kind of the issue here with the June 4, 1976 date.
Mr. Houston: Commissioner, hopefully that may answer some of the questions and the
concerns because this is not a wholesale accommodation of TVRs to grant a special use permit
but to the contrary if it is say pre-1976, June 4 lot, there was not the requirement that agriculture
be incorporated within the qse. And I know sir your concern is well I believe that Ag. land
should be used as Ag. land. When post 76 occurred the legislature actually answered that
concern and enacted a law that does exactly what you are speaking of but before that time they
also recognized that even though it was Ag. land you could have a single family dwelling,use it
for whatever purpose a single family should or could be used for and also the County obviously
adopting the General Plan allows the County, shall, to recognize the alternative uses, i.e. the
vacation accommodations,the inns, the cabins,the things that were discussed initially by
Planning when they read the report. So I just didn't want anybody to have the impression that a
special use permits granting means that the flood gates are open and therefore all Ag. land
becomes subject to TVRs because I think you have very strong laws to protect you in that sense.
And what we are asking for as previously stated was the case by case determination and clearly
this case seems to suggest to you that it is appropriate.
Mr. Katayama: I think the planner mentioned that the domestic water system was not
public, it was a privately owned system.
Mr. Houston: That is correct sir.
Mr. Katayama: Who owns that?
Mr. Houston: That system is owned by myself, Tom Somers and Richard Russell. And
as a consequence we share the maintenance,the upkeep and the water that is generated by virtue
of the well.
Mr. Katayama: Who maintains the quality control on that water?
Mr. Houston. We all do sir.
Mr. Katayama. And it is documented?
Mr. Houston: I doubt that it is documented in the sense of we have officials coming
down to check it but in the sense of maintained it is maintained between all of us. In short if
something is necessary we are all required to be responsible and that is why we executed the
waiver of course concerning County water systems. I don't even think County water is
available.
Mr. Katayama: I guess to either of the Mikes,through this process because now these
dwellings are going to be third party occupied whether short term, let's say short term or long
term, what standards will they go through the same application as other TVRs in getting a
certificate of occupancy?
Staff. The certificate of occupancy is based on the construction of the building according
to code.
Mr. Katayama: It is also use depending on the type of use that that dwelling is for. You
have certain standards that you need to meet whether it is ADA, Safe Water, Public Access, so
the physical dwelling is one thing but also safe guarding the occupants or the use of that dwelling
is another issue in my mind. But again I am getting ahead of myself. I am just sort of asking
that question before the body. I don't need an answer I was just sort of posing that question
because we are now going from a residential use which has a certain standard to a commercial
use. And even in farm dwellings they still have to meet certain kinds of occupancy.
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40
Mr. Dahilig: When we come up with our evaluation and recommendation we can take
that into consideration.
Mr. Houston: Certainly I want the Commissioners comfortable, we of course executed
the appropriate waivers because it is not a situation of liability for the County in reference to
approving a special use permit for a vacation rental but rather it is the liability of the property
owners,perhaps even the rental company or the property manager that is assisting in securing
TVR customers. And the consequence of any deficiency or default certainly wouldn't fall upon
the County, hence the purpose of the waiver but as well the idea of controlling liability would
hopefully suggest that any owner would exercise the necessary common sense to avoid that
predicament.
Mr.Nishida: Chair, along that same line I was wondering if the County Attorney can
check the waiver and then I think what Wayne brought up the point about whether because this
more of a commercial kind of use even though it is a single family use if there are any other
considerations as far as health and all of that.
Mr. Trask: On that, I believe there was a question posed by a Commissioner, under the
special permit, the first prong, what are the objectives sought to be accomplished by Chapter 205
and 205 A, FIRS. Pursuant to 205-2(d), "Agricultural Districts shall include activities or uses as
characterized by cultivation of crops, orchards, forage and forestry, farming activities or uses
related to animal husbandry, aqua culture and game and fish propagation. Aqua culture means
the production of plant animal life, etc., wind generated energy for public, private, and
commercial use and bonafied agriculture services and uses which support agriculture activities of
the fee or leasehold owner." So those are generally the policies and objectives on 205, under
205-A, that is the Coastal Zone Management Act.
In answer to Commissioner Nishida's question, right now 205-A.2(b). the objectives are
recreational resources,historic resources, protection thereof,protect preservation of scenic and
open spaces, coastal ecosystems, as well as (b).5, economic uses, (b).5.a, specifically. And that
states "To provide public or private facilities and improvements important to the State's
economy in suitable locations." So I think if you are looking at for instance Commissioner
Katayama is looking at the water system, you would look at in that case or like waivers and like
the applicant is saying in this facts and circumstances of the case by case basis, look at this
property and see what kind of infrastructure there is. What kind of facilities improvements
thereon and is it a suitable location for that kind of facility in that place. So there are standards.
Mr. Blake: Going back to the first prong of this five prong test or items for consideration
it says "The use shall not be contrary to the objectives sought to be accomplished by Chapter
205." Included in Chapter 205 are other things you can consider but the fact that you can
consider those doesn't make them objectives.
Mr. Houston: I don't think they are mandatory sir but I think they are appropriate for
consideration and I think under that consideration in line with the Planning report it certainly
seems to be the staff report indicates that would be an appropriate consideration. And especially
considering the fact that the location, all code compliance has been accommodated and on top of
that it has been operated as a legal TVR if there is such a thing since the time of its inception.
And as a consequence of all of those factors together it seems as though the purpose and intent
would certainly not be contrary to the objectives sought to be accomplished by 205 or 205-A.
Mr. Blake: Say that again.
Mr. Houston: Which part sir?
Mr. Blake: The last...
Mr. Houston: I think that the evidence offered in this particular case seems to
demonstrate that the intent of 205 and the intent of 205-A to control,regulate, and offer
alternatives in reference to how that probably could or should be used would apparently have
been met or at least exemplified by staff report the history and the history of the applicant
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41
because of my not only willingness but my insistence that all appropriate statutory concerns be
adhered to since the inception of my project that I bring before you today, a Special Use
application. In other words I have paid the taxes, never done anything wrong, and on top of that
there has never been a single complaint concerning the operation of this property as a TVR. It's
an appropriate use by virtue of statue and certainly the individual case that sits before you today
seems to be an appropriate application of a Special Use permit.
Mr. Blake: When I look at that we differentiate between appropriate and permissible or
are they synonymous?
Mr. Dahilig: You may want to ask legal counsel on that one.
Mr. Houston: I think appropriate makes it permissible,perhaps.
Mr. Trask: Maybe we can defer that I can research it and we can put it in the staff report
because I were forced to give an answer now I would think something that is legally permissible
which is allowable under the law may not necessarily be appropriate in a certain place. So take
for instance whatever the case may be, let's see,to use an off example, I hate to use criminal
analogies but that is what I am trained to do. It is permissible for me as a person over 21 to drink
alcohol. It is not appropriate for me to drink alcohol in my kid's elementary school, do you
know what I mean? So although it is permissible it may not necessarily be appropriate. I don't
know if that is applicable to this case and that is why I would like time to research it but it could
go either way.
Mr. Blake: I hadn't thought about it your way but I can appreciate that view. But to me
if it is appropriate then you can. If it is permissible then maybe you cannot. You need
permission to do it, it is not just appropriate. And so when I look at this, "The use shall not be
contrary to the objectives sought to be accomplished." And so we have the objectives that we
seek to accomplish but, but, but, if you have all these"buts" in there then you can look at
something else and how many "buts"we have after what the objectives are is what concerns me.
Mr. Houston: I think the pre-1 976 rule gives a pretty good idea that what was
permissible and appropriate as it concerned Ag. land at that point was a single family dwelling
and then the question became whether a TVR was permissible referencing a single family
dwelling and up until the passage of the March ordinance it was. And so now we have the
consideration as to the grandfathering effect of whether or not it is appropriate and permissible
and if we use a historical perspective the answer is yes it was. So the question would be then
what changed so dramatically that caused that once lawful permissible and acceptable standard
to reverse its self to the point of nonexistence and in this particular case the answer would be
nothing. And that is why we bring the Special Use application permit because virtually nothing
has occurred regarding the character of this particular neighborhood dwelling and TVR that
would result in a complete reversal of philosophies as to whether or not is operated appropriately
and consistent with the purpose of statue.
Mr. Foster: 205-6 is the Special Permit section,the same case, the Waianae Cost case,
the Hawaii Supreme Court commented that the special use or exception involved in a land use
control devise from a recognition of the hardship frequently visited upon landowners due to the
inherent rigidity of the Euclidian zoning system and of the inapplicability of a variance of
boundary amendment procedure to all land use problems. Now in this case as we have said we
have a grandfathering issue. We have arguably a constitutionally established right to continue a
legal use that was in existence at the time of the zoning amendment and in this case the County
has chosen to use the special permit mechanism to accommodate that right.
Staff: Mr. Houston, I need some clarification. How long have you owned the property?
Mr. Houston: This particular piece of property approximately 8 or 9 years.
Staff. So 2002.
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42
Mr. Houston: There about and I hate to be date specific without the records in front of
me. Prior to that I had owned the adjacent property and essentially had been talking with my
neighbor for upwards of about 15 years that if he ever chose to sell that lot certainly I would like
him to consider me as a potential and he was kind enough to do so.
Staff: When was your construction on the house completed? I have 2004 so I am
thinking 2004,2005?
Mr. Houston: It was rather rapid so I would say depending on...1 can't remember exactly
when we started in 04 but there were no delays and it went up very quickly.
Staff. Your financial documentation for the TVR went back to 06, 07, 08, 09.
Mr. Houston: Correct.
Staff: Did you ever rent out your house for just residential purposes?
Mr. Houston: No.
Staff: Because it looks like once you completed the house you went straight into TVR.
Mr. Houston: Correct. You mean did I rent it out fall time?
Staff: Yes.
Mr. Houston: No. And the reason is I wanted it available so I could use it.
Staff. For the water system how many lots are on the water system? I heard 3.
Mr. Houston: Correct.
Staff. Somers, Russell, Houston, where is that Well located?
Mr. Houston: Russell's property,my old piece of property.
Staff. How old is the pump on that?
Mr. Houston: We just replaced the pump and pressure bag and I am going to guess about
a year and four months ago, somewhere in that zone and please don't hold me to that, I am not
positive.
Staff. So there are only 3 lots being serviced by that Well.
Mr. Houston: Correct.
Staff: Do you have a fire pressure?
Mr. Houston: We have whatever pressure the County required and I know Moloa`a does
not have hydrants and so whatever was required of County in reference to get the certificate of
occupancy and building permit was met and I couldn't tell you what that pressure is.
Staff. I am just curious if you are meeting County standard fire flows and fire pressure
off of a private system.
Mr. Houston: Well I think everyone in Moloa`a is on a private system except for a very
few because there is really very little County water available for the residences in fact I don't
know anyone that is not on a Well system of their own.
Staff: Because then in the multiplication of 8 and nobody has County standard fire flows
and then the certification of the water,that brings up a concern. So in terms of infrastructure
there is no County standard fire flows in Moloa`a although the uses now are being increased.
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43
Mr. Houston: Well the use actually isn't being increased because there are no additional
dwellings being constructed.
Staff. No, I am saying by the multiplication of minimum of 8 more TVRs on a non-
County water system.
Mr. Houston: Right, but they are on their own systems so I couldn't speak for them or
tell you what they have or don't have, I can only talk about specifically what this particular
package has.
Staff. And the roadway that is servicing your property, it is single lane, paved, 10 to 12
feet.
Mr. Houston: It is Moloa`a Road. I couldn't tell you, it is a County road so I would hope
the County would keep it according to whatever lawful specifications are required.
Staff. And who manages the parking along that roadway for the beach access?
Mr. Houston: Actually there is no parking along the roadside. The beach access is at the
very end. There is one cut out that I believe one of the neighbors actually provided to assist
people in parking but they do not allow parking on the side of the road.
Staff. Is that enforced by anybody?
Mr. Houston: I have never seen anybody park on the side of the road so I am going to
assume it is and I have been going down there for over 20 plus years so that is a pretty good
indicator.
Staff- Thank you very much.
Mr. Foster: As to the water and the fire protection the houses are there now,we are not
talking about adding any houses so I guess my argument would be the fire protection needs are
there now,they don't change whether it is a short term rental, long term rental, or residency a
full year around. If I might just touching back on the permissible uses, the 904 its self recognizes
that the County General Plan entertains the possibility of alternative visitor accommodations and
development standards in residential, agricultural, open and resort zoning. Section 4.8.4.2,
Alternative Visitor Accommodations of the General Plan anticipates regulating accommodations
and structures operating in residential as well as agricultural as well as resort zoning district.
Chair: We are going to be taking a break shortly we are just going to field one more
question by our Commissioner.
Mr. Kimura: What type of road do you have, is it paved?
Mr. Houston: Yes sir. Well Moloa`a Road is paved to the bridge and then there is
gravel.
Mr. Kimura: So from the bridge to your property is gravel.
Mr. Houston: Right.
Mr. Kimura: Is that road safe?
Mr. Houston: I think so. Yes would be my answer, you come off the bridge and then it
goes down a little incline because the bridge is elevated and then it is flat and it is a pretty huge
area. You would have to really try to get yourself in a problem.
Mr. Kimura: You are so well knowledged on what is going on with the TVR and your
property and all that, on the funny side, why do you need lawyers?
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44
Mr. Houston: I am a lawyer. I want to explain this because to me this is kind of
important. I know there are a lot of people out there that say don't bother with it, go to court,
fight it in court, and that is not my objective. My objective since I started coming over here over
two decades ago and really wanted to make this my home was to try to do everything right and to
try to do everything the way it is supposed to be according to the rules here. No to be, pardon
the expression, a smartass and try to do it any way I think I could get away with and that is why I
am here because I don't want to do things fighting, I want to do things by saying look, I am
trying to do everything I possibly can because I respect your rules and I respect the island.
Chair: We will be taking a short 10 minute break.
Commission recessed at 3:43 p.m.
Meeting was called back to order at 3:56 p.m.
Chair: There being no further questions we will be opening up the public hearing to the
public at this point, is there anyone is the public that wishes to speak on this matter? I don't see
anybody wishing to speak on this matter.
Mr. Blake: I have one concern prior to closing the public hearing and that is that 205-
A.2.5, Economic Uses, it directs us to concentrate coastal dependent development in appropriate
areas. And it says "To ensure that coastal dependent development such as harbors and ports,
coastal related development such as visitor industry facilities and energy generating facilities are
located, designed, and constructed to minimize adverse social,visual, and environmental impacts
in the coastal zone management area." And we have Moloa`a which isn't even a village it is just
kind of a collection of homes on the beach and it is serviced by a very narrow paved road that
neither the County or the State can agree upon as to who owns it such that when the bridge
washed out they were fortunate that those two entities came together with the help of the Core of
Engineers to rebuild the bridge. The government road in the back is narrow and I don't know if
it is paved or gravel but it is what would be considered in a neighborhood a substandard road.
So we have facility existing, a structure that is existing and well maintained and very
arguably a plus in the neighborhood but it is going to be utilized by people who come here for a
very short period of time. And when they come here they are not concerned about what happens
when an emergency occurs where do I go,how do I get there, who can come take care of me if
something happens to me and someone has to come in. And that is where the question of
propriety comes in because it is an appropriate place for a vacation rental so that and the Ag.
issue remain my concerns. This may be a stretch but I remember the news reports when we
expected to be hit by tsunamis or tidal waves as a result of the Japan problem and people would
refuse to leave Ala Moana Park when the police helicopters were flying over telling them to get
out of here or refused to vacate the coastal areas because they want to watch the water go out and
come back. That doesn't only take place with tourist, I know local people do that too but way
less local people do that then visitors and so whether this is an appropriate and I am repeating
myself,place for visitor facility remains a concern of mine in addition to the Ag. issue that
Commissioner Kimura has raised.
Mr. Trask: I think Commissioner Blake makes a good point and so does the applicant
regarding his classification of his land,their view on grandfathering and he brought up
constitutional points as well as Commissioner Kimura and everybody. There was a lot said
today. As a housekeeping matter I would...we are at a public hearing right now, right? I think
we should at this time close the public hearing and take the issue up at a next Commission
meeting so that we can do these kinds of factual inquiries, we can look again at the objectives
and policies to be protected by 205 and 205-A, look at these kinds of things, infrastructure,road
and all those kinds of situations. I think that would be appropriate.
Chair: Is there a motion to close the public hearing?
Mr.Nishida: So moved.
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45
Mr. Blake: Second.
Chair: Any discussion, all those in favor say aye, motion carried.
On motion made by James Nishida and seconded by Hartwell Blake, to close the
public hearing, motion carried unanimously by voice vote.
Chair: Is there a motion for deferral?
Mr. Kimura: So moved.
Mr. Nishida: Second.
Chair: Any discussion, my discussion would be that the deferral be open ended.
Mr. Dahilig: Mr. Laureta, for calendaring next Commission meeting or two Commission
meetings?
Staff. Calendaring on the 10th would be preferable because we are aiming for 3 more,the
next 3 on the second May meeting.
Mr. Foster: For housekeeping I don't know if we are going to need him here specifically.
He can't be here on that short notice.
Mr. Houston: And gentleman just so you understand I have a trial calendar and I have
been trying to push things back and around so I could be here today and I just didn't want you to
think it any sign of disrespect or lack of concern if I was tied up with a Federal Judge. I think we
all know the alternative if I don't show up there.
Mr. Kimura: We appreciate that.
Mr. Houston: Thank you sir.
Chair: So what is the accepted date for the next hearing?
Mr. Dahilig: We would probably recommend the first Commission meeting in June at
this point, that would be June 14tH
Mr. Foster: Do you need Mr. Houston or can I appear at that hearing? He is not good
until the end of June because of his case if it is okay and I can field questions for him with you,
that is fine with us.
Mr. Houston: I just didn't want to in any way impact this or prejudice this but I know
that I am tied up from essentially the 8th through the 22nd but beyond that I can be here.
Mr. Dahilip,: We concur with the second meeting in June which would be the...
Mr. Houston: After the 22nd
Mr. Dahilijz: May 22nd or June 22nd?
Mr. Houston: Gentlemen if I can look, I saw the alternate dates, the alternate date I
believe was the June 28th date that I was trying to clear with my office earlier on in anticipation
that we might need additional time because they couldn't clear any dates other than the 28th
because I need the 27th to fly over and then I would take the redeye back on the 28th so I have to
have those two dates available. And they can given me the 27th and 28th so if we could do it June
28th would that work for the Commission?
Mr. Trask: Just for clarification the applicant isn't objecting to have his attorneys be here
in his stead, correct?
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April 26,2011
46
Mr. Houston: No I'm not I just didn't want...
Mr. Foster: We are trying to make it easy for you. If you want him obviously you are
getting some benefit from his answers,he is willing to fly over for that to help you.
Mr. Houston: If the questions have been answered and I am not necessary then I
certainly understand that as well.
Chair: Mike, I would recommend that we have it as soon as possible because we have
other cases that are pending.
Mr. Dahilig: It is the Commission's prerogative at this point.
Mr. Nishida: Caven is not here so I think it makes a difference whether the applicant is
here or not and I think the applicant's representative is fine but if at all possible if the applicant
can be here. It doesn't make a difference because you have the applicant's representative but I
know Caven...as a Commission we kind of like the applicants to be here as much as possible in
addition to the appl'icant's representative.
Chair: So that being the case then we will have to have it...
Mr. Dahilig The second meeting in June, the 281h
Chair: June 28"', is that okay?
Mr. Houston: That would be fine.
Mr. Nishida: What about the 60 day Mike? We don't have a 60 day?
Staff. That is what I was going to suggest is that we are going to need a letter of
extension because if we close...
Mr. Foster: We will waive the 60 days as long as the temporary,there is no action being
taken on the temporary that is fine, I will send you a waiver.
Chair: Thank you.
On motion made by Jan Kimura and seconded by James Nishida,to defer item to
6/28/11, motion was not acted on.
NEW BUSINESS
For Acceptance into Record—Director's Report(s) for Proiects(s) Scheduled for
Public Hearing on 5/10/11.
Use Permit U-2011-12, Special Permit SP-2011-7 and Class IV Zoning Permit Z-IV-
2011-12 to conduct guided tours of an existing botanical farm at a property located on Ahonui
Place, approx. 900 ft. west of the Ahonui Place and Kapa Ka Street intersection, further
identified as Tax Max Key 5-3-008:12, and affecting an 8 acre portion of 25.303 acres = William
E. Robertson Trust and Lucinda G. McDonald Trust.
Director's Report pertaining to this matter.
On motion made by James Nishida and seconded by Jan Kimura, to receive
Director's Report, motion carried unanimously by voice vote.
Use Permit U-2011-11, Special Permit SP-2011-6 and Class IV Zoning Permit Z-IV-
2011-11 to allow development of a 3 M solar power photovoltaic (PV)system including a
series of ground supported flat panels and 12 transformers, on a parcel located along the eastern
Planning Commission Minutes
April 26,2011
47
side of Hg pa Road in K61oa, situated directly across St. Rafael Catholic Church and a rox.
2,800 ft. south of its intersection with Weliweli Road, further identified as Tax Map Key 2-8-
014:001 (por.), and affecting a total area of 18.8 acres =AES Solar Power LLC.
Director's Report pertaining to this matter.
On motion made by James Nishida and seconded by Jan Kimura, to receive
Director's Report, motion carried unanimously by voice vote.
Use Permit U-2011-10, Special Permit SP-2011-5 and Class IV Zoning Permit Z-IV-
2011-10 to permit the construction and operation of a zip-lining outdoor recreation area at a site
located on a cane haul road approx. 1,200 ft. north of the cane haul road's intersection with
Kaumuali`i Highway, said intersection is located approx. 0.5 miles east of the Kaumuali`i
Highway and Punee Road intersection, further identified as Tax Map Keys 2-7-001:002 and 2-7-
001:005, and affecting a 7,500 sq. ft. portion of a 1277.276 acre parcel =Zipline Franchisings
LLC.
Director's Report pertaining to o this matter.
On motion made by James Nishida and seconded by Jan Kimura, to receive
Director's report, motion carried unanimously by voice vote.
For Acceptance and Finalization—Director's Report for Shoreline Setback Activity
Determination.
Shoreline Setback Commission Review SSCR-201-11 for a shoreline setback
determination, Tax Map Key(4) 4-3-009:002, Kapa`a, Kaua`i,_for acceptance by the
Commission=Dilegp G. Bal,
Director's Report pertaining,to this matter.
On motion made by James Nishida and seconded by Jan Kimura, to approve staff
recommendation, motion carried unanimously by voice vote.
Shoreline Setback Commission Review SSCR-2011-12 for a shoreline setback
determination, Tax Map Key (4) 3-5-002:002, U1hu`e, Kauai, for acceptance by the Commission
Shimokawa Nakamura.Inc., for Kaua`i Marriott.
Director's Report pertaining to this matter.
On motion made by James Nishida and seconded by Jan Kimura, to approve staff
recommendation, motion carried unanimously by voice vote.
Shoreline Setback Commission Review SSCR-2011-13 for a shoreline setback
determination, Tax Map Key(4) 1-6-003:001, Kaumakani, Kauai, for acceptance by the
Commission=Robinson Family Partners.
Director's Report pertaining to this matter.
,
On motion made by James Nishida and seconded by Jan Kimura, to approve staff
recommendation, motion carried unanimously by voice vote.
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April 26,2011
48
ADJOURNMENT
The Commission adjourned the meeting at 4:11 p.m.
Respectfully Submitted.
v
Lani L. Agoot
Commission Support Clerk
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49