HomeMy WebLinkAboutpcmin052411 KAUAI PLANNING COMMISSION
REGULAR MEETING
May 24, 2011
The regular meeting of the Planning Commission of the County of Kauai was called to order
by Chair, Herman Texeira at 9:10 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. Caven Raco
Ms. Camilla Matsumoto
Absent and excused:
Mr. Wayne Katayama
Mr. James Nishida
Discussion of the meeting, in effect, ensued:
APPROVAL OF THE AGENDA
Chair: The first order of business is the approval of the agenda. We will be modifying
the agenda and changing its order as necessary. Could I have a motion to approve the agenda?
Ms. Matsumoto: So moved.
Mr. Kimura: Second,
Chair: All those in favor say aye,those opposed, motion carried.
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve
the agenda, motion carried unanimously by voice vote.
RECEIPT OF ITEMS FOR THE RECORD
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to receive
items for the record, motion carried unanimously by voice vote.
MINUTES—MEETING OF APRIL 26,2011
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve
meeting minutes of April 26, 2011, motion carried unanimously by voice vote.
Mr. Dahilig: Mr. Chair, if I may suggest we handle items eco 1, little alpha through
little delta first.
NEW PUBLIC HEARING
WITHDRAWN—Amendment to Class IV Zoning Permit Z-88-28, Use Permit U-88-
23,_and Special Permit SP-88-3 to extend the hours of operation for an existing previously
permitted food service operation on property located along Kuawa Road, approx. 0.50 miles
south of the Kuawa Road and Kuhi`o Highway intersection, Kilauea, Kauai; further identified
as Tax Map Key 5-2-013:012, and affecting an approx. 1 acre portion of a 46.587 acre property
= Common Ground Kaua`i, LLC.
Letter (5/4/2011) from Chris Jaeb, President, Common Ground Kauai, LLC formally
withdrawing request for amending permits.
JUN 14 2011
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to accept
letter of withdrawal, motion carried unanimously by voice vote.
Special Permit SP-2011-10 to permit use of an existing single family residence for
Transient Vacation Rental_pur-poses as permitted by of Kauai Ordinance No. 904, in
Kilauea, Kauai, approx. 3,400 sq. ft. west of Kauapea Road and Kilauea Lighthouse Road
intersection, further identified as Tax Map Key 5-2-5:31, Unit A, and containing; an area of
4.149 acres =Michael J. Piuze.
Staff report pertaining to this matter.
POSTPONED
POSTPONED— Special Permit SP-2011-8 to permit use of an existing single family
residence for Transient Vacation Rental purposes as permitted by Counly of Kauai Ordinance
No. 904, in Kilauea, Kauai, approx. 3,600 sq. ft. west of Kauapea Road and Kilauea
Lighthouse Road intersection, further identified as Tax Map Key 5-2-5:32, and containing an
area of 5.325 acres =Justin Hughes and Michele Hughes, Co-Trustees.
Letter(5110/1 lam Lorna Nishimitsu, Esq.,_requesting,rescheduling of public hearing
until a date after the State Board of Land and Natural Resources has concluded its processing of
the Environmental Assessment and Conservation District Use Permit application for Tax Map
Key 5-2-05:36.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to receive
letter requesting postponement, motion carried unanimously by voice vote.
POSTPONED—Special Permit SP-2011-9 to permit use of an existing_single family
residence for Transient Vacation Rental Purposes as permitted by County of Kauai Ordinance
No. 904, in Kilauea, Kauai, gUrox. 3,800 sq. ft. west of Kauapea Road and Kilauea
Lighthouse Road intersection, further identified as Tax Map Key 5-2-5:33, and containing an
area of 5.030 acres =Justin Hughes and Michele Hughes, Co-Trustees.
Letter(5110/11) from Lorna Nishimitsu, Esq., requesting rescheduling of public hearing
until a date after the State Board of Land and Natural Resources has concluded its processing of
the Environmental Assessment and Conservation District Use Permit application for Tax Map
Key 5-2-05:36.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to receive
letter requesting postponement, motion carried unanimously by voice vote.
GENERAL BUSINESS MATTERS
Status Report(4/28/11) from Walton D. Y. Hong, Esq_, as to its efforts to relocate a
cement batch plant for Use Permit U-89-47, Special Permit SP-89-20, Class IV Zoning Permit
Z-IV-89-53, Tax Map Key 5-3-6: por. 14, Princeville, Kauai = Glover Honsador LLC.
Supplemental Staff Report pertaining to this matter.
Staff Planner Lisa Ellen Smith read supplemental staff report (on file).
Chair: Are there any questions for our planner? If not I would like to call the applicant
to please come up.
Mr. Walton Hong: Good morning Mr. Chairman and members of the Commission. For
the record my name is Walton Hong representing the applicant and with me is David Pierrie of
Glover Honsador. We would be glad to respond to any questions that you may have.
Chair: First of all do you have any comments in regards to the staff report?
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May 24,2011
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Mr. Hona: No we don't.
Chair: Any questions of the applicant?
Mr. Blake: So the 30t" of December you will be relocated?
Mr. Hong: Well we will shut down the Princeville plant by the ending of this year, yes.
Mr. Blake: The Hawaiian Homes site won't be operational?
Mr. Pierrie: Jusi,to give you an update we have gotten confirmation from the
Department of Health on the design of our plant and the design in finalized and we are moving
forward with plans for relocation.
Mr. Blake: I was just concerned about the North Shore people being serviced so that
won't cease, you are not anticipating any cessation of supply of cement to the North Shore.
Mr. Pierrie: The only thing that would hold us back is delay in processing of some
permits, of the environmental permits.
Mr. Kimura: Commenting on what Commissioner Blake said, can we somehow put a
condition in there saying that they leave the plant open until the other operation, the new
location, is in operation just to service the North Shore?
Mr. Dahilig: Commissioner I would that if that is the inclination of the Commission that
maybe another agenda item would be appropriate because this item for action is posted under
Chapter 92 is only for the acceptance of the status report so we are not noticing any changes to
the actual permit conditions. So if that is something that you would like to discuss further we
can take that off line and we can work that out for a future meeting.
Mr. Kimura: Do you think the new location will be in operation where there won't be a
gap in between service?
Mr. Pierrie: Like I said the only thing that we see that will hold us back is if there are
delays in the time it takes for some of the environmental permit processing.
Mr. Kimura: Chances are. I would hate to see there be no service for concrete at the
time so what do we do?
Mr. Dahilig: We can follow up with...I think based on the status report it does look like
they will still be able to facilitate something before the deadline but if that juncture does come I
guess maybe the message to the applicant is let us know sooner than later.
Mr. Hong: I was going to suggest something like that we would leave the condition as
is, if due to things beyond our control and the environmental permits take longer than
anticipated we will come in and lay the story before you for another extension.
Chair: Anyone from the public wishing to speak on this matter? Lisa Ellen do you want
to conclude?
Staff read conclusion to supplemental staff report (on file).
Chair: Any further discussion, if there is no discussion then is there a motion?
Ms. Matsumoto: Move to accept the status report for Glover Honsador.
Mr. Kimura: Second.
Chair: Any discussion, all those in favor say aye, those opposed,motion carried.
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May 24.2011
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On motion made by Camilla Matsumoto and seconded by Jan Kimura, to accept
status report, motion carried unanimously by voice vote.
SUBDIVISIO N
Mr. Kimura: Subdivision Committee Report No. 16, committee members present, me
and Commissioner Matsumoto. General Business, none, Communications, none, Unfinished
Business, none,New Business, tentative subdivision action, S-2011-20, Kukui`ula Development
Company, LLC, TMK: 2-6-019:026, 029, approved 2-0.
Chair: Is there a motion to approve?
Ms. Matsumoto: So moved.
Mr. Blake: Second.
Chair: Any discussion, all those in favor say aye, those opposed, motion carried.
On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to
approve Subdivision Committee Report, motion carried unanimously by voice vote.
CONTINUED PUBLIC HEARING
Use Permit U-2011-12, Special Permit SP-2011-7 and Class IV Zoning Permit Z-IV-
2011-12 to conduct uided tours of an existingt 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 5-3-008:12, and affecting an 8 acre portion of 25.303 acres=
William E. Robertson Trust and Lucinda G. McDonald Trust. LDirector's Report received
4/26/11, hearing continued 5/10/11.1
Supplemental No. I Director's Report pertaining to this matter.
Staff Planner Kaaina Hull read supplemental No. i to Director's Report (on file).
Chair: Will the applicarit please come forward.
Mr. Jason Robertson: Good morning, I am Jason Robertson, the agent for the
applicants. Thank you for giving us the opportunity to speak to you again. Before I get started
I just wanted to submit a couple more things to the record. We have packets of additional
letters of support fokwarded by a table of contents as well as a hand full of letters at the end that
we just got this morning. We also have, I thought you guys might enjoy this is the Hanalei
fourth graders visited out gardens in the beginning of the school year and we have their letters, a
beautiful package they put together for us. Really great kids,we had a fun time with them,they
are seemed to learn a lot, very precocious. In the past couple of weeks I have had the chance to
review the recording of the previous hearing and while I think most of the points were laid out
pretty clearly there are a few things that I would like to clear up and emphasize. I think pretty
much all of this clarification can happen within the context of Commissioner Blake's question
which he posed near the end of the hearing last time. And his question was something like how
do we strike a balance between the feelings of those in our neighborhood who are opposed to
our activities with the feelings of those in our neighborhood who are in full support. And really
Commissioner Blake's question gets right to the heart of the issue our permit here.
I would like to just remind you of the map which I just had a chance to bring out very
briefly at the end of the last hearing and maybe if Kaaina,if we could pin that up. Let me just
remind you on that map all the green dots show the people in our neighborhood who are in
active support, the red dots are people who are have actively opposed our use and there are
some blue dots on there, some neutral landowners who don't want to take a stance on the issue
which I entirely understand. How did we balance the needs between the handful, the minority
of people who don't support our use and the rest of the enthusiastic support of the
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May 24,2011
4
neighborhood? We have thought about this a lot and the main points concerning our
neighborhood are concerns about traffic, safety, and general peace and quiet of the
neighborhood. As far as balancing these issues I think that the Planning Department has already
done a lot of that balancing act for us already in the limitations and suggestions and
recommendations that they have placed upon our permit all of which are very reasonable and
we are happy to go along with them.
We think we can go a little further in a couple areas the most important of which is
limiting our tours to 3 days per week. If you look at the supplement to the Planning Director's
Report on page 2, the second recommendation states, "The tour operation shall be restricted to
operating from 9 to 5pm, tours shall have no more than 20 guests, the maximum number of
tours per week shall not exceed 6, and the maximum number of weekly guests shall not exceed
120." We would suggest that you add language to this further limiting our tours to read, "The
tour operation shall be restricted to operating no more than 3 days per week from 9 to 5pm."
And the rest of it can remain the same. We just want to be very clear, I feel like there was some
confusion with some of the public testimony last time. We have no intention of operating these
6 tours 6 days per week. It doesn't make good business sense and we don't want that kind of
traffic all week long coming to our gardens. I believe all this really addresses the issues of our
neighborhood.
I feel the final point just to keep this brief before I read a selection from one of those
letters is, are botanical gardens an unusual but reasonable use of agricultural land and I think
that for the most part we can all agree that this is so. First of all where else...agricultural land is
the most obvious zoning ordinance to develop gardens of the scale that we have and a big part
of this also is our tourism industry, 40% of our economy comes from tourism. And I would
argue that the majority of that tourism is econ-friendly tourism. The main reason people come
to these islands is for the beautiful natural splendor and I don `t see how...I believe our use, our
proposed use of tours of our gardens are the perfect poster child for this sort of small scale
family run agro-tourism that is really going to come to sustain the economy on our island.
Unfortunately I passed away all my, I had an extra copy for myself of those letters. I just
wanted to conclude my statement by reading from George Costa's letter,the Director of the
Office of Economic Development of Kauai County. I believe he sums up our case much better
than I can. On page 2 of the thicker packet I am just going to read the last two paragraphs of his
letter.
"The garden tour is professional and informative with tastes of fruits and chocolate fresh
off the plants and fragrant smells of exotic flowers. Ahonui Botanical Gardens is a beautiful
place to share. One of the great features of the Garden Island is the gardens we have here. Na
Aina Kai and National Tropical Botanical Gardens are well known worldwide and provide a
very special activity to tourists who are very important to us for our economic well being.
Gardens large enough to be of interest to tourism are very expensive to create and maintain. To
have a private party provide this recreational activity at no expense to the public should be
seriously encouraged. It is a small family run business and I feel it is an appropriate use of
agricultural land and has a low impact on the neighborhood.
I have high respect for the Robertsons who have assured that any concerns expressed by
their immediate neighbors have been satisfactorily addressed and any future concerns will be
promptly resolved. I know the Robertsons so to be very consciences people and would do their
best to mitigate any potential problems. I support their request for a Special Use permit as these
exhibit the natural beauty of Kauai as a very special place to visit and live. This project
addresses several goals of the Office of Economic Development in that it helps diversify our
economy with ag-tourism and provides jobs for island residents. Sincerely, George K. Costa."
Thank you, I am open for questions.
Chair: Are there any questions for the applicant?
Mr. Kimura: I have a question. I noticed that George Costa's letter of support, it says
here 3 days a week and only in the mornings. He is saying only in the mornings but you guys
are asking for 9 to 5. What is the reason for that?
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May 24,2011
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Mr. Robertson: There is some confusion there, my father called people up to solicit
their letters of support so there might have been some confusion as far as the times that George
understood that we were planning on giving the tours. As far as the 9 to 5, again we would like
to limit that to just 3 days per week.
Mr. Kimura: I understand that. It says 9 to 5 but he is saying only in the mornings you
are planning on doing the tours.
Mr. Robertson: Yes I believe that was just a misunderstanding between the
communication of my father and Mr. Costa. He was the one that originally really encouraged
us to get this permit and thought this would be a great opportunity for people on the North
Shore.
Mr. Kimura: Have you altered this stream at all?
Mr. Robertson: To our knowledge we haven't done any activities near the stream that
require a permit. We haven't altered the stream at all. We haven't altered the stream area. We
have done maintenance activities in the stream but none of them are of the nature that would
require a permit as far as I understand it.
Mr. Kimura: Do you have an emergency plan for times of crisis like say flash flooding.
Mr. Robertson: We have not yet developed formal plans but that would be a very
logical thing to do which we would be happy to do. You will notice that the Fire Department
does require that we present them an emergency plan as a condition to our permit which we
believe is very reasonable and we are happy to do.
Chair: Anybody else?
Ms. Matsumoto: In Michael Dunn's letter he gave a list of different businesses who also
have tours and they are all it the morning and wanted your response to that.
Mr. Robertson: As far as how our tour doesn't overlap or become redundant with those
tours?
Ms. Matsumoto: No, not overlap, but they conduct their tours in the mornings and not 9
to 5 and I just find it interesting that you are asking for full time, 3 days a week as opposed to
what other people are doing.
Mr. Robertson: I would point out that Na Aina Kai does have afternoon tours I believe.
And it was the language of the Planning Department's recommendation to limit this to 9 to 5.
In our specific application and we would be totally open to modifying these recommendations
but we just want to be able to give a maximum of 6 tours per week on 3 days. The current tours
we give are 3 hours long,just 3 of them, if we were to add 3 more tours they would not be those
3 hour tours,very likely they would be shorter tours to accommodate people who don't want to
spend 3 hours in a garden. And so for that reason they would probably end well before 5
o'clock. It is not the intention of our family to have a business going all day long.
Ms. Matsumoto: I have another question going along with the topic of the stream. I
have some concerns about safety,major concerns,
Mr. Dahilia: It is something that was arisen at the last public hearing and we have
forwarded information to Army Core and actually have requested as part of the comments for
this application Army Core's input. To date we haven't received anything from them and I
don't know what more we can do to compel Army Core to respond to our request. I don't know
if the planner wants to weigh in on that also but that is pretty much...I think your concerns are
valid Commissioner concerning whether the alterations of the stream are permitted if there are
alterations.
Mr. Blake: Which 3 days are you planning to conduct the tours?
Planning Commission Minutes
May 24,2011
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Mr. Robertson: Currently our business plan is Tuesdays,Thursdays, and Saturdays, and
if we were to increase that to 6 tours we would tack as I said those shorter onto the afternoon
following those tours. However we would like to reserve the right to move around those 3 days
given the schedule of the other gardens and if we find that Tuesday just does not get a lot of
volume and people can't make it we believe it is reasonable to allow us to move those 3 days
around if we wanted to move it to say Monday, Wednesday, and Friday rather than Tuesday,
Thursday, and Saturday. But at no time do we want to increase it to more than 3 days per week.
Ms. Matsumoto: What if your neighbors came by and said we don't want it...if you
wanted to change your schedule and what if they responded to that,how would handle that?
Mr. Robertson: We would definitely want to work with them if a particular day was
inconvenient for them that would take a high priority in our consideration. As it is we are not
doing anything on Sundays,that is kind of an unspoken agreement in the neighborhood,you
keep things quiet. And if that was an issue we would work with them on that but as it is people
are doing agricultural work all over our neighborhood 5 to 6 days a week.
Ms. Matsumoto: Do you know specifically what the days are?
Mr. Robertson: The ranch that is right next to,the cattle ranch is as far as I know a full
time operation. This last week we have been hearing the cows call until 3 in the morning and
then starting again at 4. I know there is another home office on a property beyond the entrance
to ours and he has employees come as far as I know every single day of the week.
Ms. Matsumoto: I guess you see where I am going with this. The peace of the
neighborhood is really important. I think that is in my opinion most important and so you need
to realize that you are amongst other people and some of them just so happen to not be in favor
of this project because of the concerns about impacting their current lifestyle and their living
situation.
Mr. Robertson: Those are very legitimate concerns and I think that our proposed use is
really a very, I mean one of the least invasive uses that we could be requesting. We are not
using vehicles to give the tours; it is a walking tour with no amplification for when I give the
tour. And given that it is an agriculturally zoned neighborhood if we wanted to change our
business plan we could erect a several thousand square foot processing facility within the view
plane of our neighbors to process fruit that would be running machines all day long and we
would just need to get a regular commercial permit to do something like that. So I believe that
this use is a very limited and quiet use in comparison to some of the agricultural possibilities.
Mr. Blake: I don't think there is any argument about utilizing the property for a
botanical garden, it is Ag. zoned,botany is agriculture so that in and of its self to my way of
thinking would be permitted. You are asking for a Use Permit and a Special Permit and so forth
because of the additional intensity of use that you plan to impose on the property which is
visitors,tours, cars, and so forth. If you were processing agricultural products or driving
equipment in to plow or mow or anything like that,that is within the parameters of Ag. zoning.
But this reminds me of the Councilman in Honolulu out on Black Point who used to conduct
weddings on his property because they were not prohibited. It did impact the neighborhood in
ways that had been unforeseen under the normal neighborhood strictures. So that to me is the
same thing here,the impact that you are seeking is outside the normal understanding of the
people who live in that Ag. subdivision. That is why you are applying for a Use Permit.
So I commend you for being willing to and as I hear it take the initiative to work with
your neighbors in regards to the days of operation because they too at some point in time maybe
just once a year or once every so many years will probably be hosting some type of event for
themselves and ideally it wouldn't interfere or conflict with what you are doing. Of course if
they feel that it is too much of an imposition then they can come back in here and ask that the
Use Permit be reviewed so that is smart on your part. And so I think it is a good thing that you
are limiting yourselves to 3 days a week,only one of those days of which is on the weekend
which would be Saturday, Sunday being the day that nothing is going to take place and that you
Planning Commission Minutes
May 24,2011
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are limiting the total number of visitors. Because the idea of a Use Permit is that and correct
me if I am wrong, the use that is being imposed is not going to be adverse to what would
normally be happening in that zoning area.
Chair: Anybody else?
Mr. Kimura: I am looking at some of your pictures that you guys presented and the
inconsistency of these pictures, you are showing me that exhibit 1, 2,prior, and the after shots,
it just seems that whenyouV say you didn't...
Mr. Robertson: Two of those pictures you held up were almost identical.
Mr. Kimura: Almost, they are all the same area and it sure shows that the stream has
been altered.
Mr. Robertson: I am not aware of the discrepancies between those pictures.
Mr. Kimura: This is what you guys presented to us.
Chair: We are going to take a 10 minute break.
Commission recessed at 9:54 a.m.
Meeting was called back to order at 10:08 a.m.
Chair: Are there any questions from the Commissioners?
Mr. Kimura: I want to (inaudible) my first question to the application and I would like
to ask them can you explain the inconsistency of the pictures that were presented to us?
Mr. Robertson: Certainly. I am sorry I completely forgot to bring our own application
with us this morning if I could take a look at the pictures. `Anini Stream changes dramatically
with the rainfall in our area. We get more than 105 inches of rain in our neighborhood. In fact
this heavy rainfall this last week the stream swelled to nearly twice its size, we had no major
issues down there, no landslides. And as far as I can tell the different pictures showing the same
rock formation are just taken during different seasons with different amounts of rainfall where it
is swollen out as far as I can tell. All those rocks are still in every picture, they are in the same
place, those are all original as-is condition of the creek. Based on my experience with the
property it looks to me like they are in different years and different season and the water has
swollen out and climbed up the bank and the river looks wider. But that happens even now. It
was dramatic what happened in the last couple weeks. As far as I can tell that is what I see in
these pictures.
Mr. Kimura: So that would be your explanation?
Mr. Robertson: Yes, they are taken at two very different times and I would suspect it is
just a matter of seasonal rainfall that swelled that river to the difference there. But I assure you
those rocks in the pictures are there even in this narrow one where you can't quite see it, those
are existing there.
Chair: Anybody else? If not I have a question in regards to the stream. The stream runs
through your property, correct, so have you cleared the property up to the stream?
Mr. Robertson: In some areas maintenance has come up to pretty close to the stream but
we have never gone into the stream its self and to the best of our knowledge we didn't need
permits for that. If we did we more than welcome to work with the Army Core of Engineers or
any other departments we need to. We really don't want to create an issue. We have already
done so much to improve the land.
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May 24,2011
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Chair: This is just a suggestive matter and that is to prevent erosion as much as possible.
If you do clear and it is sloping of course if we have some heavy rainfall then you will have
some erosion going into the stream so if you can do some preventive erosion matters.
Mr. Robertson: We continue to work on that all over our property and in fact the one
main time we actually kind of had an issue with the stream is when a neighbor in our Hui above
and beyond the stream moved some rocks well out of the stream area but because it was up near
the ridge above the stream, not on our property, later that season some rains kind of pushed that
hillside down and we immediately went into action to alleviate that. We are very careful on
clearing, we do a very small section at a time, replant it in.
Chair: Great, anybody else have any questions? Before we begin the public hearing
process could you discuss something about your gift shop again, how necessary is your gift
shop to your operation?
Mr. Robertson: Well of course our primary purpose is to just share our land and the
fruits our visitors will pick off the trees and our chocolate with people. The gift shop is not
essential to the actual business however we think it is pretty reasonable to allow us just for a
few minutes after every tour to share some products related to our land. The Planning
D'irector's recommendation states and this is contrary to what our actual application suggests,
they give us the leeway to operate our gift shop from 9 to S pm all day long which again is not
our plan at all. If you would like to amend that recommendation we are fine with that,we are
only going to have it open after the tours and only people who come on the tours will be
allowed to shop there. And people honestly just are really enthusiastic about supporting us
further, we don't have a lot of things we offer there now and people keep giving us suggestions,
oh it would be wonderful if I could buy some of your mother's photography or if you have other
materials, you should sell us the fruit, you should do fruit baskets so we could buy those.
Chair: Well some of those items you are mentioning like a fruit basket, do you need a
gift shop to sell a fruit basket to the visitors that frequent your place?
Mr. Robertson: I don't think so. I think that would be a generally permitted use. I am
not sure on that. I guess a gift shop kind of mischaracterizes it. We don't have a structure or
facility associated with-it. When people gather it is going to be under a tent and any materials
we bring out are in Tupperware containers which we open up and we store in our garage
otherwise. It is not a facility, it is not a shop it is just a few products.
Chair: So you are using a tent as a makeshift gift shop.
Mr. Robertson: Currently we don't have a tent but if it were to rain we would put up a
collapsible tent.
Chair: But that is your plan.
Mr. Robertson: Yes.
Chair: If there are no more questions...
Mr. Raco: On that same note Chair, it says in condition 1 that the tour operation and gift
shop facility shall be operated and constructed as represented so where is the gift shop as
constructed?
Chair: Good point.
Mr. Robertson: That is a good point, that along with some of the recommendations of
the other departments were a little confusing to us as well. If you review our application there
is no proposed construction as part of our use.
Chair: Could you explain that Kaaina?
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May 24,2011
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Staff. That is a standard condition we put on all, not all but the bulk of Use Permits that
come before the Commission in that some facilities or I should say some operations are solely
just use but some operations have both a use and a facility. There are other structures associated
with the tour that will be constructed.
Chair: By putting this language in there are you allowing the applicant to go ahead and
construct a gift shop?
Staff. Essentially if they provided one within the application but since there is none in
the application,no. It has to be as represented and if there is no actual gift shop representation,
there are other structures that are represented that need to be constructed however there is no
gift shop represented in the application then that is not going to be approved.
Mr. Raco: That is where the confusion is at is that on the site plan you show several
buildings so what are they? The only thing I read on the site plan is the parking and then there
is a house there or a building there. Is this the representation that you were thinking this was
going to be the gift shop?
Staff: There is no gift shop represented on the site plan.
Mr. Raco: In this application I see a building.
Staff: There are sheds and a residence located.
Mr. Raco: But if the shed and the residence is not part of the application why is it in the
application?
Staff. The site plan is going to have all structures that are on the site, it doesn't
necessary mean that the residence is going to be part of the tour.
Mr. Robertson: This is a great point actually.
Mr. Raco: But in the application I see elevations and floor plans of a building so I
associate that that this is what we are approving.
Staff: Could you reference which one?
Mr. Raco: It doesn't say any reference it just says ground floor, second floor, and it
has...
Mr. Robertson: If I might speak, the requirements of this permit are that we include
floor plans of every single building on the property whether or not they are associated with the
use which we did and none of the buildings are associated with the use.
Mr. Raco: So if none of the buildings, Chair, are part of the application then why is it
part of the application? I mean under the conditions and recommendations that I am reading I
am assuming that we are approving these buildings and if the planner is saying it is not part of
this application why is it even in here?
Mr. Jung: The Planning Department when they review permit applications they want to
see what exists on the property as well so they can do a thorough review so they have been
included as part of the application.
Mr. Raco: So we are not approving any structures then.
Mr. Jung: You are approving the use.
Mr. Kimura: Can we put wording in that?
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Mr. Raco: In the conditions we could just say the tour operation and gift shop under a
tent,right,if that is what is being represented by the applicant.
Mr. Jung: You certainly could but before you guys start making potential amendments
to the staff report I would let the public...
Chair: Sure,we can come back to that if you don't mind when we come to the
conditions. Are there any other questions of the applicant? If not I would like to thank you and
I would like to call on the public,anybody from the public wishing to testify on this agenda
item?
Ms. Patty Valentine: Hello,my name is Patty Valentine. I am a resident of Moloa`a.
Thank you for this opportunity to give support to an excellent example of eco and agro-tourism
on our island, Ahonui Botanical Gardens. With so much prime agricultural land being
developed into private estates we should welcome as many garden and farms as we can. After
all this is the Garden Isle. I envision garden and farm tours across Kauai where they become
the magnet that draws more eco and green minded visitors to our island. It has been exciting to
witness the transformation of the Robertson's property from a Christmas Berry, Guava jungle to
the expansive,aromatic, and visual delight that it is today. There are plants to be seen, sniffed
and tasted. This is not a virtual garden where one where the plants are displayed as so many
specimens in a museum. This is a garden that engages you on the physical,mental,and
emotional levels. The in depth backgrounds and stories that are shared are the icing on the
cake. You might not be aware that many of the varieties at Ahonui Botanical Gardens are not
represented elsewhere on our island or even in our State. Having visited botanical gardens
across Hawaii I can report that these gardens offer unique plants and info about them that you
will not find elsewhere. Knowing that Ahonui offers botanical wonders to the plant people and
to all who visit the gardens I am proud and pleased to lend them my support.
I have additional testimony from my partner Michael that I would like to share also. By
opening the doors of their beautiful gardens the Robertson family has given a most precious gift
to both the residents and visitors of this island that we call the Garden Isle. When people visit
they are given more than just a beautiful collection of plants to look at. They are given the
chance to learn about the history,the legends, and the many uses of the various plants. They are
given a 3 hours course in the joys and wonders of the plant kingdom. Botanical gardens both
inspire and nurture the imaginations of the people who visit as well as educate and preserve.
Now more than ever before we need more botanical gardens and we need to cultivate more
gratitude and appreciation for the beautiful island, this divine planet. Hopefully Ahonui
Botanical Garden can continue to do just that mahalo.
Chair: Anyone else?
Mr. Michael Dunn: Good morning,my name is Michael Dunn. I am the next door
neighbor, 3828 Ahonui. I have spoken and written in opposition to this thing and I still feel that
way but it seems that the staff is tending towards wanting to approve this so maybe I should
switch and just beg for your mercy. The request for 6 tours is still way out of line with what
other people are doing. There are two tours that have 1 day per week,one has 2, a couple have
3,they are all just mornings. The only one that has more than 3 tours is Na Aina Kai and that
sits on 240 acres,they are only ones that are open in the afternoon. I beg mercy from you guys
to help us maintain our peace and quiet and limit this thing to just a couple mornings a week. I
guess we could live with that,thank you.
Chair: Anyone else wishing to testify?
Mr. Darma Whitman: Good morning my name is Darma Whitman and I actually live in
Kilauea and I want to keep this fairly short. I have known Bill and Lucinda and Jason for over
20 years. I knew them in California and I have watched this property transform into something
absolutely wonderful. My experience of Bill is extremely consciences and willing to work with
people,willing to work with his neighbors. I think that has been demonstrated by how he
working with you all this morning in requesting these permits. That is my first point. The
second point is I drive over to Bill's house quite frequently. I don't understand what this impact
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11
is. It takes 5 minutes to drive over there.The cars are parked not on the street,they are parked
on Bill's land. His next door neighbor Harvey who I would think would be the guy that is
complaining the most if this is a problem is in favor of this. So I don't quite get this impact, 5
minutes,the rest of time it is not like there is a microphone. I am a person who is very sensitive
to noise and it is not like a microphone where somebody is talking loud,there is not a lot of
music playing so I don't really understand this impact that the opposition is speaking about, it is
not clear to me how that would be impacting. The roads are paved. Many places where I drive
on this beautiful island are not paved. The roads are safe, everything is fine. It is a beautiful,
beautiful property.
The other piece for me that I feel quite strongly about, is I feel very strongly that we
need to educate the public more and more and I think Hawaii and in particular Kauai needs to
do this. This is the Garden Island, if you can't have botanical garden on the Garden Island in
Ag. land where can you have it? I am not an expert like you all are in planning but this seems a
very natural sort of thing to do. So I feel quite strongly,we do need to educate the public about
this and Bill has put a lot of effort and time and money trying to make this a really beautiful
place and he has succeeded. I frankly want to know more about the native species on this island
and I think we need the busi ess to come in,I think this will a little bit of money into Kauai but
more importantly it is a 73ol,we need to connect with our land more. Not just in Hawaii
but all over the United State, I believe, and I think Bill is in the forefront of really helping in
that and I support him 100 percent and I urge you to approve this permit. I think it is the right
thing to do for Kauai and I think it is the right thing to do for Bill and for this neighborhood as
well. I think it is a very,very important thing to do and I strongly urge you to approve it,thank
you.
Chair: Anyone else?
Mr. Mark Andre Ganyoum: Good morning Commissioners. I am Mark Andre
Ganyoum,a long time resident of Kauai,about 24 years now. I fully support the Robertson in
receiving a Special Use permit for the Ahonui Botanical Garden. We currently live next to Na
Aina Kai in Kilauea and our experience of having a botanical garden in our neighborhood is Owe
believe there is no negative impact. We feel safe with the amount of cars; safety on the road
doesn't seem to be an issue with us over there. The noise is not a concern. When the botanical
garden is open for free once a year it is packed with locals who enjoy it and are really interested
by it. We jog and I skateboard with my son and with our children up and down the street and it
is really quite safe. We find that the type of people that are attracted to these botanical gardens
are individuals that respect and care for nature. We are known as the Garden Island and I
believe that we should share this experience and knowledge with visitors at every opportunity.
This will help us sustain our tourist based economy.
I know that the Robertsons are very respectful of their neighbors and helpful in the
community. Bill recently lent me his dump truck to go clean up Kokee, I unfortunately had a
cabin up there which burned. He is always willing to assist others in the community. He has
helped us develop organic fertilizers for our specific needs on our farm. I know that the
Robertsons have opened their tour to children in our schools and I believe that the field trips to
botanical gardens are an important part of science education. I have experienced Bill's son
Jason to be well informed and passionate when he is sharing his knowledge of indigenous,
medicinal and invasive species. This is important information for our community as well as for
our own land. I know Bill has spent a lot of time and money in eradicating these invasive
species from his own land. I think committing to by appointment only,it is a walking tour, a
maximum of d tours per week, I believe we will have little or no impact to the neighborhood
and I fully support the Ahonui Botanical Garden permit being obtained,thank you for this
opportunity.
Chair: Thank you, anyone else?
Mr. Jack Smith: Good morning,my name is Jack Smith. I am a 25 year Kauai
resident. My 3 children were born and raised here. My degree is in natural resources
conservation and environmental education. I am employed at the garden 1 to 2 days a week. I
am a gardener's assistant. I have also been trained at Limahuli,NTBG and Kokee. I am very
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12
interested in the island supporting its self in a sustainable way. I am a biology teacher and
trained in caring about the education of our children and this garden supports everything that I
really believe in that makes Kauai special. It is a gem of our agricultural community, it
showcases the native Hawaiian plants,it gives people a place to witness and immense
complicated garden maintained totally organically which is very inspiring and I think extremely
unique in its self.
I have witnessed the tours come by while I am at the garden digging holes and other
things and everyone is just totally amazed and enthralled and comment about how natural and
beautiful it looks and how they are just totally impressed with it. I have lived in the area, I have
worked at the Princeville Ranch for a couple of years in the past and I have witnessed the
development of their process with the zip-lines and 6 wheel drive vehicles and all and here I can
hardly even notice the cars coming into the garden in the morning. I ride a bicycle up and down
the road, everyone is friendly,the road seems fairly adequate for the neighborhood. I spent a lot
of time looking at the issue and as much as I racked my brain I have really come to no
significant impact whatsoever that this place could cause and I totally recommend it as a stellar
piece of what Kauai needs to aspire toward.
Ms. Robin Tur uatti: Good morning,my name is Robin Turquatti. I have been a
professional gardener for 15 years here on Kauai. I was fortunate enough to have worked on
the Ahonui Botanical Garden from 2006 to 2008. The Robertsons have practiced excellent land
management and stewardship from the care taken not to disturb the natural features of the land
to the highest quality organic soil (inaudible). They have been very inclusive in hiring local
folks to work with them in designing and installing a stunning botanical garden free of invasive
species and rich with rare plants from Hawaii and the rest of the world. I know that
conservation efforts by private landowners are extremely important as State lands do not always
have the funding to protect such rare plant species. Too few private landowners have the
inclination to protect these treasures as opposed to development. We should all support families
like the Robertsons in their efforts to help preserve Kaua`i's natural treasures.
Kauai is in need of more eco-agro-tourism to educate residents and visitors alike. I
myself am invested in and working in ago-education. With the buzz word sustainable heard
everywhere people need an experience of what that word really means. For residents who visit
the garden they will learn about home composting, vermaculture, and organic practices that they
can take home,practice in their own backyard and start to produce more food from their own
small spaces. For visitors who come to the garden they will take with them valuable
information, inspiration, and locally grown and processed goodies to remind them of how
Kauaians are really invested in our precious and fragile environment. In Europe agro-tourism is
completely mainstream. People visit places simply because of local food specialties. Fewer
visitors to Kauai are satisfied with the same old activities of tour bus rides and canned
information. Eco-tourism activities like the Ahonui Botanical Garden are the types of activities
that we need more of so that visitors can take home the understanding that Kaua`i is on the
frontline of sustainable tourism and they can tell their friends. I offer my full support in
awarding the Robertsons the Special Use permit needed to continue their great work of
educating Kauai's visitors on how to connect with and respect nature.
Chair: Anyone else wishing to testify? If not could I have a motion to close the public
hearing?
Mr. Blake: So moved.
Mr. Kimura: Second.
Chair: All those in favor say aye,those opposed, motion carried.
On motion made by Hartwell Blake and seconded by Jan Kimura,to close public
hearing, motion carried unanimously by voice vote.
Chair: Kaaina, do you want to go ahead and conclude?
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Staff Planner Kaaina Hull read department recommendation (on file).
Chair: Thank you, what is the pleasure of this Commissioner, could I have a motion?
Mr. Blake: If we want to amend we accept first and then amend.
Mr. Dahilig: Motion to approve and then take amendments.
Chair: So if we want we can take a motion to approve and then amend each item should
we decide to do that.
Mr. Raco: Motion to approve.
Ms. Matsumoto: Second.
Chair: Discussion, does anybody want to discuss any possible amendments to the
existing conditions?
Mr. Raco: I will start with condition No. 1, as represented by the applicant could we put
and I guess this is a question for the Director, we could put language in there to say that the gift
shop would be operated under a tent.
Mr. Dahilia: Sure. So we could say gift shop facility shall be operated and constructed
as represented provided the gift shop is operated under a tent like structure. Would that
language work?
Chair: Anybody else wishing to..?
Mr. Raco: Do you want me to make a motion to?
Chair: Before you do that I just wanted to know if anybody had any other comments on
condition 1.
Mr. Kimura: Personally I think this is a beautiful garden with a variety of different
native Hawaiian plants and tropical flora but my first concern in this application is to deal with
flooding and safety. We cannot force the Army Core of Engineers to provide us with comments
however evidence has been submitted attesting the fact that this stream may have been altered
and if any alterations have occurred these alterations could obstruct the flow of water and create
flooding situations that could threaten not only the safety and lives of those individuals touring
the property but also the lives of people residing in the surrounding areas. My second concern
would be it has to do with the peace and comfort, nobody likes after the fact permits. You guys
know how I feel about that. But one thing beneficial about the after the fact permit is that we
get to see the types of impacts of the use on surrounding properties.
Testimony has been presented by neighbors and the use of this property for commercial
tours negatively impacts the surrounding neighborhood. The noise, the vehicular traffic,
generated by the commercial tours is overly burdensome for the neighbors and it should not be
allowed. My responsibility as a Commissioner in reviewing the use permit is to determine
whether or not the proposed use is compatible with the surrounding environment and neighbors.
My responsibility is to determine whether or not a use will be detrimental to the health and
safety and welfare of those residing in the surrounding areas. I find this negatively affect the
health, safety, and welfare of the surrounding area. Basically it is just the safety of the tours and
the people that live down stream because of the alternation of the stream.
Chair: That is read into the record. In the meantime going back to condition No. 1...
Mr. Raco: May I ask a question to Commissioner Kimura? So you would be in
objection of this application?
Mr. Kimura: Yes.
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Chair: Again we are back to condition No. 1. You read your recommendation, I think
we should treat each item separately and for those items that will not be changed we will just go
ahead and accept those. Right now condition No. 1, would you go ahead and repeat condition
No. i please?
Staff. Condition No. 1 will be amended to read, "The tour operations and gift shop shall
be operated as represented provided the gift shop is operated under a tent like structure."
Chair: What about the other part?
Staff. "Any changes to the tour operations and ancillary facilities shall be reviewed by
the department to determine whether Planning Commission review and approval is required."
Mr. Raco: So moved.
Ms. Matsumoto: Second.
Chair: All those in favor say aye, those opposed, motion carried.
On motion made by Caven Raco and seconded by Camilla Matsumoto, to amend
Condition No. 1,motion carried unanimously by voice vote.
Chair: Item No. 2, any changes?
Ms. Matsumoto: I wonder about the time from 9 to 5, hours of operation. I wonder if a
compromise would be to shorten the hours from something like 10 to 4 or 9:30 to 3:30.
Chair: That is your recommendation?
Mr. Kimura: With a 3 day minimum as they suggested?
Chair: We can come back to that. I just want to address that right now. Going back to
the applicant you heard the recommended times scheduling from either 9:30 to let's say 9 to 4,
or 10 to 4, or just condensing the hours of operation. Would you care to comment on that? Do
you have any objections to that?
Mr. Robertson: I suppose the issue my father is bringing up is just because we do get so
much rain in that area. We could technically probably meet those limits on good days closing
earlier with 2 tours but if it is super heavy rain in the morning it helps to be able to reschedule
the tour. It is a very small amount of guests so that kind of rearranging is usually easy but if
that is your condition to approve, we would ask that we stick with this but if that is really what
would hold you back from approving...
Mr. Robertson: Say if it rains in the morning and we start a tour at 1 or 2 and it is a 3
hour tour we will go to 5 but we will use every effort to get people out as soon as possible. We
like to get people in and do the tour and out quickly so that would be our full intention. A lot of
it is a factor of weather and rain on the North Shore, we are very sensitive to that.
Chair: Does that satisfy your...
Ms. Matsumoto: My suggestion for the hours I am just thinking about a neighborhood
situation where people like it quiet in the morning,they like it quiet in the afternoon. I
understand what you are saying about the weather and maybe that could be written into the
condition as well.
Mr. Robertson: Not to be disrespectful but his is agricultural land and I don't know if
they have an expectation for it to be completely quiet in the mornings and the afternoons when
you have cattle being bred right next to us starting before dawn and all these other activities. I
completely understand your concerns about this but I believe 6 tours, 120 guests per week is
very, very limited. We will try to end them before 4 o'clock as often as we can but I can't
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guarantee that if it rains and we have to run for shelter under the coconut trees that it is not
going to stretch out to 5 o'clock.
Ms. Matsumoto: I understand what you saying. I think the 9 to 5 timing was an attempt
to resolve the concerns with the community and so I was just offering a suggestion about
altering the times to keep peace in the neighborhood. But I also understand the fact that with it
being in an agricultural area there is work done early in the morning and also that there are
natural conditions of rain and other factors. Again you see where I am coming from it is just the
old idea of being able to do your business well and then to also live harmoniously with your
neighbors so that is all I want to say. I think the gardens are a wonderful idea and it looks like
you put a lot of effort into it. I am just thinking about maintaining the peace in the community.
Mr. Robertson: Is it possible to add language we will do our best to try to end tours by 4
o'clock but again sometimes just the nature of the tours themselves it just kind of draws out a
little longer.
Mr. Jung: I think if the Commission wants to impose a time restriction on the tours it
has to be a specific time restriction or else it would be virtually impossible to impose because
these conditions are enforceable.
Mr. Blake: I get the feeling from witness to witness that there may be some confusion
and maybe it is just in my own mind but I don't think anybody is opposed to a botanical garden,
anybody, here or in the audience because it is Ag. land. The concern comes with like I said the
intensification of a commercial use that was not considered or written into the neighborhood
conditions. So if you are going to have cattle drives through there all day every day there is
nothing that we can do about that,there is nothing anybody can do about that because it is Ag.
land. But this, what the applicant is asking for is something different from the standard Ag.
activity and the people that live in and around there that are not totally in agreement with the
tour concept seem to me to be objecting the that type of additional use. That is why there is a
use permit that is being sought for this operation. So the fact that you have machinery running
next door or processing or anything like that that is standard operating procedure for Ag.
enterprises is really neither here nor there on this. I appreciate what Commissioner Matsumoto
is saying about how you.want quiet in your neighborhood expect for what is beyond your
control. I was wondering about 5 tours a week, no more than 100 and Saturday, half day. But
that again is just a balancing act as far as what the neighbors or what all of the people in the
neighborhood agree to or live with. We are not going to agree with everything, what can the
live with.
Chair: So can we go back before we address that part, the days of operation. The first
one is the time from 9 to 5. Do you want to still amend those hours?
Ms. Matsumoto: Here is an idea. The tour operation shall be restricted to operating
within 9am to 4:30pm, is that appropriate?
Chair: Why 4:30, that is only a half hour.
Mr. Raco: What was your original recommendation?
Ms. Matsumoto: 9:30 to 3:30 or 10 to 4.
Mr. Raco: I would be in support to 9:30 to 3:30 and I think that is an equal balance.
Either way the applicant agrees or disagrees. That is a balance I can live with for this
application.
Chair: Is that the final recommendation? It just seems like an unusual time, 9:30, why
not 10 to 4? That is okay, whatever time that you folks recommend, 9:30 to 3:30. Does the
applicant understand the suggested schedule of 9:30 to 3:30? Is there any objection to that?
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Mr. Robertson: Could it be 9:30 to 4:00? I do understand wanted to end before 5:00. If
you have stragglers it is just hard to get people out sometimes and they are on the roads in the
afternoon. That is very reasonable.
Chair: I heard you comments, are we going to stick with 9:30 to 3:30? I need a motion
for that.
Mr. Robertson: It's really difficult like if we do a tour that starts at 9:30 to 10:00 for 3
hours, usually the person giving the tour likes to clean up and get ready for the next tour and
have a little bit to eat. So we won't be able to start our next tour, say the first one ends at 1:00
then the next one starts at 2:00 then we can cut the next one short but that is 4:30. It really
makes it tight.
Chair: Excuse me,thank you for your testimony right now we want to have a discussion
among ourselves.
Mr. Kimura: Based on what you just said he is talking 3 tours a day but it states that it is
6 tours per week so 9:30 to 3:30 shouldn't really be a problem.
Chair: 6 tours at the most so you can do 2 tours max.
Mr. Kimura: But it is only 6 tours a week.
Chair: Correct so it is 3 days of operation.
Mr. Kimura: What are the days of operation?
Chair: It changes, as you said you wanted flexibility to change between Monday and
Saturday.
Mr. Kimura: But 3 days a week Monday through Saturday and they pick 3 days.
Chair: Yes, because of the weather I guess, is that the factor?
Mr. Robertson: Mainly yes.
Mr. Kimura: So the actual time of 9:30 to 3:30 shouldn't really make that much of a
difference.
Chair: It is reasonable.
Mr_ Kimura: Because you can always pick another day if it is raining say if it is raining
today you can go back in on Wednesday and take 2 tours on Wednesday.
Chair: So if it is 9:30 to 3:30, before we have a motion on that I just wanted to take a
look at the entire condition.
Mr. Raco: So if I could make a motion to the entire condition. So the new condition
would read, "Tour operations should be restricted to Monday through Saturday from 9:30 to
3:30. Tours shall have no more than 20 guests,the maximum number of tours per week shall
not exceed 3 tours and the maximum number of weekly guests shall not exceed 120." And I
said 3 tours.
Chair: Could that be reread?
Mr. Raco: "The tour operation shall be restricted to Monday through Saturday operating
from 9:30 to 3:30. Tours shall have no more than 20 guests,the maximum number of tours per
week shall not exceed 3...
Chair: No, 6.
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Mr. Raco: I am proposing 3.
Chair: 3 tours all together?
Mr. Raco: Yes, this is my...3 tours and we can have discussion when the motion is on
the floor, "and the maximum number of weekly guests shall not exceed 120."
Mr. Dahilig: Commissioner, if I may, the way that language is being read if each tour is
restricted to 20 guests and there are only 3 tours allowed per week we either need to drop the
number of weekly guests down to 60. 1 guess on the department's behalf I do see the desire for
limitation but I think if we were to approach it a different way restricting the days which is what
the applicant sees as more amenable to and restricting it to maybe 3 days a week versus the
amount of tours per week that would probably be a little more clear and limiting rather than the
number of tours.
Mr. Raco: So 3 days per week.
Mr. Dahilig: Yes and leave it at 6 tours.
Mr. Raco: Okay, that would be my motion Chair.
Chair: One more time could you please read the...
Mr. Dahilijz: I will read it, "The tour operation shall be restricted to operating from 9:30
to 3:30, Monday through Saturday. Tours shall have no more than 20 guests. The maximum
number of tours per week shall not exceed 6 and the maximum number of weekly guests shall
not exceed 120 provided these tours are only conducted 3 days a week with one of those days
being a Saturday."
Mr. Raco: So moved Chair.
Mr. Kimura: Second.
Chair. Discussion?
Mr. Blake: So the only difference between what is stated by the planner and the
amendment is the times of operation.
Mr. Dahilig: Plus the number of days.
Chair: 3 days a week.
Ms. Matsumoto: Just for the sake of discussion the applicant did mention the need to
clean up and prepare for tours in between tours so 9:30 to 3:30 would cut it really short for them
actually in terms of a business. So 9:30 to 4:00 might be a more realistic time of operation.
Mr. Raco: But then 9:30 to 3:30 was just to conduct tours. If you alluding to
operations, were you saying operations?
Mr. Dahilig: Commissioner, as much as there is an operational issue I think it is
something that the applicant, I would recommend, work out that if they need to set up and reset
in between that they either hire the manpower or they make adjustments to their staffing levels
to address whatever they need to do to set up for toward that or adjacent to each other.
Ms. Matsumoto: Good idea.
Chair: So are we still stuck with 9:30 to 3:30, okay any other comments on condition
No. 2, if not I would like to call for the vote, all those in favor say aye, opposed, motion carried.
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On motion made by Caven Raco and seconded by Jan Kimura, to amend condition
No. 2, motion carried unanimously by voice vote.
Chair: Item No. 3 is the gift shop.
Mr. Dahilig: Mr. Chair, I would like to just add one to the end of the sentence, it would
read, "The gift shop shall be restricted to operating from 9am to 5pm", and we would want to
adjust that to 9:30 to 3:30 p.m., "and it shall be restricted to the sale of those products produced
at or associated with the subject property's existing botanical gardens." And then add the
language, "Provided further,the gift shop is operated only during the tour hours."
Mr. Raco: So moved Chair, as read.
Mr. Kimura: Seconded.
Chair: Is there discussion on that, all those in favor say aye, those opposed, motion
carried.
On motion made by Caven Raco and seconded by Jan Kimura, to amend condition
No. 3, motion carried unanimously by voice vote.
Chair: What about the other conditions? Do we need to go over the other conditions?
Mr. Kimura: I have one more comment. Based on the changes in the conditions I
wanted to change my vote on this application that I recommended earlier.
Chair: Going back to the main motion...
Mr. Raco: If I could have one more condition added,No. 9 that a yearly status report to
the fall Commission be provided.
Mr. Dahilig: This would be condition No. 10.
Mr. Raco: That is my motion on the floor Chair.
Chair: I heard you motion. Before we go with that motion I just wondered what is the
purpose if I could just ask of the status report—formally there is a motion, can you read that
motion again please.
Mr. Raco: Condition No. 10 would be to provide a yearly status report to the full
Commission.
Mr. Kimura: Second.
Chair: Discussion.
Mr. Raco: My reasoning is just to provide an avenue for neighbors to exhaust any
concerns that they have. It gives them an opportunity to allow us to give this Use permit an
update just to hear what is going on.
Chair: The reason why I asked you that is because I was thinking of putting time like 2
years they would come back and we would review the application after 2 years. But you would
rather go the route of just an annual status report?
Mr. Raco: I am okay with that too if we have a 2 year expiration and then they would
have to reapply. I am okay with that too.
Chair: I want to know if there is any discussion on that, are you folks comfortable with
a yearly status report as opposed to a 2 year...?
Mr. Kimura: I would recommend 2 years.
Planning Commission Minutes
May 24,2011
19
Chair. And I would be okay.
Mr. Blake: I have a question.
Chair: Before we go forward do you want to withdraw?
Mr. Raco: I can withdraw.
Chair: Go ahead Hartwell.
Mr. Blake: On the floor we proposed an annual status report so that we can keep track
of what is happening visa vi the people who are not in favor of this and we also have a
discussion about whether there should be a time limit on the extent of this Use permit.
Chair: I wasn't thinking of both though I was just thinking of one or the other. Not both
conditions.
Mr. Blake: We haven't voted yet have we?
Chair: No we haven't.
Mr. Blake: I like to have a limitation, some type of limitation placed on Use permits
because if they go on forever as we have been told before the permit runs with the land then
people tend to forget that it is a Use permit. The checks may or may not fall by the wayside or
fall through the cracks on the negative side. I think status reports, annual status reports protect
against that and they don't saddle the applicant with having to crank up all over again unless we
think it is necessary,we meaning the Commission whoever the Commission is at the time, so
we are not placing undue restrictions on business. I would be in favor of having an annual
status report.
Chair: I know you were thinking about retracting your motion but it seems like can we
just leave your motion on the floor?
Mr. Raco: What was your thoughts on having a 2 year?
Chair: I just wanted to have some kind of control.
Mr. Raco: So would that 2 year be terminated?
Chair: No,they would come back like we do with the helicopter situation where they
come back after 2 years and we review. But if Hartwell's point is that the annual status report
would serve the purpose of flushing out any concerns and problems of the neighbors, etc., then
it would serve its purposed,that is what you are saying.
Mr. Blake: I hope so.
Chair: We will take a short 10 minute recess.
Commission recessed at 11:07 a.m.
Meeting called back to order at 11:20 a.m.
Chair: We are calling the meeting back to order.
Mr. Raco: Chair, I am going to make a motion to withdraw my motion that I said
previously.
Chair: That motion wasn't seconded was it?
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May 24,2011
20
Mr. Kimura: I withdraw my second.
Mr. Raco: Then I would make a motion to read as the planner has crafted.
Staff: Condition No. 10 would read, "The use of the subject property to conduct
botanical garden tours shall be temporary for an initial period of 2 years. Additional extensions
may be granted for longer periods of time by the Planning Commission provide adverse impacts
are not generated that affect the public health, safety, and welfare as well as the surrounding
environment and conditions of approval area complied with."
Chair: Thank you, the applicant, do you concur?
Mr. Robertson: Yes.
Mr. Raco: Motion to move as read by the planner.
Chair: We need a second.
Mr. Kimura: Second.
Chair: Any discussion on condition No. 10, all those in favor say aye, opposed, motion
carried.
On motion made by Caven Raco and seconded by Jan Kimura, to add condition
No. 10, motion carried unanimously by voice vote,
Chair: We are going to go back to the main motion now.
Mr. Raco: The main motion was to approve, right Chair?
Chair: Yes.
Mr. Dahilig. To approve as amended.
Chair: Is there a second?
Mr. Raco: There was already a second.
Chair: We will have a roll call vote on this.
On motion made by Caven Raco and seconded by Camilla Matsumoto, to approve
staff report as amended, motion carried by the following roll call vote:
Ayes: Matsumoto, Blake, Kimura, Raco, Texeira -5
Noes: None -0
Absent: Nishida, Katayama -2
Not Voting: None -0
Zoning Amendment ZA-2011-3 (Draft Bill 23 86) proposes to add a new Article 28 to
Chapter 8 of the Kauai County Code 1987, as amended, to authorize the Planning Commission
of the County of Kauai to process and issue zoning_permits,use permits, subdivision approvals,
and variance permits for"transient accommodation units"pursuant to the provisions of Article
III, Section 3.19 of the Kauai County Charter=Kauai County Council [Hearing continued
2/8/11, Information-Only Workshop 2/22/11.1
Sgpplemental No. 1 Staff Report pertaining to this matter.
Staff Planner Marie Williams read supplement No. 1 (on file).
Chair: We will be taking a lunch recess now and we will be reconvening at 1:15.
Planning Commission Minutes
May 24,2011
21
Commission recessed for lunch at 11:52 a.m.
Meeting called back to order at 1:32 p.m.
Chair: I would like to ask the public if they have any comments in regards to this
agenda item.
Mr. David Dinner: I am David Dinner, Carl Imparato is away and so I am going to read
his testimony and then I will read a short testimony of my own if that is okay. "Aloha Planning
Commissioners,the Coalition for Responsible Government appreciates all the efforts that the
Planning Department has made on Bill 2386. The staff s proposed revisions to the bill
substantially improve the definition of transient accommodation units and acknowledge the
importance of dealing with the enormous bubble of projects that were approved in the past
decade but have not yet been constructed. We have not yet had the opportunity to thoroughly
analyze all of the changes that are proposed in the staff report, it was released last Thursday. I
am submitting our initial comments to your staff today but would like to take the opportunity to
briefly summarize these comments." He has make four points here that I will make to you.
The first is, "We would like to make it clear that the Charter amendment did not
establish any growth rate for Kauai (inaudible)the only requirement of the Charter amendment
was to make the approval of transient accommodation units contingent on the County Council's
making a finding that granting such permit would be consistent with the planning growth range
of the General Plan and in the best interest of the County and its people. No growth rates were
established by the Charter amendment. The matter of how to handle existing resort projects
remains a problem. In addition to the thousands of units that have already received approvals
but have not yet been constructed thousands of other potential units could fall into this category
if the definition is not careful to limit the status to only those projects that deserve to be vested."
By the way this is a summary of the testimony that I put in for Carl to the department. That was
rather long so he summarized it for me.
"We appreciate that the Planning Department has recognized the need to deal with the
leakage issue as noticed in the staff report considering just the already approved units,meaning
dealing with the bubble of close to four thousand transient accommodation units. And while we
do not want to imply that there is only one way to deal with the leakage problem we are
concerned that the proposed solution may inadvertently lead to ignoring the effects of thousands
of these units." This is discussed in more detail in our written comments and that is what I was
referring to. "We have several other concerns related to the revised definition of TVAUs,
whether the applicability language in section 8-28.2 in appropriately exempts large one unit per
lot subdivisions in the VDA and whether allowing applicants to go the County Council when
there are no more TAU certificates would be consistent with the language of the Charter
amendment. We hope that all of these matters can be addressed through further discussion
and/or a better understanding of what is intended.
In conclusion we believe that much progress has been made. We thank both the
Planning Department and the Commission for all the effort and patience that has gone into this
process to date and we hope that there will be more time to address the issues that we raised
before the Commission proceeds with the decision making on this item"And then if it is okay I
will read mine. "It is refreshing and momentous to see how the Planning Commission has
worked with the community in a effort to craft bill 2386 into a document that reflects the intent
of the Charter amendment. I was one of those people from the Coalition for Responsible
Government who stood for many hours at various places on Kauai gathering signatures from
passersby. I can tell you from my experience talking to people from all walks of life and from
the 63%vote for the Charter amendment in 2008 election that the will of the community is
clearly behind what you are doing. Anyone who reads this bill can appreciate the intricacy and
complexity of the task before you and applauds the work you have already done yet there is still
some work remaining. As you know in Carl Imparato you have a community minded and
brilliant resource. He is well versed and immersed in the details of the Charter amendment and
bill 2386. Please continue you work with him until bill 2386 is airtight and leaves no
opportunity to subvert it." I really appreciate the opportunity to speak to you today,thanks.
Planning Commission Minutes
May 24,20I 1
22
Chair: Thank you, anyone else wishing to testify on this?
Mr. Jonathan Chun: My name is Jonathan Chun. Thank you, the Planning Department
did a lot of work going into this. I think the efforts they made are very admirable. The only
comment I would like to make is on the exemption side prior to the CZO not all developments
were done through ordinances in fact a lot of them were done through variance permits so I
would ask the Planning Department to look at how prior resort developments were authorized.
The way it is written it assumes that we were all done under the CZO but for example my
client's project was built prior to the CZO and they just needed to get a variance permit that set
out the conditions of the construction and the improvements. And that was not done through an
ordinance that was done through variance permits and that changed with the CZO. We just
need to look at how those different developments came about in the different times, thank you.
Mr. Juniz: Mr. Chun is correct. Before the CZO was the interim CZO and in the interim
CZO they issued variances for everything like the Use permit or Class IV permit so we will take
a look at that.
Mr. David Arakawa: Good afternoon, my name is Dave Arakawa and I am testifying on
behalf of the Land Use Research Foundation. Again like Jonathan said we like to thank not
only the Planning Commission but the Planning Department and the Department of Corporation
Council for working very hard on this bill and getting it into shape where we can pass out and
go back to Council so thank you very much for all your hard work and concern. LURF is in
general support of but also has comments to this bill and we have five comments. The first one
is that we strongly support the portions of draft bill 2386 which address the vested rights issue
of resort projects which currently exist or are under construction and where substantial sums
have been expended on such projects in reliance on or pursuant to the conditions of visitor
destination ordinances, zoning ordinances. Or as Mr. Chun said, or other necessary government
permits or approvals because there are other ways you can get permitted and there are other
permits...well I will get into that.
Secondly, we note that in the Planning report at least twice there is reference to the fact
that the Charter amendment and the draft bill are inconsistent with the policy of the General
Plan regarding resort development and visitor unit growth and also inconsistent with the
purpose of the General Plan's planning growth range. So we would recommend that that
statement be included in the findings that you send back to the Council because the Planning
Department has said that many times and I think it is a fact worth noting in the background of
the legislative history of the bill. Third, we talked about this before, exempt means exempt,
non-applicable means non-applicable and we would argue that there is no basis to implement
transient accommodation unit caps or limitations on projects that are exempt or non-applicable.
If it is exempt it is exempt. You don't have to stand in line and get piecemealed out. If it is
exempt it is exempt.
Number 4 and this goes to what Mr. Chun talked about,we would recommend that on
page 9 of the bill, section 8-28.5.c.3 on page 9 there is a portion of the bill that has the word
zoning and it is underlined and what is crossed out is what was there before. And what was
there before said"or necessary governmental permits or", and this is part of the issue that Mr.
Chun was talking about. So we believe that the original language was good enough, it covered
zoning but it also covers these other types of permits that were granted in the past. So that is it
and the last thing is that we look forward to you folks passing out the bill and thank you very
much for all your time and effort. And I think working on this bill and this issue raises the issue
of the General Plan and really when it comes down to it we would recommend that the
administration and you folks can recommend to the administration that we start on the General
Plan update process because that would clear up a lot of these kinds of issues. Again thank you
for your time and thank you for your hard work.
Chair: Thank you very much. Anyone else wishing to speak on this agenda item? If
not I would like to have the Commission entertain a motion to close the public hearing.
Mr. Kimura: So moved.
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May 24,2011
23
Ms. Matsumoto: Second.
Chair: Any discussion, all those in favor say aye, those opposed, motion carried.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to close the
public hearing, motion carried unanimously by voice vote.
Mr. Dahiliiz: Commissioners what I would suggest is Marie in her report has outlined
the proposed amendments and done them by number, numbers 1 through 23 I believe and
maybe what would be the most advantageous for the Commission is to go through the
amendments, have Marie go through the amendments and if there are any questions on each one
or any concerns that, Chair,that would be the most expeditious use of the Commission's time.
Chair: Fine,
Mr. Blake: After watching the production by Marie and Lea, instead of the lottery first
come first serve, that was one change from then to now, the second was every five years there is
going to be the recalculation of what 1.5% is and the third was leakage. What is the definition
of leakage again?
1VIr..Dahilig: Let me take a stab at it and I will let Marie correct me. Leakage is the
class of TAUs that would not be under the Charter amendment so for instance let's say the
Department of Hawaiian Homelands decides to contract with a hotel owner and puts up let's say
400 timeshares out by Wailua right next to the golf course which is their property. That, from
the baseline in terms of how the, I guess the baseline that we are using DBET would be
calculating it they would include those 400 units in their visitor plant inventory. The notion of
leakage is to offset those particular types of projects that do not fall under our jurisdiction or our
authority. And so let's say that the visitor plant inventory form DBET was 10,000 units,
knowing that the DHHL project was online we would take a discount of 400 units and whatever
other units provided it is not more than 20% and then we would recalculate in the five year
period the 1.5% growth range for the next five year period. Also included in that class are
TAUS that are permitted in the VDA, for instance if you have a lot and you want to build one
TVR that would also be something that could be discounted. So that is where that notion comes
from is using the baseline, providing a discount to compensate for those approvals and those
units that are not within the jurisdiction of the County and then moving forward to recalculate
the 1.5%.
Mr. Blake: So assuming that the 400 units Hawaiian Homelands wants to put up are not
within the County's jurisdiction they are going to be added into this year's calculation of 1.5?
Mr. Dahilia: This is prospective; it is only for a prospective standpoint.
Mr. Blake: So if you didn't provide for leakage there would be this shadow amount of
development that is going on that isn't really discussed in the Planning Commission or Council.
Mr. Dahiliy,: I think it is really an aim and this was something that the Coalition for
Responsible Government did raise to really align growth, permit growth, to those that fall under
the definitions of the Charter amendment and so they suggested that discounting for those items
that are outside of the County's control or that are permitted by the County but not subject to the
Charter amendment should not be in the calculus in coming up with the growth range.
Mr. Blake: Should not.
Mr. Dahilig: Should not be in the calculus when calculating the new growth rate based
on the baseline. So essentially what we would then use in the 10,000 unit report from DBET,
the 400 unit build out from DHHL we would calculate 1.5% based on 9,600 units and not
10,000 units.
Mr. Blake: As a citizen that voted for the Charter amendment in an effort to limit the
amount of growth to 1.5%per year how does deleting leakage help instead of counting it in
because it is there anyway?
Planning Commission Minutes
May 24,2011
24
Mr. Dahilig: That is a good question and when we get down to the guts of it I think it is
a valid concern whether we are basing it off of real time, on the ground statistics or if we are
basing it off of what is a policy, a purported policy element that is woven into the Charter
amendment. And it is something, again, based off of feedback from the drafters of the
amendment in terms of how they saw based on the 1.5% so that is why that is in there. But you
have a valid point Commissioner.
Mr. Kimura: I have a question based on Commissioner Hartwell, DHHL has no limits
on the amount of TAUs they can have?
Mr. Dahilig: The Department of Hawaiian Homelands is not subject to zoning
requirements set forth by the County.
Mr. Kimura: So what the reason we have a cap on it if Hawaiian Homes can build as
much units as they want?
So what the reason we have a cap on it if Hawaiian Homes can build as much units as
they want?
Mr. Dahilig: It is limited to whatever lands are in their jurisdiction. I think a perfect
example of DHHL authority superseding County authority is the Wal-Mart, Target, and the
Safeway that was built in Hilo out in the Panaewa area. Under normal circumstances something
like that would probably have a very hard time getting through the County of Hawaii planning
process but because they are not subject, those are Hawaiian Homelands they are not subject to
County regulations. Only things like 343 and building codes.
Mr. Kimura: So they don't have to come in for rezoning?
Mr. Dahilig: No they don't. They pretty much just tell the County this is what we are
going to build,tough. No zoning permitting required.
Mr. Blake: (Inaudible).
Mr. Dahilig: We have no jurisdiction over Federal military lands.
Mr. Blake: (Inaudible).
Mr. Dahilig. I think it is a legitimate policy decision whether the Commission wants to
account for leakage or not but it is a public concern and we saw fit to try to recommend a
solution to it.
Staff: Let's begin with the proposed amendment section of the staff report and we will
start with amendment 1. Would you like me to go over each and every single amendment even
if the amendment came from the previous staff report or only the new amendments?
Chair: I think only the new amendments.
Staff: Beginning with amendment I and this would be under section 2, the findings, we
just wanted to clarify that the draft bill is in fact inconsistent with the stated policy of the
General Plan for resort development and visitor unit growth which if you remember actually
said that we were to encourage growth within the VDA. And because of this, this doesn't
necessarily implement the General Plan and the statement would be amended to read, "The
Council of the County of Kauai finds that by amendment to the Charter which became
effective on December 5, 2008 a new section 319 was added to the Charter in order to establish
growth rates for transient accommodation units derived from the visitor unit demand study
conducted for the General Plan."
Moving in, amendment No. 3,that is the second new amendment. "The Planning
Department proposes a five year allocation period in which to distribute the available TAU
Planning Commission Minutes
May 24,2011
25
certificates via a chronological or first come first serve basis. Therefore the following
amendment should be made to reflect the change from an annual lottery to a multi-year
allocation period. The new following definitions are needed to implement the system while the
obsolete definitions of growth rate and growth rate year should be deleted in those definitions."
And this is in section 8-28.1, "Our allocation base year which means prior to the start of the
allocation cycle which means a recurring five year period beginning January 1 St of the first year
and ending December 31St of the fifth year. Pro-rata allocation means the number of transient
accommodation unit certificates equal to 7.73%of the transient accommodation unit inventory
in the allocation base year or one and one half percent average annual growth rate in the
transient accommodation unit inventory during the allocation cycle." And the last new
definition is"Transient accommodation inventory which shall mean the State's official census
of visitor accommodations also known as the annual visitor plant inventory for Kauai County."
Any questions?
We will move on to the third new proposed amendment which is amendment 14 in the
staff report and this is in section 8-28.3 which is the availability of transient accommodation
unit certificates. "In order to account for the leakage of growth and the TAU inventory
facilitated by non-applicable and exempt processes the periodic allocation will be adjusted
accordingly to ensure that some TAU certificates will always available and to avoid a
moratorium only 20% of the pro-rata allocation in any given allocation period can be used for
this purpose. The following edits reflect this change,"and these are two new sections we are
proposing, (b) reads, "The TAU certificate allocation shall be equal to the pro-rata allocation
and the total number of respective TAU certificates not certified and issued and those TAU
certificates which have lapsed." And(c)reads,"If the TAU inventory increased at a rate that
exceeded a one and one half percent average annual growth rate between the existing allocation
base year and the previous allocation base year then the excess units will be debited from the
transient accommodation unit certificate allocation. No more than 20%of the transient
accommodation unit allocation may be used for this purpose." We actually would like to
propose an amendment to the last sentence that I just read and this is on page 6 of the draft bill
as amended.
Mr. Dahilia: Commissioners,we would suggest that in the last sentence it should read,
"No more than 20% of the TAU allocation,"and then we would write the words, "in any
allocation cycle may be used for this purpose." So just to firm up the intent of that section, in
any allocation cycle.
Staff. Are there any other question? Moving on to the fourth new proposed amendment
which is amendment 15,the following corrects references to transient accommodation unit
certificate reflects the amended definition of allocation cycle by adjusting the timeline
accordingly and removes some confusing language. The new section(d) would read,"The
Planning Commission upon recommendation by the Planning Department must adopt the total
number of TAU certificates available for issuance to all perspective applicants in the applicable
allocation cycle before January 31St of the first year of the allocation cycle." Moving on our
fifth proposed new amendment,amendment 16, and this is simply shifting this section from the
process section to the section that deals with how we compute our TAU certificates,the number
that we will be allowing people to apply for. So we are just simply moving this section from
one section to another.
Moving on to our sixth proposed amendment, amendment 18,"The following revisions
reflect the change in the allocation system from a lottery to a five year period by adjusting the
timeline accordingly and clarifies that received permit applications must be complete." And
this is under section 8-28.4, Transient Accommodation Units Certificate Allocation Process.
And it would now read, (a), "Applications for more than one TAU certificate must be
contemporaneously submitted with a complete application for a permit set forth in section 8-
28.2. These applications shall be only be received by the Planning Department on or after the
first business day following the Planning Commission's adoption of the number of available
TAU certificates for the allocation cycle. Applications shall not be accepted by the Planning
Commission when transient accommodation unit certificates are no longer available in the
applicable allocation cycle." And then(b),"Transient accommodation unit certificates shall be
allocated in chronological order." Any questions?
Planning Commission Minutes
May 24,2011
26
Mr. Blake: (Inaudible) submit your application and you are either too late, half an hour
late, or there are just no more certificates to be allocated the applicant can appeal to the County
Council?
Staff: Yes, you either wait if you want to continuing applying to the Planning
Department you would have to wait until the next allocation is available or we have added a
provision in the draft bill that I haven't come to yet that would allow you to...
Mr. Blake: I will just wait until you get to that.
Staff: We are actudlly getting to it right now, amendment 19, "Pursuant to Charter
section 319 (a) and (b)the following provides applicants the option of submitting a zoning, use,
variance, or subdivision application for more than one TAU to Council should they require
TAU certificates in excess of what is available during the allocation period." And it would read
in the new section(c), "Should an application exceed the number of available TAU certificates
established by the Planning Commission in the applicable allocation cycle the applicant may
apply for either a zoning, use, subdivision, or variance permit for more than one transient
accommodation unit pursuant to Charter section 319 (a) and (b)." Any questions?
Mr. Dahilig: This really comes as a function of the authority that is vested in the
Council. As we said from the get go this ordinance should it pass by the Council is a delegation
of their authority and the way that the Charter amendment is written it limits their ability to
delegate that authority to only 1.5%. However they still have the supreme authority to go above
1.5% if they make a finding that the proposed project is consistent with the planning growth
range of the General P1 n. And so this is just clarifying their authority, they still hold all the
cards beyond the 1.5%pursuant to the Charter in that if our allocation is used up at this level
that they can still try to proceed with the project by appealing to the Council.
Mr. Blake: So if there is not enough for my project and I want to get dispensation from
the Council for more units and they say yes you can have 300 more units does that come off the
next allocation next year or is that another leakage?
Mr. Dahilig: That is a good question.
Staff. If those units are constructed and they become part of the number of TAUS we
count during the base year then yes, that would considered growth beyond the 1.5% average
annual growth rate. And up to 20% of the next allocation of TAU certificates would be used to
sort of pay off that debt so to speak. So it would be accounted for as long as it gets into our
TAU inventory it will somehow be accounted for.
Mr. Blake: The 20% is a fixed amount or does the Council have the authority to go over
20%?
Staff: The 20%relates to the amount of the TAU, allocation of TAU certificates that
this Planning Commission will adopt every five years so it wouldn't really be something that
applies to Council. I think the one number that Council would be concerned with should we go
through with this provision would be what is the planning growth range because they would
have to find consistency with number whatever it is.
Mr. Dahilig: Marie, are you going to hit up 21 next?
Staff Yes.
Mr. Dahilig: Let me handle this one. The 21St amendment relates to a consistency with
the rest of the section which allows existing resort projects to apply for exemptions based on
zoning ordinance approvals and also reflects the amended definition for substantial (inaudible).
Based on some of the testimony that was presented this morning we did refer with Council
concerning a little more tweaks to this section and I recommend the following language be read.
It should state, `Either the owner or the owner's predecessor in interest,"and then it would say,
Planning Commission Minutes
May 24,2011
27
"must have obtained governmental approvals for and expended substantial sums on any of the
following prior to December 5, 2008 in reliance on the terms and conditions of those
approvals." I think what is reflective is the gambit of different types of approvals that have
been given by the County like for instance variances, zoning amendments, subdivision
approvals, and either the construction or the donation of land or the giving.or money in reliance
of those approvals.
Again what we are looking for is the signature elements of vesting. And so to clarify
what that vesting is we recommend that language to capture again that gambit of approvals
because if we limit it just to zoning there are certain circumstances were there have been
subdivision approvals that have been given and infrastructure has been put in or a variance has
been given and money has been given to the County to build a recreation center. And so again
it is that reliance on a governmental action prior to December 5, 2008 that we are looking for,
for the element of vesting. Let me just read it one more time for the Commission's pleasure. It
would read, "Either the owner or the owner's predecessor in interest must have obtained
governmental approvals for and expended substantial sums on any of the following prior to
December 5, 2008 in reliance on the terms and conditions of those approvals." That would be
what the language says. We would actually take out the words"even necessary governmental
permits," and we would strike out the word"zoning"because we believe that the word zoning is
a little too limiting given what the County has passed in the past.
Mr. Kimura: Taking out zoning.
Mr. Dahilig: Zoning and the word"necessary", "zoning, necessary permits", and you
would leave the word"approvals". And we add the language"in reliance on the terms and
conditions of those approvals." "In reliance on the terms and conditions of these approvals."
Staff. Moving on to amendment 22,the following amendment establishes the burden of
proof as established in the Rules of Practice and Procedure of the Planning Commission adding
some language to (d) under the exemption for existing resort projects, "The owner shall have
the burden of proof in establishing by a preponderance of the evidence that the existing resort
project is exempt." Amendment 23,this is a brand new section, the following amendment
allows for existing resort projects to adjust their boundaries through the subdivision process
generally termed as boundary adjustments to reconfigure lots or parcels provided no new TAU
density will be created after the consolidation and/or re-subdivision." And the new (h), would
read, "Notwithstanding any other provision contained in this article 28 the boundaries of an
existing resort project which is exempt under this section 8-28.5, exemption for existing resort
projects, may be amended by consolidating the exempt project with one or more adjacent lots
pursuant to Chapter 9 of the KCC provided however the transient accommodation unit density
of the exempt project and the adjacent lot shall not exceed the established TAU density of the
exempt project prior to consolidation. Upon consolidation under these terms the exempt project
on the new lot or parcel shall be exempt pursuant to the provisions of this section 8-28.5." And
that was our last new proposed amendment.
Chair: Any questions for our planner?
Mr. Blake: I have a question for Mike. How often is the General Plan supposed to be
updated?
Mr. Dahilig: By ordinance the General Plan is supposed to be updated every 10 years.
That historically has not been the case.
Mr. Blake: Would it be of any value to somehow tie the allocation numbers to the
update?
Mr. Dahilig: It actually by function of the Charter does to that,that the adoption of a
new General Plan with a new planning growth range or a new baseline or something of that
matter would change how we would essentially calculate all these numbers.
Planning Commission Minutes
May 24,2011
28
Mr. Blake: So if the General Plan doesn't get updated for 15 years or 20 years is there a
cutoff because it has not been updated?
Mr. Dahilig: Unfortunately no Commissioner but the good news is that we did get
funding if the budget does pass to start the technical studies for a future General Plan update so
the ball in moving.
Mr. Blake: So the update that is in the mill right now, what happens to it?
Mr. Dahilig: You mean the one that was passed in 2000?
Mr. Blake: Right.
Mr. Dahilijz: That still is in enforce and effect of law but because this particular Charter
amendment deals with a future General Plan update triggering the change we are right now
having to interpret what the phrase planning growth range means in the context of what existed
in the 2000 update. Did I say that right Marie?
Staff: That's right.
Mr. Dahilig: I hate to veer off topic for a second but I do want to recognize Marie, she
is our department's employee of the year this year. So that would be our recommendations and
if you wanted to read the conclusion and the recommendation for the Commission.
Staff Planner Marie Williams read conclusion and recommendation (on file).
Chair: What are the wishes of the Commission?
Mr. Kimura: Move to approve.
Mr. Blake: Second,
Chair: Any discussion?
Staff: How do we incorporate the amendments that we just proposed?
Mr. Dahilig: I guess move to approve with oral recommendations.
Mr. Kimura: Move to approve with oral recommendations.
Mr. Jung: I think you have to clarify the amendments you read into the record.
Mr. Dahilig: It would be two changes, one would be respect to the staff report item No.
14, the inclusion under section (c), the language would then read, the last sentence, "No more
than 20% of the transient accommodation unit allocation in any allocation cycle may be used
for this purpose." So that would be one change. The other change would be to amendment No.
21 and it would read, "Either the owner or the owner's predecessor in interest must have
obtained the governmental approvals and expended substantial sums on any of the following
prior to 12/5/08 in reliance on the terms and conditions of these approvals."
Chair: Commissioner Kimura, could we...?
Mr. Kimura: I withdraw my motion.
Chair: And withdraw the second. Hartwell would you want to withdraw your second?
Mr. Blake: Sure.
Chair: Could we have another motion?
Mr. Kimura: How do you want me to say it, as read by the Director?
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Mr. Dahilig. I think that is fine, staff report with amendments as read by the Director.
Mr. Kimura: I make a motion, what was that again?
Mr. Dahilig: Approve the staff report with...
Mr. Kimura: The staff report as read by the Director.
Mr. Dahilig: With amendments as read by the Director.
Chair: I need a second.
Mr. Blake: Second.
Chair: Any discussion, all those in favor, do you want to take a roll call? Go ahead and
take a roll call on this please.
On motion made by Jan Kimura and seconded by Hartwell Blake, to approve the
staff report with amendments as read by the Director, motion carried by the following roll
call vote:
Ayes: Matsumoto, Kimura, Blake, Raco,Texeira -5
Noes: None -0
Absent: Nishida, Katayama -2
Not Voting: None -0
Mr. Dahilig: Thanks again Marie for all your hard work.
Mr. Blake: So this now goes to the Council?
Mr. Dahilig: Yes sir. With that Mr. Chair I recommend we go back to items A.I and 2
and they are executive sessions as proposed by the County Attorney's office.
P_ ursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4) and Kauai County
Charter Section 3.07 the Office of the County Attorney requests an executive session with
the Planning Commission to discuss legal claims and remedies associated Civil Case No. 08-1-
0006 regarding WAYNE R. DANIEL, Individually and as TRUSTEE OF THE WAYNE R.
DANIEL SELF-TRUSTEED TRUST DATED FEBRUARY 18 1999 v KODANI AND
ASSOCIATES, INC., a Hawaii corporation, and CLYDE T. KODANI• COUNTY OF Kauai
PLANNING DEPARTMENT IAN K. COSTA IN HIS OFFICAL CAPACITY AS THE
DIRECTOR OF PLANNING et. al. This briefing and consultation invol.ves 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.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to defer to
6/14/11, motion carried unanimously by voice vote.
Pursuant to Hawaii Revised Statutes Section„92,-4 and_ 92-5(a)(4) and Kauai County
Charter Section 3.07E the Office of the County Attorney requests an executive session with
the Planning Commission to discuss legal claims and remedies associated 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 power, duties,privileges
immunities, and/or liabilities of the Planning Commission and the County as they relate to this
agenda item.
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On motion made by Jan Kimura and seconded by Camilla Matsumoto, to defer to
6/14/11, motion carried unanimously by voice vote.
Mr. Kimura: Can I request for a new...with the changes already made,the new
amendment at the next meeting. I know we already approved it but I would like to have it as
read.
Chair: Yes, for everybody.
For Acceptance into Record—Director's Report(s) for Proiect(s) Scheduled for
Public Hearing on 6/14/11.
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 K61oa Road in K61oa, situated approx. 300 ft. west of its intersection with Maluhina
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 pertaining to this matter.
Class IV Zoning Permit Z-IV-2011-09 and Use Permit U-2011-09 to operate a beauty
salon at a property located in Waipouli, Kauai, approx. 125 ft. north of the Kuhi`6 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.
For Acceptance and Finalization--Director's Report for Shoreline Setback Activity
Determination. (NONE).
ADOURNMENT
The Commission adjourned the meeting at 2:25 p.m.
Respectfully Submitted.
44; f
Lani Agoot
Commission Support Clerk
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