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HomeMy WebLinkAboutpcmin2-22-11 KAUAI PLANNING COMMISSION REGULAR MEETING February 22, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, James Nishida at 1:15 p.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room.2A-2B. The following Commissioners were present: Mr. Herman Texeira Mr. Jan Kimura Mr. Hartwell Blake Mr. James Nishida Mr. Caven Raco Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: Can I have a motion to approve the agenda? Ms. Matsumoto: So moved. Mr. Texeira: Second. Chair: Before we go on we wanted to move the executive session to the end of the meeting, can you make that change? Ms. Matsumoto: Move to accept the agenda with the change as made. Mr. Texeira: Second. Chair: Moved and seconded, any discussion, all those in favor say aye, opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to approve the agenda as amended, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Camilla Matsumoto and seconded by Herman Texeira, to receive items for the record, motion carried unanimously by voice vote. COMMUNICATOIN (NONE) UNFINISHED BUSINESS Use Permit U-2011-6, Variance Permit V-2011-1 and Class IV Zoning Permit Z-IV- 2011-6 to permit the construction and operation of a telecommunication facility that includes a 165 ft. high stealth mono,pine (a monopole designed to look like a pine tree) and associated equipment at a site located on a cane haul road gpprox. 90 ft. north of the cane haul road's intersection with Kaumuali`i Highway intersection, said intersection is located approx. 1.7 miles west of the Kaumuali`i Highway and Khpu Road intersection, and aprox. .40 miles north of that's area eg nerally referred to as Halfway Bridge, further identified as Tax Map Kew 001:003, and affecting a 600 sq. ft. portion of a 2,688.037 acre parcel=SprintlNextel. [Director's Report received 12/14/10,hearing closed 1/11/11, deferred 2/8/11,1 APR 12 2911 Supplement No. 2 to Planning Director's Report pertaining to this matter. Staff Planner Kaaina Hull read Supplement No. 2 to Director's Report(on file). Chair: Questions for Kaaina? Can the applicant come forward? Mr. Karl Young: Good afternoon, Karl Young, Sprint/Nextel. Chair: Do you have anything to add to the report? Mr. Young: No there is nothing else to add. Chair: Questions for Karl? Mr. Blake: So at 175 feet... Staff. 165. Mr. Blake: 165, which would be a little over twice the outright permitted size, and you are able to come down to 150, so at 149 it doesn't work. Mr. Young: Well I don't know the specifics to the exact amounts. They did say that 150 would work. At some point it doesn't make sense. Mr. Blake: At what point is that? Mr. Young: I think they have drawn the line and said 150 is as far as they can go down because it doesn't see over the hill properly going towards the Tree Tunnel. Mr. Blake: Say that again. Mr. Young: The site, if it were lowered too much there is a gap in the hill going toward the Tree Tunnel that it wouldn't see over so it has to see through that gap and going towards the Tree Tunnel in order to fulfill the coverage objective. Mr. Blake: And according to your calculations that is 150 feet. Mr. Young: That is what the RF engineer determined, yes. Chair: Other questions for Karl, thank you Karl. Anyone in the public want to speak on this agenda item? Seeing none what does the Commission want to do? Ms. Matsumoto: I have a question, this is to the applicant, you know the placement of this proposed pole, is it going to be in a depressed area or is it going to be in a higher area? When you say 150 feet,at the end will it be from the level of the road 150 feet high or is it going to be lower than the road? Mr. Young: It is basically the level of the road at that point so the road does slope up so it is basically the same level of that road at that area. Mr. Blake: Where exactly is the gap you are talking about? Mr. Young: Going towards, as you come down to Halfway Bridge... Mr. Blake: From Lieu`e? Mr. Young: From Lzhu`e,you hit Halfway Bridge, there is the quarry, then you start going up and then they carved into the mountain a gap. And so to see through that there is a rise in the road of over 100 feet from that point so in order to fulfill both objectives going back towards L-ihu`e and also towards the Tree Tunnel which we don't have coverage right now,just Planning Commission Minutes February 22,2011 2 to make it over that you have to have a certain amount of height just to clear it. And so that additional 50 feet is what is needed. I think they said it is 33 meters or something and so that is an estimate based on what they have from satellite mapping and so to give an exact number, I think you are trying to get something real exact. It is part art, part science and so there may be something perfect but they are not exactly sure what it is, they are trying to be safe and have something that at least provides the basic minimum. Mr. Blake: So you are asking for a variance of double the 70 feet. Mr. Young: 80 feet, basically. Mr. Blake: 80 feet, excuse me, you are right. Chair: Any more questions? Mr. Texeira: At the last meeting I asked you about if you had exhausted all possible other locations. Can you respond to that? Mr. Young: Yes we have. We have exhausted other locations. There are other locations possibly available but there are prior negotiations that give Verizon primetime rights over us so we don't know, I think I mentioned at the last one,we don't know if Verizon is going to build it. They have a permit to build it but we don't know when they are going to build it and they have an unlimited amount of time to do so. So there is a possibility to build something next to them, possibly, but that hasn't been the policy in the past. Mr. Texeira: I think you also mentioned the Humane Society property as a possible site, what came out of that? Can you discuss that particular site? Staff: I think Karl the representative for Sprint discussed the possibility of that site but it wasn't per say concerning Sprint necessarily it was I believe a different telecommunication provide that was looking into that site and Sprint was exploring the ability of collocating at that site if that site is permitted and eventually constructed. Mr. Texeira: And you felt that collocating at that site was not a practical solution? Mr. Young: Given the facts that we have them, as they are, it is something that could be done. We would have to.enter into an agreement with Grove Farm. We believe we could do that. Verizon currently has entered into an agreement with them, I think that was brought up the last time that, Michael mentioned,that is basically not a matter of fact at this point because it hasn't taken place. So to have us collocate, it is not something that is there. If we were to build something it was also stated that there is no outright rule that says that you cannot build a separate pole and it would have to be taken on a case by case basis. So going on whether or not it is possible or not, it is possible. Based on our experience and the experience that Sprint has to date it doesn't sound like it would be something allowed given the leaning towards not allowing more than one antenna site in one area. If they were to apply for a permit right away then one, they would have to get approved for that, two, they would have to allow us on and three, they would have to build it so there are a lot of ifs standing in the way of that. So it is possible but will we be able to do it in the timeframe needed for all those elements to take place, we don't know. It is possible if they move very quickly but already we have been pursuing this for about 2 years now so it makes it very difficult. Mr. Texeira: Mike,that collocation issue at that site, does Planning have a problem with that? Mr. Dahilig: We don't necessarily have, let me back up,the notion of collocating is something that started to come to a head when we were looking at the Kamakani type of situation. Obviously it is something that when you look at the approvals that have been recommended by the department historically has moved more towards the collocating idea versus the separate poles. The problem that we have with collocation in this particular instance is that there is no pole there that Verizon has put up yet and while we would maybe want to see Planning Commission Minutes February 22,2011 3 more collocation and possibly if Verizon does put up a pole that a collocation would be an appealing way to go about installing these antenna. We have no time schedule nor do we have the authority to actually tell.Verizon put up a pole. And when they are going to do it, God only knows. And so it speaks as I mentioned at the last meeting about that larger issue of permitting and monopolizing areas to force other carriers to go into less desirable areas. We understand and based on the testimony from Sprint there is a catch 22 that is involved and there may be a game that is being played,who knows,but we don't want to be put in a position where our permits and our permitting becomes a sword versus a shield. Mr. Blake: A what? Mr. Dahilia: A sword versus a shield,where you get the entitlement and then you block someone out from being able to go and collocate on the site because there is no pole there. I wouldn't want to rule out the possibility that lets say if they came in with an application to put a second antenna right next to where the Verizon site and they get the approval from Grove Farm to do that,that that would be out of the question. I wouldn't want to say that. It is something that we would have to take on a factual basis and on a case by case basis before I would say that we would allow a second pole or force a collocation. Staff: In addition I think some of the discussion got a little mixed there in the sense that Verizon has been permitted a pole near the Kahili Mountain Park however it has not been constructed or is it in operation. Concerning the Humane Society and that is what the Director is referring to,in a sense that we will indeed and are looking at recommending in telecommunication sites where we feel it is appropriate recommending a timeline requirement where construction operations happen by a certain time period in order to dissuade of prevent monopolistic completion. But concerning the Humane Society pole and I think the Director went into that at the previous meeting is no permit has actually been applied for and until that time the department can't really speculate on whether or not it is a compatible use at a certain height given that it needs to be done on a case by case review. And so to even speculate rather or not it would be compatible,the department can't go into that right now because there is no application. Mr. Texeira: Could Sprint do an application, let me ask you that question. All things being equal would the Planning Department as you said it is like a catch 22 here,they can't respond until an application is submitted but you wouldn't be open to putting up a separate pole on that Humane Society site? Mr. Young: Sure,we would be open to doing that but that has to be discussed with the landlord as well so we have to cross that hurdle. We have not initiated discussions regarding them having two poles on their property either. So for me to comment and say that that would happen as opposed to being willing to are two different things,most certainly we are willing to. There is no difference,in fact we would much rather,it is much cheaper but whether or not they would be willing. The landlord is in an odd situation as well because they have already entered into an agreement with Verizon. Verizon has not entered an application in. I don't know how much detail,I can't give too much about it but the height proposed does not meet our requirements so it would have to be larger. So they would have to do that in the event of collocation and they would have to agree to give us a higher position. That is very difficult for carriers to agree to,for one. Then we would have to ask Grove Farm if let's say we were to enter into an agreement after Verizon would they allow us to put a second pole,we don't know that. That discussion hasn't come up because we didn't think of that as an option based on the past history. Mr. Texeira: For me personally my concern is are you exhausting all possible avenues because what we are doing is we are thinking about allowing a 150 foot pole as opposed to collocating. That is the trade off that we are looking at so my personal concern is I would prefer that you look at other avenues at this point. Chair: Herman, at this point let me clarify something with Kaaina. The department's stand previous to this series of meetings is the department didn't want more than one antenna in a site. They didn't want an antenna farm kind of situation. Planning Commission Minutes February 22,2011 4 Staff: Just to clarify Chair,the department has generally stood by the position that it wants more than one antenna at one site on one specific pole as opposed to several poles. Chair: So that is a collocation thing, you want the antenna posted on the antenna,the different company's antenna on the antenna and that is what you call collocation. Now if somebody carne up with a separate antenna project you weren't encouraging that either without the collocation having been done, right? Staff: We would generally prefer that they, if it is at the exact same spot we would generally encourage that applicant to collocate on the existing facility. Mr. Texeira: You mentioned about trying to prevent monopolistic practices and so they are being held hostage by Verizon because there is no guarantee. Chair: I think the reason I was saying that is because I think we (inaudible)turn him down because we cannot tell him to go to the other guys. Mr. Texeira: We can just say that it is an option that they can do on their own without us suggesting anything. I am just saying that if we want to prevent monopolistic practices if they apply for separate poles why wouldn't we consider that as an option. Mr. Dahilig: Again it is something that we cannot make a determination on without being able to see what the engineering would be, what it would look like, what is the height, where exactly in relation to the other pole would it be because we have no pending application before us. I guess the standard line would be we are open to entertaining any other proposals at this point but we still stand behind our recommendation. Mr. Blake: Right now there is no other pole, right? Mr. Dahilig: Right now there is no other pole and there is no timeline. Mr. Blake: And they are not doing anything for the public good,they meaning companies other than who we are addressed with today, nothing. So the question can he collocate with anybody else the answer is no and it is no right now, it was no last week, and it is no tomorrow. How soon are you planning to build? Mr. Young: We would go for a permit immediately, a building permit, and as soon as we get approval we would build it right way. We have to use the funds. I think I mentioned at the last meeting Sprint applied for and received Universal Service Funds. I think I put the designation form in the application showing that that is a bonafied designation,the LETC designation and they did receive the funds for the site so they have to use it. Mr. Blake: By when? Mr. Young: I don't know exactly but they go before the PUC all the time and they have to show what they are doing with these funds in solving the problems that they have petitioned the funds for. And it has been for about two years they have had these funds for this purpose. Mr. Blake: So looking into your crystal ball if you built yours first would Verizon comes to see you for pole space? Mr. Young I don't know that, I don't know. Everybody's engineering network is a little different. Mr. Blake: Because like I said last time I have asked Verizon personally when are you going to do something about that dead spot and they say oh, don't worry, soon. That was in the 90s. So if you take the long view I guess soon could be who knows when. Planning Commission Minutes February 22,2011 5 Chair: Other questions for Karl or Kaaina? What does the Commission want to do? Options are to approve the report... Mr. Dahilig: The options before the Commission is either to accept our recommendation or in the alternative you can ask the department if you would like to take a look at, if the Commission would like to move down the path of issuing the permit. If the Commission would like to move down the path of entertaining approval of the application versus the denial which is what we are recommending we can provide draft conditions for the Commission to entertain. Mr. Blake: So you want a motion right now Jimmy? Chair. Yes. Let me clarify, so the motion can be to approve and amend the Director's report, either way? Mr. Dahilig: It can be to... Chair: So we can vote on an amendment to the report and vote on the main report as amended or how do you want that? Mr. Dahilig: What I would suggest is that the Commission would still receive the report for the record. Chair: I thought we already did that. Mr. Dahilig: I guess just formally one more time, receive this Director's report for the record and then request that the Commission on its own be assisted by the department to come up with conditions for approval which we are ready and able to do. And that would be the conditions of the permit. . Mr. Blake: I move to receive the report. Chair: Any second? Ms. Matsumoto: Second. Chair: Moved and seconded, all those in favor say aye, opposed, motion carries. On motion made by Hartwell BIake and seconded by Camilla Matsumoto, to receive Supplement No. 2 to the Planning Director's report, motion carried unanimously by voice vote. Mr. Blake: I move to amend the report to permit the request as it stands today with conditions to be imposed by the department. Mr. Jung: I think the Director's report recommended denial. If you want to flip that you certainly can, it is within your prevue to approve an applicant's project request. You would have to come up with conditions, if you want to have the Planning Department get a set of standard conditions that are normally applied to these types of projects we can take a recess and get them. And if you want to make a motion to approve with attached conditions you could have the Planning Department read into the record the conditions. But again you guys have the ability to approve or deny or modify. Chair: So how do we come to the point where you are going to say that the Commission wants to do it a certain way? Mr. Dahilig: Given the Commissioner's motion on the floor, Chair,there is an inclination of the Commission to want to entertain the possibility of approving this application. Chair: So you weren't talking to that motion, that motion was good? Planning Commission Minutes February 22,2011 6 Mr. Jung: I wouldn't say the motion was good because it actually acts to amend the Director's report. Normally when we amend Director's reports it would be to amend to add additional type conditions. And in this case you would want to recommend, if you make a motion to approve then take a recess, let the department muster up some conditions and see if any of the Commissioners would be agreeable to those types of conditions. Chair: So no need a second? Mr. Dahilig: I would say maybe ask for a second just to be safe and then we can take a recess and pull out conditions for discussion purposes. Mr. Texeira: The original motion is to approve? Chair: Approve the request. Mr. Dahili2: With recommended conditions by the department. Mr. Blake: We received the report and the motion is now to permit despite the receipt or along with the receipt or however you want to phrase that, to amend it, or not to amend it but to permit the...grant the applicant's request for a 150 foot tower subject to conditions to be, standard conditions to be offered by the department. Mr. Juniz: So that needs a second. Chair: So Herman, you were seconding that? Mr. Texeira: No. Chair: Any second? Mr. Blake: Before the motion dies, we have Verizon, how long have they been promising to service the public and they are not doing anything. So here we have somebody who is ready to start right now. Many of us have experienced that dead space in between. Chair: For me, Karl, you come down the hill headed toward Halfway Bridge,then you are coming up that hill, it veers slightly to the left, on the right hand side there is an access road to the Grove Farm property. That is Grove Farm,right? Mr. Young: Yes. Chair: You go down to Grove Farm through that access road, right on the top of the hill there is where you want to build the antenna and it has to be high enough to look through that little gap on the top of the hill because it goes up the hill and there is a gap. And that dead spot for Verizon customers gets bad right beyond that because you come back down and then to the right is a pasture with some Albesia trees. You need to hit that spot as well as back to the Humane Society, is that right? Mr. Young: Correct. Chair: Kaaina's point is that when you are coming up that hill this thing is sticking up right there, right Kaaina? It is just sticking up in the air. And right now yes, there are trees around,but Kaaina has been real protective of the scenic highway requirements because you are mandated to do that. And that is why the recommendation for that came about. Mr. Jung: Before there is any more discussion there is still, for the motion to be discussed there still has to be a second so if there is no second then a new motion would have to be made. Chair: What does the Commission want to do? Planning Commission Minutes February 22,2011 7 Mr. Raco: For parliamentary procedures for my fellow Commissioner I will second the motion to have discussion so you can continue, before we get the conditions I guess we can have a discussion. Chair: So moved and seconded. Mr. Raco: So what is your view on this application? Chair: I think we should deny the application and have them go back and see where they can get another antenna. If they cannot they can come back, reapply...can they reapply? Staff. For the specific site it's self they would have to wait 6 months however they are free to apply for any other site. Chair: This is what I think, I think the idea of putting the two antennas together isn't something the department is encouraging or entertaining because of that antenna farm thing. In my mind I would rather see those two at either Kahili or wherever else. If you can consolidate them, to me it is better. But that is not something the department has been encouraging at all. Mr. Blake: But isn't it true that that is the best of all worlds, right, what you are proposing or what you are discussing? Chair: I think the best of, well it would depend on whether you are looking at it from an antenna point of view or... Mr. Blake: Where you could satisfy the coverage issue and the scenic issue. Chair: Yes, I think so because the recommendation for the Verizon site was that it was the backdrop was a hillside and you could only see if from one certain corridor and you couldn't see it from the others. And regardless of whether the trees were there or not the backdrop was a hillside rather than the blue sky. Mr. Kimura: If they go to the landowner of the Humane Society and they give them permission to go ahead and build an antenna, come before us with the permit with the application to build it and we give them the green light to go ahead and build an antenna there, does Verizon still have to come before us to get a permit to build their antenna? Chair: They already have. Mr. Kimura: We didn't give them permission to build there yet did we? Staff: The Humane Society site has just been in preliminary discussions. In the event say Sprint applied for a permit and in the event that the Planning Commission approved that permit indeed if Verizon wanted a pole there as well it would also have to apply for a use permit and go through a public hearing and Planning Commission approval. However the department would encourage prior to application that they entertain collocating on a site previously approved. Mr. Kimura. If the landowner agrees and allows Sprint to build an antenna there and we approve the permit, so when Verizon comes in we can deny them and then they are going to have to collocate with Sprint. I am not saying that is what is going to happen but... Mr. Jung: I would caution the Commission on speculating on any future proposals. I think you guys should focus in on the proposal before you and look at how the use permit standard applies in this particular case. Mr. Kimura: I was thinking of another option. Chair: The Humane Society site, what you said actually you didn't even look at the scenic highway thing. Does the scenic highway not apply at the Humane Society site? There is no application so you didn't look at any other recommendations. Planning Commission Minutes February 22,2011 8 Staff: Correct, there is no application. Ms. Matsumoto: And this pole, proposed pole is...we are not talking about using cell phones in the car are we?. I mean when people are talking about no coverage what do you mean by that? Chair: I think only the driver cannot use the cell phone. Mr. Raco: No, we can use cell phones but it has to be hands free so I can be talking on the phone with my ear piece and still be on the phone and driving. Chair: And passengers can be on the phone,right? Mr. Raco: And passengers can be on the phone. But we cannot be holding and driving. Ms. Matsumoto: Cell phones are not a necessity are they? Mr. Raco: If you ask Karl I think they are and in the event of an emergency. Ms. Matsumoto: But if you talk about that, emergency purposes look at Hawaiiantel Telephone, you landline service, nowadays you need to have a digital phone in order for you to press 1 and 2 on the buttons. You can't have a rotary phone and yet some people still have a rotary phone and what is that, they cut people off and that is denying people access in the event of an emergency. So I just don't quite understand when you put the emergency reason out there, there should be access period no matter what it is, a cell phone or a landline or anything if that makes sense. I don't like the competing for air space for that purpose. I don't know if I am making sense but one company can have access and another company can't have access so what does that tell you? How important is emergency? That issue of emergency, emergency should be addressing...meeting the needs in an emergency situation should be a given, we shouldn't need to... Mr. Dahilig: Looking at the application, we are aware of the emergency issue but when we weigh that and counter weigh that with our land use and responsibility it is a tough call to make a recommendation to deny. But we felt that this notion of having the cell phone tower there, the sight plane issue really was weighing on us in terms of counter weighing this notion of emergency access and emergency coverage. So ultimately this is where we came down that it was just too massive. We can have all the safety measures in the world but there is also this notion of having to balance appropriate safety measures with preserving what this community values which is our sight planes. We think there is another way. Mr. Blake: And the other way is to have them keep looking? Mr. Dahilig: We either have them keep looking or work with Grove Farm to see if there are other spots to put the antenna or is there better technology, who knows but we think the roadway corridor issue is a very big issue. Chair: Mike do you remember if I asked for public testimony? Mr. Dahilig: Yes you did. Chair: So where are we at? Do you want them to go out and come up with the...? Mr. Blake: Not yet, we don't know if we are going to go there or not. Chair: If the motion, so where do we go from here? Mr. Dahilig: We can provide draft conditions for the Commission to discuss if they would like to or you can call for the question and see where it is but if you did want to discuss conditions this would be an appropriate time to discuss it, I would suggest. Planning Commission Minutes February 22,2011 9 Mr. Blake: I have another question. We keep talking about this monopole and the antenna up on top of Kahili Mountain is not a monopole,right, it is like a dish or is shaped like a dish so it looks just like part of or is supposed to look like part of the mountain. I used to notice it a lot before and now it is just part of the mountain. So do you have to have a monopole? It can't be any other shape? Mr. Your Yes. We are proposing a monopine which is meant to shroud the appearance of the pole to not give it a silhouetting pin cushion look. Mr. Blake: How else can you shroud the appearance of the pole or can you? Mr. Young: There are different types of tree applications,monopalms, cactus. Mr. Blake: The thing is that it seems like, not seems like but I guess the objection is it stands right out there and slaps you in the face so how do you un-slap it and still have it or can you? Mr. Young: In answer to that question that has come up many times, we deal with this in many sensitive areas all the time. In answering the question of whether or not this serves the general public good, Hawaiian Telephone is a for-profit business that is licensed by the FCC just like every phone company is and they are required to provide utility service and emergency service that anyone can use. For that there are certain rights granted, eminent domain, and there are certain utility installations required to provide the service. In terms of impact to the community and in terms of visual 'impact, the state of the art is to have a shrouded pole as opposed to the past where you had a wood pole with wires on it every 150 feet. So in terms of visual impacts this is the answer that they have come up with for the past 10 or 15 years that one pole as opposed to hundreds of poles serves a very large geographic area. In this case it covers a 3 mile stretch of highway as opposed to having utility lines. Right now across the street there are several telephone lines along that road that provide the telephone service for that area. So this is one pole and it will cover 3 miles. So yes it is visible, every utility installation is visible where there is power or telephone but cell sites have the requirement on them to try to blend in with the community and so this is what helps to buffer the visual impact,the stealthing, the monopine, the monopalm so that your eye...if you stare at it you will see it but if you glance by it, it is not as noticeable. Mr. Kimura: If I voice my opinion on this? I have a hard time allowing this permit to go through for a pole of that size just for 3 miles of dead space. It doesn't justify its self just for 3 miles. We have to look at this 150 foot pole just for 3 miles of service, I have a hard time with that. That is my opinion. Mr. Young: Can I comment on that? I have to agree with you that all the cell phone carriers have felt exactly the same way which is why there is not coverage there which is why it did not make a business case for sprint to put a cell site there which is why Sprint had to petition for Urban Relief Funds from the Federal Government in order to provide this site for the community. Because the government knew that there would not be a business case for all situations. A small area like this within a gulch area that has a hard time being covered by the standard model doesn't make financial sense. So they set up a fund to help rural areas to get coverage and mainly in the event of an emergency, especially and I had mentioned this before, it is only 3 miles that is true. However it is a highway that connects the entire South Side of Kauai so in the event of an emergency there will be a 3 mile stretch in which first responders will use cell phones and they will aid people in transit and they will be using this area for many purposes. So that is the reason the government did set up a fund. Mr. Kimura: This tower would be just for Sprint users? Mr. Young: The tower would be for Sprint customers but it is available,they have set up a competitive mode to allow for better pricing for consumers, but the pole is available for collocation after this. Planning Commission Minutes February 22,2011 10 Mr. Kimura: Because AT&T does have coverage down there. Mr. Young: They do have coverage. It is from a mountain way at the top near the center of the island. It is spotty coverage and they are looking to improve the coverage here as well. Mr. Kimura: What percent of the customers on the cell does Sprint have versus AT&T and Verizon? Mr. Young: Currently Verizon, I don't know exactly for Kauai, a rough estimate is that Sprint has about a quarter of the customers. Right now clearly Verizon has a third or more and very close behind them is AT&T. Taking up the last third and they are still at a distant third if you were to combine both T-Mobile and Sprint, they would still be in third place. So there is a large. There are two arguments in that, one is that you would further widen the gap reducing competition as well. Verizon is clearly taking off especially with the IPhone and they are in the lead and there will be very few choices very soon. Chair: So how are we going to resolve this? Mr. Raco: Call for the question. I don't have to say anything. Mr. Texeira: I already gave my opinion. Chair: So the motion on the floor is to approve the application, is that right? Mr. Dahilig: That is correct. Chair: All those in favor say aye, opposed. On motion made by Hartwell Blake and seconded by Caven Raco, to approve applicant's request, motion was denied unanimously by voice vote. Chair: So what are we going to do with the application? Mr. Dahilig: Mr. Chair, I would recommend that the Commission formally deny the application and ask that the Commission delegate authority to process a draft Decision and Order and allow the Chair to finalize that Decision and Order to filed as a moralization of the Commission's actions today. The reason we have to do that is because every denial we have to come up with a formal Decision and Order and rather than having that process with a two week time limit what we want to do is provide a draft Decision and Order based on what the recommendation says and we are going to go into a discussion with the applicant as to the wording of that Decision and Order upon which time we would ask the Chair to execute it on behalf of the full Commission. Mr. Texeira: So can we move on that? Chair: So Herman moved, any second? Ms. Matsumoto: Second. Chair: Moved and seconded, any discussion, all those in favor say aye, opposed, motion carries. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to deny application and ask that the Commission delegate authority to process a draft Decision and Order and allow the Chair to finalize that Decision and Order, motion carried unanimously by voice vote, Use Permit U-2011-4 Special Permit SP-2011-2 and Class IV Zoning Permit Z-IV-2011- 4 to permit a helicopter tour landing area for visitation and viewing of Hali'i Falls located on Hali'i Stream, approx. 1.5 miles west of Kilohana Crater, Kauai, further identified as Tax Map Planning Commission Minutes February 22,2011 11 Key 3-8-001:001 (affecting an area of approx. 1,500 sq. ft.) =Inter-Island Helicopters,Inc. [Director's Report received 9/14/10, hearing closed 9/28/10.1 Supplement No. 2 to Planning Director's Report-pertaining to this matter. Staff Planner Kaaina Hull read supplement No. 2 to the Director's report (on file). Chair: Questions for Kaaina? Mr. Kimura: How far is this landing pad from the highway? Staff. It is roughly 3 to 3 and a half miles. Mr. Kimura: From the highway. Staff. From the highway. Chair: And from Kahili Adventist School? Staff. It is about 3 miles. Chair: Any other questions for Kaaina? Mr. Texeira: I have a question, your last paragraph that you read prior to the conclusion, could you address that? You are saying the department is currently working with the County Attorney's office, how long will it take to come up with a plan? Staff: We are currently working with the Attorney's office as well as other departments and once it is formulated say if it is just a general policy it can be relatively quick however if it is to the affect of an ordinance change that will take at least a month or two because of publication and notification requirements to hold a public hearing on the ordinance proposal before the Planning Commission. As well as in the event that it is deemed necessary and approved by the Planning Commission it also has to appear before the County Council and then ultimately be signed by the Mayor's office. Mr. Texeira: Could we not render a decision based on the long range plans that are going to be developed by the County Attorney's office? Mr. Jung: Actually the County Attorney's office would just assist in drafting the language, the policy would come from the Planning Department so they would tell us how they would want or what they would want and we would help them draft or identify what they want. Mr. Dahili2: Just to add in, what we are currently seeking is whether administrative rules or policies in house would even have potentially the kind of teeth that we would want with respect to regulating this type of activity. So there are provisions in the code that maybe we could piggyback on but that is something that we are exploring right now for a long term solution. Ms. Matsumoto: I have a question on two conditions. No. 7, I think I have seen this before in other applications but how would that be handled? This is about protecting the area from spores and seeds, wearing footwear. Staff. That was originally imposed by the Planning Commission on Island Helicopters for the Manawaipuna Waterfall landing. Part of it is indeed just on an honor code basis that the pilots are inspecting the landing gear as well as requiring passengers to clean their footwear. In the Island Helicopter use I do know that they in fact have certain coverings or bootie type material that they actually have the passengers wear on disembarkation as well as when the department conducted its annual inspection of the site or of the operation it was verified that the pilot was in fact inspecting his landing gear. Planning Commission Minutes February 22,2011 12 Ms. Matsumoto: And then No. 13, I don't understand this one. Staff: That, somewhat fortuitously speaking, that almost follows along the lines of the collocation principal in the sense that where the applicant or a helicopter touring company at least in past we have seen has been granted exclusive landing rights by the property owner. And as to deter further landing sites throughout the island which the Commission in various hearings have conceded that they have a concern over this issue, that was imposed in order to just encourage the idea of say a collocation type helicopter landing pad so that more of the helicopter tour companies are restricting their landing to one or few locations. Chair: Are you going to ask a question on the recommendation? Mr. Texeira: On 13. Chair: Maybe we should, you didn't actually read the conclusion and recommendation. Staff: I didn't today. I have done it at the previous meetings but it can be done again for the Commission's edification. Chair: What is the process, are we talking conclusion and recommendation,have the applicant come forward? Can we have discussion...we should go through the process. So I am going to hold off on that, can the applicant come forward? Do you have anything to add to the Director's report? Mr. Robin Venuti: No. Chair: Questions for the applicant? Regarding some of the questions, do you have a policy for the spores, seeds and invasive species in place now? Mr. Venuti: Currently we don't. When we had our study done of the area, everything there is already considered noxious or invasive,Robin Venuti. We talked about a little earlier, some questions were brought up at the last meeting about how we intend this to benefit the island and one way we do is hopefully removal of some of the invasive species. At that point yes, we would definitely want to especially on our own account want to implement some rules for doing that. We definitely can use the basic footprint that Island Helicopters has where they inspect the shoes before they get in and they do inspect the skids. And that would be pretty easy at our area where we land at our base on a cement pad or on a trailer to move the helicopters in and out of the hanger so that would actually be fairly simple, yes. And that is something that we would like to do anyway because we want to improve the site as far as removal of the invasive species. Chair: Anything more to add to the Director's report? Mr. Kimura: I have a question for him. How would you feel if the landowner would encourage other helicopter companies to also us that site? Mr. Venuti: Do you want me to answer honestly? Mr. Kimura: Sure, why not. Mr. Venuti: Yes of course that would be...it's in there that is the way it is written and that is the way it is. If they want to it's their prerogative. I wouldn't encourage it myself. Mr. Raco: And why wouldn't you want to encourage it? Mr. Venuti: Because as we spoke before there is really only a spot for one aircraft to land in there so scheduling would become a pretty big issue especially with more than one company using the site. And you are limited to about 4 landings a day maximum based on the time that you spend on the ground there and so it would just become a scheduling issue mostly. I think it would extremely hard to coordinate that between two companies where you are constantly scheduling new.flights every day. I think it would be extremely difficult. If it was a Planning Commission Minutes February 22,2011 13 spot where you have four or five landing spots available at one location it wouldn't be a big issue at all. Ms. Matsumoto: I see these conditions attempt to keep the place clean. What if there was some overgrowth? What if there were proliferation of weeds or invasive plants, what would you do with that? Mr. Venuti: That is kind of an issue already with the amount of invasive ginger that is there on the site. We hope to be able to improve the site and make it better and remove some of that stuff. Ms. Matsumoto: I don't see that in here. Staff. Additional conditions can be imposed if you have specific landscaping conditions you would like to impose. I think what the applicant is speaking to is that it is kind of in their best interest to remove a lot of those weed type issues but a condition can be crafted. Mr. Venuti: At some point, right now all the improvement we would do would be basically just on a safety issue, everything in the immediate vicinity of the helicopter which is just like we talked before one Guava tree and a bunch of ginger. Chair: Other questions? Mr. Kimura: This is for the department. Will the Planning Department need permission from the landowner, not the landowner but the helicopter company to inspect their landing site at any given time? Do we have to give them a heads up? Mr. Dahilia: That is a legal question and maybe I should defer that to the County Attorney to answer. Mr. Junw: Yes. Unless of course we obtain a search warrant or got their consent. Chair: Thank you, is there anybody in the public that wants to speak on this agenda item? Ms. Cheryl Lovell-Obatake: Thank you Mr. Chairman, for the record my name is Cheryl Lovell-Obatake. I was at the last meeting still with some concerns and I am wondering where this guy Ken Woods is who is the biologist to provide information pertaining to the project area and potential environmental impacts that could be generated by the proposed helicopter landing site. And where is he to provide information pertaining to the hangers at Hanapepe, the potential environmental impacts the landing site may have on the State registered salt ponds. It was discussed about FAA approval, as I saw in the report, the Director's report and I quote, "The Federal Aviation Administration has approved the site for helicopter landings." This is a Federal agency that is making comments and approval,that why I requested the advisory council Historic Preservation audit this permit application for landing at Hali'i Stream and falls and especially at Hanapepe where salt pans are registered with the State. Are there any DLNR SHPD comments? Have there been any lately? Is the FAA aware of the number of flights per day and amount of people visiting the falls daily? Does the Planning Department have a letter of approval from the FAA? I haven't seen that, it is only in the report. And what is the name of the person at the FAA who approved the site for helicopter landings? The FAA should be aware of this kind of precedence where more landing sites are being discussed and the carrying capacity I feel in the report is defeating. And of course with the Burns Field Puola Point an increase of aircrafts are using this area. Who is liable should an accident occur there, State DOT Airport Division,FAA, the County of Kauai for permit approvals? What is the carrying capacity at Burns Field since the applicant is leaving and returning. The Real Estate Commission should address airspace over private property for noise and flight patterns and I thank you for your time for the record. Chair: Anyone else in the public wants to speak on this agenda item, Carl. Planning Commission Minutes February 22,2011 14 Mr. Carl Imparato: Aloha Commissioners, my name is Carl Imparato and this afternoon I am speaking on behalf of the Sierra Club. We ask that you either deny this requested permit or else if you are going to give the permits impose four significant mitigation conditions. First of all as some of the Commissioners have mentioned it would be much preferred to have an air tourism management plant instituted before considering this application. There are some important elements of the plan that really need to be in affect including capping the total number of air flights per day, locating all tourism for air tourism at Lihu`e Airport, and establishing no fly Sundays and fly neighborly routes and having them enforced, so all of this really ought to be done before considering this application. But if you are going to consider the application then we believe significant mitigation conditions are needed to protect the general welfare of the public. At a minimum we believe that one, there should be a cap on the total number of daily Inter-Island helicopter flights, not just a meaningless cap on the number of flights to the falls. Secondly, a requirement that Inter-Island move its operations to the Lihu`e Airport,third, mandatory compliance with the fly neighborly routes and no fly Sundays, and fourth, permit revocation if noise complaints are generated by new flight paths, if there are complaints about noncompliance with the fly neighborly protocols, if Inter-Island conducts any illegal landings anywhere else on the island or if there is any evidence of control of Inter-Island by the previous owner, allegedly previous owners of the company. I want to point out that last September we were asked, Stop DAT at least of which Sierra Club is a member, was asked to meet with the applicants and a meeting did occur. But I think the result of that meeting had been mischaracterized by the applicant at your January hearing, basically they said at the time that all we asked for was that they comply with the fly neighborly routes. The fact is we asked for and they haven't agreed to a cap on the total number of daily flights by the company or any other guarantee that the permit will not result in more flights than they have today. They haven't agreed to move operations from Burns Field,they haven't agreed to any noise mitigations such as no fly Sundays or not flying into Kalalau. And the only accommodation they offered was to agree to cease the long policy of violating the fly neighborly policy and that is really not much of anything so we wanted to point that out. This application really is all about increasing the number of air tours. You can fit 4 passengers in one of these helicopters and the point of this is to create more passengers for the company by having this extra attraction. That means there is going to be more air tours and more helicopters in the air and there is going to be more noise impacts. And the noise impacts shouldn't be looked at just at the site, if you want to define the activity as just what happens landing at the landing site you can do that but that is like coming in for a variance to put a supermarket in a residential neighborhood and only looking at the supermarket's impacts right at that site. You should be thinking about all the impacts on the neighbors to the supermarket, you should be looking at the impacts to the traffic in the neighborhood. And similarly, what this application does if it is granted is it basically says there is going to be more takeoffs from Burns Field and that is going to have impacts on the salt pond and of course it is going to have impacts throughout the island because of the noise. We believe therefore that approval of this application in addition to setting very bad precedence would be contrary to the general welfare of the public. We also hope that you will take into account the disreputable history of this applicant's company in terms of what you have already heard which is about violations at Burns Field, over flights of our neighborhoods for years, Inter-Island's violations by landing in the interior without permits. All of this really needs to be taken into account I think when you decide to give a permit to someone. Kaaina has already read the portion of the CZO that talks about the use permit standards and about the need to make a finding that giving the permit would be consistent with the general welfare of the community. And we believe that without the necessary mitigation conditions the use permit would be detrimental to the welfare of the people in the neighborhood of Burns Field,the salt pond folks, it would be detrimental to the general welfare of the general community throughout the island, it would cause harmful environmental noise consequences on other lands and waters throughout Kauai. It would be inconsistent with the General Plan which states that as a policy we should be supporting centralization of State owned helicopter facilities and operations at Planning Commission Minutes February 22,2011 15 Lihu`e rather than allowing expansion of operations at Burns Field. So we feel that you have the authority and you have the obligation to deny this permit. I thank you very much for your time and hope that you will, if you do consider this application,that you will at least impose mitigation conditions that would allow for a finding that there is no negative impact on the general welfare,thank you. Chair: Questions for Carl? Anyone else in the public want to speak on this agenda item? Seeing none, so Kaaina you read the conclusion and recommendations at a previous meeting? It is the same? Staff: That is correct. Chair: What does the Commission want to do? Mr. Blake: What did you just say? Chair: What does the Commission want to do with this application? Mr. Blake: Based on the use permit I believe this use has to be compatible, the use permit requires compatibility of use on this site, correct? Mr. Dahilijz: We have taken a look at compatibility issues and we believe that it is something that can be mitigated. Mr. Blake: So it is not compatible, it has to be mitigated. Mr. Dahilif4: Whenever we have uses in any permit that we do impose conditions on nothing is one hundred percent compatible and nothing is one hundred percent incompatible, there is always this shade of grey that we deal with were we say okay, can this be compatible? Possibly yes but if x, y, and z can happen then we think that would make it better. Or maybe there is not enough mitigation that can happen to say that a use is compatible. That is while we are allowed the flexibility in the use permit process to establish conditions to limit the use, to mitigate certain elements of a particular use so that it becomes more compatible than not. And so in this particular circumstance when you have taken a look at the totality of the circumstances here we think that based on the recommendation there are curbs on the use that can be implemented in order to make this use compatible with what we see as that enumerated in the code. Now that is just our recommendation. If the Commission disagrees with the compatibility that is the Commission's prerogative, if the Commission feels that the mitigation measures are not stringent enough that is certainly for the Commission's entertainment, for instance if you would like to limit the amount of landings a week those are items that are up for discussion before the Commission. So ultimately our recommendation is what it is,this has been crafted by Kaaina to balance these competing issues of compatibility and mitigation and we serve at the Commission's pleasure on this. Mr. Blake: When I read the supplement to the Planning Director's report the question that immediately occurs to me is what does compatibility cost us, the public? First we have to put up with ambient noise on the ground. We have to put up with mini cyclones. Nobody stands in the prop wash of a helicopter with his eyes wide open and his mouth and'nose not covered. And that is because we can. There are plants and animals there that just have to live with it if it is imposed. So what is the price of the impact on the recreational, cultural areas and the general peace and tranquility of the island? It is a contradiction in terms to say that that landing of a helicopter comports with peace and tranquility, it just doesn't. Mrs And I certainly understand, everybody is aware that a helicopter makes a lot of noise. I am aware of as Kaaina and I have discussed many times over this is the competing issues that are coming up in public testimony with respect to noise at Burns Field or whether they have been neighborly. But in order to stay within the parameters of our recommendation authority which is to look at the site and look at whether the use is going to have impact to the Planning Commission Minutes February 22,2011 16 land on that site. Those issues of noise and those types of things start coming down because there is nobody in that area. So I do understand the Burns Field issues and I certainly sympathize with those that are concerned about whether salt pond is being appropriately protected. But really the focus of our report has to be on where the land is, where the use is, and whether it comports with the principals laid out in the code. And when we look at peace and tranquility there is nobody living up there. Mr. Blake: That is like saying if a tree falls in the forest and nobody else is around is there any noise? Mr. Dahilig: That's true. Mr. Blake: But the thing is that is like saying if you put a fence around this landing site who cares what happens there if it is a sound proof fence, who cares,just because somebody has to be there when it happens. I am not talking about Burns Field. That is another issue. But in order to provide a peaceful,tranquil, pastoral experience to some visitor or passenger on the plane we have to have all this din, dust, like I said mini cyclones, exhaust fumes, the whole shebang just so that we can untranquilize everything around it so that we can have this little Garden of Eden spot for you to enjoy. And like I said it is ironic, it doesn't make sense. Mr. Dahilig: And I think Commissioner... Mr. Blake: Before you start, so we could muffle down the engines, right, and then it would be quiet. We could have them parachute in real quietly. None of that is capable of happening. So the wild, natural places which had no footprint, mechanized, motorized footprint before,now it is there in spades. So at that spot there is not peace and tranquility until they turn off the engines and then it is peaceful and tranquil while you walk around and sit there and enjoy the waterfall. Then you turn the engine on again and the whole thing. Like you said there are impacts up there because it was Ag. land but those impacts from the motorized,mechanized activity of man were of short duration and there was a lot of time in between and this is all day every day. So I don't see how that is compatible, personally. Those are the places that...we live on Kauai by choice, we don't have to live here. If we wanted all kinds of activities like one of the witnesses said in another topic we could move to Maui or to Oahu, Las Vegas. But you live here because the public policy on Kauai is to preserve our rural setting and there are some things about the rural setting over which we have no control. And those are the flight paths and the height, flying height limits. We can ask people to dust off your shoes and fly neighborly and so forth but that is not the law. However,this runs just counter to the stated public policy of preserving a rural area. I can understand if you are in business or since you are in business you want to satisfy your customers,provide activities for return business, and provide a quality experience. I have taken a helicopter ride and I have been impressed by what I could see from the air versus what I could see from the ground. But it was nice to fly over without having to land just because I could drop out of the sky. You don't drop out of the sky for no price at all and the price we pay again is the lack of tranquility, Iack of solitude, lace of peace, lack of silence because we have to put up with now, din, constant, reoccurring, everyday din. It is like being on the main street like ion Vineyard Boulevard. And so I personally would ask that we just stop until we have a policy that both the government, us, and the public has had a chance to voice their feelings and opinions on facts. Chair: I would like to let him come up because I have a feeling it is not going his way. You can come up and sit down but first is there anybody else who has anything to say? Mr. Dahilig: Chair, if I could just respond to the Commissioner since it is our recommendation. Your concerns are valid and there are environmental concerns that you are outlining in your thoughts that would be of a valid concern should the Commission decide this is not compatible. Again we based our recommendation based on the precedent that has been done before when we look at past permits with this type of use and what we look at as the types of conditions that have been imposed in the past and how to manage this type of activity. But certainly given your deliberation on this the points you are raising are valid and that should the Planning Commission Minutes February 22,2011 17 Commission want to act on those concerns certainly we believe that they do rise to some type of environmental level that could say we need to take more precautions on this. Mr. Blake: I had one other thing, there was a very valid point raised by the applicant about competition. I have been on the Commission for 2 years now. I was surprised to know how many active landing sites are in existence and yet we say under number 13 that this is not supposed to act as a precedent. How can it not? We have so many already. And now all of these are use permits so they have a time limit within which the applicants have to come back and reapply so that the Commission can decide whether the opinion that was voiced in permitting the application, i.e. that it was compatible, is still compatible. Just by the...what do we have, the four that are being actively used, another that is in the pipeline here. And everybody has good intentions but still you can't check without a heads up or a search warrant for a publicly granted permit, what is up with that? To me that doesn't make sense. It ought to be since this is a public dispensation, anytime you want to come in come and check but that is not the case. And then we get tied up in court and I mean it is just more problems than I think it is worth which means to me by definition incompatible. Chair: Any other comments? Mr. Raco: I have no comments to the applicant and I am ready to make a motion. Chair: So if we are ready to make a motion then I have going to give them one last chance, go ahead. Mr. Venuti: Robin Venuti again, Inter-Island. I agree with you Mr. Blake that noise and all this there are going to be impacts on the land and that is why we are here, we are here to see whether the impacts can be mitigated. As far as the noise in the area and everything,to approach into the area and then shut off the engine and then start the engine and leave, out of the hour that we are there will be less than 6 minutes. And the good that we can do while we are there,this site as we mentioned before is a site that had been used by the ATVs. They would come to the top of the hill and hike down to the spot where we will be. There are old boards there will nails in them, there are weeds, it is agricultural land, the only signs of wildlife we have seen in there is either cows or pigs. We feel that our being there will do more good as we have already say removing plant species, education, things of that nature than the 5 minutes per hour for a maximum of 4 flights a day. You are talking of 20 minutes out of 4 hours that it will impact it. Will it impact it, yes, absolutely and I understand your concerns completely. But I think just the knowledge that we will only be, the actual engine running from the time we come into the site, descend into the site the entire time and then take off and depart the area with absolutely no knowledge that we have been there will be about 6 minutes out each hour for that 4 hour period. And then just one quick thing with regards to what other people have said. I know it truly doesn't apply to this but Inter-Island in the past has operated up to 4 aircraft. We are not doing a quarter of the flights right now that that company has done so our impacts right now aren't that. Do we hope to be back to that point, a normal operating...yes we do. But for this site it is maximum 4 flights a day just because of the duration of the flights and the location of just one landing site maximum, that is all there can ever be there. I would take you, any of you if this does get approved, if you want to come or you want to put a thing in there saying that you have the right to go and inspect the site at any time, weather permitting, time permitting, I would gladly, I would take anyone of you there personally in my helicopter and show you the site, absolutely. Because I truly feel you will see improvement on the site, I guarantee you will. Chair: Thank you, questions for the applicant? Seeing none what does the Commission want to do? Mr. Raco: I would like to make a motion to deny the application on Use Permit U-2011- 4, Special Permit SP-2011-2, and Class IV Zoning Permit Z-IV-201-4, TMK: 3-8-001:001. Mr. Kimura: Second. Chair: Moved and seconded to deny the application. Planning Commission Minutes February 22,2011 18 Mr. Raco: If I may Chair, I would like to state my position, the reason why so the applicant understands. I find this proposed helicopter landing site not compatible with the subject property specifically with the area in the immediate vicinity proposed to the landing area. Second, I feel that the site is very pristine and protected and where I do not believe a commercial operation should be located. And what a helicopter landing site is, I do not have any problem with the helicopter industry, you, or where you land or where you take off from but you need to accept the fact that the helicopter landing site is extremely loud and extremely offensive. In Chapter 8 of the Kauai County Code designates a specific zoning district for those uses that are generally offensive to the sense in the Industrial Zoning District. Agriculture District is not designated as a district in which to locate those uses that are offensive to the senses or to the environment. And three, additionally, more specifically the noise and the vibration and the rotary wash generated by the multiple daily landings at the site would negatively in my opinion impact the flora and the fauna and the birds and the use is not compatible with the surrounding area once this is established and would displace the fauna life currently living in the surrounding area. I believe the impact would be severe that no degree of mitigation would be appropriate, that no degree of mitigation could make such a compatible use with this area. So with that, Chair... Chair: Any other discussion? Mr. Dahilia: Mr. Chair, I would ask that if the Commissioner is able to amend his motion that he would also authorize as in the last matter, authorize the Chair to facilitate the execution of a Decision and Order allowing the applicant the opportunity to view it before it is fully executed under your authority. Mr. Raco: So moved to be added to the motion. Mr. Kimura: Second. Chair: Moved and seconded for that addition, any other discussion, roll call. On motion made by Caven Raco and seconded by Jan Kimura, to deny application and authorize Chairman Nishida to facilitate the execution of a Decision and Order, motion carried unanimously by the following roll call vote: Ayes: Raco, Matsumoto, Texeira, Blake, Kimura,Nishida -6 Noes: None -0 Absent: None -0 Not Voting: None -0 Commission recessed at 2:50 p.m. Meeting was called back to order at 3:07 p.m. NEW BUSINESS For Acceptance into Record—Director's Report(s) for Pro'ect s Scheduled for Public Hearing on 2/22/11. (NONE) For Acceptance and Finalization—Director's Report for Shoreline Setback Activity Determination. Shoreline Setback Commission Review SSCR-2011-7 for a shoreline determination Tax Map Key 1-7-006:001, Koki Point, Kauai, for acceptance by the Planning Commission= Gay and Robinson. Director's Report pertaining to this matter. Staff Planner Lisa Ellen Smith read Director's Report(on file). Planning Commission Minutes February 22,2011 19 Chair: Questions for Lisa Ellen? Can the applicant come forward? Mr. Peter Taylor: Good afternoon ladies and gentlemen and aloha. For the record my name is Peter Taylor. I am a licensed land surveyor and engineer and my office is located here in L-1hu`e. I am the agent for the applicant. I would like to thank the Planning Commission for taking up this application and also the staff has been very helpful in their processing. I would like to make myself available to any questions. Chair: Questions for the applicant? Mike, what happened to the bill to let us not do these things? Mr. Dahilig: It is still pending in committee at Council. They have had a workshop with those from the University of Hawaii Sea Grant Program,they have made some suggestions and our office is currently taking a look at those suggestions and may recommend more edits to legislation for the Council's entertainment. So that is where it is right now. Chair: Any other questions? What does the Commission want to do? Mr. Raco: Motion to approve acceptance and finalization of shoreline setback SSCR- 2011-7, TMK: 1-7-006:001. Mr. Kimura: Second. Chair: Moved and seconded, all those in favor say aye, opposed, motion carries. On motion made by Caven Raco and seconded by Jan Kimura, to accept and finalize SSCR-2011-7, motion carried unanimously by voice vote. Shoreline Setback Commission Review SSCR-2011-8 for a shoreline determination Tax Mqp Key 2-1-003:028 Port Allen Kauai for acceptance by the Planning Commission=A&B Properties. Director's Report per ainin to this matter. Staff Planner Lisa Ellen Smith read Director's Report (on file). Chair: Tom, do you want to add anything to the report? Mr. Tom Shigemoto: Not add. I just wanted to make a comment. For the record my name is Tom Shigemoto. I represent A&B Properties who is the applicant in this case. Lisa did an excellent job as usual in explaining what the situation is. I am here because I am actually appalled at you folks having to entertain these types of shoreline setback determinations. I understand that is the law so you have to do this but the staff s time, your time, for number one, an application on a 1,000 acre agricultural parcel 2,000 feet away, to have to do this is ridiculous. I hope the people who are watching this that have anything to do with adopting laws like this understand how ludicrous it is for the Planning Commission and the Planning staff to actually have to do this in cases that are so clear that there is no erosion, there is no impacts to the shoreline with applications like this. That is all I have to say and I commend you and I thank you folks for the time that you spend on things like this. No questions? Chair: No questions. Mr. Shigemoto: I hope you approve it, thank you. Mr. Raco: Motion to approve acceptance and finalization of shoreline setback SSCR- 2011-8, TMK: 2-1-003:028. Ms. Matsumoto: Second. Planning Commission Minutes February 22,2011 20 Chair: Moved and seconded, all those in favor say aye, opposed,motion carries. On motion made by Caven Raco and seconded by Camilla Matsumoto, to accept and finalize SSCR-2011-8, motion carried unanimously by voice vote. SUBDIVISION Mr. Kimura: Subdivision Committee Report No. 12, committee members present me, Cammie Matsumoto and Herman Texeira. The following recommendations for the items listed below, General Business, none, Communications, none, Unfinished Business, none. New Business, tentative subdivision action, S-2011-15, County of Kauai, Department of Parks and Recreation, TMK: 1-8-008:020, 038, approved 3-0. Tentative subdivision action S-2011-16, Cameron K. Burgess, et. al.,TMK: 4-1-008:013, approved 3-0, and tentative subdivision action S-2011-17, Buff Toulon, Trust/A.J. Pai Toulon Trust, TMK: 2-3-015:117, 118, approved 3-0. Can I have a motion to approve? Ms. Matsumoto: So moved. Mr. Texeira: Second. Chair: Moved and seconded, all those in favor say aye, opposed, motion carries. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to approve Subdivision Committee Report No. 12, motion carried unanimously by voice vote. GENERAL BUSINESS Executive Session: Pursuant to Hawaii Revised Statutes Section 92-5(a)(2), the purpose of this executive session is to discuss matters pertaining to the evaluation of the Planning Director. This session pertains to the Planning Director's evaluation where consideration of matters affecting privacy will be involved. Chair: The next item is the executive session for the Planning Director. Mr. Kimura: Can we defer that? Chair: Motion to defer, any second? Mr. Raco: Second. Chair: Moved and seconded to defer the executive session, all those in favor say aye, opposed, motion carries. On motion made by Jan Kimura and seconded by Caven Raco, to defer the executive session, motion carried unanimously by voice vote. Mr. Dahilig: Just for the Commissioner's information we are light on March 8"`and the items are not time sensitive for March 8th so we are going to be pushing everything to March 22nd to avoid having you come in just for a couple measures and we will just take care of it all at once. Mr. Kimura: So are we talking about a heavy agenda? Mr. Dahilig: It won't be as heavy. Right now we are looking kind of light on the 22nd as well so we figure to try to consolidate it versus having you come in for small meetings time and time again. Mr. Kimura: What about the subdivision meetings? Mr. Dahilig: We are okay on that too, we checked everything. Planning Commission Minutes February 22,2011 21 Mr. Texeira: The report, are you going to submit a report for us on the 22nd pertaining to the TVR, the bill 2386? Mr. Dahilig: Our intention is to try to start finalizing recommendations and then if any individual Commissioner has some concerns we can talk about it. Chair: Anything else? Meeting adjourned. ADJOURNMENT Commission adjourned the meeting at 3:19 P.M. Respectfully Submitted. (j a_" Lani Agoot Commission Support Clerk Planning Commission Minutes February 22,2011 22