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Home My WebLink Aboutpcmin051011 KAUAI PLANNING COMMISSION REGULAR MEETING May 10, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Herman Texeira at 9:12 a.m. at the Lihu`e Civic Center,Mo`ikeha Building, in meeting room 2A-213. The following Commissioners were present: Mr. Herman Texeira Mr. Jan Kimura Mr. Hartwell Blake Mr. James Nishida Mr. Caven Raco Mr. Wayne Katayama Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to approve the agenda, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Camilla Matsumoto and seconded by James Nishida, to receive items for the record, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Request(4/21/11)to Amend Special Permit SP-2008-3, Use Permit U-2008-5, Variance Permit V-2008-3 and Class IV Zoning Permit Z-IV-2008-7 to allow an increase in the overall height of the energy plant and stack, to extend the construction completion period of the plant, and to accept the Annual Report for the project, Tax Map Key.2-7-001:001, Koloa, Kauai Green EnM Team LLC, Staff Report pertaining to this matter. Staff Planner Dale Cua read staff report (on file). Chair: Thank you Dale, are there any questions for the planner? Mr. Blake: I wasn't here when this permit was granted and I had a question on what was referenced on the February 28, 2008 letter,that was condition No. 6 and 8. It says "The applicant shall provide a drainage study showing the method by which flows will be kept at the pre-development rates acrd implement best management practices to minimize the damage to the Aweoweo Pilau Stream." What kind of damage was envisioned? Staff: The way I read the condition is the intent is to minimize any potential damage to that nearby stream. Mr. Blake: That is from the grading and grubbing? Staff: Through the site work involving the site. Mr. Blake: In paragraph 8 it says"Consult with the State regarding the affects of the plant with respect to the assessment and protection plan for the Nawiliwili Water Shed." Was this in any manner threatening the water shed? IJUN t 4 2011 Staff: I cannot answer on behalf of the applicant but I assume that those two conditions, 6 and 8, work hand in hand. The drainage study would provide information as far as whether the project will impact this particular water shed. Mr. Blake: My concern may be premature but every time I see"minimize"to me that says it is already happening and so my concern is what is happening to the discharge if any into the stream. Staff: Maybe that particular question can be directed to the applicant as far as what is going on at the site now. Chair: Anybody else, thank you Dale, we will ask the applicant to come forward please. Mr. Eric Knudsen: Eric Knudsen, good morning, Chair, Commissioners. I have an answer to your question Commissioner Blake in fact I have a graphical that reflects two different types of flow, one being the affluent,the water affluent from the cooling into a percolation pond and then into the ditch system and definitely not into the stream. The other is the storm water runoff and that is equally important and since you have a 6 acre pad that otherwise if you don't handle that water it could flow into the stream. So this is actually a graphical that will show that as well in the layout if I can respond to that because that needs a response. I have an agenda here, proposed agenda that I would like to share with you for your edit before I go forward and a short power point presentation that takes 8 to 10 minutes if that would be acceptable to the Chair? Chair: Go right ahead. Mr. Knudsen: Before I start I can just share with you some of the milestone events since 2005 since started our project to address the rural energy needs to Kauai. If we look at this slide, this actually a background picture,we have the purchase of the site. It is a 64 acre parcel and on that 64 acres it is a 5 to 6 acre pad for the plant it's self and I will show you where that is located. Actually this is a small image but I will share with you what that reflects. Our island is 25 miles by 25 miles and this is the southeast corner of the island where the x is here and that is 6 miles inland. There is a better graphical I will show you in just a minute that shows that. Up here we have the sighting of the power purchase agreement with KIUC which was on January 25, 2011 this year and what that does is it provides a capacity for KIUC so they can reduce their fossil fuel production concurrently as we start our production on line. And to the right we have a number of images of our...this is the ranchers on the Kalepa lands in agreement regarding fencing and other items here in conjunction with assuming some of the State lands with the State. To the right we have Alfredo Lee of ADC which Tuesday of last week granted a 22 year, 7 month license for 1,000 acres for the production of biomass for the project after 4 and a half years of working with them as well. And here we have back in 2007 support from our local legislators. I should actually correct that, Mina Morita today is the PUC Chair. I will move into the power point presentation and I will get that ready for you in about 20 seconds. This is the suggested agenda. I have done it both on the power point and I will move to the mic in just one moment and also this agenda printed out as well so I don't know which is clearer for you. Above me is the agenda for the next 8 or 9 minutes of my sharing with you. The goal here is an approval of a proposed amendment to the existing height variance. You have granted a use and special use permit here a number of years back and this is strictly the scope of which is the amendment to the existing height variance that we have. The reason behind that is some technology changes, improvements to the technology over the years that we have found a better boiler, it is 16%more efficient. If we look at another goal we have today is to move the plant operational by December 31, 2013 and not February 27, 2013. We need the extra 10 months for the construction phase. We know that we targeted to break ground here in November and actually move in and do some of the major work in January of 2012 but it does take up to 2 years, a bit less than 2 years so this would provide enough time to complete the project and also acceptance of our annual report to help you. Some of you weren't a part of the use and special use permit approval so I can give you a quick 2 minute review through the annual report highlights as to what the project is all about. Would that be acceptable to the Chair? Planning Commission Minutes May 10,2011 2 If we look at the compliance we understand we are in full compliance of the conditions of the entitlements that have been approved. January 25th as I mentioned we entered a capacity of power purchase agreement with KIUC and we concurrently signed an agreement with Standard Kessel which is the provider of both the technology, the boiler, and also has the project leadership, and the boiler which I mentioned is 16%more efficient. I will describe what that means. Previously we had a conventional boiler that was horizontal. So if you look at introducing biomass wood chips which is what this project is all about here with green energy is that if you take a boiler which is lateral like we had before you can compare it to a tube that you put beneath the ocean, beneath water and you would introduce a little bit of air on one side and incline it a little bit, that air is going to stay up in the top of that tube and won't equally be moved across that tube. But if you move that tube in the water and you introduce air that air pocket will go evenly across the entire surface and create like a bubble that goes up like this and that is exactly what the Standard Kessel boiler, the main reason behind, there are other reasons as well, behind the 16%more efficiency. You have got a boiler that is not horizontal like we had before in our conceptual design. But in our final design we have this vertical boiler and that is the 16% more efficiency in total regarding a number of different components. The negative aspect is that it increases the building from 50 feet to 88.6 feet. It also increases the stack height from 75 to 100 feet and that is the real amendment here today. This is the reason why we need your approval of that. There are a number of other smaller changes which are included in your information packets and I won't go through all of them, most of them are mitigating dust and improvements. Actually the environmental impact is improved by the final concept as we have learned more and introduced the latest technology improvements. If we look at...I mentioned Tuesday, May 3`d, last week, we did execute the State of Hawaii 1,000 acre license,we are trying to do this concurrently and just before we move forward in the fail and break ground but it is tough to do everything on the same day. But in the recent past we have done the power purchase agreement as well as the Standard Kessel agreement as well as the State of Hawai`i's 1,000 acre parcel. And I can go through this in just a moment regarding what that means. Timing as mentioned,November 2011, breaking ground, this is more for putting our spades in the ground. I know that others such as Congresswoman Hirono and others,the Governor and Mayor would like to be there. Actually the work won't really be started until January or 2012 where we have the heavier equipment coming in. Really I should say January but you will see a proposed breaking ground in November of 2011, operational 2013.The number of construction jobs has been estimated at higher than 200, 250 have been named but to be conservative we are mentioning 200 construction jobs which we need here on island. It is a 68 million dollar project in total so there is a lot of money coming from the outside in that really helps us in these tough times in our recession. On going after January 2014 the 39 direct operational jobs of the plant. Instead of sending money off island for fossil fuel we will be then producing it on island which has an effective 3 to 4 times what each dollar we spend locally and with the long term cost savings on our electric bills throughout every household. I will move to the next slide,just to wrap up, this is where the woodchips are coming from. If we look at the State lands up here this is a 6,000 acre parcel,the Kalepa lands,many of you know where that is and that is just north of Grove Farm which is in blue here. And there we have 1,000 acres license, over 22 and a half years and we have also obligated ourselves to clear Albesia. So we are going to (inaudible)where economically viable, we are going to clear out Albesia and bring that to the plant as well. And we are going to replace that on our 1,000 acres with DLNR, Division of Forestry approved tress. For many years we called ourselves forestry but we were corrected in the Important Ag. Land Study where if we are harvesting in less than 7 years, we are harvesting in less than 2 to 4 years we are actually considered Ag. So officially in the State of Hawaii we are an Ag. production sort of like the cane days and we have our facility here. And there flower here in the middle this is 6 miles inland where the plant facility is, when you are going south and you pass over Halfway Bridge it is on the right hand side. Remember where that American flag was a couple years ago, that is where it is on the right hand side prior to getting to the tree tunnel road so it is on the right hand side. And there is an image I will show you more specifically to show where that is at. Planning Commission Minutes May 10,2011 3 But to orient you it is 6 miles inland,this is our Lihu`e and here we have Po`ipu, O`ma`o so it is quite far away but it is in the center,the epicenter of the biomass where you are sourcing a clearing across these lands, you have the Hawaii mahogany sourcing at minimum 25%of our feed stock and the remainder through our 1,000 acres leased through the State lands and an additional 1,000 acres through private licenses and leasing to the west and to the north as we actually originally proposed. Our footprint is actually a bit smaller because the efficiency of the 16% improvement and other reasons so that is where our (inaudible). This is what really helps us. It helps us understand what will happen with this increase in height of the stack and the building. What we have is we have on the right hand when we are going south on the highway we can see from a perspective of the highway, you have your poles here, electric line here within the grid of KIUC and that is the reason why this is so inexpensive too. The interconnections are as cheap as possible to keep the prices low as possible. This is just one pole away from connecting to the plant and this is one of the reasons why KIUC targeted this and asked if we would consider this as a site and went forward with the purchase of the 64 acre parcel. You have here the current height of 75 feet and the proposed or projected by December 2013 is approximately 95 to 100 feet so we are showing a tree line of about 100 feet and the stack here. Behind that is actually your building. This height here which I am pointing at today is actually 88.6 feet and this is your stack so you many have 3, 4, 5 feet of the stack visible at 95 feet versus 100. We have that condition in the use and special use permit to keep these 3 rows of trees in tact here in front of the plant so we worked hard not only with the 3 rows but other types of vegetation to keep so that basically the visual blight today and going forward is the electric wire poles going across here, 75 feet high are these poles. So if you compare the tree height, here you have 1 pole and then another here in the front here, these are 75 feet high and this extends across and crosses over the highway as you are traveling south past halfway bridge. In conclusion,this is just a side view, a section view showing the stack height of 100 feet and the building or 88.6. The next slide is actually much more helpful and this will help address Mr. Blake's question here. So what does it look like when it comes to the plant its' self, we have got some significant improvements versus the site layout conceptually to the final. The big improvements are here and I will start with the flow and then I will talk about the runoff and water how we have handled that. On the right hand side, it is not too legible but this is a traffic circle and the reason why this is introduced in the final concept is for the truck drivers coming in. Through experience through Standard Kessel and others they have 59 installations, it is much easier for them to access and drop their load and instead of having the payload being dumped and a frontend loader coming in like we had earlier it is much more efficient and you have less issues regarding producing power always having the biomass there by having an automatic drop. So in the bottom of these trucks is an automatic opener that opens up and drops the feed stock and a gate system which is really unique here engineering wise where they drive forward, they drop it into a 12 deep crate or a grate system and beneath that is a grappler. It is like a big crane that goes across automatically with no operator, goes across and picks up the biomass in this area here and brings it across the boiler and distributes that across the feed supply area and then automatically feeds that into the boiler which then is introduced as wood chips 4 inches, half inch to an inch wide, moving in at 30% and upwards moisture content into the boiler and then is burned at 1,100 degrees Fahrenheit, approximately and then moving through the chamber moves up to 2,400 degrees Fahrenheit so it is a very high, hot burner which improves the efficiency as well. The one we had before was 2,200 degrees Fahrenheit,targeted, and this one is 2,400 so most efficient that we are aware of but one of the most efficient in the world, Standard Kessel boiler. And then from there that hot air boils water and that boiling water,that steam production then moves to a generator and that produces your power directly out to the substation here that connects up to those lines we just saw so that is just generally how the flow is. And here you have your electrostatic precipitator,this wasn't initially required but we put in an electrostatic precipitator which is the best technology control technology in the world right now. This is negatively charged plates, when the smoke goes across it, it actually attracts to the negative...I did want to get back to the subject of water, here you have collection of the water,the rain. What you have here is the distribution of the water its self in the distribution instead of going down towards the stream instead it is distributed right there and you have a distribution of any Planning Commission Minutes May 10,2011 4 water affluent going straight to the ditch system, that which isn't absorbed by the soil its self I would like to answer questions specific to that and then I will move to other questions since this is our last slide. Mr. Blake: Where is Aweoweo Pilau Stream? Mr. Knudsen: It is on the back end so right now the direction if we are looking at it here, the highway is down here and then the stream goes at about a 20 to 30 degree angle behind this couple of hundred yards behind the plant site in the valley. There is no water been coming from that and there is no affluent going to that stream, instead the affluent is brought off here for storm water that is coming through and then you have through your water system you have got a pipe return in your affluent that goes to an absorption chamber and anything distributed beneath sort of like a septic field can go to the ditch system which goes back to the reservoir, the mauka reservoir. We don't expect to see any reservoir water remaining but there can be. Mr. Blake: And where is the reservoir from here? Mr. Knudsen: It is over a mile. In direction if we think of the plant here it would be over in this direction across the highway. Now we are going into the ditch system which is interconnected to that from the cane days so it is very similar to the cane days it is just that we have much,much less of both air emissions and affluent like they had. Mr. Blake: So was there any impact on the fish or stream life? Mr. Knudsen: No,there is none deemed to be. We were especially careful with the stream behind because we absolutely wanted no alternation, no connection,no affluent or influent from the stream. I do have to notify you that this is a 5, to 6 acre pad and before trees so you will have a lot of storm runoff. So we have got soil or water connections in the storm runoff pond there and the reason why we have a ditch system around it is to collect that storm runoff and our engineering group is aware of that and it is one of our priorities. In fact it will only be approved by the County of Kauai if it does have that, it is a requirement. Any other questions? Mr. Nishida: Eric, that unplanted area between the highway and the plant, is that under Green Energy's control? Mr. Knudsen: Yes. We have on the parcel its self we have a road here expected and we have an agreement with Hawaii Mahogany which leases from the Knudsen Trust that they will maintain those trees. Mr. Nishida: And what about that vacant, that unplanted field in front of it? Mr. Knudsen: This unplanted field ahead of it, I am not sure who has that today but I know that the trees themselves are controlled through us or Hawaii Mahogany. Mr. Nishida: So you don't have control over that vacant field then. Mr. Knudsen: No. But we will maintain at minimum the 3 rows as required in the condition that you have given us through the use and special use permit. Mr. Blake: In your lease you said you were going to clear Albesia and plant approved trees? Mr. Knudsen: Yes. Mr. Bake: Were these trees for more fuel or just reforestation? Mr. Knudsen: For more fuel. If we go back to the slide show the source of the feed stock what we have is we have the State lands here, 1,000 of the 6,000 we have for our own licensing. There are 4,000 (inaudible) acres from the cane days and on those 4,000 acres including our 1,000 there is a lot of Albesia, a lot of voluntary Albesia. We will be honoring the requirement from the State to go in and (inaudible) and it makes sense, I know we will have to leave in some Planning Commission Minutes May 10,2011 5 cases in gulches and so forth but generally we are going to try to clear out that Albesia and replace it with DLNR Forestry Division approved species. Dr. Brubaker over at UH Mdnoa, he is working hand in hand with us and has 4 pairs of trees for planting, in each pair there is a nitrogen giver sort of like the Albesia but not invasive that provides nitrogen in the soil or through it droppings. And then the other tree is the target for(inaudible), both will be chipped but the other one is the real target for biomass production. And they are like big bushes, they are trees but again we can't call ourselves forestry, we are considered an Ag. production and that is really the target. So 4 sets of trees depending on what the moisture content is and soil quality. Mr. Blake: So once you plant, like if you plant the tree today when do you harvest the tree? Mr. Knudsen: Two to four years down the road. In many cases only 2 years and some up to 4 years based on the moisture content. If we have moisture in excess of 50 to 60 inches per year then you have a faster growth status and can harvest in just 2. Mr. Blake: And are these introduced trees or native species? Mr. Knudsen: These are introduced. Through DLNR we will not be introducing Albesia, we have up to 10 years to clear that Albesia but with the Division of Forestry they are actually dictating which type of trees, which type of species we are allowed to have on the State lands and we are going to follow that because we actually find the Albesia not to be even on some of the private lands to not be the appropriate food stock. Now on the Knudsen Trust lands there is already existing through Kauai Mahogany, that is their own business, they have every other row Albesia disbursed with every other row with Eucalyptus and other trees but that 25% of the food stock is coming from Hawaii Mahogany and they do have Albesia. Otherwise for the 75% we will be clearing Albesia and replacing with Division of Forestry approved species which is actually a great improvement compared to what we have actually been approved for because we have found that it is actually better for our production, biomass production is not Albesia. It is brittle, it is porous, and there are other issues. If it is already existing such as on Knudsen Trust lands then okay, you have economics that are with you to keep that price of the electricity as low as we want or lower for the people of Kauai. Mr. Kimura: Have you guys done another environmental assessment with the amendments that you are requesting? Mr. Knudsen: We have. Actually we weren't originally required to do an EA but this is before the Super Ferry and all of that but we decided voluntarily to do that. It is a costly thing, it took 15 months and 130 thousand dollars,we did that because we are sort of environmentalist ourselves and we had a finding of no significant impact. So we have conducted the EA, it is a very thick document, very thoroughly done. Mr. Kimura: What would be the air quality with the new stack and the new boiler? Mr. Knudsen: Air quality, good question. With the new boiler what would be the emissions, well the emissions would be at the same level as we had before or less even though it is 16%more production. It is amazing. If you look at the NOX, the SOX, that is the nitrogen oxide,the sulfur oxide and the particulate matter it is significantly less than for example current diesel production that we have in Port Allen. So it is beautiful for our air emissions, we are getting cleaner air, we are producing it on island,we are getting over 200 jobs in fall stating and 39 direct agricultural related jobs. But most importantly for all of the bills we have long term cost savings for literally everyone on Kauai versus the volatility of where we have been and the slope of the price of oil the macroeconomists of the world have all come to an agreement on versus the slope of our pricing curve. So that is the real driver, economics. Even though many of us are green so to say and we want the carbon neutrality and we understand the ocean level is going to increase that is one of the drivers. But the main driver today with the recession, the issues that we have,the jobs needed,this is going to be one of the biggest projects ever. It is about 5 films, so 68 million dollars,that is about 5 or 6 films but it is forever, well 20 years of production. Planning Commission Minutes May 10,2011 6 Mr. Kimura: It says here you are requesting to hire local contractors and employees, where are you with that? Mr. Knudsen: Absolutely. I don't know if we are the only one that put in bids for a project like this with KIUC but one of the commitments we have is to hire locally where competence exists and where it is economically viable, but that is our personal responsibility and as well we have it as a condition as well in the use and special use permit. It is beautiful, we need the jobs, where it is economically viable and competence exists. Mr.Nishida: That pink are is the State land, that is 1,000 acres,that blue area you have potential clearing of Albesia here and elsewhere on the island 1,004 acre lease. But the blue area is much bigger than the pink so what is that 1,000 acre lease? Mr. Knudsen: What this is,the blue area its self is Grove lands and it is 39,600 acres approximately,just less than 40,000 acres and the pink is 6,000 so in the blue area we have potential clearing of Albesia, there is a lot of Albesia across those lands. In the dialogue with Grove they are respective. And then we have the yellow with Knudsen and the (inaudible) of 6,000. Mr. Nishida: So you have a 1,000 acre lease under the blue written in there... Mr. Knudsen: We do not. This is an additional 1,000 acres for leasing that we are concluding here costs other lands both to the west and to the north. And this text is very similar to the same...I actually have a copy of what we presented to you in January of 2008 if I can move you to that for just a moment please, Chair, is that acceptable? Chair: Go ahead. Mr. Knudsen: What I have here is the same images here we have on the projector and if I flip this over it is the same one we showed back in 2008 and the text is very similar it is just that we showing the land ownership with Grove Farm, Kalepa, and Knudsen here. The language again is the same, we have an additional 1,000 acres beyond these areas for sourcing of additional feed stock. Mr. Nishida: You don't have that lease though. Mr. Knudsen: Actually over 500 acres is now being reviewed in legal review for final contractual language conclusion. We wanted everything to come together these months, that is our goal,but it is tough to get it on the same date. So we are just about there and we also have an additional 700 acres that we have actually already executed on. Mr. Nishida: So when you have yellow 3,700 acres it is not just the yellow,the 3,700 is your whole Green Energy... Mr. Knudsen: The 3,700 acres is the Hawaiian Mahogany lease. They have I think 3,500 or more of acreage. Mr.Nishida: Because the State land you have only a portion of that. Mr. Knudsen: Correct. So really to be perfectly clear the acreage that we have is through Hawaiian Mahogany they have a lease of over 3,500, it state 3,700 but I think it is actually 35 something when we looked at the actual and collected all the data of leases. And they are sourcing over 25% or more of the feed stock. Then you have clearing and you have licensing here of 1,000 acres and above and beyond that another 1,000 acres on private lands. Mr. Nishida: The State land you are going to be replanting with...you are going to be clearing the Albesia and planting the selected varieties. Mr. Knudsen: Correct. Planning Commission Minutes May 10,2011 7 Mr. Nishida: The other 1,000 that you are working on getting you are going to be planting the same selected variety after you clear. Mr. Knudsen: Correct. Not Albesia, we will not be planting Albesia on lands. Outside of Knudsen Trust Hawaiian Mahogany has their own rights. Mr. Nishida: The Hawaiian Mahogany is going to continue to do whatever they are doing. Mr. Knudsen: Yes, whatever they are doing, they have a lot of existing plantations. Mr. Nishida: And then the Grove Farm property is to be just clearing of the Albesia. Mr. Knudsen: Yes. Chair: I have a couple of questions. Are you negotiating or talking to anybody in the private sector or the County in utilizing their green waste? Mr. Knudsen: A couple of years ago we had actually assumed a portion of our feed stock with green waste conning from the County but we have found that through our bank financing that is unacceptable, that not having long term agreements because the County cannot over 20 years have an agreement with an entity for two decades, it is not possible. It would be irresponsible of the County to do that because of changes economically I suppose so we have not been able to include that as one of our core biomass sources unfortunately but we definitely see that as a potential. It would have to be mixed with the wood chips because of the alkalinity and with grasses you can't have it in concentrated(inaudible)reports and so forth from the mainland and testing it so yes, it is included but we can't include it in our financing package. Chair: Based on your feed stock that you plan to use for your plant how much of your production will you maximize? In other words are you trying to get 100%production out of your plant? Mr. Knudsen: We are, we have committed through our power purchase agreement to be a capacity producer which requires approximately 80% or more. But actually through our experience with Standard Kessler's boiler we can actually be there in excess of 90%. But our commitment is down at the 80% level which is a capacity producer instead of being there when we can of maybe 30, 40% on average. It is much higher now because of the technology improvements. It is a utility grade boiler as well. The whole system is just much, much better than we had before. Chair: So with your present plant you don't anticipate expanding production. Mr. Knudsen: If we look at the grid its self across Kauai and KIUC's needs and their portfolio they need distribution units. It is tough for them to physically have all production in a single area they need to distribute it to some degree. We do have interest in helping them in producing even more but perhaps physically not on this site but perhaps elsewhere. This is a void,to be clear this is a void that needs to be filled. They need production here, this is an area where they have weakness in their grid today so it satisfies even from a technical standpoint their needs. Chair: So are you looking at other sites to put up additional plants? Mr. Knudsen: In the long term there are ambitions by KIUC to expand their biomass operations. Should we be a part of that or not,that is speculation today. Chair: Anybody else have any questions? Mr. Knudsen: Thank you Chair and Commissioners. Chair: Is there anyone from the public that wishes to speak on this matter? Planning Commission Minutes May 10,2011 8 Mr. Chad Deal: Good morning Commission, Chair, my name is Chad Deal. I am a long term resident of Kauai and have a large history most of my history has been in farming here on Kauai, small time farming. I also am very interested in green energy and Kauai moving forward in sustainability so I just wanted to say that I am very much on board with this project and both from the standpoint of fanning and our use of Ag. land and also for alternative energy for Kauai, thank you. Mr. Steve Remsha: Hi, I am Steve Remsha. I am with KIUC, Senior Energy Solutions Engineer. As you have all witnessed it is very challenging to get renewable energies off the ground. We have been successful recently with photovoltaic projects and we envision more of those projects going forward but biomass is a completely different type of electricity source that the island desperately needs to get off fossil fuel as fast as possible. We have a purchase power agreement that is currently under review by the consumer advocate and pUC. We would love to see this project break ground later this year and provide 10% of the island's annual energy needs by the end of 2013. Additionally there are economic benefits to the people of Kauai on this project, of course better rate stability it is not tied to fossil fuels in any way. There are escalation limits on the contract as well so it is a good well rounded project for Kauai. It definitely has system benefits, overall electrical grid benefits of the type of generation. It is just a wonderful project and we would very much like your support so we can see this project move forward and we can all start moving in the direction we would all like to be and I am happy to answer any questions if there are any. Mr. Nishida: When you said that it is not tied into fossil fuels so that means as the fossil fuel goes up you are not passing that increase on to green energy, green energy has a set rate. Mr. Deal: This contract is completely decoupled from fossil fuels. Granted they many have some fossil fuel impact on their agricultural operations but the price KUIC has negotiated for their next contract is not tied to fossil fuels in any way. Mr.Nishida: How much biomass does KIUC look at, total, do you anticipate? Mr. Deal: It is a little hard to say. Ideally this is 10% of the island's annual energy needs depending how successful we are with other projects. I would say upwards of 50%is achievable through biomass. Will we see that in the next few years, maybe, maybe not, it is a good opportunity for the people of Kauai to grow our own fuel other than importing fossil fuels and being subject to the global markets. So while we have our own internal valuation going on right now which is a recent development of looking at the feasibility of integrating a biomass boiler into the existing infrastructure down at port Allen, if we are successful there in the analysis that is about 13% of the island's energy needs, that gets us to about 23%. There are other entities interested in developing biomass and biofuels on Kauai so we are in a transformation period. What the total percentage of biomass is going to be I don't know. previously we were greater than 30%, it sure would be nice to get back above those levels moving forward. Mr.Nishida: So when the plantations were in business it was like 30%? Mr. Deal: Correct. Mr. Nishida: And Green Energy's technology, how do you view that technology,how does KIUC view that technology? Mr. Deal: Really the technology that has been brought here,the whole system from planting to harvesting and collecting to utilizing the fuel to create steam, it is state of the art technology,this plant is going to be here a very long time for the people of Kauai. It is a wonderful project built with the best possible equipment and it is going to be producing power for at least 20 years, probably 30, maybe more. Chair: Anybody else wishing to speak on this matter, if not, thank you. Planning Commission Minutes May 10,2011 9 Mr. Ed Altman: Good morning Commission, Chair, my name is Ed Altman and I am a resident of Kauai. I am very much in favor of this project for several reasons. I appreciate the technology that has gone into it but technology doesn't solve a lot of problems, sometimes it creates problems. What has impressed me about this project is how they have integrated their respect for the land in terms of getting rid of invasive species, filling a need with KIUC in terms of weakness in their grid and how they have placed the plant. Even just hearing Eric talk about how the 5 to 6 acres pad, how the runoff will be addressed to make sure that it is protecting the stream and so forth. It seems to be a very well thought out plan. The improvement of 16% of efficiency seems to be a very good trade off for a small increase in the height variance. As was discussed earlier the variance that is being requested is in line with other power producing and cane production plants in the past. So I hope that you will approve it, thank you. Chair: Anyone else, if not is there a motion to...what is the desire of this Commission? Mr. Kimura: Make a motion to move to approve the staff report. Mr. Nishida: Second. Chair: All those in favor, those opposed, motion carried. On motion made by Jan Kimura and seconded by James Nishida, to approve staff report, motion carried unanimously by voice vote. Chair: The executive session that is slated for the next item on the agenda will be moved to the end of the agenda so the next item after we come back will be the Use Permit for Sprint/Nextel. Commission recessed at 10:03 a.m. Meeting was called back to order at 10:15 a.m. Use Permit U-2011-6,Variance Permit V-2011-1 and Class IV Zoning PermitZ-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 Ki u Road intersection and a rox. 40 miles north of that area eg_nerally referred to as Halfway 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=Sgrint/NexteZ [Director's Report received 12/14/10, hearing closed 1/11/11, 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, deferred 4/26/11.1 Supplemental No. 3 to Director's Report pertaining to this matter. [Received 4/12/11, deferred 4/26/11.11 Letter 3/30/11) from Carl Young, addressing concerns raised at the previous Plannin Commission meeting [Received 4/12/11, deferred 4/26/11.1 Supplement No. 4 to Director's Report pertaining to this matter. Staff Planner Kaaina Hull read supplemental No. 3 to Director's Report(on file) Mr.Nishida: Kaaina, the findings remain the same that this is not an appropriate place for that height of a pole? Staff. I think essentially the department's position still stands however give the previous vote of the Commission in the event the Commission does approve the standard conditions of approval are presented here as well as an additional condition which has come to the department's attention concerning monopines. Planning Commission Minutes May 10,2011 10 Mr.Nishida: Yes,that one of Puapila Road,the road that I am one has that monopine too and I was looking at it the other day and you can see the antenna really good now do what deterioration are you talking about? I think I can see them now; it is like the leaves fall off or something. Staff: Yes, given certain turbulent or windy climates the faux leaves and branches can be removed or taken off the structure as well as given corrosive or salty air environments which Kauai has both that contributes to the breakdown and wear down of the facility. Chair: Anybody else? Mr. Blake: Do you have any conditions that address immediate repairs and maintenance? Staff. The last condition that we recommended which actually isn't numbered in the evaluation but under the recommendation it is under No. 2 which the immediate repairs would be, if the applicant doesn't take it onto themselves to initiate and construct those repairs then the Director has the authority to notify the applicant if such repairs do need to be made. In the event that they refuse to do those repairs either because they are unwilling or unable the Director then would forward such requirements to the Commission and in the event they were still unwilling or unable then potentially the Commission could take revocation action. Mr. Blake: Instead of putting the burden on the County why not just contact the applicant and say it is damaged, repair it within 90 days or 60 days or 30 days rather than are you going to, yes we are going to or maybe or I don't know. Staff: Under the condition the responsibility still in on the applicant. The additional language is just in the case of the situations where the applicant refuses to. It states that it shall be maintained in the original visual exterior. In the event that it is not the Director will be contacting you. In the event that you disagree with the Director we will be pushing it up to the Commission. In the event that you will not be or are unwilling to do the Commission's demands then be aware that the Commission reserves the right to proceed forward with revocation action. Mr. Blake: So you are comfortable with that condition? Mr. Dahilig: Yes, it allows us to enforce the appearance of the structure and make sure that that thing is properly maintained and maintains that blending in appearance. But ultimately I do not have the authority from a due process standpoint to fully revoke and stop the use on it and so that is why the very last line of the condition's paragraph talks about forwarding a situation like that up to the Commission because they would have to be afforded some type of due process. Mr. Nishida: So that process is, what is the name of that process that you do in order to enforce the... Mr. Dahilig: Order to show cause. Mr. Nishida: Actually that is the only thing that we have in these kinds of conditions. Well prior to that it is a negotiation within the applicant, not a negotiation but it is communication between the applicant and the department that conditions haven't been met. Mr. Dahilig: That is correct. Mr. Nishida: And then the only process is the order to show cause. Mr. Dahilig: That is correct. Mr.Nishida: And then another thing that would have been okay is if the civil fines were implemented, right, that would have been another tool. Planning Commission Minutes May 10,2011 11 Mr. Dahilig: That can be an additional tool. Mr. Nishida: What is the status of that? Mr. Dahili2: The civil fines bill is still pending before Council. Mr. Kimura: Going back to Hartwell's question, how long of a time period are we going to give them to do repairs? Mr. Dahilig: It's like a standard violation notice so it can be anywhere between 15 to 90 days depending on what needs to be remedied. Usually we include that in the enforcement letter as part of the condition that you do need to remedy this within a certain amount of time and usually at that point it prompts the applicant to come back to us and start that discussion of how can they fix this or is there a genuine disagreement. Mr. Kimura: You mean 90 days to have it fixed or 90 days to come up with a remedy to fix it? Mr. Dahilig: Again it usually depends, we usually fire off a letter saying it needs to be fixed in x amount of time but as a matter of discussion they usually come in and we start to discuss issues of bringing them into compliance. So that is usually what our first letter is, it is a strong letter. Mr. Kimura: That still didn't answer my question. Mr. Dahilig- Which is? Mr. Kimura: Is it 90 days to comply? Mr. Dahilig: That is what we say first is that you need to bring it into compliance within a certain amount of time but I am just saying as a matter of practice the applicants usually do come in and discuss with us a course of compliance and that may extend beyond the 90 days. Mr. Katayama: Just as a matter of policy in the event that the applicant is not the land holder can we attach the land holder as well for their conditions? Mr. Dahilig: Let me refer that to legal counsel. Mr. Jung: Generally you would have an applicant and the landowner would authorize the applicant to do the specific activity on the property but the landowner would also actually be issued the notice too because their land would have the alleged zoning violation on it or noncompliance with the condition. So the landowner then would have to force their applicant or authorized representative to go and do it. Mr. Katayama: So that implied within the conditions? Mr. Jung: Right because it would be the landowner who would be held responsible. Mr. Blake: I would like to talk to Mr. Kimura's statement. If anybody knows there is something wrong with the antenna it would be the applicant. I mean they would know before we know. And it is as has been stated emphatically a scenic corridor, one of probably the most scenic in the country. So personally unless it is illegal I don't see why we can't fix it in 15 days and if they cannot let them come convince us it is going to take longer rather than just kind of depending on the schedule and how busy everybody is and whether it is Christmas time or whatever. Mr. Dahilia: It is a fair comment. I mean it is something that when we look at the severity of what needs to become remedied that is when we take a look at how many days to come into compliance. I am not saying that it is a strict 15 or a strict 90 but that is usually the window of time that we look at with various compliance notices. Planning Commission Minutes May 10,2011 12 Mr. Blake: I am not sure whether it would be appropriate or not but it is a scenic corridor, it is the main scenic corridor on the southern, southwestern portion of the island and it is a heavily used highway so the drivers are subjected to a negative impact on this scenic highway every day that its not fixed all day every day. And with that in mind I think they should fix or move with some (inaudible)to fix this when it is damaged. Mr. Dahilifz: It is well taken and given our consistent recommendation, given our concerns about the scenic corridor it would behoove the department to act quickly. Again I am not sure what the temporal nature or the life span of these leaves or things are but it is something that we can definitely go out and document and try to keep on top of. Ms. Matsumoto: I am concerned about that as well because of one, visually, but also I was thinking about safety because these branches are actually metal and that corridor is actually very wet, windy, extremely windy at times. I would opt for safety for all people I just don't want anything flying to hurt anybody. Mr. Dahilig: It is ultimately incumbent on the landowner and the operator of that facility that should some kind of tortuous event happen that is their Kuleana to deal with. Mr. Kimura: Going back to Mr. Blake's proposal this is so important to them, I feel they should have extra monopine antenna. Of course you are not going to change the whole tree or the whole antenna but at least have some extra leaves or antenna there in case there is any damage where we don't have to wait 15 days or 20 days or 90 days. It should be like we give you guys a call and they have the extra and they put it up ASAP. I feel that if this is that important for them for this 3 mile stretch that they should have extra. Mr. Dahilig: It is our expectation that they are going to keep this well maintained and this condition is in here as a matter of protection in the event that they do not follow through with their social contract here. Mr. Kimura: I still feel that it is a visual 'impact on this scenic corridor and I still feel it doesn't belong there. It is just my opinion as a Commissioner. Chair: I would like to call on the applicant. Mr. Carl Young Good morning Commissioners, Mr. Chair. We have nothing further to add to the discussion. I could address some of these questions and let you know that we will be communicating with Sprint that they do have to.._I did impress upon them the importance of maintaining the appearance of this site. I will pass on your concerns as well that they should inventory the additional branches so we don't have to wait for lead times. They have been put on notice that this is a very large site, it is in the visual plane and so I will be communicating that to them. Chair: Anybody have any questions for the applicant? Mr. Katayama: Just as a clarification is there a standard procedure for de-confliction? It was noted that you need to de-conflict with the police radio band but what about other emergency bands or other military...is there a package, that protocol that you need to go through for de-confliction with these frequencies and locations? Mr. Young: Yes. The applicant is required to follow all FCC guidelines and in so they have to work with the Police Department so they don't interfere. There were some issues with Nextel in the past where their frequency was very close and so they do work with them very closely and do get that issue cleared up. They also have to work with Civil Defense as they do work with them as an E911 provider and also with other Federal guidelines that would affect the military. Chair: Anyone else wish to...? Planning Commission Minutes May I0,2011 13 Mr. Raco: Carl, in our last representation that you made, you alluded to you will have this facility up and running in 6 months, is that right? Mr. Young: They would like to have it in 6 months, yes. Mr. Raco: So in condition No. 6 if we change that to 6 months, from 18 to 6 months would you be okay with that? Mr. Young: I know that they have to build the site within this year,they have to start construction. They do have to get approvals, for example one of their concerns was getting Fish and Wildlife approval,they were going to fast track that and get that done quickly. But they do have to wait for some of those other approvals to come through. Mr. Raco: So what would work for you? Would 12 months be adequate? Mr. Young: I would say that they are going to have to start within 12 months. Chair: Anyone else have any comments,thank you Mr. Young, anyone from the public wish to speak on this matter? What is the pleasure of this Commission? Mr. Raco: Chair, I will make a motion to approve Use Permit U-2011-6, Variance Permit V-2011-1, and Class IV Zoning Permit Z-IV-2011-6, at TMK 3-4-001:003. Mr. Blake: Second. Chair: Any discussion? Mr. Raco: I would like to propose a revision on the condition from 18 to 12 months so if I could, motion to revise condition No. 6 from 18 months to 12 months as represented by the applicant. Chair: There is a proposal to change item No. 6 from 18 months to 12 months. Is there a second on that motion? Mr. Blake: Second. Chair: Any discussion? Mr. Katayama: If the concern is the applicant is not doing in a timely basis I think that is one issue but to the extent that there needs to be permits and other regulatory issues that are probably outside of the applicant's control, in this case the condition is fatal. If it is not completed and receives the proper approval it is null and void as opposed to the ability to renew or appeal or extend the deadline if there are things that are out of the applicant's control. If you can't get a permit approved and the meter continues to run does that null and void the applicant's ability to move forward with the project and it might be a tad onerous. Chair: That is a good point. Can the applicant come back to the Planning Department a and let the Planning Department know that there is a problem with complying with that condition No. 6? Mr. Raco: If I could, for discussion, my reason for the 12 months is that when this application came up about from the original application the applicant did represent to us that his reasoning was to install this unit because of a land locked other unit at Kahili Mountain Park. And that applicant has had his approved conditions and report but being that that is the applicant's competitor there was no time frame. To me this is a new condition that locks in the applicant to receive his approvals and his construction in 12 months being that he does not land lock this area so that no one other than the competitor to Sprint can come in and stall or wait or land lock that unit. And if the department wants to correct me, I mean I think that is what the structure of that condition was to move the applicant that he has a time frame of 12 months to get his approval. If he doesn't then he gets null and void but leaves other opponents or other competitors to come in and apply for a similar application. Planning Commission Minutes May 10,2011 14 Mr. Dahilig: That was something we discovered through the process was that our permits that didn't have a compulsory build date were being sat on and areas were being locked up from construction or even collocation for that matter. There is a letter from one of Grove Farm's agents indicating that that particular site was not being looked at for an additional tower and so it does have a trickle down affect to us where our permits are being used as swords and not shields in this particular circumstances. So the inclusion of this condition requiring construction within a certain amount of time is in recognition of that. Whether it 12 or 18 months is appropriate,I think that is ultimately a discussion for the Commission but we feel that having a drop dead date is the most important thing at this point. Mr. Jung: Commissioner Katayama, I think if they are running up against a deadline they can always petition to amend the condition. Mr. Raco: And Wayne,that was just from our experience that we have been seeing that we don't want any of these cellular towers to be popped all over the place to be wherever everybody wants. We want to try to encourage collocation and in this case I think Sprint had more intentions to go with Verizon at the Kahili Mountain Park but being that they are the applicant and waiting to construct it is on their time frame and not his. Mr. Katayama: I agree with the concept that you want the applicant to proceed as quickly as possible and to complete the projects as soon as possible it is just that if there are extenuating circumstances outside of the applicant's control that there be ability to have them complete the project without unduly bureaucratic hindrances. But I agree one hundred percent that we don't want the permitting process to be used as a shield in this case of encumbering pieces of land so other competitors can't proceed so that is fine. Mr. Blake: I am sure that the other applications have that same paragraph that you can go back and change conditions so it looks like it is staring to become more and more germane now than it was before, something we have to look at. Chair: Going back to the motion, all those in favor say aye, motion carried. On motion made by Caven Raco and seconded by Hartwell Blake, to amend Condition No. 6, motion carried unanimously by voice vote. Chair: We are back to the main motion. We have a second on that main motion. I would like to take a roll call on that motion please. Ms. Matsumoto: Is the amendment including this language here on page 4 as well? Mr. Dahilig: It is reincorporated in paragraph 6. Chair: Any discussion on the main motion? On motion made by Caven Raco and seconded by Hartwell Blake, to approve staff recommendation as amended, motion carried by the following roll call vote: Ayes: Matsumoto, Blake, Raco, Katayama, Texeira -5 Noes: Nishida, Kimura -2 Absent: None -0 Note Voting: None -0 NEW PUBLIC HEARING 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 Map Key 55-3-008:12, and affecting a 8 acre portion of 25.303 acres = William E Robinson Trust and Lucinda G. McDonald Trust. (Director's Report received 4/26/11.1 Planning Commission Minutes May 10,2011 15 Letter(5/3/11) from Charlie Bass, opposed to application. Letter 4/24/11) from Kelly Carswell-Haneberg, opposed to application. Letter (4/24/111)from Jon Haneberg, opposed to application. Staff Planner Kaaina Hull read Director's report (on file). Chair: Any questions for Kaaina? Mr.Nishida: Kaaina, the parcel that this sits on, does the department require the other members of the larger parcel to sign off on the application? Staff The parcel its self is owned by the applicant. Mr.Nishida: It is a CPR project though. Staff. Yes but he owns enough to, I believe he owns enough to apply for it however the other CPR owners have signed off on the project as well. Chair: Anybody else? So Kaaina,there is no restrictive covenants to this in that subdivision? Staff. Within the CPR you mean? Chair: Yes. Staff: Not that we are aware of however that would primarily be a civil matter between the association its self if there were that restricted such tours. Mr. Blake: There is an assertion in one of the letters that was submitted with this application that this is Residential Agriculture and not Commercial. Is that a County designation or is that a development designation? Staff. Right now under zoning code there really isn't too much differentiation between Commercial and Residential Agriculture, whether or not you are doing agriculture for your own home uses or you are doing it for sales and distribution. That does come into affect I think for Ag. dedication but not so much under zoning. Mr. Blake: So if this plot of land was characterized by the owner as a botanical garden because it had the various species and so forth and those plants were for sale they wouldn't need to come to us just for that? Staff Not for the sale of plants, no. Chair: Anybody else? Mr. Nishida: This question is either for Ian or Mike. When you say affordable housing the County actually has numbers attached to affordable housing. Commercial, has that any kind of definition in the CZO or is that a legal definition? Mr. Jung: There is a General Commercial designation under the zoning designation. Mr. Nishida: What is Commercial then? Is there a description of what Commercial is? Mr. Jung: I don't believe there is a specific definition for Commercial within the CZO but there is Commercial designation (inaudible) in here because it is SLUD Ag. on County Ag. and Open and they are coming in for a commercial enterprise and they have to get a Special Permit as well as a Use Permit. Planning Commission Minutes May 10,2011 16 Mr. Nishida: My questioning was that the bottom line is that on agriculture you are supposed to make money on it. That is the reason why we have agriculture, it is a commercial zoning to me. People have tended not to use it as that but to me it is commercial, you are supposed to be making money on this thing, you are supposed to be planting it to the max and investing money and trying to make some money off of it. Mr. Jung: The State legislator contemplated ag-tourism but the County has not implemented any ag-tourism ordinance yet. Mr. Nishida: So it is left up to us. Mr. hm Yes. Chair: Anybody else? If not, thank you Kaaina. I would like to call on the applicant please. Mr. Jason Robertson: Good morning, I am Jason Robertson. I am the agent for my parents who are the owning entities for the property, Bill and Lucinda Robertson. They will also be saying a few things. Before we get started I did want to share some of our homegrown Cacao with you. As far as I know we are the only garden on the island where you will taste the Cacao grown on the trees that you take a tour o£ These are our homegrown Cacao beans, they are completely organic. We are going to be processing these, you can enjoy these while we wait, and we are going to processing these in a couple months and people will be tasting our onsite prepared chocolate there. And there are also a few bars,we do a chocolate tasting, give you a little caffeine and antioxidant boost here so you don't fail asleep. Mr. Jung: Commissioners, I would hesitate to take the value added product, the actual Ag. product that he is passing around for you to sample. It would be a conflict of interest but the value added product... Mr. Robertson: Certainly I don't intend that...sure. Mr. Jung; You can come back and take the actual chocolate. You can look at it. Mr. Robertson: Our Cacao beans are quite delicious; you want to husk them first. Kaaina and the Planning Department has done an excellent job vetting our project and we pretty much agree entirely with the conditions that he has recommended for our special use and commercial use permits. We believe our application was very clear and thorough so I am going to try and keep this brief although I will be addressing at the end a few of the issues raised in some of the letters that were submitted in the last couple weeks opposing our permits. We are primarily here to answer further questions raised by the Planning Commission and other departments as well as public testimony that is given today. And before we get started I would just like to give my folks, Bill and Lucinda Robertson a chance to give a brief history of their experience on the land and how our gardens developed. Ms. Lucinda Robertson: I want to say good morning and thank you for letting us have this opportunity to come before you. We first bought this property in 2001 and I remember somebody saying to us well, you have just bought yourself a job and it has turned out to be that. I thought it would just be some mowing and week whacking but between the passion of our dear friend Michael Wise and my husband all of our creativity it just kept blossoming. And it has turned into quite sanctuary for all of us and for anyone who chooses to enjoy it but it just been a process over the years. And it was a couple of years ago that people were visiting and Bill is like a natural tour guide, whenever anyone comes over he just wants to show them every corner of the property. And they said why don't you give tours of this to the public and at first I was a little bit worried about that because I am a fairly private person and I also was worried about the impact perhaps on our neighbors. So it took a while but in seeing people in the garden and how much they enjoyed it and what a service it has turned out to be I definitely have been happy that it has happened and I hope that we have the opportunity to share it with more people. Because as you can see in the letters some of the people have given us that are I think within the permit application that they just were Planning Commission Minutes May 10,2011 17 so happy to be a part of our garden and they took that away with them. And I think that is what Kauai is about is these beautiful gardens, we are the Garden Island. So anyway I don't know what else to say exactly expect that I hope we have the opportunity to continue this and I also hope.that we can mitigate any concerns that our neighbors have, thank you very much. Mr. Bill Robertson: My name is Bill Robertson and I would like to just state a little bit about the history of when we bought the property, it is 8 acres,probably 6 of those 8 acres is on very steep hilly terrain, swampy. When we first bought it you could barely walk through any portion of those 6 acres and it has taken...a lot of this land has been cleared by hand and a lot of hard work and dedication by a lot of people, a lot of contractors on the island that we employed and just a lot of hard work since 2002, 2001. Most of the gardens are actually on land that could not be farmed for any other purpose; it is just steep hills and swampy land that I don't think you could even pasture cattle or horses on. So we have taken something that has been completely unusable and turned it into this botanical paradise and we have been inspired along the way just because we will work for a year or two and when we see how beautiful things grow on this island and neighbors come over and they get inspired and they go back to their land and start growing things. So it has been a lot of hard work and a lot of inspiration and we are very happy to share it with other people on the island and other visitors if given the opportunity, thank you. Chair: Any questions of the applicant? Mr. Robertson: I am not quite done. So as I said our application is very straight forward. We pretty much would like to abide by all the recommendations of the Planning Department. I would just like to, we just saw the letters that were filed in opposition in the last few weeks and just wanted to address a few of the major points in those letters. One of the main points I see is the issue of weddings and events. We currently do not offer our land for weddings. I believe one of the letters mentions that we advertise on a blog site, event and wedding sites on our land. This is an old blog site that Lucinda started on her own mostly as a slide show for friends and relatives to see the work they had been doing on the land and her narrative on that is as I said a couple years old. It slipped past me and I will immediately remove any reference to events on there. But we don't advertise for events and weddings right now in fact last October we did let some friends of ours have a wedding as a lot of neighbors in our neighborhood have allowed friends to use this Ag. land for wedding ceremonies. We had actually a pretty large wedding, we had about 50 people back in October,just friends of ours, and the scale of that wedding ended up being beyond what we really appreciated and so after that experience we don't have any intention to hold large scale weddings. The other few points in the letters of opposition, I believe we addressed the road issues and the Planning Department does not think that the roads will be a problem with the increased traffic. There is some illusion to the fact that we have continued to violate the commercial use part, our violation for charging for the tours. If any of the people who have filed letters of opposition had bothered to come on one of our tours or even called to make a reservation they would found that I emphasize again and again to everybody that visits that we are operating by donation only right now. I have been giving tours by donation since we received the violation. I have had tourists who don't pay anything. I have had tourist who have paid more than what we ask. And as my dad and Lucinda stated they gave tours to friends and relatives for years leading up to this and we intend to continue giving tours of our beautiful gardens even if we can't charge. And finally, there is some talk about how there is not a necessity for this garden on the North Shore. Again the folks who made those statements haven't bothered to come on our tour and so I have a hard time understanding why people who don't seem to appreciate gardens can judge the need for gardens on the North Shore. It is a completely unique garden experience and I highly encourage people to come check out our garden and compare it to the other opportunities on the North Shore. It is a completely different type of garden, completely unique experience as those Cacao beans can testify. You are not going to taste onsite grown Cacao beans as far as I know on any of the other tours on the island. And in conclusion there are just three big points that I think we emphasize in our application but I would just like to emphasize one last time here. The main point, our tours are very low in impact and noninvasive. The opportunity to visit a family run or organic sustainable botanical garden that is actively restoring native ecology while Planning Commission Minutes May 10,2011 18 growing fruit and chocolate products is a completely unique experience on Kauai. As you can already see in our permit the amazing feedback we have gotten from tourists who have visited already. A large point,the need for a Special Use permit in operating and having botanical gardens for the public on agriculturally zoned land as you guys discussed with Kaaina briefly before I came up here seems to be a grey area in the General Plan and the zoning ordinance. Speaking with members of the County, other landowners,and even lawyers who have advised use there is quite a bit of confusion, the is no reference to botanical gardens as a generally permitted use as agricultural land even though everybody readily acknowledges that agricultural land is the only land suitable for botanical gardens. Common sense would suggest that botanical gardens should be included in generally permitted uses or agricultural land especially on the Garden Island and if that were the case we would only be seeking a Class IV commercial permit at this time and this hearing would not be necessary as I understand it. However even given this confusion from the first notice of violation we have eagerly worked through the process laid before us by the County, we have actively engaged our neighbors asking for feedback and addressing their concerns as you can see in our permit. While some of our detractors have still not experienced the gardens we never the less want to do everything in our power to make them happy. Above all we want to remain friends and good neighbors with everyone in our area and the entire Aina. We have that giving tours will allow us to maintain our gardens for years to come and remain a valuable resource for visitors and locals alike, thank you very much. Chair: Any questions of the applicant? Mr. Robertson: Excuse me there is one last thing I almost forgot. I wanted to give these to Kaaina. I do have copies of a number of letters from other neighbors in our neighborhood who are in support of our activity. There are at least 8 or 9 statements there. They could not make it today but they wanted to give us their support. And if I might have an opportunity to respond to any public testimony if you feel it is necessary I would appreciate it. Chair: Thank you, anybody, Jimmy? Mr.Nishida: First a question for Mike and then I have some questions about the project. So Mike,the department let them do the tours by donation, suggested donations? Mr. Dahilig: We were recently made aware that this notion of donations was there and we are of the understanding that it is not a 501-C-3 corporation so the fact that it is accruing income does concern us. From what we understand the previous Deputy Director had made that recommendation and I would say publicly for the record that I will not concur with that being okay. Mr. Nishida: The next thing, when I look at the aerial view I can see that the progress of the land is like an ongoing project and I think as represented by Bill and that is what I see too, is that most of the plantings are in the poor areas of that aerial photograph. I see kind of significant open area and I was wondering what your future plans were, it is kind of spread throughout. But I cannot see like a planting a foot high so what are your plans for these open areas? Mr. Robertson: The open areas that you see really compose a very small portion of the property. The topography of the lot there makes it very difficult to see the true scale of the gardens. You do spend the majority of the tour down in those valleys where the majority of... Mr. Nishida: Specifically the terraced areas and the big field surrounding the house. Mr. Robertson: We are continuing to plant out the terraced areas in fact we have just put a number of fruit trees on that but as far as the areas around the house, the house is surrounded by a small citrus orchard,there is a very large vegetable garden up in that flat area. We do not currently have any major plans for that upper open acreage as far as I know. Perhaps my dad has something to share about that but the majority, 6 plus acres are in the valleys and it is actually the best area for a lot of the plantings, you have wind protection, shade protection, and better draining soil which is good for a lot of our specimens. Planning Commission Minutes May 10,2011 19 Mr. Nishida: When you look at the map there is kind of a narrow point that separates the two major areas. It looks like there are some plantings in there but I cannot really see, is that right? Mr. Robertson: Yes, that is correct. There is another small flat area in there. It is a very unusual parcel, we wrap right around our neighbors there who I should mention are in support of the gardens and they are the most highly affected by it. You can see a letter from them in that packet I just gave you but yes, that little skinny area is another little flat area and it kind of divides the two main sections. It is sort of like a knoll that really the whole valley is the flood plane of the Ahonui Stream. You have to experience the property, it is difficult to describe but it is mostly steep hills. Mr.Nishida: So just reading the application and seeing the department's report to me as far as a botanical garden there are different kinds of products that you can get from agricultural land and it looks to me like what you are looking at, what you are proposing as the product is the appreciation of the plants that you are planting and the educational experience. And to me that part if fine,to me. So this is more a question for the department, I have a problem with...I can see the value added on the Cacao, the products that you grow on the property but to bring in stuff from the outside whether it be artwork,postcards, whatever it is, is that possible to restrict that kind of—if you give a permit for a gift shop or whatever is it possible to restrict other types of products? Mr. Dahilig_ On page 9 or our Director's report we do have a restriction proposed which governs the operating hours as well as the sale of products. Now how narrowly the Commission would like to prescribe the scope of the products that are sold at the gift shop,we have recommended something that is produced or associated with and again that is our recommendation. Whether the Commission feels that something broader or more narrowly to be prescribed that is certainly within the Commission's Kuleana. Mr.Nishida: Produced at or associated with subject property's existing botanical garden. So somebody makes a postcard of a plant that is there the department would consider that associated with it? Mr. Dahiiig: That is a good question. Staff: Preliminarily I think in previous discussions because it was brought up with photographs I think primarily the department agreed that indeed if it is a photograph of the site then that would okay because we have this condition. But say if it was a photograph of Kilauea Lighthouse or the Eiffel Tower or something in that regard that would not be allowed. Mr. Robertson: I could clarify a little bit. We don't intend to have a very large shop at all. In fact it would operate even less than what your recommendations say, it would only be open about 10 minutes after every tour. The only real external thing we would bring in are those chocolate bars which are a part of the tasting to experience the difference between international chocolates versus our homegrown chocolates. The artwork would be artwork or photographs personally shot by Lucinda or me that she turns into cards and other than that there is not a whole lot that we intend. And then our own personal chocolate bars when we start processing them. Mr. Nishida: So you will not be selling chocolate bars that are not produced on that...the only thing is it is going to be part of the tasting. Mr. Robertson: We were planning on selling chocolate bars that are part of the tasting that are not produced on our land mostly because the visitors express an interest in them and it offers them a unique ability to compare island grown chocolate to other international chocolates. Mr. Nishida: I have a problem with that. Planning Commission Minutes May 10,2011 20 Staff. Under the recommended condition and we discussed this with the applicant previously that in fact bars from or chocolate from other companies would not be allowed under this recommended condition to be sold at site. Mr. Blake: You have taken land that you represented was (inaudible) and transformed into another product. Not another product, you transformed the property to a garden. My orientation to botanical gardens is they are usually established for a certain purpose, to discover new kinds of plants,to protect old or rare plants. I am not aware of a garden that was created solely to, not solely (inaudible) as tours and so would you have the tours if nobody paid anything? Mr. Robertson: Yes. As I have stated my father has been giving informal tours for years and we would probably, we would be willing to continue giving tours probably on a limited basis if we were not allowed to charge just to share the amazing gardens. The purpose of the tours is to allow us to supplement the income, 100% of the tours will go right back into the land. The project really grew out of scale from what my parents expected it to be and as my father and Lucinda stated it wasn't really their idea to give tours but rather other locals on the island who suggested it as a possibility. And a lot of what we are doing, what we have planted, is your kind of traditional botanical garden operation where we have planted a number of endangered indigenous species as well as worldwide species that are endangered or very unusual and need the protection including a number of specimens you are not going to find at any of the other gardens on the island. Mr. Blake: Who approves the importation of these foreign species? Mr. Robertson: Our experienced gardening staff does, they have more than 30 years of horticulture experience. We are very, very careful to vet our species. Mr. Blake: Does the Department of Ag. have any oversight over what you are doing? Mr. Robertson: Not that I am aware. As far as I know the species we brought in are all through legal channels either onsite, on island nurseries or nurseries that are licensed to sell seeds to the islands or from the other islands as well. Mr. Blake: This may only be a personal concern but 1 think Albesia is a beautiful tree. I didn't realize Albesia created so many problems. I used to love to drive through K-11auea just to see those Lacey Chinese painting type trees and then I found out that with every plus there is a minus. So when you are bringing in like blackberry, banana(inaudible) and those types things that somebody at one time thought it would be great to have that turn into pests. And this isn't focused solely on you I am sure every other garden would have...I would have the same concern with every other garden or person who imports things so that is one concern. The other is informal tours. If somebody stopped by your yard and wanted to look at the plants and you had time that would be an informal tour walking through my yard. But if I have a sign that says informal tours 3 days a week from 8 to 12,that to me is a formal tour. And then if any mention is made of donations then it is commercial on top of that, the formality of the tour. And if you advertise then it is commercial again, it becomes more and more commercial as opposed to strictly agriculture and I haven't balanced that out in my head yet. Mr. Robertson: Those are very legitimate cdncerns. I would just like to stress that we checked again and again when we received the violation can we operate these by donation. We asked the department specifically is advertising allowed, can we do that and we were told as Mike said by the previous assistant Director that that was okay. If that had not been okay we would have immediately ceased. Ms. Matsumoto: I have a question about your initial purpose. Did you start off thinking one day we are going to do a botanical garden because that is what it morphed to but it seems like, it feels like that was the potential purpose as opposed to a garden in your yard. Mr. Peterson: You would have to get to know my dad to understand how this got out of control. If you saw the lot they retired from in San Diego, a little R-8 lot in Pacific Beach, Planning Commission Minutes May 10,2011 21 California, they had packed to the gills with plants. It was known as the garden house in the neighborhood. And I myself have not lived on the property the whole time they have owned it and every time I come back and visit I was blown away by the scale of what my father was doing. To be honest I thought he was completely insane. I thought he had retired and here he was pouring his retirement savings into a garden that didn't see anybody but our friends and the family could appreciate and would just lead to extremely high maintenance costs in the future. And so I know it doesn't seem like something of this scale would not have that intention initially but I assure you it was not the intention. Mr. Peterson: I certainly will take a lot of the blame for my enthusiasm but our main horticulturist is Michael who is about my age. We have known him for probably 25 years and he is a horticulturist and he is totally passionate about flowers and plants and wherever Michael lives all the gardens that he...I think he has been here for about 8 or 9 years and he has had two jobs, he has had my place and another place up in Kapa`a because he is such an incredible ingenious horticulturist and everything just turns to beauty that he plants. He continues to have offers to go to work for lots of people but he never has to look for work because between the two people he works for now we would like to have him more. So in direct response to your question it was not our intention probably up until about 14 or 15 months ago that we got inspired to actually do the tourist part. And particularly Barbara Bennett, I was talking to her one day, she has been very enthusiastic about agricultural tourism and I have some farmland out in Moloa`a and she was encouraging me to do some tourism out there and then she found out about our botanical gardens and she really along with some other people in the County said hey, you should really have Ag. tourism on your garden. So it came somewhat as some demand from the outside from people on the island. Ms. Matsumoto: Another question, are you proposing to, is it your intent to have weddings on the property? Mr. Peterson: Very good question. I think that was addressed in some of the opposition. At one time we did have the idea that it would be a wonderful place to have weddings but then because of the opposition and how much controversy that would bring we decided not have weddings. The wedding that was at our place in October, it was actually a reception for some friends or ours, the wedding it's self took place on the beach. So at this point in time it is not our intention to be advertising and promoting receptions or big weddings on our property. Mr. Kimura: I went in on Friday and got this zoning compliance notice that was sent out to you April 291h. Mr. Peterson: Yes, the recent one concerning the buildings. Mr. Kimura: Did you apply for an after the fact permit for the illegal structures? Mr. Peterson: Yes. We are in the process of getting those permits right now. In fact Lucinda submitted the zoning permits to the Planning Department yesterday and we will quickly be following up with the Building Department to get those finalized. Those are as-built things that have been there for quite some time. Mr. Kimura: But it is still illegal. Mr. Peterson: Yes. We weren't aware of it. They are very minor violations, the one is a permitted structure that we added a non-attached deck and attached awning to that they did not realize they needed an additional permit for a non-attached deck. There is a preexisting structure that was on the property before they purchased it that they were never told they needed to get a permit for even when they built their residence. And then there is confusion about the solar shed which was part of the main construction of their residence and we are a little confused were that got missed. They thought it was permitted along with their residence but apparently the Planning Department didn't have records of it so we are working quickly to cure all of those violations. Mr. Kimura. This is for Kaaina, do after the fact permits get all the agency approvals? Planning Commission Minutes May 10,2011 22 Staff: Are you referring to the use permit or the structure permits? Mr. Kimura: Structure. Staff. No,the structure permits are going through Building at this time or they are about to go through building. As far as the zoning permits are concerned those are I believe already approved. I will have to double check but I think those are approved already concerning specifically zoning though. Mr. Kimura: Say that again? Staff. There are two sets of permits that you apply for when you are constructing a structure essentially, one is a zoning permit which is regulated under Chapter 8 of the Kauai County Code and one is a building permit which has a whole other various set of regulations applied to by Public Works Department. The zoning which the Planning Department and for some departments the Planning Commission has ultimate jurisdiction over. They have submitted those permits and I believe have already been approved but they have not completed the building permit process yet. So while they are in zoning compliance they are still technically under a building violation. Mr. Kimura: So in actuality it is still illegal? Staff: I will defer that to the County Attorney. Mr. Jung I think the key is here that they submitted to the system and they are working through the system to get the after the fact permits once they realized they had a zoning violation. So they followed the proper procedures and are coming before this body for the Use and Special Permit and as well as the Planning Department and Building Division, Department of Public Works to get the necessary permits for the small structures that wasn't originally permitted. Ms. Matsumoto: I have a question about that. So you are saying they, they are the former owners? The former owners put up those...? Mr. Robertson: This might be a better, since I wasn't around when they purchased the property, perhaps my parents... Ms. Matsumoto: My point is when you buy a piece of property the owner has to disclose all of that so you are saying that wasn't disclosed? Mr. Jung: That would be a civil matter between the real estate transaction but it is a large issue where sometimes there are questions about whether or not certain additions or certain decks were permitted or not permitted. Staff: To add,the former owner as the applicant was alluding to was under the impression that some of the structures were permitted. Only under the investigation by the Planning Department and looking at the complaint concerning the tours that the enforcement officer saw these structures and did the research and notified the landowner that those structures as well did not approvals. They are relatively minor structures in that they can be approved over the counter and I believe have already been approved concerning zoning. It is the Use permit that is a bit more cumbersome and a bit more thorough but they are here before you folks today it. Mr. Kimura: So going back to the County on November 12111 asked the applicant to stop their business saying it was illegal and then they came in on November 18th and talked to Imai and Imai is saying that it is perfectly okay to have guided tours as long as it is a donation. So where does the County stand on that now? Mr. Dahilig Like I said earlier I think the concern was that any time you are going to be accepting money for a service and in this particular case it is not a nonprofit type of situation. Planning Commission Minutes May 10,2011 23 They are trying to obtain money to benefit their property. And I mentioned before I disagree with that interpretation. Now whether they relied on that in the past that is another matter but based on what my interpretation is of a donation in the circumstance that that is something that is ultimately revenue and making it a commercial activity in contrast with something that would be more of a nonprofit type of situation. Mr. Kimura: This is for the attorney. Mr. Jung: I just have to clarify one of the questions Jimmy asked me earlier. I did look at the CZO and there is a definition of commercial use so if you want I can read that now. Mr. Kimura: Wait one second, my question to you now, what they are doing now,his interpretation, is that legal what they are doing right now? Mr. Junk: This is sort of a new issue that has been presented to me so I would have to research it and see what other jurisdictions do and how they have contemplated this particular type of situation so I can't give you an on the spot answer. Mr. Kimura: So what would you recommend for the applicant, stop what they are doing right now until you can come up with something? Mr. Jung: Like I said I have to review and do some research on it. We are in public hearing so if you guys want to continue the public hearing on this process you can certainly do that and then I will come back and go into executive session the next time and try to break the issue down for you. Mr. Kimura: But in the meantime they can still operate their guided tours by donations only? Mrs: I don't want to affirmatively make any statement on the record now because I could be held to it. Chair: Is there anybody else on the Commission level that wants to comment, any questions? Before I ask for public testimony I have a few questions I would like to ask the applicant. Tell me about the scope of your operation, the entire scope,how many hours, are you going after the FIT's are you going after group business,just give me the scope of your business. Mr. Peterson: What is FIT? Chair: Independent travelers like people that rent cars and stuff instead of the group business. Mr. Peterson: As far as the tours are operating now by donation what the scope is? Chair: Yes. Mr. Peterson: We are doing 3 tours per week. It is a 3 hour guided tour on Tuesday, Thursday, and Saturday mornings. The only advertisements we are doing right now are our brochure distribution which does not list a price on it and we do have our active website. We are not going after any group things. We have considered in the future when we get our permits, expanding that, but we decided it was best to hold off from those things. We didn't want to interact with other commercial entities. Chair: So right now you are operating 3 days a week, what are the size of those tours? Mr. Peterson: To be honest our volume is kind of really slow to pick up right now. The largest tour I have given is maybe 12 people. That is not true, I gave a much larger tour to the staff of the Na Aina Kai Botanical Gardens. Chair: But that is unusual though. Planning Commission Minutes May 10,2011 24 Mr. Peterson: Right now our tours average about 6 to 8 and as I said in our application to really appreciate the gardens once you get up to 15 to 20 people it kind of affects the quality of the tour. Chair: So do you anticipate increasing the amount of days the tours that you plan to have? Mr. Peterson: Well it is a tricky thing for us. We are finding just as far as being able to accommodate people's needs on the island a 3 hour tour in fact kind of turns a lot of people off. So is we were to increase our current activity as we suggest in our application there is a good chance those tours would probably be on the same days perhaps a morning and an afternoon tour and it wouldn't be necessarily, we do now 3 hour tours and rather than doubling that and doing 6 3 hour tours we would probably offer like a one and a half to one or two hour, we haven't quite designed it yet. But a shorter tour for people who want a shorter experience in the afternoon. We really do not people coming to our property 5, 6 days a week, it is not our intention. Chair: So you are comfortable with 3 days a week, a couple of tours on those 3 days? Mr. Peterson: Precisely. Chair: You anticipate at any point bringing buses on your property? Mr. Peterson: I don't believe so. Any buses would create a large tour. It would be hard on the land and a less enjoyable experience for the guests. Chair: I just wanted to be sure that is why I am bringing that up. I don't have any further questions, go ahead Jimmy. Mr. Nishida: Can you describe the current operation, how many employees, how many full time,just describe what is going on there now. Mr. Peterson: Maybe I will let my dad give more of a rundown of that since he employs everybody. Mr. Peterson: At this time we have probably 4 or 5 people that work anywhere from 1 to 2 days a week. I think one person works 3 days a week weed whacking, we probably weed whack and mow about every 3 weeks. Michael, our head botanist, he comes on Tuesday and Thursday, he works from 9 to 5 and he has been doing that for at least 10 years and he usually has a helper during that time. And then we have another man that probably weeds between 1 to 2 days a week when we are not in need of week whacking. I have someone that comes in to my office, an assistant that helps with some of the administrative stuff for me personally,that is one and a half days a week. And then Jason pretty much works full time doing different things around the property. I think that is about it for right now. We have employed... Mr. Blake: (Inaudible). Mr. Peterson: We just put in 2 beehives on our property but that is probably going to take a minimal amount of attention but building the property over the last 8, 9 years and doing all the work we have had larger staff and a lot more active work. Now we are down to kind of a minimum of just maintaining,we are always researching new plants to put in. We have a pig...even though we have a fence around our property this time of the year we have pig problems and we get these little piglets coming in and chewing up and tearing up plants and stuff like that. We did have a permit when we did a lot of our landscaping and our terrace walls with rocks and stuff like that we did go through the permit process which took about a year to go through before we did this heavy duty work. Mr. Nishida: So the Cacao,your chocolate operation, what kind of production are you anticipating? Planning Commission Minutes May 10,2011 25 Mr. Peterson: We probably have, it is pretty small,right now we probably have 6 or 7 mature trees that are producing fruit. Just from the 6 or 7 trees we probably will be able to produce 40 or 50 pounds of the finished chocolate product. This last year we planted about another 15 to 18 trees so it is kind of on a smaller scale but I think it has inspired a lot of people on the island that we have the perfect ecosystem to grow world class chocolate to compete with Central America, South America, and Africa. So that is kind of an exciting new product for the Hawaiian Islands particularly Kauai. Mr. Peterson: Also, regarding the chocolate, we have been selling our Cacao stock to other people on the island, we have propagated a lot of our beans and in the future I anticipate based on our current yield which are astronomical, they are amazingly healthy trees, probably as much as 200 hundred pounds of finished chocolate a year which would be enough to basically sell to people who visit our land but not necessarily to distribute commercially. But that is the interesting thing about chocolate, you get a very unique kind of small scale batch when you do it on the scale that we do it versus on a much larger scale. Mr. Kimura: You said you hired a couple more employees recently? Mr. Peterson: No we haven't hired any new employees. Mr. Kimura: Since November have you hired any more employees? Mr. Peterson: I don't believe we have. Mr. Kimura: You haven't? Mr. Peterson: Since November, no. Mr. Kimura: I am just wondering you have these employees that you have right now, 5 you said, 4? Mr. Peterson: Yes,part time, most of them are part time at this point. Mr. Kimura: Knowing that and you operate on donations alone why would you hire all these employees knowing that. .. Mr. Peterson: It takes a lot of work to take care of these gardens. Mr. Kimura: Exactly. But you are operating on donations alone not knowing if this particular visitor is going to pay 20 bucks. Mr. Peterson: This is negative cash flow operation. We are not making any money. It definitely takes resources other than what is being generated on the property. Mr. Kimura: Why riot just...I am looking at the chocolate you guys are passing around and it seems like it is high quality chocolate. Mr. Peterson: We have been told it is very high quality. Mr. Kimura: Why not just sell chocolate alone? Mr. Peterson: Well we need a little bit more land to put trees in. It is certainly an idea particularly if we had more land available to grow it. Chocolate needs...the nice thing about our property and where we grow our chocolate it is in a valley that is protected by hills and tress because it is susceptible to winds and a lot of intense direct sunlight. But the valleys were we are has a perfect climate for chocolate, ideal climate, we are just limited on how much land we have to put more in at this point. Chair: I would like to call on the public to testify, thank you, anyone from the public who would wish to speak on this agenda item? Planning Commission Minutes May 10,2011 26 Mr. Harvey Cohen: Good morning Commissioners,my name is Harvey Cohen. I am the neighbor that is most affected by this application. My wife and I own the property that is actually surrounded by this property on three sides. You have often heard that expression "nimby", not in my back yard,we feel just the opposite. I guess we are"yimby". The operation to date has been positive;there have been no adverse impacts. I understand that there are concerns with respect to privacy and traffic but I believe the applicants have more than mitigated those. The tour in one spot actually passes by my back door by 15 or 20 feet so I think we are in a pretty good position to gauge the impacts. Philosophically we can argue about commercial versus non-commercial or as Commissioner Kimura questions why would they do this if it is not making money. In my experience it is a real labor of love and I for one am totally appreciative of the effort and the care that the Robertsons have put in to the land. They have been totally respectful of my wife's and my privacy. If there is an issue I just go talk to him just like any neighbor would. It is unfortunate that...you know we five in a fantastic neighborhood,one of the things that I pride myself on when people ask me what do I like about living in Hawaii,one of the first things I say is my neighbors. And I am not just talking about my immediate neighbors I am talking about a number of the other people who are in this room who are against this. It hurts to know that there is a real difference of opinion with respect to this but what I would say is almost by definition our property,every car that comes to the Robertson's house passes by my driveway. There may have been one instance where somebody turned in the wrong driveway, well it happens all the time,we live in the country. We are one hundred percent behind this, in mind and it has been said before this is kind of emblematic of what I think the Garden Island should be all about. I do practice law for a living and I looked at the code and as Jason said before this comes awfully close to a permitted use as Commissioner Blake questioned before. How different is it if you take these plants and sell them and remove them from the island versus just having people come enjoy them? I think it is a gradation that perhaps someday we will deal with,with an eco-tourism ordinance but in the meantime we are totally supportive. I have read the recommendations of the staff with respect to the conditions. I think they all make one hundred percent sense and I would encourage you to look favorably upon this application,thank you. Chair: Anyone else? Mr. Michael Dunn: Good morning,my name is Michael Dunn and I am the other next door neighbor. It won't surprise you to learn that I see things quite differently. I am strongly opposed to this for three reasons, one of which is traffic safety, the other of which is lack of peace and quiet, and the third of which this apparent tendency to not comply with existing rules and the need for permits. This property is located in the Princeville Ag. district,you folks know where they are. This was developed as an Ag. and residential district and the roads were built just for that,not for tourism,it was never intended. Kapa Ka Street which is the main street is about 14 and a half feet wide in certain areas. I drive an F150 and a Jeep,their total width is 14 feet,that gives me 16 inches clearance. So basically what happens up here is when cars oppose each other one or both of them have to go off the pavement and our berms are pretty soft especially when it rains like it did this past week. So that road is pretty dangerous as a main road and these little Mustangs don't know what 20 miles an hour means. Ahonui which is the street I live on and where the subject property is, is so substandard that the County didn't accept it,that is in no man's land. It is also narrow, it is also curvy and hilly and the County doesn't own it. So my concern is that if we create an invitation to more visitors into our neighborhood we are going to cause a danger,we are also going to increase liability, liability to the County for Kapa Ka Street and liability to us folks on the private street so that is a condition that I think is not a very good idea. The second thing is lack of peace and quiet. The application says it won't affect us. Well I live right next door and the operation they propose is 6 days a week, 8 hours a day. That is the equivalent to a full time business right next to me and that is definitely going to affect our peace and our quiet and our safety. I have taken a look at what some of the other garden tours do and they are quite different. If you want to go to the Hariguchi Rice Mills, one morning a week, if you want to go to Kauai Konana Dairy, one morning, Blair Estate,two mornings, Garden Island Chocolate,one to three mornings, Steel Grass,three mornings. The only one that does anything in the afternoon is Na Aina Kai and they sit on 240 acres in a broad, Planning Commission Minutes May 10,2011 27 straight street. So I think that the proposed use is way out of line with what the competition does and with that plus the road I think that the scope of operation is just not acceptable. Obviously I would prefer there be nothing at all but to be in line with the other people,I would say one to two mornings a week,would be all that would be appropriate and acceptable. And then there is the issue of compliance. All of a sudden we are going for after the fact permits in all these little structures because somebody complained. But there is also some grading on the property that is in excess of 100 cubic yard minimum that I don't think anybody has looked at Did you folks have copies of my letter? In looking at the blog site I found something very interesting. There is a picture of a proposed wedding site, it is your last picture, and there are some boulders on the left side of that stream. They sure don't look like the boulders that are in the rest of the stream and if you look at the picture before that you will see the imported boulders that were brought in to build all the terraces. Those are what I call cane field boulders and if these that I am looking at in that last picture are the same which I believe they are,they are smooth,they are brown,they are angular they are not round and grey like the other ones,then maybe somebody has been doing some grading in the stream? That is a question I have. I think it is something staff should look in to. And if there has been grading in the stream are there permits? I believe DLNR and Core of Engineers gets brought in here. So I think there are some questions. I guess they are addressing the stuff on the structures. There are some grading issues that need to be looked 'into. And the other one on compliance, a cease and desist order was very straight forward it says cease and desist until all permits are in place. So I have a problem with the fact that we are being asked to give special rules to people who didn't follow the ones that are in place. So I am sorry, I do oppose this on the basis of traffic safety and liability,the out of line scope of the operation, and the fact that we do have some questions about compliance,thank you. Chair: Anyone else wishing to testify? Mr. Charlie Bass: Good morning,my name is Charlie Bass. I wrote a letter and if you will allow me I would like to just read the letter because it really says everything I wanted to say if that is acceptable. I am the owner of Ahonui Gardens Inc., a residence and farming operation at the end of Ahonui Place that was incorporated in 1996. Ahonui Gardens is a multifaceted farming operation that generates fruit and produce to be sold in local restaurants as well as hardwood(inaudible)and leased pasture land. I am strongly opposed to allowing a commercial business that caters to the general public in our agricultural and residential neighborhood. As I communicated to the applicants in July,2010, I maintain that the tours which commenced in the fall impact the solitude and safety of the community. My fears have indeed been realized by the stream of cars and delivery trucks looking for Ahonui Botanical Gardens that routinely drive onto my property since the tour activity began. We know when tours are scheduled by the arrival of confused motorists. I began at 8 am, May 3rd,the day I wrote this letter,I had people on my driveway looking for the tour. I was on the way to take my daughter to school and had to redirect them. I don't know why they were out at 8 am looking for this tour but they were. And sometimes they are not confused but are exploring the neighborhood either before or after a tour. One Saturday morning I was greeted by two women strolling around my property looking for an appropriate wedding site. Last year the Kauai Police Department Hanalei District Commander commended our community for its low crime rate and the effectiveness of its neighborhood watch program. Neighborhood watch relies on neighbors looking out for each other. This mutual protection is often based on observation of unrecognized individuals however each tour customer entering the neighborhood undermines the premise that more often than not individuals can be recognized which dilutes the effectiveness of the program and whether lost or not each incursion onto my property introduces someone to my home and my farming operation that I don't know. I receive weekly incident reports from Kauai Police Department and the difference in crime activity in our neighborhood and Princeville which is about two miles away just across Kuhi`o Highway is striking. A typical comment from first time visitors to our community is I didn't know this place existed. Well most of my neighbors would like to keep it this way. Thus far I have resisted locking down my property for the lifestyle changes that will result. Fundamentally I resent the applicant putting the neighborhood and my family in this position of vulnerability. And like Planning Commission Minutes May 10,2011 28 other neighbors I am also concerned about the safety and the maintenance cost resulting from increased road traffic. Something that Mike didn't mention in describing our neighborhood and our road is Ahonui Place is maintained by the residents on Ahonui, it is our responsibility to keep it usable and I believe this traffic and this use on the road will increase the maintenance cost to which we all are now sharing in. In summary I request the Commission deny the permit based on Comprehensive Zoning Ordinance, Article 20, section 8-20.5, "Due to its detrimental impact on the safety, peace, comfort, and general welfare of the persons residing in the neighborhood." Chair: Thank you, anyone else wishing to testify? Before we go any further I would like to know if there is anybody...can I have a show of hands if anybody else wishes to...thank you. Ms. Meryl Eisen: Good afternoon, I am Merly Eisen and I am the homeowner at 3950 B Ahonoui. I have wandered through the gardens many, many times. I have watched it develop from its inception and it is a really unique and beautiful experience in there. I think I have been to just about every other garden on the island and I think this one is different in its variety, its species, its rarity of species, and most of all the health of it, it is just an amazing place. I know the Robertsons have offered that to all the neighbors to come enjoy that and I think it is a great asset to the neighborhood. My property is the first property on the left when you turn onto Ahonui so anybody who goes on Ahonui has to drive by my house and I can see the road from my house and I have not noticed any change in traffic since they have started this. It is probably a few more cars but definitely nothing noticeable. A lot of people have businesses up there and cars are coming and going all the time anyway. So I think it is a great asset to the neighborhood with very, very little negative impact, thank you. Mr. John Hannaberg: Good morning, my name is John Hannaberg and I live at 3830 D Ahonui. I just have a couple things more to add. Ina perfect world really I am against it just because I moved there for the peace and quiet. I really didn't move there to have a commercial business next door. But I do respect Mr. Robertson as a steward of the land and that is another thing that concerns me if he should get this permit and all of a sudden he decides to sell it and another person gets it I don't know,how does that work? Is that part of the sale? That would really concern me because somebody else could take off and go into other places. Mr. Jung: Land use entitlements do run with the land. Mr. Hannaberp,: If he sold his land that would go with it. Mr. June: Unless there were specific conditions that limit the time frame of when the permit can go. Mr. Hannaberg: So that would really concern me. The other thing is if you do decide to give him the permit I would be really specific because there are a lot of things that don't seem quite right here. You can say I'm not going to do weddings; we are not planning on doing weddings right now. I hear you are not going to do them or you are not going to do them now. Chair: Just address the Commission please. Mr. Hannaber. That is why I just thing you should be real specific and spelled out so that we as neighbors have a place to take a problem if we have a problem and we see a violation. Chair: Thank you very much. Ms. Kelly Carsal-Hannaberg: I am Kelly Carsal-Hannaberg and I too live right next door at 3830 D Ahonui Place. You have a letter from a few of my family members that own property up there and have experienced...I am not going to go into great detail but I just wanted to add on a couple things more and that is that my biggest fear I think with the owners of the property and where this project is going is I think embodied in I remember when the Robertsons first moved in and it was in my driveway we stood and Mr. Robertson said it was just going to be his original intent because we saw all of these boulders coming in a and all these trees and big trucks and it was just a lot of activity going on. We said what are you doing, why are doing this and the comment was well just for personal use and enjoyment and now here it is the next step, they Planning Commission Minutes May 10,2011 29 themselves have said Bill gets out of control and now here they are asking for something commercial. If we listen carefully they say we are not going to do weddings at this time but maybe later they will or special events. So I think that is the biggest fear among the other things that were mentioned that we are all concerned with but the biggest fear is that it does get bigger, out of control, if they sell it what will the next owner do and are they going to be as conscious of the neighborhood, thanks. Chair: Any comments by the Commissioners, any questions? Mr. Robertson: I would just like to address the traffic. It is a very busy agricultural area, a lot of the people on our street have small businesses and a lot of the employees come and go down Ahonui Place already. If you stand around at 8 or 9 o'clock in the morning quite a number of cars go past our house. The people I don't recognize as residents in the neighborhood and their employees coming and going from other businesses in the neighborhood, other operations. There are ranches,people have cattle ranches there,big trucks are coming regarding the ranches and other activity. I think our activity as we are applying is not going to be 4, 5, or 6 days a week it is just going to be, we are asking for 6 tours and those tours will be by reservation only so it is going to be very limited, smaller vehicle traffic. There are a couple other points,just in the last month we put some little letters on our mail box saying Ahonui Botanical Gardens and we have not put a sign on our property and we do not provide a map for people when they make reservations so when people come to our property they get lost and they unfortunately have landed up at the cul-de-sac where there is a sign saying Ahonui Gardens and they get them mixed up. So our intention is we would like to put a sign on the front of our property so that people won't get confused and go elsewhere. The sign has been made; we are just waiting to put it up at this point because of the permit situation. I think a lot of the big work regarding the rocks and terraces, grading and stuff like that, we have plans, and we went through a permit process to do a lot of this grading and moving of rocks and things like that. There has been no grading in `Anini Stream so that is incorrect. There hasn't been any grading at all in `Anini Stream. Mr. Blake: Is Ahonui a dead end street? Mr. Robertson: Yes it is a cul-de-sac street. Mr. Blake: So from the people who have testified you have the people who have a high tolerance level for traffic, people who do not live in the neighborhood and the noise that that generates. And then you have the people who do not have a very high tolerance for those things and want to preserve as much as possible the peace and quiet that they were used to before. And then with your reference to other businesses by people who live in the neighborhood and the presence of big trucks and other machinery that isn't there all the time it seems to me that it is intermittent as required by the needs of the business versus every day. So my question to you is as a neighbor and someone who values the good relationships that did exist there how specifically do you plan to address those concerns? Mr. Robertson: About the traffic? Mr. Blake: The traffic, noise, and the noticeable or substantial increase in people in the area. Mr. Robertson: I don't think there is going to be that big of an increase. Like if we have a tour of 6 to 8 people there might be 3 cars that come. Mr. Robertson: As we stated in our application and was mischaracterized by one of the previous testimonies the tours are only 3 days a week not 6 days a week and so it is not a daily event, it is intermittent much like the other businesses on the property in the area. We don't think traffic is going to be a major issue because of that reason, most people car pool, we tend to get groups of 2 or more and so if you have a 15 to 20 person tour we really are only talking 5 cars usually. Also as far as wear and tear on the roads I believe a number of neighbors would agree with me our private Ahonui Place is significantly better road than the publicly maintained Planning Commission Minutes May 10,2011 30 Kapa Ka Street and we help with that regularly maintaining that road. What were your other two points, I'm sorry? Mr. Blake: The higher tolerance level that some people have with traffic to additional people and noise versus the lower tolerance level that other neighbors have. So you have a dichotomy there and I wondered how you plan to address that. You said only 3 days and that is one in the morning and one in the evening? Mr. Robertson: Yes. Currently it is only in the morning, currently we are only giving 3 tours and they are all in the morning. The noise is completely vocal noise, it is me projecting my voice to give the tour and most of the tour happens down in the valley. As far as other people who...I just want to show you a quick map of the whole neighborhood,people who are in support and against it so you can get a better idea of the layout of the neighborhood. The red dots represent people who up until yesterday knew actively opposed our application. The green dots are people who have written a letter or actively support our application. You can see the highway is over there, here is Kapa Ka Street's approach, you turn onto Ahonui here. When you turn into our garden you see the green dot in the middle is Harvey Cohen's property that we wrap around and you make a left in to our property right here. The confusion with people who end up going to the end of the driveway end up bothering this individual unfortunately which we hope a sign will alleviate. The other two you will see that traffic doesn't even pass directly in front of their houses and there is a fairly large dirt road separating our property from this property. There is an upper flat field here and then the terrain as you can see in the aerial photo in our topographical maps drops steeply down into the valleys were as far as I know the noise is fairly contained. I believe one of the letters does state that one of the Carswells up in here might get some residual noise from us. As far as peace in the neighborhood I would question why people move to an active agricultural neighborhood for peace and quiet in their retirement. We could be operating a large scale vegetable production or animal production here with trucks and vans coming every single day, 6 days a week and we would not need a permit to do that and the noise and peace and safety concerns would be much higher and yet because it is on agricultural land that is generally permitted. Some of the previous testimonies also stated it is agricultural and residential land which is technically incorrect. They all have a variance permits for their residences, it is an agricultural and open zoned lands. Chair: Thank you, we will be breaking for lunch but before we do so I would like to ask for a motion to continue the public hearing for the next meeting. Mr. Raco: So moved. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, (unanimous vote). On motion made by Caven Raco and seconded by Camilla Matsumoto, to continue the public hearing to 5/26/11, motion carried unanimously by voice vote. Chair: I need another motion to defer this application. Mr. Kimura: I make a motion to defer this application. I have some concerns about the stream, their accusations about the stream that they have diverted the stream. If we could have Army Core of Engineers or Public Works look into it and when we have their comments then we can open up the public testimony again. Chair: For now I just want to defer until the next meeting so we have a motion to defer is there a second? Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. Planning Commission Minutes May 10,2011 31 On motion made by Jan Kimura and seconded by Camilla Matsumoto, to defer action, motion carried unanimously by voice vote. Chair: We will now be going into executive session and we will be having lunch during that time and we will be back at 1:30, thank you. 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 power, duties,privileges, immunities and/or liabilities of the Planning Commission and the County as they relate to this agenda item. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 12:39 p.m. Meeting was called back to order at 1:35 p.m. Use Permit U-2011-11 Special Permit SP-2011-16 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 side of Hapa Road in Koloa, situated directly across St. Rafael Catholic Church, and approx. 2,800 ft. sought of its intersection with Weliweli Road, further identified as Tax Map Kew 014:001 or.), and affecting a total area of 18.9 acres=AES Solar Power, LLC. Director's Report received 4/26/11. Staff Planner Dale Cua: Thank you Mr. Chair and members of the Commission. Before I start with the Director's report I just wanted to make one point of clarification. What I handed out to you is a copy of House Bill No. 2502 which was approved back in April of 2008. The significance of this document is just to clarify that the proposed use does not require a Special Permit as originally conceived by the department. This is just to clarify that the proposed use does not require a Special Permit so essentially what we will be taking action on is a Use and Class IV permit. Mr. Dahilig: And just to further clarify Commissioners if you look at page 14 of the applicant's packet this is confirmed on Land Study Bureau class E Ag. lands. We did have a bit of a concern initially that the size of the project may require a Special Permit because it was over 15 acres and this is just to Dale and the applicant's work, we just recently were made aware of Act 31 from the 08 legislative session relating to this item. So maybe if just for the record, Chair, we could have the applicant formally withdraw his Special Permit application for the record for formality purposes. Unidentified Speaker: Thank you Mr. Chair, Director, we originally did not apply for a Special Permit and it became a Special Permit in the bowels. If you take a look at our application it is an application for a Use Permit and a Class IV Zoning Permit. However that stated I don't know how far it went and I formally withdraw my application for a Special Permit. Chair: So accepted. Staff Planner read D'irector's report(on file). Chair: Before we proceed with the applicant's power point presentation do you folks have any questions of Dale? If not I would like to call up the applicant who is going to begin with the power point presentation. Unidentified Speaker: Thank you again Mr. Chairman. We have here... Chair: Just introduce yourselves. Planning Commission Minutes May 10,2011 32 Mr. Dave Robeshow: We have Jodi Aliown who is the AES Regional Manager to my left here. My name is Dave Robeshow,I am an environmental planning consultant and our slide advancer is highly over qualified, she is Nohelani Kalipi from Tea Leaf Communications who is doing our community interface. Let's go to the first slide, of course the thing that we are doing here is trying to supplement the island wide energy grid with alternative power using a 3 megawatt solar voltaic installation. Solar is about the cleanest and least environmentally damaging method of producing power that is known today. It is being introduced by AES who is a global...AES Solar Power is a subsidiary of AES which is a global company and has quite a long history of power generation both in alternative and traditional power. Ms. Aliown: We come to Kauai with a wealth of experience internationally and most of our current operating plants are located throughout Europe and most of the projects run about the same size range as we have here,they run from 2 to 10 megawatts although we are now building the largest project in Italy. So we have about 3 or 4 years of operating experience with the various types of solar including thin film as well as the polycrystalline panels that we are proposing here. This is just real quick to walk through our location,here we are at the over site of the proposed location. And I had to laugh when I found this slide because it is right where that shadow is so I hope that is not a permanent shadow on our site. I just wanted to clarify,this is what it will look like,we are breaking this down into 12 modules and as we are working with KIUC so the as we start each module up we can integrate it into the grid so we can kind of operate as we go. As you can see we are just coming into the Hapa Road just above where the gate is where the road is unimproved so that will be our access gate for construction. The utility interconnection is close to the access road as well so we have minimal change in the utility infrastructure. Mr. Robeshow: I think we should emphasize there that this is a very low impact land use. It will not demand regularly maintenance,there is no noise, no emissions,no traffic associated with the facility. Ms. Aliown: We put this project together with KIUC last summer,we did a fairly rapid negotiation on the power purchase agreement with KIUC,we signed it in October. And in parallel with that we negotiated our lease with Knudsen Trust and so this thing went very rapidly but as soon as we put the signatures to those documents we immediately went into the community to start working with them to make sure that this would be a good neighbor. Because as benign as it is it still might offend some people so we wanted to let them know what they are going to be seeing throughout the process,construction as well as into the operations and one of the things that they felt was important to them was landscaping along the fence line which actually borders the Hapa Trail. So we are having a really exciting time going through here and working out a beautiful landscaping plan that will screen the solar facility as well as provide an attractive venue for the people that are on the Hapa Trail. We have been very careful to go through this and we have committed, on the next slide, on the last slide you can see there was...go back to the one that showed the burial treatment site. On this slide what we found was in the midst of this land was lava tubes and there was a potential burial site so we isolated it from the solar facility and we actually did the burial treatment plan which was approved in March and we are going to take the rock that we cleared from the site and work with the descendants to build a rock wall around the site. So there will be a designated track of land within the solar site and there will be access for the descendants,we will have road access for them. This is what it will look like in general,this is just a simulation. KIUC is going to put a batter in to stabilize the grid because this is a fairly large project to go in at this location and it will provide enough energy for about 800 homes. We do have a 20 year agreement with KIUC with a potential option to extend for 5 years after that. As we said we are on class D and E land. So this is just to show that we are going to completely screen the solar panels from the Hapa Trail and the community is going to work with us in putting the landscaping plan together so we would like to get that started as soon as we get this permit approved that we would go into growing the plants and getting them ready to initiate the landscaping. We have a meeting next week with the EBC contractors and they are going to come in and do the site walk and then we Planning Commission Minutes May 10,2011 33 will have a meeting at the Koloa Community Association to introduce the contractors to the local suppliers and subcontractors because we want as many local people to participate in this project as possible. This is an overview of our schedule and here we are May, 2011, at the top getting our planning permits. We are out for bid with the EPC contractors and we expect to have them contracted with us by the end of June. At that point we will it will become the most difficult part and that is getting our building permits within about a 3 month window if at:all possible. We have in our power purchase agreement with the utility an agreement that we would be in construction within 90 days of the PUC approval and we are anticipating that would be likely in June. So we have great hopes that we will have lot of fast tracking through the County to get our permits. And then we will be in construction for about 6 months with commercial operating coming in second quarter next year so hopefully this time next year we are out there with our start up. This is just an equivalent of the emissions that you save when you put in solar panels, the equivalent amount of power. Steve corrected me at one point so I think it is 800 homes, 3kw, is that right Steve, and a fair amount of barrels of oil that we can take out of commission here. Thank you very much for watching this, do we have any questions? Ms. Matsumoto: What does AES stand for? Ms. Aliown: That is a really good question because we were at a company meeting a couple of weeks ago and we were literally having a contest about what it meant when it first got started back in the early 80s and I think it is Applied Energy Systems, something like that. But AES is a large energy conglomerate and they own utilities as well as independent power production facilities worldwide. AES Solar is 50% owned by AES and the other 50%is by an equity company of Riverstone and they have each put half a billion dollars into the development work for this company, development effort. Ms. Matsumoto: Why did you pick that particular site? Ms. Aliown: One of the first things we do is we look for the quality of the solar radiation in the area so there are State maps that you use as a first criteria so clearly the southern part of the island was the best. And then we have to look for class D and E land and we made that an absolute priority so we want class D and E land. I have been in the energy business for 20 some years or 30 years and the thing you look for is visibility,proximity to population, what the impacts will be so there are a whole lot of issues here. Knudsen had this site which they had not immediate plans for which was class D and E, dry which is important and in a very good solar zone and just the right amount of acreage for us. Archeological was another thing we looked at right of the bat to make sure we weren't going to run into a lot of problems in that respect to archeological sites. This particular portion of the parcel didn't have anything except the one burial or the potential,the lava tubes I should say. Chair: Anyone else? Mr. Blake: There was a slide that showed the... Ms. Aliown: The site plan. Mr. Blake: Where is the Catholic Church? Ms. Aliown: It is in a circle there on the left side, right at the midpoint,that is the church area. Mr. Blake: No. 12 borders on what? Ms. Aliown: The rest of the parcel. The parcel is actually 66 acres. Mr. Blake: What is below No. 12? Ms. Aliown: Open. Planning Commission Minutes May 10,2011 34 Mr. Robeshow: This is a portion of that TMK and the rest of it is vacant. On the left side of the No. 12 is Hapa Trail and on the right side is just the parcel boundary, that is the edge of the TMK but there is another vacant TMK between that and the bypass road. Mr. Raco: I think if the planner could verify that part of this existing site is where Goodfellows was. Mr. Robeshow: That is correct, somewhere around 12 is where Goodfellows was. Mr. Blake: And to the right of that is pasture? Mr. Robeshow: It is not utilized, mostly Hale Koa to the right of that. Mr. Blake: And at the top of the, on top of panel 1 is the coffee trees? Mr. Robeshow: On top of No. 1 is a grazing area. Mr. Blake: What development is slated for the land below 12? Were you calling it Po`ipu Lani? Mr. Robeshow: There is no development to our knowledge that is slated for this parcel. Mr. Blake: I thought I saw the landscaping plan said you were going to landscape the west and south. Mr. Robeshow: That is correct. The important part of course is along Hapa Trail. Assuming that this is north and south, on the west side is an undeveloped portion that provides a good visual buffer with the existing Hale Koa between there and the bypass road. We will landscape and preserve the rock walls along Hapa Road and Hapa Trail. Mr. Blake: For people who are accessing Hapa Trail from the Po`ipu side will they see these panels? Ms. Aliown: That is why we were talking about putting landscaping along the bottom, along the southern border. Mr. Blake: So you are putting landscaping along the bottom. Ms. Aliown: We are considering it. We are trying to figure what the best range is and if we should and if it is plantable but I think we will. Chair: Anybody else? Thank you, I would like to call on anyone from the public that wishes to speak on this application please come forward at this time. Mr. Steve Rensha: Hello Commission I am Steve Rensha with KIUC. I am intimately involved with all these projects as you may have figured out in my times coming to see you. There is going to be more photovoltaic projects and other renewable projects that we will be talking to you over the coming months and years. Right now photovoltaic are a good opportunity for Kauai. We are locking in long term fixed pricing contracts, the capital costs are down, the State and Federal tax credits are in place to really make photovoltaic a good solution today. KIUC is a not for profit it is more attractive for us to negotiate with third parties that can leverage the full tax benefits that are available but our general direction this year is to try to sign as many, well numerous more projects to ensure that these tax credits are received and we help utilize photovoltaic as a physical hedge against escalation of fossil fuels and other renewable contracts. I would be happy to answer any general questions. Mr. Nishida: Relative to the Kapa`a project, Bosshard's project, how big is this one? Mr. Rensha: This project is three times larger than Kapa`a solar. Planning Commission Minutes May 10,2011 35 Mr.Nishida: And your battery site, you didn't come in with this application for the battery. Mr. Rensha: The battery is being permitted at the existing Koloa substation so they have been working with the Building Department but it is just a small structure, it is interconnecting to the existing infrastructure there and apparently there was no need to approach the Commission. Mr. Nishida: What do the batteries look like and how big an area? Mr. Rensha: The battery is a 20 foot container so it is just going to look like any 20 foot container. You aren't really going to know what it is, it is just going to be enclosed there with electrical connections tying into the 12kb bus within the substation. It is our first step into battery energy storage so there is a lot to learn,there are going to be additional batteries that will be procured as well. The first mode of operation as we step into this is going to ramp rate control, try to control the drop off from the photovoltaic farm. There are additional modes of operation that we will be playing with as well to understand how the grid can fully utilize batteries and how they can be as cost effectively used as possible. So while this project has initiated us to make this initial investment we have been studying storage technologies for quite a few years and there is a need for storage to support these big projects but also the island wide continued build out of photovoltaic which is growing rapidly on all sides. Mr. Nishida: Do you expect the batteries to be replaced when the project turns the switch on? Mr. Rensha: The battery system should be operational by July of this year. There is work going on, I believe the container with the batteries is going to be delivered in June timeframe so we will be interconnected with the grid later this summer and practicing with program modes of operation with the battery before this project comes on line. We are planning to have the interconnection point which they are tying into existing infrastructure where there is a dedicated feeder that is going to connect the project to the substation, we are going to have them interconnected by the end of October. So assuming permitting and PUC approval comes rapidly we should be getting, and approval from the Commission, we should be getting electricity from part of this project before the year is out. Mr. Nishida: By design do the batteries go in between the transmission line and the solar panels? Mr. Rensha: It is tying into the common bus which ties in this photovoltaic project as well as the Po`ipu and Koloa circuits. Mr.Nishida: Is the design of the battery only to adjust the fluctuation or do they actually hold it for a day? Mr. Rensha: There are various modes of operation. This particular battery is one and a half megawatt/one megawatt hour battery so you could discharge a megawatt hour of power from this. This specific battery it's more going to be utilized for ramp rate control, frequency regulation as we move forward, it is not looking to load shift at all with this storage technology. Maybe in an emergency you would operate in that perimeter but our general mode of operation is going to be mitigating system wide impacts of photovoltaic as well as once this battery and another couple batteries potentially get installed they could prevent a load shedding occurrence from occurring if another generator tripped off line. These batteries can react fast enough to prevent an outage so there are additional system wide benefits as these resources get built out that can support the overall economy and the expansion of photovoltaic throughout the island. Mr. Nishida: All your alternative energy projects unhooked from the cost of a barrel of oil or that a question we have to ask... Mr. Rensha: They are always decoupled from the price of oil. We do have to justify the economics of these projects to the PUC so there is analysis that goes into that so most of that analysis today is based off of our current fleet which is primarily fossil fuels. But moving Planning Commission Minutes May 10,2011 36 forward these contracts are decoupled from fossil fuels, if we are successful in(inaudible) and development the cost of those projects are really just going to be tied to the debt and ongoing operation and maintenance so again decoupled from fossil fuels. Through renewable we are trying to stabilize rates, we will have some control over the escalation and hopefully lower rates in the longer term but really the benefit of renewable is stabilizing our economy from the world oil markets which are quite volatile. They have moved about 50% in the last 6 or 8 months or so and our electric rates have followed so the more projects like Po`ipu ,Solar, long term fixed price contracts, it is only going to help us moving forward. Mr. Nishida: So KIUC is buying the battery, right? Mr. Rensha: The battery is a direct purchase from KIUC. We decided to purchase the battery for full system benefits. Some of the batteries talked about on the other islands they are being connected with let's say the wind farm on the North Shore of Oahu. The adverse effect of tying the battery to the purchase power agreement is the utility doesn't have full control of it so even the (inaudible) company is paying for that battery resource all they benefit from is ramp rate control when that wind farm is on line. With KIUC owning the battery the battery can be put towards its best use. And incorporating batteries into purchase power agreements is very complicated because how the battery is operated greatly effects the operational life so everything considered we believe direct ownership of the batteries at this point makes the most sense. Mr.Nishida: You have a battery life expectancy? Mr. Rensha: The anticipated battery life, I believe the warranty is 8 years. That is the individual cells. The actual power control system should last much longer than that so it is envisioned after around 8 years the cells will be pulled out. They are approximately 10 to 15% of the overall cost so this is a long term solution that is going to need some maintenance but it is definitely going to be operating for as long as this power contract. Mr. Nishida: And the cost of the battery compared to the cost of the solar cells,what is the percentage? Mr. Rensha: For this overall project it is maybe 15% of the overall capital cost to the developer. Mr. Katayama: More of a question to the planner, is the runoff generated from this project been comprehended in any way? Staff. It is not to the department's knowledge that the drainage study or report has been prepared for this property. Mr. KatUama: Generally under Ag. classification a soil and water conservation plan is required. That is really not the right agency to comprehend this kind of project. Staff. Typically such matters are addressed with the Department of Public Works, their Engineering Division. Mr. Rensha: I can respond to that. We will grade the site and we will have a grading permit that is associated along with the best management practices. The final set up will have very little impervious surface that is not currently there. These will either be on micro piles which are basically concrete anchors or on spread footings which are small (inaudible) block kind of spread footings. So we are not going to have a whole lot of impervious surfaces. Chair: I would like to continue the public hearing process so anyone else wishing to testify on this? Mr. Ted Blake: Good afternoon, my name is Ted Blake from K61oa. I just wanted to mention a couple things about this development. We have had a tidal wave of development in K61oa over the past 5 or 6 years and one thing that we have always been championing is Planning Commission Minutes May 10,2011 37 sensitive and sensible development. This team came into the community back in October and told what they were going to do, asked us as far as suggestions and incorporated a lot of things that we talked about. For example their landscape plan, they wanted a landscape buffer and we pointed out that this parcel was part of the Koloa Field system and although US Soil Conservation Agency said that the land is totally unsuitable for agriculture it was part of the field system which was a productive enterprise for 500 years. Rather than having the normal Naupaka/Red Hibiscus type of landscape we asked and suggested that the plants that they pui would be plants that were probably there when they had the field system and they be indigenous and native to Koloa. So most of the plants that will be planted along the western border that is adjacent to Hapa will be native plants from the KoIoa area, we have the help of the NTBG and Dr. Bernie to identify different plants for us that were there and trees and shrubs. We will be putting Akia, Aulii, Ala He and some other shrubs that will be quite attractive. Not only will they be native plants but they will be plants that will be utilized and encouraged to be utilized by the different Halaus for haku leis and hula implements. Also, in the burial plan there was no—the burial treatment area was out of the lease and lessor and the lessee decided that they will do work on the burial treatment and rather than just fence it off with chain link they took the suggestion of utilizing all the rocks in the area to build a dry stack wall along 1,270 linear feet. That is pretty long. So this is a new chapter in developers that we have seen and we hope it gets added to the book that the Planning Commission looks at when they go through more developments in Koloa, thank you. Chair: Anyone else in the public wishing to testify? There being none is there a motion to close the public hearing? Mr. Kimura: So moved. Mr. Nishida: Second. Chair: Discussion, all those in favor say aye, motion carried. On motion made by Jan Kimura and seconded by James Nishida,to close the public hearing, motion carried unanimously by voice vote. Chair: What are the wishes of the Commission? I'm sorry, make your final recommendation. Staff Planner Dale Cua read department recommendation(on file). Chair: Does the applicant have any concerns or problems with the conditions just read? Unidentified Speaker: No sir. Mr. Blake: I'd like to add conditions regarding the landscaping and the treatment of the archeological sites. Mr. Dahilig: Certainly you can propose it as part of the consideration Commissioner. Chair: So this would be a new condition, this would be condition 8? In other words this would be a new condition, condition 8, is that what you are proposing? Mr. Blake: 8 and 9. Mr. Jung: You would have to craft something up for the Commission to vote on. Chair: I can take a short recess and then you can craft the language for 8 and 9. Commission recessed at 2:15 p.m. Meeting called back to order at 3:20 p.m. Planning Commission Minutes May 10,2011 38 Chair: Is there a motion to approve? Mr. Kimura: Make a motion to approve Special Permit SP-2011-6,Use Permit U-2011- 11, and Class IV Zoning Permit Z-IV-2011-11. Staff. Chair,just for clarification the Special Permit has been withdrawn so we are just taking action on the Use and Class IV. Mr. Raco: Second. Chair: Use and Class IV permits. Is there any discussion? Mr. Raco: I would like to add one condition and if you could read the condition as read. Mr. Dahilig: Commissioners, 3 conditions have been discussed with the applicant and have concurrence from the department for entering by the Commission as amendments to the motion. Additional condition which would be condition No.8 would read, "The applicant shall present to the Planning Department for its approval a landscaping plan for the eastern and southern boundaries of project area. The landscape plan shall utilize indigenous plants common to the area." Additional condition No. 9 would state, "The applicant shall cooperate with the landowner to construct a dry stack rock wall to preserve and protect the burial site in accordance with the burial treatment plan approved by SHPD." And additional condition No. 10 would state, "To the legal extent possible the applicant is encourage to utilize local subcontractors for the construction of this facility." Mr. Raco: I would motion to, if there is no discussion... Chair: Just one second, I would like to entertain a motion to approve the staff report as amended to include those three conditions. Mr. Nishida: So moved. Mr. Kimura: Second. Ms. Aliown: I think we need to say western and southern for the landscaping, not the eastern. Mr. Dahilijz: I have eastern right now. Ms. Aliown: It is the western. It is along side of the Hapa Trail. Chair: Could you re-read that then. Mr. Dahilia: This would be condition No. 8, "The applicant shall present to the Planning Department for its approval a landscaping plan for the western and southern boundaries of the project area. The landscape plan shall utilize indigenous plants common to the area." Chair: Any discussion on the approval of the report with these three amendments, all those in favor say aye,those opposed, motion carried. On motion made by James Nishida and seconded by Jan Kimura, to approve staff report as amended,motion carried unanimously by voice vote. Chair: Is there any discussion on the main motion, if not all those in favor say aye,those opposed, motion carried. On motion made by Jan Kimura and seconded by Caven Raco, to approve staff report as amended, motion carried unanimously by voice vote. Planning Commission Minutes May 10,2011 39 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 s . ft. portion of a 1277.276 acre parcel =Zi line Franchising,LLC [Director's Report received 4/26/11.1 Staff Planner Kaaina Hull read summary of evaluation of Director's Report (on file). Vice Chair Caven Raco: Commissioners, are there any questions for the planner? Seeing none, is the applicant here.? Mr. Max Graham: Good afternoon Planning Commission members. I am Max Graham, I represent the applicant Zip-line Franchising LLC and with me on my right is Danny Bourne who is a member of the LLC, the company and in the back we have Eric McClellan who is also a member of the company. If I may step to the board here I will do a brief over view. This is a map of the area and this section here is actually an enlargement of this section. This is Kaumuali`i Highway, this is the road that goes up to Kahili Mountain Park. The Green Energy Team project is over here. And the area that will be used is up here at the head of O`ma`o Valley so here is Kaumuali`i Highway and the valley goes up here to a ridgeline. These are actually two very large lots, lot 385 which 1,032 and lot 398, about 245 acres leased by Hawaiian Mahogany. So Hawaiian Mahogany is licensing this small area in the upper mauka western edge of the properties for the zip-line activities. This is above the green line is all Conservation, below is State Land Use Agricultural, the County zoning is Open within the orange lines here and below the orange line it is CZO, Agriculture. The zip-lines will be, I hope you are all familiar with zip-lines,they are basically cables strung between two utility poles, the poles are less than 25 feet high and what people do is strap into the cable and run down the length of the cable. So there will be 8 of these zip-line facilities and they range fi-om I think 150 feet to 1,300 feet long and on the diagram they are marked in pink. So you have one here, one zigzag here, one here, one here, one here, and a long one that ends up down here. Aside from the zip-lines themselves the only other structures will be two pavilions and one pavilion will be right about here and one pavilion up here. They will have open sides and they will just be areas where the guests can group together out of the rain if it is raining or out of the weather and there will be benches in the pavilion. In the application I think I mentioned that there would be a storage shed but the applicant has decided not to do that so there will be no storage shed up there, there will only be these two pavilions. The guests will be brought to the site by a van and the actual marketing and reservations will take place in Koloa Town. So the guests will meet in K61oa,be brought up in a van and there is an existing dirt road that comes off of Kaumuali`i Highway and comes up to this area, this is kind of a plateau up here. So they will just come up here,park, and go on the zip-line tour. The rest of the area is available for the forestry project of Hawaiian Mahogany. And with that over view I will let Mr. Bourne tell you a little bit more about the details of the zip-lining. Mr. Danny Bourne: Hi Commissioners and Mr. Chairman, thank you for hearing our application today,just a quick background on our company. Zip-line Franchising actually operates under the trademark Skyline Eco-Adventures which is our Maui based tour operation company, Skyline Eco-Adventures has been operating for just under 10 years,we are actually the first commercial zip-line operator in the United States. We began operations there in 2002 on Haleakala Ranch and one of our intentions early on was to work in conjunction with existing agricultural operations there and over the last 9 years we have succeeded in doing that quite well over on Maui and most of the agricultural operations that we work with thrive there on Maui. Our intention here on Kauai is to do the exact same thing,to work with Hawaiian Mahogany and to support their existing use for agriculture and to utilize lands that are not really suitable for what they currently do. Beyond that we are as Max has pointed out to guys are planning to set up an 8 zip-line facility. The cables themselves are about a half inch in diameter so they are pretty much invisible to the naked eye from not too far away. We have decided to go away from having a Planning Commission Minutes May 10,2011 40 storage facility on property and instead we will be doing these open pavilions which will just essentially be covered bench areas. The tour duration for our guests will be about two and a half hours. We take guests in groups of 12 up and we will take no more than about 9 tours a day. What we do on our tours is we do agricultural interpretation, we do environmental interpretation, and we do a lot of cultural interpretation as well. We are a proud member of One Percent for the Planet which means that we actually voluntarily give at least one percent of all of our sales back to preservation efforts in the local community. And we are actually,the group One Percent for the Planet actually requires us to submit our tax returns to them-so they can do a third party audit to verify that we actually donate that amount of money back. We also do a lot of community involvement, work with local youth groups to do tree plantings or different outreach, we have company service days, and we provide a program for our employees called Paid Service Days where in addition to paid time off they actually accrue days they can go out and volunteer in the community. So if they have a passion for say construction they can go volunteer with Habitat for Humanity and we will pay them to do that, if they want to do a beach cleanup we will pay our staff to go out and do that as well on their own time. It's not really on their own time because they get to choose it and we pay them their full wages to go do that. So we really try to encourage community involvement to giving back to local groups and then we work with local people in the environmental community to develop a curriculum for education for the visitors. So we try to hit on as many levels as we can from education to visitors to being a low impact tour from a visual standpoint and from a construction standpoint. And then committing monetarily and also through our efforts as a company to get involved in the local community. That is essentially what our company is all about. We expect to bring about 25 jobs to the Kauai community, that is tour guides, drivers, management staff, retail associates, retail managers,things like that, thank you. Mr. Graham: If you have questions for either Danny or me right now we can answer them. I would also like to have Bill Cowan just briefly speak about what he is doing on the property and his support of this proposal. Mr. Bill Cowan: Good afternoon, Bill Cowan. I am the President of the Hawaiian Mahogany. Seems like yesterday but we started the company 15 years ago. We originally intended just to grow tropical hardwoods in a sustainable way. We have since expanded our business model to include the production of livestock feed from some of our waste products, of woodchips for energy, of woodchips for the production of agricultural supplement called (inaudible), lumber, and high value lumber, all of which we believe can be grown here sustainably and without outside input. We are excited about supporting this project that utilizes very little land that we could use from an agricultural standpoint. It goes across some real deep valleys and is nothing that we could actually work with a machine. And it will provide some employment and give us some much needed funds as well to keep our operation moving. So we are very excited about supporting this proposal, thank you. Mr. Graham: And we are available for questions. Mr. Bourne: I have one more comment. I also want to point out there is a...the Garden Isle Dirt Bike Club operates up on the property, they have a verbal agreement with Hawaiian Mahogany to be able to ride their bikes up there and they do a couple of events a year. We have already met with a couple different members from the dirt bike club and are trying to work with them in terms of setting hours so they can continue to operate up in that area. Although like I said they just have a verbal agreement with the property owner our intention is to try not to displace them, to allow them to operate after our normal business hours and have their events that they currently Have up there on property a couple times a year. Chair: Thank you, Hartwell. Mr. Blake: You said that you were offering cultural interpretations or educational classes. Who is your cultural, who is handling the cultural aspects of your tour? Mr. Bourne: Thanks for asking. We try to work with someone in the local community. We haven't identified anybody on Kauai yet that we will be working with. On Maui we work Planning Commission Minutes May 10,2411 41 with a lot of different nonprofit groups who work with East Maui Water Shed Partnership, Maui Cultural Lands, a gentleman by the name of Lindsey who passed away a couple of years ago was widely respected on Maui as an advocate for the environment and for the culture. We work with Maui Coastal Land Trust which is now Hawaiian Islands Land Trust (inaudible) to get information, we work with Forest (inaudible) conservation groups and Nature Conservancy, quite a few different groups. And here on Kauai we will be working with some of the same groups who operate here on Kauai but also be trying to identify local groups that can help us with our educational curriculum. Mr. Blake: So you haven't identified anyone yet. Mr. Bourne: We have not looked yet, no. Mr. Katayama: You are operating under license from Bill Cowan. How long is that license for? Mr. Bourne: I believe it is for 10 years with a renewal option. Mr. Graham: It is 10 years with two 5 year options. Mr. Katgyama: And Bill is operating under a long term lease from the Knudsen Estate as well. Mr. Graham: Yes. Mr. Kimura: Would you consider changing your days of operation to 6 days a week instead of 7 so you don't interfere with the motorcycle club because normally they ride on Sundays if I remember correctly. Mr. Bourne: Yes. We have actually had discussions with them regarding certain hours of each day that we would try to stop operations by so that they could...I have been up there on a number of occasions and typically there are no riders up there during normal business hours because most of the people work. And so what we have discussed with them is the possibility of having us shut down after the normal workday around 5 o'clock and then they could ride 7 days a week after 5 o'clock. And then in addition the possibility of operating only 6 days a week so they could have Sundays to operate but I need to caveat everything by saying that I have no way of giving approval to the dirt bike club,that is all done through Hawaiian Mahogany and the Knudsen Trust. And so all we can do is try to work with the dirt bike club so our intention is to allow them to operate 7 days a week and possibly even give them Sundays to operate but it is all subject to the property owners. Ms. Matsumoto: What made you come up with 8 lines, the number of lines? Mr. Bourne: Just typically when we design courses we try to make them somewhere in the neighborhood of 5 to 8 lines because it allows for the tour duration that is about what people enjoy, it is usually about a 2 to 3 hour tour. So it is generally that and of course the actual site, we try to highlight the more spectacular areas of the site because I don't know if you have done zip-lines before but basically you don't impact anything that you are going over, you hook up on the top and you zip over the valley so you can see everything underneath you. We don't touch anything, we don't but any roads in those areas, we don't do anything like that so you will be zipping over pristine valley areas. So we try to set up if there is some sort of beautiful area we would like people to be able to fly over it essentially then we will set it up that way. Mr. Blake: How old do you have to be to get in one of these things? Mr. Bourne: You have to be a minimum of 10 years of age and 80 pounds because since it is all gravity powered, there is not electronics involved in it, you have to weigh enough to let inertia get you all the way across so that is important. Chair: What about maximum? Planning Commission Minutes May 10,2411 42 Mr. Bourne: 260 is our maximum. Chair: I mean age. Mr. Bourne: Oh age, we took a 94 year old guy on Maui,we have taken the senior center groups and things like that. Chair: Anybody else? Ms. Matsumoto: It doesn't look like there are historical sites in the area, for example the previous application went over (inaudible), no stream. Mr. Graham: O`ma`o Stream starts, that is the very top of O`ma`o Stream actually where that ridgeline is and flows down. No known historical sites in that area. Chair: I missed part of this but how far are you away from Kahili Mountain Park? Mr. Graham: I think about a mile to the west. Chair: So again as Cammie mentioned about the topographical features there is nothing unique, as you said the O`ma`o Stream abuts that property on the top part of it you said. And there is nothing else that is unique in there? Mr. Graham: There doesn't appear to be. There are of course bike trails up there. Chair: How do you access that property? Mr. Graham: There is a dirt road that comes off Kaumuali`i Highway. Chair: So you are not going to do anything with road, you will be using that existing dirt road. You aren't doing any improvements to that dirt road then. Mr. Graham: Right. Actually the people who have,there is a gate there, so people who have the key go up there. There is a dirt road that goes up and is already in existence. Chair: Do you have a premarketing plan for this venture considering that we have a couple of zip-line activities on the island and how you are going to compete with them and what markets you plan to go after? Mr. Bourne: We are going to target the Po`ipu market primarily. Obviously we are going to be closest to that so we are not going to focus much on the Princeville area. We typically do what is I think a lot of the other operators do, we print brochures, we are in the magazines and have our website and things like that we do. We have our general marketing approach; we go out and meet with the concierge and things like that. We think we offer a really good product and I think there are a lot of other really good products on the island as well in fact the pretty much second operators in the country were here on Kauai so they have been doing it for quite a while. Chair: I guess the point I am trying to make is do you feel that the market is already saturated with existing zip-line activities or you feel that there is room for an additional zip-line company? Mr. Bourne: I feel there is room for an additional zip-line company. We wouldn't be investing in this project if we didn't feel like there was an opportunity. Also, actually this doesn't have much to do with anything but one of the reasons we decided to go with the open air pavilions was in our own internal discussions, we have discussed with the dirt bike group yet, but our thought was that if we have open air facilities that it would be something that possibly the dirt bike people would be able to utilize during the hours that they are up there. So like I said we are trying to accommodate the people that are currently utilizing the property. Planning Commission Minutes May 10,2011 43 Mr. Kimura: You were talking about say like after 5 o'clock for the motorcycle riders to start riding if it is allowable. But for you application you are putting down 7 days a week, sunrise to sunset. During the winter 5 or 5:30 it starts getting dark already so basically what you are talking about is just during the summer. Mr. Bourne: As I mentioned we are not able to really make any kind of agreement with the dirt bike association. We have met them and we are working on something. We didn't want to put something in the application that basically stipulated a restriction on us when the dirt bike club still needs to work out their situation with the property owner. Mr. Kimura: It is kind of hard to take away one activity and give somebody else another activity whether it is commercial or not commercial. It's kind of hard,the locals have been up there riding for all these years with permission from the landowner and to see someone else come in and take that away from the locals who have been doing it for years, one activity for another. To me I feel it has to be more a give and take kind of deal. Mr. Bourne: I absolutely agree with you. Mr. Kimura: I know you guys are trying to work things out with the landowner and the motorcycle club which is great but I just wanted to... Mr. Bourne: Our intention is not to displace any of their existing trails. If there is something where one of our guest trails needs to cross their trail we will have their trail re- routed. I think there is definitely a little bit of fear about us coming in with the whole situation but we have already let them know our intention is to try and support them with use on property and potentially with use elsewhere in other areas on the property. The folks we have met with on it I think understand our intentions are to try to work with them and we have already let them know, they have asked us separately if we would consider using some of their members are contractors on the project which we would consider that. There are a lot of different ways we are trying to work with them. Chair: Anybody else, if not,thank you. Is there anyone in the public that wishes to speak on this agenda item? If not, Kaaina, would you give us your recommendation. Sorry, is there a motion to close the public hearing? Mr. Kata. ama: So moved. Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, motion carried. On motion made by Wayne Katayama and seconded by Hartwell Blake, to close the public hearing, motion carried unanimously by voice vote. Staff Planner Kaaina Hull read department recommendation (on file). Mr. Raco: Is there a motion to approve Chair? Chair: Yes. Is there a motion to approve? So I am asking for a motion to approve. Mr. Raco: Motion to approve Use Permit U-2011-10, SP-2011-5, and Z-IV-2011-10, TMK 2-7-001:002, and TMK 2-7-001:005. Chair: I have a question, my question to myself is do we need to amend...there is a motion to approve but I think we are trying to amend the conditions. Mr. Raco: Chair,we were trying to motion to approve first and then motion to amend. So that is my motion. Mr. Blake: Did that answer your question? Planning Commission Minutes May 10,2011 44 Chair: My question has been duly answered. Is there a second to that motion to approve? Mr. Katayatna: Second. Chair: Is there any discussion? Mr. Raco: If there is no discussion Chair, I would like to motion to have the Director read a condition. Mr. Dahilig: With the applicant's concurrence the department proposes two additional conditions of approval. The first one would be condition No. 9 and it would state, "Should the zip-line operation cease its operations for more than 3 months the applicant shall remove all structures and cables associated with the zip-line facility." Mr. Raco: I would like to motion for that and have discussion and give you my reasoning if I need to. My reasoning for that is if they cease the operation at least the applicant goes back and removes their zip-line and their platforms. Ms. Matsumoto: Second. Mr. Katayama: Just a question. Does that mean that the Special Use permit expires? Mr. Dahilig: That is a good question. I think functionality wise the way that it would work and counsel can correct me if I am wrong but the actual permit would still run with the land but if there is any break in use of more than 3 months then the structures do have to be removed. Mr. Im= I would concur with that. If they do cease and they don't remove the structures within 3 months then they would be in violation of conditions of approval which then could lead the County to revoke the permit which could make the permit subject to revocation. Then they could comeback and revoke the operation or just abandon the use altogether. But 1 don't think it would be null and void on its own, you would just have to wait out that 3 month period that if they don't do what they need to do to remove it then the permit would be null. Mr. Katayama: Or subject to a procedural action. I guess this is sort of an interesting situation,here you have the applicant which is two deviations removed from the landowner, they are operating under a license from a lease holder,the lessee of the property, and yet all of the permits get attached to the property. I think that is sort of an awkward situation. Mr. Jung: The landowner would be responsible as well to ensure that their applicants or their authorized agents are fulfilling the terms and conditions of the permit entitlement of the property. Mr. Blake: Why would the landowner? Mr. Jung: Because the entitlement goes to the land and not the applicant. Mr. Blake: What if the landowner doesn't care? They are supposed to remove their hard improvements, what if they just don't? Then we are going to just lay that on the landowner? Mr. Jung: Yes and then there would be an order to show cause. Mr. Blake: The landowner says I don't really care if they remove it or not. That is why I always wondered why you can't make it specific to the person,the applicant, rather than the landowner. Mr. Jung: Unfortunately you guys control only the land and the use on the land and not the people who operate that use. Planning Commission Minutes May 10,2011 45 Mr. Blake: But there is a sufficient nexus between the operator and the land it would seem to me that you can say this is your application, you are responsible. If something doesn't happen we are coming back after you, not somebody three times or four times removed. The worst case of which would be like the owners of, the previous owners of Coco Palms who thought Coco Palms was on Maui. Mr. Jung: Well we would hope that the landowner and the lessee or licensor would be working in conjunction with each other to address permit conditions as they would affect the land that the landowner does in fact own. Chair: My question to you Caven is that we have three different conditions we wanted to discuss. Mr. Raco: I just wanted to do one first. Chair: You want to do one first and vote on it? Mr. Raco: Yes. My motion was just for this one condition. The last time we did three it was too confusing. Chair: Is there any further discussion on this condition? Mr. Bourne: I have a question. I just want to clarify, as far as we are concerned the condition is totally fine but if there is an act of God like a hurricane that were to shut us down for a few months because it destroyed our business up there and we had to rebuild that would be I assume dealt with as a separate thing. That would be our only concern if there is an act of God or something like that. Mr. Raco: Don't you have the three months? Mr. Dahilig: Yes, "Should the zip-line operation cease its operation for more than three months..." Do you want the words "notwithstanding an act of God"? Mr. Raco: I think three months is fine. In an act of God, a hurricane does not last three months in my opinion and whatever the case is if they cease...if you can't get up there to clean or remove or cease in three months...that should give you an ample amount of time. Mr. Bourne: It will take us probably a minimum of three to five months to construct the whole thing so depending on how severe the situation is. Clearly if it is just a matter of clean up or anything like that we would be diligently working towards getting it reopened. I just...assuming an act of God,there could be a forest fire and everything burns to the ground and we would have to completely rebuild it from scratch. Mr. Raco: Do you want to read the condition again? Mr. Dahilia: "Should the zip-line operation cease its operations for more than 3 months the applicant shall remove all structures and cables associated with the zip-line facility." Mr. Blake: Well if they are repairing they haven't ceased operation. Mr. Raco: Yes, that is why I made you read the... Mr. Kimura: They can continue operations after the 3 months if they put everything back together, right? Mr. Raco: Yes. If the operation quits or leaves or anything like that it still ties that, I am hoping that this condition will, that they will go back and remove what they have... Mr. Kimura: It is only if they cease operations. Planning Commission Minutes May 10,2011 46 Mr.Nishida: Chair, clarification, who determines the 3 months, it is going to be you, right? Mr. Dahilijz: That is correct. Mr. Nishida: So you would have to work with the Director to work on this. I think the situation is the 3 months is if you walked away, you are gone. And if nobody is there or whatever then...so they still have to work with you and you would determine that whether these guys are in operation or whether a hurricane came or whatever you would use your best judgment. Because you are not going to bring it back to us just for that, right? Mr. Dahili-: Yes. Chair: Applicant, you are fine with that? Mr. Bourne: I am fine with that. Chair: We have a motion, we have a second, we had discussion, all those in favor of this condition say aye,those opposed,motion carried. On motion made by Caven Raco and seconded by Camilla Matsumoto, to add condition No. 9, motion carried unanimously by voice vote. Mr. Dahilig: Chair, there is a second amendment proposed with the concurrence of the applicant and the department. It would be condition No. 10, sorry, it would be condition No. 3, amending the first line to read instead of what is printed, "The zip-line area shall be restricted to 7 a.m. to 5 p.m., Monday through Saturday." Mr. Nishida: Move to amend. Ms. Matsumoto: Second, Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by James Nishida and seconded by Camilla Matsumoto, to amend condition No. 3, motion carried unanimously by voice vote. Chair: The applicant is aware of that, you are okay with that? Mr. Bourne: That is fine. Chair: Are there any other conditions we wish to look into at this point? If not we will go back to the main motion which is to approve as amended. Mr. Blake: So moved. Chair: Any second on that motion? This is the main motion to approve as amended. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carried. On motion made by Caven Raco and seconded by Wayne Katayama, to approve staff report as amended, motion carried unanimously by voice vote. CONTINUED PUBLIC HEARING (NONE) NEW BUSINESS For Acceptance into Report—Director's Report(s) for Proiect(s) Scheduled for Public Hearing on 5/24/11. (NONE) Planning Commission Minutes May 10,2011 47 For Acceptance and Finalization—Director's Report for Shoreline Setback Activity Determination. (NONE) ADJOURNMENT Commission adjourned the meeting at 4:00 p.m. Respectfully Submitted. da,&e' 4� Lani Agoot Commission Support Clerk Planning Commission Minutes May 10,2011 48 RECEIVED KAUA'I PLANNING COMMISSION REGULAR MEETING P 3 :24 Tuesday, June 14, 2011 10:00 A.M. Lihue Civic Center Moikeha Building THE C� Meeting Room 2A-2B 4444 Rice Street, Lihue, Kauai, Hawaii AGENDA Call to Order Approval of the Agenda Receipt of Items for the Record Minutes—Meetings of May 10, 2011 and May 24, 2013 A. GENERAL BUSINhSS MATTERS (For Action) , 1. Annual Progress Report for the Lzhu'e Town Core Design Plan pursuant to K.C.C. Section 10-5A.11, "Implementation of the Lihu'e Town Core Urban Design Plan." a. Informational Report pertaining to this matter. 2. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Planning Commission to discuss legal claims and remedies associated with Civil Case No. 08-1-0006 regarding WAYNE R. DANIEL, Individually and as TRUSTEE OF THE WAYNE R. DANIEL SELF-TRUSTED TRUST DATED FEBRUARY 18, 1999, v. KODANI AND ASSOCIATES, INC., a Hawaii corporation, and CLYDE T. KODANI• COUNTY OF KAUAI COUNTY OF KAUA'I PLANNING COMMISSION, COUNTY OF KAUAI PLANNING DEPARTMENT, IAN K. COSTA, in his official capacity as the Director of Planning, et al. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Planning Commission and the County as they relate to this agenda item. 3. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Planning Commission to discuss legal claims and remedies associated with Civil Case No. 10-1-0026 regarding R3BST LLC v. THE COUNTY OF KAUAI• COUNTY OF KAUAI PLANNING DEPARTMENT; COUNTY OF KAUAI PLANNING COMMISSION, MICHAEL A. DAHILIG, in his official capacity as Director of Planning JAMES NISHIDA, in his official capacity as Kauai Planning Commissioner and Chair• HARTWELL BLAKE JAN KIMURA CAMILLA MATSUMOTO PAULA MORIKAMI, CAVEN RACO and HERMAN TEXEIRA, in their official capacities as Kauai Planning Commissioners. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Planning Commission and the County as they relate to this agenda item. 4. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Planning Commission to discuss legal claims and remedies associated with Civil Case No. 5CC10-1-0161 regarding MICHAEL G. SHEEHAN vs. COUNTY OF KAUAI COUNTY OF KAUAI PLANNING COMMISSION et al.. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Planning Commission and the County as they relate to this agenda item. A. GENERAL BUSINESS MATTERS (For Action) (Cont'd) 5. Executive Session: Pursuant to the Hawaii Revised Statutes Section 92-4 and 92-5(a)(2 and 4), the purpose of this executive session is to consult with legal counsel regarding powers, duties, privileges, immunities, and/or liabilities of the Planning Commission as it relates to options available for the selection of the Director of Planning pursuant to Charter of the County of Kauai Section14.04. B. COMMUNICATION (For Action) 1. Memorandum (5/31/11) from Interim Planning Director Michael Dahilig to Chair Herman Texeira and Members of the Planning Commission, requesting delegation of authority to conduct public hearings on behalf of the Commission. C. SUBDIVISION - Action on subdivision matters listed in the Subdivision Committee Agenda (attached). (NONE) D. UNFINISHED BUSINESS (For Action) (NONE) E. PUBLIC HEARING 1. New Public Hearings: JDC a. Use Permit U-2011-13 and Class IV Zoning Permit Z-IV-2011-13 to allow conversion of an existing structure into a commercial beauty salon, on a parcel located along the northern side of Koloa Road in Koloa, situated approx. 300 ft. west of its intersection with Maluhia Road, further identified as Tax Map Key 2-8-006: 025 (por.) with a land area of 8.63 acres = Valerie Murray. [Director's Report received 5/24/11.] NS b. Class IV Zoning Permit Z-IV-2011-09 and Use Permit U-2011-09 to operate a beauty salon at property located in Waipouli, Kaua'i, approx. 125 ft. north of the Kuhi`o Highway and Ala Road intersection, further identified as Tax Map Key 4-3-009: 036, and affecting a portion of land approx. 9,410 sq. ft. = Eric and Jeannette Huttger. [Director's Report received 4/12/11.] 1. Letters in Support of Application from: a. Mrs. Ambrose Curry, Marta's Boat (12/30/10) with numerous other supporters attached. b. R. ValnetBobby V's Italian Restaurant (Undated). c. Susan L. Marshall (5/3 0/11). d. Paul and Nancy Andrade(5/22/11). e. Sandi O'Shaughnessy(5/29/11). f. Lorren Van Fossen CEO, Prudential All Star Realty, Inc. (5/31/11). g. JoAnna J-V Davis (5/31/11). h. Sonya Raines, Spa by the Sea(5/20/11). i. Michael Lind,Hydrate Hawai'i (5/27/11). j. Ryoichi Ogawa, D.C., Ogawa Chiropractor (4/26/11). k. Jason Barth and Heather Barth(4/27/11). 1. Sue Maruyama-Strickland and Greg Strickland (4/27/11). 2. Continued Public Hearing: (NONE) F. NEW BUSINESS 1. For Action—See Agenda E for Project Descriptions. a. Use Permit U-2011-13 and Class IV Zoning Permit Z-IV-2011-13 = Valerie Murray. b. Class IV Zoning Permit Z-IV-2011-09 and Use Permit U-2011-09 = Eric and Jeannette Huttger. 2. For Acceptance into Record — Director's Report(s) for Proiect(s) Scheduled for Public Hearing on 6/28/11. (NONE) - Planning Commission Agenda June 14,2011 F. NEW BUSINESS (Cont'd) 3. For Acceptance and Finalization — Director's Report for Shoreline Setback Activity Determination. LES a. Shoreline Setback Commission Review SSCR-2011-14 for a shoreline setback determination, Tax Map Key (4) 4-9-005: 005, 'Aliomanu, Kauai, for acceptance by the Commission=Richard S. Hill Trust. I. Director's Report pertaining to this matter. LES b. Shoreline Setback Commission Review SSCR-2011-15 for a shoreline setback determination, Moanakai Road, Kapa`a, Kaua'i for acceptance by the Commission = County of Kaua%Department of Water. 1. Director's Report pertaining to this matter. G. ADJOURNMENT EXECUTIVE SESSION: The Commission may go into an executive session on an agenda item for one of the permitted purposes listed in Section 92-5(a) Hawaii Revised Statutes ("H.R.S."), without noticing the executive session on the agenda where the executive session was not anticipated in advance. HRS Section 92-7(a). The executive session may only be held, however, upon an affirmative vote of two-thirds of the members present, which must also be the majority of the members to which the board is entitled. HRS Section 92-4. The reason for holding the executive session shall be publicly announced. NOTE: Special accommodations and sign language interpreters are available upon request five (5) days prior to the meeting date, to the County Planning Department, 4444 Rice Street, Lihue, Hawaii 96766. Telephone: 241-4050. Planning Commission Agenda June 14,2011