HomeMy WebLinkAboutpcmin2-8-11 KAUAI PLANNING COMMISSION
REGULAR MEETING
February 8, 2011
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair, James Nishida at 9:13 a.m. at the Lihu`e Civic Center, Mo`ikeha Building, in meeting
room 2A-2B. The following Commissioners were present:
Mr. Herman Texeira
Mr. Jan Kimura
Mr. Hartwell Blake
Mr. James Nishida
Mr. Caven Raco
Ms. Camilla Matsumoto
Discussion of the meeting, in effect, ensued:
APPROVAL OF THE AGENDA
Chair: I wanted to move the executive session regarding the evaluation of the Planning
Director to the end of the meeting and then under Communications, in order to put the issues
together we are going to move the Petition for Intervention and the Memorandum from the
Planning Director to the Planning Commission ahead of the Zoning Amendment, the related
Zoning Amendment. If you cannot stay, I am going to ask for comment at the time but if you
can stay then we would like to put all the comments and presentation at the same time. Can I
have a motion to approve the agenda?
Ms. Matsumoto: So moved.
Mr. Texeira: Second.
Chair: Moved and seconded, 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
Chair: Can I have a motion for receipt of items for the record for today's hearing?
Mr. Blake: So moved.
Ms. Matsumoto: Second.
Chair: Moved and seconded, all those in favor say aye, opposed, motion carried.
On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to receive
items for the record, motion carried unanimously by voice vote.
MINUTES--MEETINGS OF JANUARY 11, AND JANUARY 25, 201.1
Chair: Minutes of the meetings of January 11, and January 25, 2011, any comments or
discussion? Can I have a motion to approve?
Mr. Texeira: So moved.
Ms, Matsumoto: Second.
MAR 2 2 2011
Chair: Moved and seconded, all those in favor say aye, opposed, motion carried.
On motion made by Herman Texeira and seconded by Camilla Matsumoto, to
approve meeting minutes of January 11,2011 and January 25,2011, motion carried
unanimously by voice vote.
PRESENTATION OF PLAQUE TO FORMER COMMISSIONER PAULA MORIKAMI
Chair: We are not going to do the presentation of the plaque to former Commissioner
Paula Morikami at this point.
GENERAL BUSINESS MATTERS
Annual Status Report(1/14/11) submitted by AY Architects, LLC regarding Compliance
with Permit Condition for Special Management Area Use Permit SMA(U)-2006-5, Project
Development Use Permit P.D.U-2006-7 and Class IV Zoning Permit Z-IV-2006-10,Tax Map
Key 4-3-007:027, Wailua, Kauai=Coconut Plantation Holdings,LLC.
Staff Report pertaining to this matter.
Staff Planner Lisa Ellen Smith read staff report (on file).
Chair: Questions for Lisa Ellen? Is the applicant here today?
Mr. Avery Youn: Good morning Commissioners, my name is Avery Youn. I represent
the applicant on this application. We are here primarily just because we need to provide an
annual status report. This application was originally approved in 2007 and when the court
process took place it was not resolved until February 2, 2010. There was an appeal filed and that
was not resolved until June 2, 2010. You can correct me if I am wrong but my understanding is
that the original SMA begins February 2, 2010 so it is valid through February 2, 2012 and our
annual status report was supposed to have been done by February 2, 2011. And we are pretty
close,just a few days over.
I would like to clarify something,there is not only a condition 8 but there is a condition
No. 10 whereby we have to commence construction within one year from the date of full
approval. And if I remember correctly fall approval for clarification purposes, does it still mean
obtaining a building permit? Is that what full approval means, obtaining a building permit
because that same condition states five years from the date of full approval we have to complete
construction. The way condition 10 reads it is a little confusing from how it used to be written
before. It says "The applicant shall substantially commence construction of the project
development and infrastructure improvements within one year from the date of full approval
including all building and site construction permits and shall complete construction of the project
development within five years from the date of full approval of the subject permits." What is
confusing to me the way this condition is worded is that we have within one year from the date
of full approval, all building and site construction permits and it is not clear that we have to get
the building permits within one year from the date of approval which is February 2, 2010. Or, do
we have the full two years under the SMA to get the building permits and the five years after
that. It is just not clear so I wondered if it was just like before, does date of full approval mean
obtaining a building permit and then we have five years from that date to complete construction.
Chair: Mike, before you answer that can this question be answered, whatever the answer
is, is going to apply, but does it affect our approval...I don't want you to answer something...so
I was wondering if it affects the report because whatever the answer is applies. So can you
answer it now or...?
Mr. Dahilix Given the request for clarification on a condition that is...and we are
currently on the floor I would hesitate to make any type of interpretation at this point. We
probably need to get back with my staff to discuss how we should be interpreting that particular
Planning Commission Minutes
February 8,2011
2
issue. Ultimately I think in the context of what the action is asked for today before the
Commission is really just to accept the report and we can resolve the clarification matter with
Mr. Youn after the meeting.
Mr. Youn: Can I add something? There is a bigger picture to this and that is why I am
asking the question. If you read the report this project went into foreclosure and that is why now
it has been taken back by the bank which means that it is going to be put up for sale again so
should any purchasers come on line to purchase this project and develop it they have to meet all
these conditions. And they are ones asking if we could clarify the confusion in that condition so
we would need to have it clarified as part of this review or through a separate letter would be
fine.
Mr. Dahilijz: I think it really is a separate matter that we can take up and resolve.
Chair: Anything else Avery?
Mr. Youn: No, any more questions?
Chair: Questions for Avery?
Mr, Blake: So the lawsuit is settled?
Mr. Youn: Yes it is and the appeal is also settled.
Chair: Other questions for Avery?
Mr. Youn: Thank you very much.
Chair: Does anyone in the public want to speak on this agenda item? Seeing none what
does the Commission want to do? The action would be to receive.
Mr. Raco: Prior to getting a motion I would like to know as a Commissioner if the
entitlements do carry over, is what Avery wanted to say before taking action on this agenda item.
I would just like to know for myself so other than...in favor of a motion,just on the motion to
continue,I would want to have clarification on both of those items before I feel I would want to
vote on a motion to accept.
Mr. Dahilia: What we can do then Commissioner is we can receive the communication
in our department from Mr. Youn based on that separate correspondence and we can defer
acceptance of the report pending our evaluation of his request and then comport that with the
supplemental report for the next Commission meeting.
Chair: That would require a motion?
Mr. Dahilig: A motion to defer.
Chair: Move to defer?
Mr. Raco: That is how I feel. I don't know about the other Commissioners but I just feel
caution because there are probably other applications out there that are probably in a similar boat
on what is the status or where is the County or the department action going to take as far as, as
more of these applications come up for foreclosure does the entitlements...
Chair: Why don't we move to defer...
Mr. Texeira: Mr. Chair...
Mr. Raco: We are just in discussion.
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February 8,2011
3
Chair: I would rather have a motion.
Mr. Texeira: Mr. Chair, prior to a motion to defer can we have a motion to receive first
and then we can go ahead and do the second one?
Mr. Dahilig: I think, and maybe I am misinterpreting what Commissioner Raco is asking
for but even before the motion to receive which essentially meets the compulsory condition of
providing an annual status report he would like to have this issue clarified before that action
actually takes place.
Mr. Raco: That is correct.
Chair: So can I have a motion to defer?
Mr. Raco: If there is no discussion then I motion to defer.
Mr. Kimura: Second.
Chair: Any discussion on the motion?
Mr. Blake: So receipt is different from acceptance, we can receive it and not accept it
can't we? Not just for this project but for any other project that submits something, a required
report in a timely manner, we did get it. But if we don't approve or we question assertions made
in the status report we can decline acceptance or that just splitting hairs?
Mr. Dahilig: No Commissioner, that is a good question and I may want to defer to legal
counsel with respect to parliamentary procedure and whether that is a difference between
acceptance or receipt.
Mr. Jung: Just on the general question of parliamentary procedure because I am screened
from this particular item, with regard to receipt of the items it is just receipting it for the record to
establish the record. If you don't want to accept the report you don't have to accept the report.
If you want to defer it that is fine but it is not satisfactory to what you think is a good status
report then technically you don't have to receive it, or accept it I should say.
Chair: Any other discussion on the motion? Motion to defer until the next meeting, all
those in favor say aye, opposed, motion carried.
On motion made by Caven Raco and seconded by Jan Kimura, to defer action,
motion carried unanimously by voice vote.
Request to Amend Use Permit U-2007,-13 and Class IV Zoning Permit Z-IV-2007-17 for
an addition to the Kaiakea Fire Station Facility Photovoltaic System, Tax Map Key 4-6-
014mor. 026, Kapa`a, Kauai= County ofKaua`i,Department of Public Works.
Staff Report Pertaining to this matter.
Staff Planner Dale Cua read staff report and recommendation(on file).
Chair: Questions for Dale? Seeing none can the applicant come forward?
Mr. Glen Sato: Good morning, my name is Glen Sato with the Office of Economic
Development and with me is Jeff Guest, engineer and project manager with the Building
Division. This is a joint project, the County received stimulus funding via a formula direct blot
grant and it was decided from the administration that we apply the entire blot grant amount to the
PV system. I think if you go back into the records the actual building plans had a PV system
with the original plans but what happened was I guess because of costs they took the PV system
out so the blot grant enabled us to put those plans back on the track. So that is basically what we
are doing right now.
Planning Commission Minutes
February 8,2011
4
Chair: Questions?
Mr. Texeira: Could you discuss for a minute the cost benefit, $267,000.00 dollar grant,
what is the cost benefit? If you would just utilize the monthly electricity bill of the County Fire
Department and this project...
Mr. Sato: The station just opened, I believe they moved in August or September of last
year so we don't have a lot of utility use information. When I look at the information right now
the PV system will probably supply 45 to 50 percent of the total load or requirement of the
station. That said, because we are not really tracking I don't know how much of that is during
the day when the PV system is operational, it might carry most of the daytime load. There is no
battery storage so it won't push the energy into the nighttime hours. That facility is on a
schedule G rate so right now, February 2011, is .37 cents per kilowatt hour which is high and it is
rising as the oil prices go up. If you look at that .37 cents and the projected annual AC energy
production, roughly 40 thousand kilowatt hours, it is worth about 15 thousand dollars a year so
that is basically how much of the utility bill be potentially offset.
Mr. Texeira: So if the project costs $267,000...
Mr. Sato: Well its $267,900.00 that was the original grant amount. We have $25,000 for
planning and design and inspection of the system, the professional services contract so we are
roughly looking at$242,000.00 for the PV system.
Mr. Texeira: Have you looked at any other projects besides this in terms of cost benefit
to the County?
Mr. Sato: We are in the process of installing a PV system for the L-ihu`e Civic Center,
Piikoi Building, on the flat roof area and we are also looking at the Police facility on Ka`ana
Street.
Mr. Texeira: If you do one system does it make it cheaper, does the per unit cost go
down?
Mr. Sato: If we could bundle all our facilities and go all at one time we would probably
get a better price but that is pretty hard to do because the funding sources are different, like we
are using our funds, Piikoi is using I believe bond funding and we'll us the remaining bond funds
also for the Police facility.
Mr. Blake: Just out of curiosity would wind power work there along that bluff?
Mr. Sato. Wind is a really tough project to implement on Kauai just because of the
endangered bird issue. I have looked at past wind studies and the Kapa`a area isn't really noted
for sustained winds. The State did a wind study in the early 90's and they actually pinpointed
the Koloa/Po`ipii area and the K-ilauea are which one is resort and one is more the sea bird
colonies out by K-11auea. The areas with the winds don't really lend themselves to wind
development. There was also a site designated, not designated, they came up with another site in
north Hanapepe Valley but that is private land and the landowner at that time did not want a
wind project.
Chair: Other questions?
Mr. Raco: You know this solar PV system, does it store energy in batteries or is this
system...
Mr. Sato: It can but this particular project due to costs we are not having battery storage,
it just increases the cost tremendously.
Chair: How much would it increase the cost?
PIanning Commission Minutes
February 8,2011
5
Mr. Sato: Probably double or triple the cost.
Chair: Any other questions for the applicant, thank you. Anyone in the public want to
talk on this? Do you want to add anything? Anyone in the public want to speak on this agenda
item? What does the Commission want to do?
Mr. Raco: Motion to receive...
Mr. Dahilig: Actually we need a motion to approve on this one.
Mr. Raco: Motion just to approve so we don't have to receive first?
Mr. Jung: The items were received under the general catch all at the beginning of the
agenda.
Chair: So we need a motion to approve.
Mr. Raco: So moved.
Mr. Kimura: Second.
Chair: Moved by Caven, seconded by Jan to approve, any discussion, all those in favor
say aye, opposed, motion carried.
On motion made by Caven Raco and seconded by Jan Kimura, to approve staff
report, motion carried unanimously by voice vote.
SUBDIVISION
Mr. Kimura: Subdivision Committee Report, committee members present, myself Jan,
Cammie, and Herman. General Business, none, Communications, none,Unfinished Business,
none, New Business, final subdivision action, 5-93-50, McBryde Sugar Company, Ltd., TMK: 2-
4-007:020, 023, 025, approved, 3-0, final subdivision action, 5-2006-04, McBryde Sugar
Company, Ltd., TMK: 2-4-007:002, 003, 018, approved, 3-0. Tentative subdivision extension
request, 5-2005-26, Eleanor M. Cox, TMK: 2-7-005:028, approved, 3-0, tentative subdivision
extension request, 5-2006-27, Grove Farm Properties, Inc., TMK: 3-3-003:041, approved 3-0.
Ms. Matsumoto: Second.
Mr. Kimura: Do we have a motion?
Chair: Move to approve?
Mr. Kimura: Move to approve.
Chair: Moved and seconded to approve the subdivision agenda report, any questions,
Hartwell.
Mr, Blake: With regard to subdivision number 5-93-50 and this question also applies to
S-2006-4, I noted in the report that there was an effort to provide affordable farm lots. So my
question was if that continues to be true does that mean there is going to be income restrictions
or standards that have to be met to purchase these lots?
Chair: Dale?
Mr. Kimura: My understanding, I think we don't.
Mr. Blake: So these are going to be market priced affordable farm lots?
Planning Commission Minutes
February 8,2011
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Staff: Yes.
Mr. Blake: I thought they were kind of mutually exclusive, not mutually exclusive, is
there such a thing on Kaua`i as an affordable farm lot at a market price?
Staff I wouldn't know what constitutes affordable in that particular case.
Mr. Blake: That was one of my questions because it is part of the overall Bryde's Wood
Subdivision, right?
Staff: Yes.
Mr. Blake: Bryde's Wood was income based, right, carried over to the farms. What is an
example of an agricultural restriction on agricultural land?
Staff. In the past there were restrictions that were imposed on agricultural subdivisions
that mainly involved specific uses,uses like poultry raising, piggeries, and in some instances
there were restrictions on,there were restrictions that imposed view plane corridors within the
development it's self.
Mr. Blake: Restricted what?
Staff: View plane corridors.
Mr. Blake: So you could have, what you foresee here is an agricultural subdivision that
could say no chickens or pigs?
Staff. No, not at all, actually as part of the process in approving or as part of reviewing
agricultural subdivisions the department would check to see if there are any restrictions that
would limit the uses within the development that would be generally permissible through HRS
205,
Mr. Blake: And then I also note in item (k) that the "subdivider shall prepare an
agricultural master plan for the subdivided lots, having to do with provision of irrigation water,
easements, and field areas for cultivation of crops or pastures." Is the implementation of the
agricultural master plan required? In other words the question I have is if you had two lots and
you said that,part of the master plan has to do with orchards, does that mean that you have to
have orchards on those lots?
Staff. I think it would be kind of going back to those permissible uses in 205 where as
long as the proposed use is consistent with agricultural activities I don't think we prevent them
from doing any type of agriculture.
Mr. Blake: So what is the difference between an agricultural subdivision with an
agricultural master plan and without a master plan?
Staff: I think up to 1999 the department has reviewed agricultural subdivisions without
an agricultural master plan. From 1999 and on it was at the request of the Planning Commission
that the subdivider prepare an agriculture master plan so that they have an opportunity to review
what is being proposed and at the same time assuring that there are no restrictions on any type of
agricultural uses.
Mr. Blake: So if there is an agreement to incorporate agricultural restrictions into the
instruments of conveyance for the lots which contain Class A or Class B soils what does the
master plan add to that?
Staff: I think the primary intent of the agricultural master plan is basically to identify the
areas for agricultural purposes and where development will be focused around. So in a way it
Planning Commission Minutes
February 8,2011
7
reserves an area for the farm dwelling and sets aside the remaining areas for agricultural
purposes. That is the primary intent of the agricultural master plan, to identify where
development will be.
Mr. Blake: So it doesn't require anything of the individual owner. Well it is almost a
way to disclose to the future homeowners that there are areas within the property you are buying
that is set aside specifically for agriculture.
Mr. Raco; Dale, when we were on the subdivision committee I think more of the
intentions of the master plan, the Ag. master plan was to get an idea of how big the house was
because at that time we were dealing with gentleman farm housing and we wanted to know how
big the house was. Some projects were proposed to build 5 to 10 thousand square foot houses so
I think we used that vehicle the master plan to have that discussion and not really have the
discussion on what the Ag. use is.
Mr. Blake: And then who determines if public access is required to a subdivision?
Staff. That is established through ordinance 777.
Mr. Blake: The other thing on drainage, item (c), it says that the subdivision,having to
do with permeable surfacing which will increase storm water flowage. As I understand it there
are now types of pavement that are permeable, they don't shove all the water off into a drainage
culvert or drainage system. And I don't know what the cost of this is but it would seem to me
that it would be worth exploring because it exists right now on Kauai. The thing about
affordability was on page 3, item(q) of 2006-4,which references facilitating the demand for
affordable agricultural lands for Kaua`i's farmers whose primary intent is to conduct Ag,
activities as permitted. And it said that in order for that to happen the applicant shall first market
the lots to Kauai farmers for not less than 120 days after final subdivision approval. And I
thought 120 days didn't sound like a very long time. If you were going to buy or if you thought
you wanted to buy you better be ready on the first day after approval because it will take bank
that long or more to approve the loan if you need a loan. Again it didn't seem to jive with
affordability for farm lots. And the last thing was, is there going to be any restrictions on
condominium, imposing condominiums on this property?
Staff. No.
Mr. Blake: So if...what is the potential density if you can condo these properties? And
that goes back to the condition on traffic improvements, quote "if needed". I think if we allow
condominiums you can figure on at least doubling what is imposed from...
Chair: Hartwell,just a clarification, you are talking about ADUs or CPRs?
Mr. Blake: CPRs.
Chair: Because CPRs are in the calculation, right, you cannot get additional...when you
come in for the density,the density is set at...
Staff: At whatever the zoning allows.
Chair: Yes, it is already set. So whether they CPR them or not doesn't affect the density,
the density is the same. The one that affected density was the ADUs.
Mr. Blake: I'll change it to ADUs then. I mean I am just worried about or concerned
about traffic which is already a problem because we only have one road going around the island.
Chair: The Ag. ADUs are sunset, right, there are no Ag. ADUs.
Mr. Jung: No more Ag. ADUs on Ag. or Open, the last ones that could be created
through subdivision was December 31, 2006 so that sunset a while ago.
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February 8,2011
8
Chair: Any other questions? The motion on the floor is to accept the subdivision report,
all those in favor say aye, opposed,motion carried.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve
Subdivision Committee Report, motion carried unanimously by voice vote.
Commission recessed at 10:00 a.m.
Meeting called back to order at 10:15 a.m.
UNFINISHED BUSINESS
Zoning,Amendment ZA-2011-2aDraft Bill No. 2380) to Sections 9-2.13 & 9-3.4 of the
Subdivision Ordinance chapter 9 of the Kauai County Code Q 987 as amended relating to
exemptions from infrastructure improvements involving the consolidation of lots and approval of
preliminary subdivision map,respectively=Kauai County Council. Mearingcontinued
11/23/10, closed 12/14/10,1
Supplement No. 1 to Director's Report pertaining to this matter.
Staff Planner Dale Cua read staff recommendation(on file).
Chair: Questions for Dale? Does anyone in the public want to speak on this agenda
item? Seeing none, any questions for Dale?
Mr. Blake: Bottom line, Dale, is that although certain developments, subdivision
developments are exempt from infrastructure requirements it doesn't mean that these
applications for subdivisions will not be reviewed by the appropriate agencies.
Staff. Right.
Mr. Blake: They will still be reviewed.
Staff: They still will be reviewed.
Mr. Blake: As a safety measure, at least for safety purposes.
Staff. Right.
Chair: Other questions for Dale? What does the Commission want to do?
Mr. Blake: So on page 3 at the top of the page, fourth line, is that"or" or "of'?
Staff. This is under section 9-2.13?
Mr. Blake: Yes.
Mr. Dahilig: That should be"of'.
Staff: "Of record", yes that would be"parcels of record".
Chair: What I was thinking, what is parliamentary procedure, do you have to have a
motion or you can have a motion so that you can discuss? I would think we would have to have
a motion on the floor to discuss.
Mr. Jung: You can pose questions to the planner if you want to deliberate the bill in that
fashion but if you want to entertain a motion and discuss the motion you can entertain the motion
first.
Planning Commission Minutes
February 8,2011
9
Chair: So any discussion to entertain the motion, any motion?Avery, do you want to
speak?
Mr. Avery Youn: Good morning Commissioners, I am Avery Youn and I wanted to
speak on this bill. I spoke to you before on this bill and I believe I said that the primary purpose
of this bill was because we have some minor consolidations and re-subdivisions where no lots
are created however the agency comments, we would get like five to ten pages of conditions and
a lot of it is off-site improvements which we thought were not really applicable or unreasonable
in situations like this. I think the amended language is good because what it does on section 9-
2.1, well let me start at the bottom, section 9-3.4(2). The language is revised where "except for
consolidation or re-subdivision of lots exempted by section 9-2.3" was taken out and what it does
is allow the Planning Director to determine for comments of approval. And if you go to the
upper part, 9-2.13, it allows "The Planning Commission shall not impose additional conditions
pursuant to section 9-3.4".
So the way I see this, on the bottom section it allows the Planning Director the discretion
to include some conditions and the example I can think about would be if there is a Kuleana that
does have water and some kind of access, if you want to move it closer to a road or something
else that would be okay. But there would be some situations whereby there is a Kuleana that
does not have water and so I believe the bottom part gives the Planning Director the discretion to
still require some conditions where necessary rather than waive all of it. And as far as the
excessive conditions for off-site improvements for like extending wire lines for a mile, the
Planning Commission does have the discretion in the language in section 9-2.13 to overrule and
not require those kinds of conditions. So I am here to support both of these with the
understanding that we are aware that some conditions would have to be put on some of these
consolidations and the Director does have that discretion. But also the Planning Commission has
the right to waive all of these conditions also where it is deemed to be excessive.
Chair: Thank you Avery, questions for Avery?
Mr. Raco: Chair,motion to approve ZA-2011-2.
Mr, Kimura: Second.
Chair: Moved and seconded, all those in favor say aye, opposed,motion carried.
On motion made by Caven Raco and seconded by Jan Kimura, to approve staff
report, motion carried unanimously by voice vote.
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 approx. 90 ft. north of the cane haul road's
intersection with Kaumuali`i Highway intersection, said intersection is located 4pprox. .40 miles
north of that area generally referred to as Halfway Bridge, further identified as Tax Map Key 3-
4-001:003 and affectinjz a 600 s . ft. ortion of a 2,668.037 acre parcel=S rintlNextel.
(Director's Report received 12/14/10, hearing closed 1/11/1 l.]
Supplemental No. 1 to Planning Director's Report pertaining to this matter.
Chair: Let's take a 5 minute break so he can set up.
Mr. Raco: What is the power point presentation again,the same presentation that we had
before?
Chair: Is it going to be the same presentation?
Mr. Young: There is a little bit of adjustment to the heights.
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February 8,2011
10
Mr. Raco: Is it just the height coming down the 15 feet?
Chair: Yes.
Mr. Raco: Do we need to have a presentation if we are just talking about the height?
Chair: It is a request by the applicant.
Mr. Raco: I don't need to see a presentation if the height is just dropped 15 feet from...
Chair: What does the Commission want to do? Can we go through it without the power
point?
Staff- To interject, Chair, I discussed with the applicant previously and he does have
some photos that he would like to show other sites and the similarities of the proposed pole to
those sites. Given the nature of the recommendation of the department's report, in all fairness
we may want to allow the applicant to present his case.
Chair: Okay, we will take a 5 minute break while they set up the power point.
Commission recessed at 10:27 a.m.
Meeting called back to order at 10:34 a.m.
Mr. Dahilig: Mr. Chair, on item D.1 there was I guess an issue that we still wanted to
bring up with the Commission before it made its final approval so I would like to ask if the
Commission could reconsider its motion on item D.1 relating to zoning amendment ZA-2011-2
to accommodate discussion regarding a tentacle amendment the department would like to insert
before it is transmitted up to Council.
Chair: And if we don't reconsider?
M_ r. Dahilig: If you don't reconsider then it would get passed up as is and we wouldn't
have the tentacle amendment in there.
Mr. Raco: (Inaudible).
Mr. Dahilig: It would have to be a motion to reconsider and then the original motion
would be on the floor. We would ask for a motion to amend the language and then you would
vote again on the...
Mr. Raco: So you need a motion to reconsider?
Mr. Dahilia: Yes I do.
Mr. Raco: So moved, motion to reconsider.
Mr. Texeira: Second.
Chair: Moved and seconded, all those in favor say aye, opposed, motion carried.
On motion made by Caven Raco and seconded by Herman Texeira, to reconsider
motion to approve, motion carried unanimously by voice vote.
Staff. After further discussing the proposed amendment to section 9-2.13 and
considering...the proposal would actually involve amendments to the second sentence of the
amendment. But rather than confusing you what I will do is I will read what the amendment
would read. It would read"All consolidation of lots shall be processed through the Planning
Commission and shall require its approval before recordation of any maps or documents
Planning Commission Minutes
February 8,2011
II
pertinent to the consolidation. Consolidation involving not more than 4 existing lots or parcels
of record and re-subdivision where no additional lots or density are created by the result in
properties shall not be required to provide any off-site County infrastructure improvements
except as needed to connect to an adjacent roadway or utility line, where there is no result in an
increase in density." So that would the updated amendment to section 9-2.13.
Chair: Questions for Dale?
Mr. Texeira: Dale, where would that be exactly in this report?
Staff: If you go to the second sentence of that paragraph of the proposed amendment
beginning with, the beginning of the sentence is "if' so essentially what the department will be
doing is at the end of the word"utility line", we would be replacing the period with a comma and
continuing the sentence to read"where there is no result in an increase in density". So the next
sentence would be completely eliminated and we would just be keeping that word "result in an
increase in density."
Mr. Raco: So the portion that would be taken out would be"The Planning Commission
shall not impose additional..."
Staff. Right.
Chair: Any other questions for Dale?
Mr. Texeira: Dale, could you please read that?
Staff. Sure. The amendment would just be one long sentence as apposed to two
sentences. Starting with the amendment,starting from the underlined section, it would read
"Consolidation involving not more than 4 existing lots or parcels of record and re-subdivision
where no additional lots or density are created by the resulting properties shall not be required to
provide any off-site County infrastructure improvements except as needed to connect to an
adjacent roadway or utility line, where there is no result in an increase in density."
Chair: If there is no further discussion we are going to need a motion to amend the
report.
Mr. Raco: Motion to approve as amended,read by the planner.
Mr. Texeira: Second.
Chair: Moved and seconded to approve the report as amended, any discussion, all those
in favor say aye, opposed,motion carried.
On motion made by Caven Raco and seconded by Herman Texeira, to approve staff
report as amended, motion carried unanimously by voice vote.
Commission went back to item D.2.
Staff Planner Kaaina Hull: Good morning Chair, members of the Commission. Point of
clarification or editorial, on supplement No. 1 to the Planning Director's Report the applicant
reads as Crown Castle International and it should actually state Sprint together with Nextel.
Staff Planner read supplemental report No. 1(on file).
Chair: Questions for Kaaina? Can the applicant come forward, anything to add? You
have a presentation you want to make. Do you want to do the presentation now?
Mr. Karl Young: Sure, Karl Young for the record, with Sprint/Nextel. I do have some
repeats so I will skip right through the repeated information, there are some samples from before,
Planning Commission Minutes
February 8,2011
12
the area we are proposing to cover, a 3 mile strip. We reduced the height here,you can't tell
much, and it is basically reduced down to 150 feet. This is the map that was shown before and I
put another one here to show how this would still work in covering the gap and it has been
reduced. This would be the proposed site at 150 feet and these are some photo simulations that
were presented last time. There is a little arrow on this map showing the location and the
direction in which the photo was taken, each of these photos, so it matches this photo right here.
You would not see it. This is presented from before at this location,the reduced height,we show
a little reduction right along the highway here,reduced height. Right in front right by the access
of the old cane haul road,reduced height and the girth would change a little bit as well.
Coming the opposite way, coming from the Waimea side or Tree Tunnel side,there is a
reduction there. Again a little further up, so there is a little shrouding from the existing trees
there. This is an existing site in Wailua that has gone up,it is not complete yet but it is right
along the road, a little closer to the road than the proposed one. This is only 70 feet so our
proposed site would be almost double that. This is the one by Koioa Church,by the bypass road
in the back, from the front it is not visible at all,and this is what it would look like from behind.
Just as an example it was brought up how the antenna farm at Kaumuali`i doesn't look good so I
added what stealth's would look like to change the view of those. This is the proposed location
for the 7th Day Adventist site. This is the sign for the 7th Day Adventist pre-school,the site would
go back here. But along the road here are already very tall pine trees that are measure at 150 feet
all along this road. And this is from another angle;these trees that exist at 150 feet. So that is
basically it. This is the area that is a main corridor, a main artery which is our primary concern
of just basic coverage, road coverage. For 3 miles there is no coverage that connects Lihu`e to
this entire south coast. So that is basically it.
Chair: Questions for the applicant?
Mr. Texeira: I have a question, at our last meeting you were asked to discuss the
possibility of relocating, I think was it with Verizon? I am not sure exactly what site you were
looking at,what was the result of that meeting?
Mr. Young: That is a possibility if they build the site. So I think one of the things that
were discussed was that there might be a term limit on the application and that would help. So
we did look into that and it is a possibility. Verizon has agreed to increase the height of that pole
but as mentioned that pole doesn't exist and it hasn't been zoned, it is a maybe. So at this point
this is...we don't really have something at this point but it has been explored.
Mr. Texeira: Does Verizon have an existing site right now?
Mr. Young: They don't have an existing site. This is zoned to have a site back here,this
is the proposed site for Verizon. I had mentioned sometimes that can be a challenge to
(inaudible), it is not built yet,it hasn't been approved, it's not on Verizon's books. This is a
rumored site, it was rumored at 120 feet and the landlord has asked them to increase the height,
they have agreed to that. I think they have entered into an agreement but zoning hasn't been
filed or completed yet.
Mr. Texeira: So going back to that proposed Verizon site,Verizon has a lease with the
landowner right now, is it possible you could negotiate a lease with them on your own,with the
landowner?
Mr. Young: The land is owned by Eric Knudsen Trust and it is possible but timeframe
can be long based on past history,probably past the budgeted timeframe.
Mr. Blake: Based on what?
Mr. Young: The past history and our budgeted timeframe it is not likely we would be
able to achieve that.
Planning Commission Minutes
February 8,2411
13
Mr. Texeira: So can you go back and discuss this timeframe that you are talking about,
how necessary for your operations is this timeframe that you are suggesting?
Mr. Young: We are using Federal funds, it is part of the Universal Service Funds to help
with rural areas and there is a time limit on it so you have to use it or you could lose it. So it has
been a while already. And so this area is a big concern especially as mentioned before to Civil
Defense as it is 3 miles uncovered so we have been trying to pursue this, we have tried to pursue
that a little bit but it hadn't been built and so as mentioned before with past parameters it has
been difficult. This does pose more potential as it is with Grove Farm and we are already
working with Grove Farm so we already have an agreement that is partially done.
Mr. Texeira: So why can't you go with that site then,the Humane Society?
Mr. Young: Part of it is that Verizon is already in so they have first in time rights. There
is the issue of collocation, who builds the pole, who builds it first, if they choose not to build it
right away. So the time limit on an application would help but then application, I don't know if
it has even gone in yet.
Mr. Texeira: Would you consider going in by yourself?
Mr. Young: Sure and it could be in lieu of whatever happens there so if that time limit
runs out that is a possibility but that is probably a different discussion but it is an option, yes.
Mr. Blake: So the site which you say Verizon already has secured, is it exclusive?
Mr. Young: Based on some of the parameters, in house parameters of the County it sort
of is because they encourage collocation.
Mr. Blake: They encourage collocation, so it is not exclusive just to Verizon then.
Mr. Young: It is not exclusive...
Mr. Blake: If you wanted to go in there you could go in there too.
Mr. Young: Sure, but we cannot, we wouldn't be allowed to build a second pole so if
they chose not to build it we wouldn't be able to build a pole based on the history and past
recommendations of the Planning Department.
Mr. Raco: Have you had conversations with Knudsen Trust to build I guess Verizon's
pole or build that pole with the approval of the entitlements that they have?
Mr. Young: No we haven't had that discussion. They have an existing agreement with
them that has been in place for a while now, for over a year, almost two years so they have
already gotten approval for that. So for that discussion, I wouldn't see that the landlord would
see that in their best interest because we would have to get zoning on our own,we would have to
enter into an agreement with them first.
Mr. Raco: Since our last meeting you haven't had any discussion about...
Mr. Young: No. The President of the Trust was out of town. But I have had discussions
with him before and I know where it would go and how it would be.
Mr. Raco: (Inaudible) he already has a lease with Verizon and...
Mr. Young: Yes they have a lease. They could enter into an agreement with us but we
are pretty sure it would take at least a year.
Mr. Raco: And by then the funding would pass.
Planning Commission Minutes
February 8,2011
14
Mr. Texeira: Excuse me, could I ask another question? Going back to the Kauai
Humane Society's site, you mentioned that the County would object to having a second pole on
that site.
Mr. Young: They would.
Chair: Let the department answer because we have talked about that, Kaaina, Mike.
Mr. Dahilig: I would hesitate to make any (inaudible) statements about future actions on
something that we really have no factual basis on right now so I wouldn't say yes or no. Again
there are a number of factors and items that we need to take into consideration an application
comes in but just for us to make a statement that we wouldn't allow a second pole situated right
next to another pole, I would not want to give that impression without us doing our due diligence
first.
Mr. Texeira: Well what have you done in the past in that regard?
Mr. Dahilig: I think in the past there have been multiple poles within tight proximity
with each other and that historically, specifically in the site that he showed in the Kamakani area,
is something that as we move forward we want to try to avoid. But it is not what I would call a
hard and fast rule because again everything needs to be evaluated on a case by case and factual
basis. So for us to make a blanket statement that two poles would not be allowed right next to
each other, I would not want to send that message to the public ahead of time. It is a factual
issue.
Mr. Kimura: Is there any timeframe on this type of applications in the past?
Mr. Dahiliw: Given the last presentation regarding this it is something that we are now
aware of with respect to how our permits are being used to essentially block out other service
providers from certain areas, especially when we are dealing with large tracks of land that are
held by a single landowner. So one that as we move forward when looking at our proposed
permit conditions before the Commission is to actually include a date that says you need to
construct the pole within a certain amount of time or the permit will expire. The reason we
going to try to do this is to try to again not be caught in a position where our permits are being
used to block other competitors out of the market so it something that we have discussed in-
house. But until another permit condition does come in we are going to continue to refine that
approach and then see how we can implement it when new stuff does come before us.
Mr. Raco: On the same note,Karl, if you did get approval today what would your time
frame be?
Mr. Young: If we were to get approval for this now?
Mr. Raco: Yes.
Mr. Young: We would go in for building permit and construct right away this year.
Mr. Raco: So we are talking less than a year or six months?
Mr. Young: Probably.
Mr. Raco: Which one?
Mr. Young: Probably six months. I can't say exactly but I know they want to get this up
right away. They have the funding, they are ready to go.
Mr. Raco: I guess, for our Planning Director, the only reason why I would allude to that
is that I know your report says denial but on what basis? I know the Kauai General Plan
designates that is a scenic roadway corridor but being that the circumstances with topography
either going downhill or uphill, I don't think you see that scenic view anyway. So is there any
Planning Commission Minutes
February 8,2011
15
other grey spots being that where you would see the view, I don't think in those locations from
either uphill or downhill.
Mr. Dahilig: Maybe the planner can answer more to that and I hate to say that I really
don't pay attention much when I am driving to my surroundings. I am rocking out to music a lot
of the time, keeping my eyes on the road and focusing on Bon Jovi or something but maybe the
planner can answer.
Staff: That is to a certain degree an accurate statement depending on your position and
where you are on the road. The proposed monopine would blend in with the surrounding
vegetation however in certain other areas at certain angles, and I think Mr. Young had a photo
speaking to such, it does protrude significantly not only into the landscape put onto the horizon.
And that is a specific concern iterated in the General Plan is that protrusion or silhouetting affect
that structures can have and this would constitute a significant protrusion onto the horizon.
Mr. Raco: Where would that protrusion be? I mean are you saying two miles away? To
me that's...what you are saying,the protrusion, like where is the protrusion? For me, if I was at
the Humane society looking towards this corridor I would not see it or right before Halfway
Bridge, I wouldn't see it either.
Staff: It really comes into effect when you are in close proximity when you are located
right beneath the proposed structure.
Chair: Any other questions?
Mr. Blake. Has Verizon put any additional antenna or relay capacity in the past fifteen
years in that area?
Staff. In the Halfway Bridge area?
Mr. Blake: Halfway Bridge/Tree Tunnel area?
Staff. The closest one I believe for Verizon may be in Hanapdpe and they do have
antenna in K61oa and Po`ipu.
Mr. Blake: But they don't service that dead spot there do they?
Staff: I believe they service it off of and I will have to check the way in which most
carriers service off of Ho`opu Mountain range.
Mr. Blake: Because I remember when the County first, it way Marianne Kusaka,
recommended that we get cell phones which was about fifteen years ago and the question was
directly to Verizon, what are you going to do about the dead spot at the Tree Tunnel where you
just loose the signal going into the Tree Tunnel to K6Ioa and coming up into the Tree Tunnel
from K61oa. And promises,promises, oh, don't worry, we are going to take care of it, it's
eminent, fifteen years ago it was eminent. And it is still a dead spot.
Staff: Well that was, if memory serves me correctly that was exactly what they spoke to
when they proposed the facility located near the 7th Day Adventist park.
Mr. Blake: Well every time I ask if I can hear him now I want to say no. And I
appreciate what the Director is saying about coming in so that you can block other...let me
rephrase that, has the appearance of blocking other providers.
Staff: Yes and just to reiterate that is exactly what we will be looking at perhaps in the
fixture proposals is we will be looking at putting a timeframe on the applicant and/or landowner
in order to prevent monopolistic practices.
Planning Commission Minutes
February 8,2011
16
Ms. Matsumoto: I think the use of cell phones has really grown obviously so it sounds
like the goal is to provide coverage, full coverage throughout the island. I don't know, it doesn't
make sense to me, it's like you are talking about three miles, what was the plan to begin with, the
building plan because everything else is covered except for the three miles. Why didn't you
have a plan where you could continue coverage instead of saying oh, we build these two poles
over here and then there is a gap here. I don't understand that.
Staff: I will direct that to the applicant.
Mr. Young: That is a very good question. I asked that kind of question myself just doing
this business and a lot of it has to do with funding, when funds become available. They do have
a master plan, they did try to have this built long ago, everybody has tried to make a case for this
area but it is only three miles, a cell site can actually cover more and it is not populated. So the
cost to build this site is enormous because the power comes from about a quarter of a mile away,
they only place we could find power was down by the quarry. To build this site is very difficult;
it is not an easy site to build. To do this small area, Hawaii has some very challenging areas
because of the topography, because of the undulating topography and also the trees. Trees cause
a big problems especially on Kauai, its very lush and it does create problems with signal. And
engineering is a science but it is also part art so a lot of things don't work out the way they
thought they would.
Ms. Matsumoto: We talked about this before, the trees are a factor. I don't know how to
say this, it still doesn't make sense to me, couldn't you have seen that before? Not just your
company but any other company?
Mr. Young: Sure. They do computer modeling and they do a lot of things to try and
project and to predict these things to try to save money,to be efficient, but things don't work out
exactly. There is a site up here on this mountain that should have covered it but when you turn it
on something happens and it doesn't work out as modeling...these programs are very expensive
and they run tests, they do drive tests with a truck with a radio and a temporary antenna to try to
predict what is going to happen. It doesn't always turn out the way it is because it is an applied
science which isn't perfect.
Ms. Matsumoto: Okay but we are talking three miles and just hear me out a little bit. We
are saying we cannot use our cell phones within that area, isn't there a blue light place where you
can make a phone call in that area, a landline?
Mr. Young: Yes. So there are, all along this road, there telephone lines on pole, 25 foot
poles all the way along the side that allows that to happen. In order for a cell site to work you
need a telephone line and you also need power. So the power is the big thing,the power is very
far way and in order to make this thing work without, basically the way traditional lines work is
you need poles every 150 feet. So to cover one mile you need 30 poles in a straight line so to
cover it with one pole it has to be very tall, it has to have power,and it has to have access to a
telephone. A telephone line is not a problem, it's the power and the height of the pole needed to
cover the three mile stretch of this undulating territory.
Ms. Matsumoto: I guess that is not quite what I meant. I am thinking about in the case of
an emergency they have those call boxes on the highway don't we? If I couldn't use my cell
phone I would run to the call box and that is a whole different system.
Mr. Young: It is, it is a different system and what is happening and what happened on
Oahu is there was a blackout and there were a lot of complaints about certain carriers not having
coverage after two hours. So what they did was they are instituting their own back call so cell
phones do plug into the main telephone system as a backbone but what they are trying to do is
have a backup system so when these poles go down and you don't have a land line service they
will have their own phone service. So every cell phone company is producing their own
microwave back call system that allows them to remain viable in the event of an emergency
along with generator power.
Planning Commission Minutes
February 8,2011
17
Mr. Kimura: (Inaudible) cellular service to EMS, to the Fire rescue uses right now?
Mr. Young: I'm sorry, what was that sir?
Mr. Kimura: Do you know what type of cellular service the EMS or Fire Department,
Fire rescues uses right now?
Mr. Young: No I don't.
Mr. Kimura: So this is just for public use that you are trying to do, right?
Mr. Young: Yes and no. It is the requirement of the FCC that you provide certain
amount of emergency services for example E911, it is required that all those calls are free; they
are required to be up in the event of an emergency. So just like Hawaiian Telecom is a private
entity,they are also required to provide certain emergency services, even the location of people
so a telephone company has to look at a person's home. A cell phone company is required to
locate a person's location based on their GPS coordinates in the event of an emergency. So it is
a private entity but they are required to provide public services for getting an FCC license.
Mr. Kimura: What happens to sprint if that requirement is not met?
Mr. Young: I don't know the full implications of that. I don't know. But in order to
receive funding, the Universal Service Funds that they are receiving from the government to
provide coverage in rural areas they are required to stand before the PUC and say what they are
doing and what they are trying to do or how they are fixing areas that do not have coverage.
Mr. Kimura: So basically this is just based on funding. In order for you to get Federal
funding you need to put up some type of service there,if you can provide service along this
highway.
Mr. Young: There was a fund set up, there are a couple funds set up, one by the State
E911 fund and also there is a rural fund and also Federal Universal Service Fund that was set up
to help rural communities because the business case didn't make sense for companies to build
something that cost half a million dollars or a million dollars that had no population. And so in
order to help the areas, outlying areas with getting this coverage they did set up these funds and
so the funding is definitely linked to this site.
Chair: Herman, do you have some more questions?
Mr. Texeira: Yes.
Chair: I think what we are going to do is we are going to defer, if we can, defer it to the
end of the meeting and have the department...they want to talk about it based on the questioning
that we have been having. So if that is okay we would like to defer this to the end of the
meeting. Moving on, do I need a motion for that?
Mr. Raco: Motion to table.
Chair: Does anybody want to speak on this agenda item? Seeing none, this is going to
be tabled to the end of the meeting.
COMMUNICATION
Petition for Intervention (2/1/11) by the Coalition for Responsible Government relating to
Zoninp,Amendment ZA-2011-3.
Memorandum (2/2/11) from Planning Director to Planning Commission recommending
the Planning Commission reject the Petition for Intervention{2/1/11) filed by the Coalition for
Responsible Government relating to Zoning Amendment ZA-2011-3.
Planning Commission Minutes
February 8,2011
18
Chair: Before we go to the public hearing we moved the petition for intervention,2/1/11,
by the Coalition for Responsible Government relating to Zoning Amendment ZA-2011-3 and
also taken concurrently we have a memorandum from the Planning Director to the Planning
Commission recommending the Planning Commission reject the petition for intervention,2/1/11,
filed by the Coalition for Responsible Government Relating to Zoning Amendment ZA-2011-3.
Can Karl and David come up? David is not here,okay. So Karl,you being the sender of that
letter you can make a presentation.
Mr. Karl Imparato: Thank you. My name is Karl Imparato and I am the Chairperson of
the Coalition for Responsible Government. I would like to explain to the Commission why we
filed for intervener status. The Coalition for Responsible Government, CRG, is an informal
association of Kauai community organizations and citizens, we formed it in 2008,to spearhead
the enactment of the 2008 Charter Amendment that seeks to ensure that Kauai grows in a way
that is consistent with the scenarios in the County's General Plan. What we did at CRG is we
drafted the language of the Charter Amendment that became section 3.19 of the Charter, we
developed supporting data in justification of the Charter Amendment,we commissioned legal
research and support of the Charter Amendment,we obtained more than 2,900 signatures of
Kauai residents in support of the putting the Charter Amendment on the ballot. We drafted the
information that was provided by the County to the voters and conducted the public campaign
that resulted in voter approval of the Charter Amendment by a margin of 64 to 36 percent.
So CRG has an extensive and a unique interest in ensuring that the Zoning Amendment,
2011-3, fully and accurately implements both the spirit of the letter of the Charter Amendment
and the County Charter. That is why we believe that CRG is an appropriate party to participate
in depth in the Planning Commission's and the Planning Department's considerations as to
implementation of section 3.19. And we also believe that we would contribute greatly to your
fuller understanding of the intent and the objectives of the Charter Amendment,we would
contribute to informed decision making,and to the accurate and effective implementation of the
zoning amendment. As you can understand,because of our great stake in seeing that the Charter
Amendment is properly implemented it is imperative that we pursue all of our administrative
options on a timely basis just to make sure that we can't be foreclosed in the future from
pursuing or participating in any judicial actions that might ever turn up at a later date if there was
a need to do so. So we really need to preserve our options and that is one of the primary reasons
beyond the reasons I have already given you that we needed to file for intervener status.
We read the Commission's public notice very carefully and while the notice does indeed
state that the procedures that are laid out in Chapter 4 of the Commission's Rules of Practice and
Procedure relating to intervention,it says that the procedures do not apply to zoning amendments
and rule making procedures. Those words don't in themselves lead to the conclusion that
interventions don't apply here perhaps under some other procedural mechanisms outside of
Chapter 4. So given that ambiguity that was in the notice we filed our petition for intervener
status. The Planning Director's memo which recommended rejection of our petition states that
this public hearing a quasi legislative hearing and we don't dispute that this is a quasi legislative
hearing. The Planning Director's memo then goes on to state that a contested case is not
appropriate for legislative acts and thus intervention should not be entertained. Now that is an
assertion, it is not a conclusion that follows from the facts or citations in the memo.
But having said that we have faith that the Planning Director is being forth right on the
issue and that that assertion can be supported by other facts or rules so given the Planning
Director's memo what we hope to do at least is participate in the public hearing process and we
hope that for the reasons that we have outlined in the petition for intervention that we will be at
least treated as a party that represents the public interest in this matter. And that we will be
invited to constructively collaborate with the Commission and the Department and any other
effective parties to ensure that the zoning amendment actually reflects what the voters of Kauai
intended in 2008.
Chair: Questions for Karl,thank you Karl.
Planning Commission Minutes
February 8,2011
19
Mr. DahiliR: Commissioners, as Mr. Imparato referred to the memorandum from my
office of February 2na, we are recommending rejection of the petition for the reasons again as
stated that the function of the Commission in this capacity is to serve as a quasi legislative
recommendation body. The ultimate action that you will take on this is either to approve,
modify, or not recommend that the Council adopt this particular bill so it serves in an advisory
capacity. Not to mention that again this is a legislative process and not a quasi judicial process
that intervention is not appropriate for this type of a measure before the Commission and that is
why we are recommending the rejection at this time.
Chair: Questions for Mike? Anyone in the public want to speak on this agenda item?
And just a reminder the agenda item is for the intervention. Seeing none what does the
Commission want to do?
Mr. Raco: So would it be a motion to approve?
Mr. Dahilig: It would be a motion to reject the application for intervention.
Mr. Raco: Motion to reject the petitioner's request as an intervener.
Mr. Kimura: Second.
Chair: Moved and seconded, any discussion, all those in favor say aye, opposed, motion
carried.
On motion made by Caven Raco and seconded by Jan Kimura, to reject petitioner's
request for intervention, motion carried unanimously by voice vote.
NEW PUBLIC HEARING
Zoning Amendment ZA-2011-Draft Bill 2386) 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=Kaua`i County Council.
Staff Report pertaining to this matter.
Staff Planner Marie Williams: Good morning Chair Nishida and Planning Commission
members. Before you, you have the staff report but we are going to summarize the salient facts
in the staff report in a power point presentation and if you will please save your questions to the
end of the presentation. To begin with I wanted to review the background of draft bill 2386 and
to do that you have to go to the Charter. Charter section 3-19 is the result of a valid initiative
that was passed in November, 2008, entitled"Implementation of the General Plan". It came into
effect on December 5, 2008, thus removing from the Planning Commission the power to approve
zoning, subdivision, use, and variance permits for transient accommodation units, TAUS, and
giving that power to the County Council. And the section reads, "The power to process and to
issue any zoning,use, subdivision, or variance permit for more than one transient
accommodation unit shall be vested in and exercisable exclusively by the Council", and that is
where we are right now. However for Council to approve such permits they much make a
finding that issuing such a permit would be consistent with the planning growth range of the
General Plan, that it would be in the best of the County and its people and it would also have to
have two thirds vote.
The entire Charter section 3.19 is included in the staff report but I will summarize the
options presented by this section. Essentially Council has the option to maintain the status quo
and keep the permitting power pursuant to Charter section 3.19(b). They may enact a rate of
growth ordinance that limits the rate of increase in the number of TAUS to no greater than 1.5
percent per annum on a multi-year basis and that would be to return the power to the Planning
Commission. They can also return the power to the Planning Commission by enacting a rate of
Planning Commission Minutes
February 8,2011
20
growth ordinance that limits the rate of increase and the number of TAUS to a growth rate that is
within the planning growth range of a future General Plan. The draft bill you have before you
essentially is initiating the second option.
On this slide is a flow chart of the process proposed by draft bill 2386 and I will try to
summarize it here. Draft bill 2386 proposes to administer the growth rate cap pursuant to
Charter section 3.19(c)via a TAU certificate allocation program. All applicants who seek to
build more than one TAU via a use permit,zoning permit, subdivision approval, or variance shall
be required to obtain a TAU certificate for each proposed TAU. The draft bill proposes an
annual TAU certificate allocation that equates to 1.5 percent of all existing TAUs plus TAU lots.
The allocation number must be adopted by the Planning Commission and upon recommendation
from the Planning Department. Certificates will be distributed using a bifurcated random lottery.
The lottery shall be divided into two pools, one,ten percent of all permit allotments to be
reserved for applications proposing development of five TAUs or less and two, 90 percent will
be reserved for applications proposing development of six TAUs or more. All applicants
wishing to enter the lottery must concurrently submit a request for TAU certificates with an
application for the required land use entitlements prior to February 5th of the growth rate cycle
which runs from December 5th to December 0 of the next year.
The proposed timeline is as follows: December 5th,deadline by which the Planning
Commission must adopt the total number of TAUs available for issuance to all perspective
applicants. February 5th, deadline to receive applications for more than one TAU which must be
contemporaneously submitted with an application for a permit set forth in section 8-28.1,and
February 20th,deadline for the Planning Department's open lottery at a Planning Commission
meeting. Draft bill 2386, section 8-28.5 allows the Planning Director to approve applications for
existing resort projects to be exempt from the growth rate cap and we will talk more about that
exemption later.
In evaluating the draft bill, first we are going to examine consistency with the General
Plan. The General Plan, last updated in 2000,sets policy and serves as the guiding vision for the
County's fixture development over a 20 year planning horizon. Although the heading of the
Charter section upon which the draft bill is based is called"Implementation of the General Plan"
there are some inconsistencies between Charter section 3.19 and the General Plan. First, we are
going to look at the policy,there is specific policy for visitor unit growth and that is in section
4.2.8.1 of the General Plan and it states, (a)"Encourage and support development on lands
planned and zoned for resort use primarily at Princeville,Kapa`a, Wailua, and Po`ipu",and(b)
"Plan for a limited number of visitor accommodations on the West Side to be provided in
residential and in style buildings". The intent is that over the long term the West Side should
have about 5 to 2 percent of the islands total visitor units. And if you are familiar with the
General Plan, after the policy section sometimes there are implementing actions that serve to
support the policy and in this case there are no implementing actions.
In summary the policy and the General Plan regarding visitor units supply is to allow and
to support resort development within the visitor destination area, mainly Princeville,Kapa`a,
Wailua, and Po`ipu, as well as limited growth on the West Side. The General Plan did not
recommend implementing development within the VDA to a prescribed growth rate. The
Planning growth range of the General Plan, also known as the 2020 planning projections is soon
to be the basis of the 1.5 percent growth rate pursuant to Charter section 3.19 and these
projections are found in Chapter 1 of the General Plan titled"Planning for the future". There are
four sets of projections shown on this slide, one,the resident population,the average daily visitor
census, ADVC,total population or defacto population which is the sum of the resident
population and the visitor population and then total jobs. And there is a low end and a high end,
these are expressed in a range.
Looking to what these projections were meant to do, the General Plan states that they are
not intended to be targets or limits for growth they are intended to be guide posts in which to
measure actual growth and impacts. The projections will be used in forecasting land use, land
supply, and infrastructure needs, and subsequently in developing land use plans and long range
plans for public facilities and surfaces. However since the provisions of Charter section 3.19
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require the General Plan's planning growth range to be treated as an actual target for TAU
growth it is important to assess whether or not the 1.5 percent growth rate cap would result in a
scenario consistent with the General Plan's projections. The General Plan has submitted the
potential demand for visitor units in Chapter 4,"Developing Jobs and Businesses",using a
formula called Overall Visitor Unit Demand and the expression is shown on this slide, it is the
effective demand which is the projected ADC, sorry it is actually times the ratio of ADVC to
occupied visitor units. And you take the affective demand and divide it by an assumed
occupancy rate and that will give you the overall demand.
Visitor unit demand is the potential demand for visitor units based on an estimated visitor
population. By utilizing four different ADVC scenarios and two alternative future occupancy
rates,the General Plan estimates that the visitor unit demand in 2020 will fall in the range of
6,170 to 12,150 units assuming that visitor unit demand equates the visitor unit supply. This
represents a change in total visitor units of minus 860 to 520 units between 1990 and 2000.
When the range is narrowed using the high end of the planning growth range,that is a visitor
population of 28,000 as is directed in Chapter 1,the projected visitor unit demand for 2020 is
990 units or 10,500 units depending on the two assumed occupancy rates used in the General
Plan of 69 percent which is the historic rate and 80 percent which is the desirable rate for the
visitor industry. The calculations are shown on this slide. The result in average annual growth
rate from 1999 to 2000 would be about 1.2 to 2 percent. Even if the General Plan does not
prescribe the specific growth rate of 1.5 percent for visitor units it can be argued that this rate
does fall within the scope of the calculations used in this study. However even though the 1.5
percent growth rate does fall into the range of the calculations used in the General Plan the
projections in visitor unit demand study are over a decade old.
A growth rate cap of 1.5 percent that is based on the findings of a visitor unit demand
study conducted in 1998 does not account for recent and substantial growth in the visitor unit
inventory over the past decade. Obviously implementing the 1.5 percent growth rate more than
halfway through the General Plan's planning timeframe will not necessarily achieve the visitor
unit demand that corresponds with the projected visitor population of 28,000 by 2020. In
evaluating for consistency with our Kauai County Code,by amending Kauai County Code
section 8, draft bill 2386 will change the zoning permit,use permit,variance, and subdivision
approval process for developments with more than one TAU. These applications will require a
TAU certificate for each proposed TAU before final approval is obtained. In summary, it will
not supplant or substitute existing development controls in the zoning code, all the resort and
VDA requirements will still be in effect including the TVR registration.
Moving on to examining consistency of draft bill 2386 with the Charter and the Charter
section upon which it is based, first we are going to look at the definition of TAU. The key
definition in draft bill 2386 is that of transient accommodation unit. This definition will not only
determine what is subject to the growth rate cap of what is to be counted and included in the
baseline inventory upon which the 1.5 percent growth rate is assessed. The definition of TAU
included in Charter section 3.19 is an accommodation unit or portion thereof in a hotel,
timeshare facility,resort condominium, fractional ownership facility, vacation rental unit,or
similarly used dwelling that is rented or used by one or more persons for whom such
accommodation unit is not the person's primary residence under the internal revenue code. The
draft bill's definition of transient accommodation includes the following: a dwelling unit or hotel
unit, an apartment hotel or motel, a dwelling unit or a hotel unit located in a VDA, a dwelling
unit or hotel unit located in a resort district,a timeshare unit, a transient vacation rental,a single
family vacation rental or a multi-family TVR. There are some exceptions to this definition found
in section 8-28.2(c)and it excludes from this definition a dwelling unit whose deed restricts its
use to a primary residence only and is used by the owner as a primary residence.
If the draft bill's definition is so inclusive as to mean any dwelling unit in a apartment
hotel visitor destination or resort district then it will comprise all units with a potential to become
a TAU regardless if they are currently used for other purposes. And this seems to be inconsistent
with the definition in the Charter section which we just saw in two previous slides. The
applicability of draft bill 2386 will be for use permits for more than one TAU issued pursuant to
KCC Chapter 8,Article 9, Article 18, or Article 20,zoning permits for more than one TAU
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issued pursuant to KCC Chapter 8,Article 19,variances for more than one TAU, and subdivision
approvals for more than one TAU lot pursuant to KCC Chapter 9. The growth rate baseline,the
relevant section in the Charter reads "The Council may by ordinance authorize the Planning
Commission to process and to issue such permits or certain of them on terms and conditions as
the Council may deem advisable only upon the Council's enactment of a rate of growth
ordinance that limits the rate of increase and the number of TAUs to no greater than 1.5 percent
per year on a multi-year average basis.
To implement this draft bill 2386 proposes a formula to develop a baseline number upon
which the 1.5 percent growth rate will be applied. The proposed baseline number is the sum of
the total number of TAUS existing at the beginning of a growth rate year plus the total number of
TAU lots existing at the beginning of a growth year. A TAU lot is a lot in a TAU subdivision
restricted to one single family detached dwelling unit per lot. In other words a TAU lot is a
potential TAU. The inclusion of TAU lots into the formula will result in a baseline number that
is larger than the actual inventory of existing TAUs and will create a commensurate increase in
the annual TAU certificate allocation. This would inflate the number of certificate allocations
above an amount that is 1.5 percent of existing TAUs and is therefore not consistent with Charter
section 3.19.
Moving on to exemptions, Charter section 3.19 does not provide guidance to whether the
changes implemented by the requisite rate of growth ordinance also applied to development
proposals that have already been approved. To avoid constitutional challenges based on the Fifth
Amendment of the U.S. Constitution draft bill 2386 proposes standards to recognize existing
resort projects as exempt. The exemption described in draft bill section 8-28.5 targets
development projects that have begun construction and have fulfilled conditions of the project
zoning approval. Such projects would be able to apply to be an existing resort project,the
requirements specifically are that they are located in a VDA that was approved and established
prior to December 5, 2008 and composed one or more lots or parcels that are located in zoning
districts that were approved and established prior to December 5, 2008 when the Charter
Amendment came into effect. There are additional requirements for existing resort projects,they
must have obtained the necessary governmental permits and approvals and expended substantial
sums on and commenced construction on any of the following prior to December 5, 2008. And
that includes improvements authorized by the VDA ordinance or the zoning ordinance,
improvements required to be constructed pursuant to the conditions of approval in the same
ordinance, compliance with Article 3 of the Housing Policy of the County, or if they have paid
and in-lieu fee or dedicated land pursuant to an affordable housing agreement with the County.
Finally, draft bill 2386 requires a baseline number of all existing TAUS as of December
5,2008. However this number is wholly dependent on the methodology used to establish the
baseline and how TAUs are defined. If the draft bill's definition of TAU is refined to be more
consistent with Charter section 3.19 and TAU lots are excluded from the baseline then one
possible source upon which to develop the TAU baseline is the annual Hawaii Visitor Plant
Inventory produced by the Hawaii Tourism Authority, formally produced by the Department of
Economic Development and Tourism of the State. If VPI is the State's official census of visitor
accommodations and is released on an annual basis it classifies all visitor units on Kauai by one
of the following types: hotel,motel,timeshare, individual vacation unit,apartment hotel, resort
condominium,hostel,bed and breakfast, or other. The VPI is compiled using survey results,
internet searches and input from industry organizations and local government agencies including
the Planning Department. The 2000 visitor plant inventory reported that there were 9,203 visitor
units as of May 1, 2008. The Kauai section of the visitor plant inventory is attached to your
staff report.
Should this number be deemed the baseline for the TAU certificate allocation for growth
rate year 2009 then the prorated allocation of 1.5 percent equates to 138 TAU certificate
allocations as show in this table. And just to provide a little bit more background this chart is a
list, it might not be exhausted but it is what we have right now of the TAUS that were permitted
via a zoning, use, subdivision, or variance since the onset of the General Plan planning
timeframe. You can see a total of 4,589 units have been permitted and those are the projects.
And if you look at the permitting rate over the past few years you will see that it ranges from
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zero in the past few years to a high of about 1,300 that were permitted in 2005. That is just
background information for you and the power point is done, thank you.
Chair: Mike, at this point we usually open up for questions from the Commission but
what I was thinking was due to the size of the questions I wanted to have a discussion about the
workshop idea we brought up. I requested a workshop and I was wondering if we could get the
Commission to agree so that we could go ahead with the public testimony.
Mr. Dahilig: As we are recommending in the report Commissioners we are not asking for
any type of action today and we would actually like to leave the public hearing open at our
request because this is pretty,this is a copious amount of material to ingest for both the
Commissioners and the public. Marie has been diligent and done quite an excellent job in trying
to break this dense matter down but still need some time to digest. In consultation with the Chair
what we are going to suggest the Commission entertain is the idea of holding a workshop on this
matter at the next Commission meeting in the morning and then take up the regular business in
the afternoon. Right now the report is in draft form so we would want to integrate any of the
public testimony and address any other issues that may arise as a consequence of public
testimony into our report before it becomes finalized and we ask for an action by the
Commission. So Chair, if you would like to comment on that.
Chair: If that is okay with the Commission then I will proceed with the public testimony.
Mr. Texeira: Before you do that, describe the workshop, what is involved in that
workshop and who is invited, etc.
Mr. Dahilig: What we would do in the workshop, it would be in the same setting, a
public meeting, but essentially it would be more of a dialogue and you can ask questions of the
planner or the attorney or me with respect to certain elements of the proposed bill. It is quite a
large amount of,we anticipate a large amount of questions to come up with every section of the
bill and part of the public testimony is to try to be able to identify those issues that we can go
over with you as to what our recommendation is and whether we are recommending any kind of
changes before going up to Council.
Chair: What I asked to include was sometimes we may want to ask members of the
public to come forward to ask questions of them regarding various issues so it would give us
more freedom to bring other people up and ask questions. We still would have the three minute
limitation but we would be able to call people back and ask questions on it. We still have to
come up with some of the rules.
Mr. Dahilig: It would try to be an engaging dialogue where you can engage community
members that may have interests in particular sections and enter into a dialogue with them.
Chair: Do we have a signup sheet? Randall Francisco followed my Jeannie Kapali.
Mr. Randall Francisco: Chairperson Nishida and members of the Kauai County
Planning Commission, aloha. For the record my name is Randall Francisco, President of the
Kauai Chamber of Commerce. We are comprised of about 400 plus members. I am here to
testify on bill 2386. We recognize that the Charter Amendment which has been adopted
stipulates a 1.5 percent growth rate limit. I realize that this small percentage was adopted as part
of this draft bill, is that growth limitation was established by the voters of Kauai. However we
do not believe that it was the intent of the General Plan to be that finite. Any type of negative
business attitude toward development and especially to visitor related ones will have far reaching
and devastating effects on our primary economic industry and the many small businesses that
rely on it.
As a business advocate many organizations I represent cannot and do not support the 1.5
percent growth rate, growth cap, as it will have far reaching impacts to our already fragile
economy. Kauai already has a negative image in terms of being business friendly. This type of
legislation will further promote this antidevelopment stigma. If our resort visitor industry slows
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down or stops where will our residents and their children find employment? We are in the worst
economic downturn in 80 years and have experienced firsthand what it is like to lose our jobs
and homes. I know that this is not what the County desires. I don't believe that this is the case.
Thank you for the opportunity to submit testimony,mahalo nui loa,feel free to call me at the
Chamber,thank you.
Chair: Thank you Randall, questions? Jeannie Kapali followed by Chet Hunt.
Mr. Jeannie Kapali: Good morning Chair Nishida and members of the Planning
Commission. My name is Jeannie Kapali and I am the community relations manager for
Kukui`ula Development Company and I am also as Kukui`ula,remember now it is a joint
venture of A&B and D&B Associates of Scottsdale, Arizona. And I am also here wearing three
hats today in my three minute testimony, I am also here on behalf of over 100 employees
currently at Kukui`ula in different managerial and operational jobs at this time. I am here before
you to testify in support of draft bill 2386 to add a new Article 28 to the Kauai County Code.
If you will allow me I would like to give a brief history of our company and I will turn it
back to as it relates to draft bill 2386. When the joint venture was formed between A&B and
D&B Associates of Scottsdale it was back in 2003 and at that time we as our company did our
due diligence and submitted all of the necessary zoning amendments that was needed and
required to do the build out of Kukui`ula. We really went through a very stringent government
process and that included an extensive list of public improvements that was required of us,
impact fees that were also put upon the amendment. Then the amendment was approved by the
County of Kauai. Now with this in hand Kukui`ula moved forward, we were given the license
to build and we did and we moved forward and we invested millions of dollars and began to
build the required infrastructure and the public improvements according to the zoning
amendment. Remember now,this was back in 2003, 2004 so for the past seven years we have
generated hundreds of construction jobs at Kukui`ula.
This as many of you know in construction 101,the ripple effect to our island economy
increased in commerce and sales for many of our small businesses on Kauai. And this is to eco
Mr. Francisco's testimony prior to mine about assisting small businesses on our island. Just to
name a few, some of you may or may not be familiar with Kukui`ula as in the early days. I just
want to say that we had lunch wagons like Auntie Rosie Bukoski's lunch wagon there that
provided the construction crews with meals and Fedx and UPS and on and on the list goes. We
have completed all of our onsite and offsite improvements on the horizontal structure there and
many of you know that Alakalani Kaumaka,the new western bypass road,is used daily by many
of our local residents for their walking and running path. And we also want to say that there is
going to be more that is going to coming with our public improvements because we are still not
done, we have parks and workforce housing to complete.
Now as part of my responsibility in the company I am tasked as one of the core values of
the company to ensure that we are a strong community partner and a good corporate citizen. I
think many of you have known that we have contributed an extreme amount of charitable
contributions to many of our different components in our island which is the right thing to do.
And many of our company employees also donate their time in our community. To this end,
draft bill 2386 and the planning staff report clearly states that the need to protect the integrity of
the County and its due diligence by recommending appropriate exemptions for our well
established project such as Kukui`ula and it does outline how we can do that. So with the
approval of draft bill 2386 projects such as Kukui`ula can continue to be the responsible
developer that we are. I just want to add in closing very quickly,in addition to that the other hat
that I wear is that I am a retiree of the County of Kauai, for 27 years I served in many different
capacities in the different departments and administrative positions and I did survive two
hurricanes,Hurricane Iwa and Hurricane Iniki. And I witnessed the devastation of the downed
economy here and with many of my family and friends out of work. It was only when the
victory industry came back on line did I see my family,my friends, strive again.
And being born and raised here on Kauai on the North Shore I too want to see that this
island is protected and preserved as I grew up on a sugar plantation. But I also know,I have
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been around the block enough to know we need a sustainable economy and for me personally for
grandchildren to return here to Kauai,to continue the legacy of the Kapali family if that can
ever happen and I would be so proud of that. And I believe that we all understand and appreciate
that and we can strike a critical balance. I am glad to hear that Chair Nishida is going to be
calling a workshop after this public hearing so that we can have a more free dialogue. In closing
I j ust ask you to please...I respect the spirit and intent of the Charter Amendment but I ask you,
it was two years ago that it was passed,may I ask for your expeditious review of this bill and
process it as it should be,up to the County Council so that we can continue to have the kind of
partners on this island that really respect and admire our culture here,thank you for allowing me
the extra time for my testimony. I am available for any questions that you may have.
Chair: Questions for Jeannie? Thank you, Chet Hunt followed by Tom Shigemoto.
Mr. Chet Hunt: Thank you Chairman Nishida and Commissioners. In my capacity as the
managing partner for Kiahuna Mauka Partners I represent five different developments...my
name is Chet Hunt, and we have completed one project which is the Po`ipu Beach Estates
Subdivision and have actually transferred many of the lots to individual owners. We have a
concern because our subdivision allows ADUs and it is in the visitor destination zone and we
have had people go in and apply for a ADU permit and because of the sort of limbo that the
Planning Department is in, not having direction on how to handle this Charter Amendment that
was passed because it is very ambiguous in a lot of areas they are hesitant to make any decisions.
So we would be in support of 2386 if it is clear that our projects are exempt from this
amendment. I would like to also state we have participated in all of the requirements that were
asked of us, infrastructure, widening of Po`ipu Road,the improving of the water system. We
have also contributed money to the affordable housing program and also we have put money to
the employee housing that was a requirement although the money.went to the affordable housing
program. I would like to say again we would be in support of 2386 if our projects are exempt.
Chair: Questions for Mr. Hunt,thank you.
Mr. Tom Shigemoto: Good morning Commissioners,my name is Tom Shigemoto. I am
employed by A&B Properties but I also am here today to speak on behalf of Kukui`ula
Development Company of which as Jeannie mentioned in a joint venture partner of ours. First of
all I would like to commend the staff,Marie Williams,for doing an excellent job in
recapitulating the intent of the 2000 General Plan and also for her comprehensive analysis of the
proposed bill and what it contains. I am here to support the bill as drafted. My written testimony
and I have submitted that describes in detail why I am in support of the subject bill but I write
like I speak so I think it is better that you read that later on,and I am just going to highlight some
of the pertinent points.
First of all we are not here to debate the intent of the General Plan,we are not even here
to discuss or debate the Charter Amendment. That is done. The Charter Amendment was
approved. I commend the performance of the Charter Amendment for crafting this bill very
carefully and tying the growth rate into this proposed draft bill whereby it relegates the
responsibility to the Planning Commission. And it is tricky but I think they did a good job in
trying to do this to establish that growth rate. We are here or this draft bill really is in
compliance to that Charter Amendment so you are here to entertain that and at some point in
time pass this draft bill on to the County Council and that is what we should focus on.
Regardless of what the proponents have to offer your consideration of this bill is the vital f rst
step in the total process.
The County Attorney's office I believe has done an excellent job of deciphering the intent
of the Charter Amendment and has provided the necessary direction for the Planning Department
to administer the ordinance when it is adopted. It is the County Attorney's responsibility to
protect the County from all forms of liability and you have to believe that it is the first and
foremost in their deliberations when crafting any piece of legislation. The County Attorney has
included exemptions for projects like Kukui`ula which has expended in excess of hundreds of
millions of dollars,not millions,hundreds of millions of dollars not only to meet our obligations
but to provide the many community benefits as well. Our zoning approval for the 1,500 units is
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(inaudible) granted by the Constitution of the United States and the State of Hawaii and when
those kinds of sums of money are expended only to be taken away by a subsequent initiative is
simply not fair in my opinion. And yes fairness is in the eyes of the beholder but it is just not
fair. I believe you all took an oath to uphold these constitutional rights and I ask you now to
honor that promise by doing the right thing,thank you.
Chair: Questions for Tom? Tom I have one,you guys project, are there any ADU
abilities? Do you have a cap to the project?
Mr. Shigemoto: Yes we have a condition in our zoning approving that restricts all ADUs
so there will be no ADUs.
Chair: And all of them would be considered if called transient accommodation unit,
would all of them be considered a transient accommodation or would some be residences?
Mr. Shigemoto: Well unfortunately or fortunately our entire thousand acre project is in
the VDA so we would fail under the prevue of the Charter Amendment.
Chair: Any other questions,thank you. That is the end of my list does anybody want to
speak on this agenda item,Karl.
Mr. Karl Imparato: Aloha again, Karl Imparato and I am speaking on behalf of the
Coalition for Responsible Government. I would like to provide a little bit more of an
explanation as to why this zoning amendment is before the Commission today. During the
development of the 2000 General Plan there were dozens of meetings,there was extensive public
input and there was a lot of concern at the time about the amount of tourist development and
what that would mean for Kaua`i's future. Too much growth would cumulatively exceed the
capability of the County's infrastructure, increase traffic and highway congestion, increase
demands for police, fire and emergency services, cause overcrowding at parks and beaches,
create demands for groundwater,waste water treatment,landfills,and energy. It would
exacerbate low to moderate income housing shortages by causing the import of substantial
numbers of additional service sector workers, create additional noise from helicopter tours,
motorcycle rentals and other tourist activities. In essence change Kaua`i's rural character,pace,
and quality of life would all be lost.
As a result of those concerns the growth scenario that ended up in the General Plan which
is measured in terms of average daily visitor count, that scenario was lower than what had been
originally proposed for the plan. And that was because there were strong community concerns
that there needed to be a plan which reflected people's vision for what Kauai should be over the
next twenty years and into the future. Now if one wants to limit the impacts of the number of
tourist then the most effective way to do that is to limit the number of tourist accommodations.
So if you take the high end of the growth scenario and use the same assumptions that were in the
General Plan to translate the average daily visitor count to transient accommodation units the
number of additional units over the twenty year period of the plan would be about 2,500 and that
translates to about a 1.5 percent per year annual growth rate. I want to note that that growth rate,
1.5 percent a year,is still a problem over the long haul because by the year 2100 that growth rate
means you would quadruple the number of tourist units on the island, quadruple the number of
tourists on the island. And that is why addressing the pace of growth...imagine the impacts of
four times as many tourists on the island and how that would change things and that is why
addressing the pace of growth in the tourism sector is really the number one sustainability issue
for Kauai. All of the other sustainability issues really are trivial by comparison.
Now that high growth scenario corresponded to 2,500 units over twenty years or 1,000
units over the first eight years. But during the first eight years of the General Plan timeframe
more than 4,000 units were approved for development,we added them up and got over 4,000 and
Marie just pointed out it was close to 4,600. So that is more than four times the growth rate that
was contemplated as desirable at the high end of the growth scenario. So people were clearly
concerned that the very essence of Kauai was at stake if we allowed development to continue
the way it was continuing the first eight years of this century. I acknowledge that the scenarios
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in the General Plan were not binding numbers and that was exactly the problem though. The
General Plan is a vision for what Kaua`i's residents want,it was supposed to be a roadmap for
future development, it was adopted by the County Council,but it was a meaningless piece of
paper where it really mattered.
And so that is why it made sense to put teeth into the General Plan and since the County
Council is responsible under the Charter for developing and updating the General Plan it made
sense then to require the County Council to be the party to see that the most important piece of
the General Plan has teeth. It made sense to make the County Council responsible for ensuring
that the General Plan's vision becomes reality by making the Council responsible for approving
tourist development only if it finds that that development was consistent with the growth
scenarios in the General Plan. And in addition,the Council could control the overall impacts of
Kaua`i's future by updating the General Plan to incorporate more development or less
development in the next General Plan update. And finally the County Council could delegate
responsibility to see that Kauai's future is consistent with the General Plan to the Commission
by requiring the Commission to approve only development consistent with the plan.
So that is the history as to why the Coalition for Responsible Government did what it did
and got us to where we are today and that brings us to the objectives of zoning amendment 2011-
3. Achieving balanced growth does not mean that we can simply...it does not mean that we
want to stop growth. There is no way that that is on the table here and I will guarantee that the
Coalition for Responsible Government is not talking about stopping growth it is talking about
balanced growth. But it means that we have to deal with the problem of rationing growth and
that is a complicated thing to do,rationing is complicated to implement. But that doesn't mean
that it can't be done and it doesn't mean it is illegal because if you look a hundred years ago
there were no ordinances restricting anyone for putting in pig farms, gas stations, or 20 story
buildings on residential lots and now that is common place as an ordinance. And you look at
where things are headed in other places where they need to deal with limits and there are other
communities, California, Washington, Massachusetts where they have rate of growth limits. So
they have been enacted and they are legal.
When we come to the details of the zoning amendment that is before you it has a number
of problems. The framework is good and I commend whoever wrote that for putting together the
right framework but it doesn't conform to the Charter in a number of ways, primarily it
overestimates the number of existing transient accommodations by using lots for example,
undeveloped lots and counting them as existing accommodations and it exempts too much future
development from the requirement to comply with the rate of growth requirement. Having said
that I do want to point out that projects that have gone through the process,Kukui`ula,projects
that have gotten all their zoning approvals and subdivision approvals,those would not be harmed
by the Charter Amendment and we at CRG are in agreement that they should not have their ox's
gored. The problem with the way the bill is drafted is it basically exempts these projects rather
than saying we will grant you certificates and that will leave fewer certificates for the future.
And so the bill needs to be fixed up in that way because there is got to be something done to
handle that 4,500 unit slug of development that was approved over the last eight years rather than
just exempting it.
While we recognize this is a first draft and so we are hoping that it was put together in
good faith and so the message we want to present today is that rather than go into the details and
we have comments that I will hand over,we believe that if all of the parties work together
collaboratively,not separately,if we work together we can improve this amendment so that it
conforms to the letter and the spirit of the Charter, it is legal and fair, and it basically addresses
what needs to be done. We need to agree on the facts,how many are these proposed TAUS that
are going to be exempted as existing resort projects. We need to know how many subdivisions
would be exempt. So we need data and hopefully your proposal for a workshop will bring that
kind of information forward. And we need to find out by talking with one another what the
intent of the language in the zoning amendment really is,are people trying to end run the Charter
Amendment or are we really just not quite seeing eye to eye as to how to do it.
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So in conclusion what we really believe is that one, we all need to take responsibility for
Kaua`i's long term future. If we put our heads in the sand and ignore the growth problem Kauai
will not be a livable or desirable place for our grandchildren. And again, one and a half growth
per year means quadrupling the number of tourist accommodations over this next century.
Secondly, in addition there is obviously the legal constraint (inaudible) requirements would
adhere to the Charter Amendment and the will of the super majority, and finally the chances of
getting a workable solution that everybody feels comfortable with are going to be a lot greater if
we can collaborate rather than work separately. And with that in mind we are ready to meet with
anyone at anytime to basically try to move this project forward and thank you very much for
your proposal to have a workshop because I think that is going to advance things well.
Mr. Blake: How long did you say it would take to quadruple the amount of present
accommodations at the one and a half percent rate?
Mr. Imparato: At a one and a half percent growth rate things double in 47 years so in 94
years they quadruple. So by the end of this century, by 2100 when our grandchildren will still be
around, they would be quadrupling. And that is why, the Charter Amendment was written in
such a way as to say the growth rate should be whatever is consistent with a future General Plan
because it very well may be that a future General Plan, the County Council and the community in
putting the plan together says that maybe the growth rate needs to be one percent. Or, maybe
people have a different vision for Kauai in the future, it's one that is more like Maui or
something and maybe a growth rate of two or three percent. But it is through the General Plan
that we come up with a collective vision for what we want the island to be.
Chair: Other questions for Karl?
Mr. Dahilig: Karl, if you wouldn't mind, with respect to the 4,500 units log that you
referred to, if you have an itemization of that number if you could forward that over to our staff
if you haven't already.
Mr. Impa:rato: Sure, I would be happy to. We haven't done that already and actually
when we worked on the Charter Amendment it took a lot of work going through your logs to try
to come up with the number of units and we came up with about 4,100 at the time. So it would
be good to see what is consistent there.
Chair: Other questions for Karl, thank you Karl. The next speaker is Michael Tressler
followed by Ted Blake.
Mr. Michael Tressler: Good morning, good afternoon, Michael Tressler representing
Grove Farm Company and Grove Farm Properties. I am not going to exceed the three minutes
and I would like to just commend the Planning Department and the County in their effort in this
document, I know it is very difficult to work through a lot of the legal issues. But particularly I
think the attempt to address the projects that were already in process that went through an
extensive process of hearings at the LUC level, State level, County level, and were contemplated
in the General Plan which is why it is called a General Plan as a guiding document. Your ability
to recognize that is commendable and we really appreciate that fact because there has been a lot
of time and money spent on those things and again it is not like it was just given a certificate,
there is a clear process that everyone went through (inaudible) include public input. And so to
not recognize I think would not be just. It is the beginning of the process but this is a very good
start and again it is very difficult, there are a lot of people with different views on this. I really
look forward to the next update of the General Plan, myself in particular, so anyway this is short
and sweet, we appreciate your work and I know it is going to take a lot more work to get to a
final product but thank you very much.
Chair: Questions for Mike,thank you. Ted Blake followed by Rich Hepner.
Mr. Ted Blake: Good afternoon, my name is Ted Blake from K61oa. I just want to bring
this down to ground level. I really think that the workshop that is scheduled for this is very good
because it will bring out things that probably haven't been looked at. From the community point
of view we speak with great experience in Koloa from what we have gone through and speaking
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February 8;2011
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up for others to be sensible and enhance the quality of life just broad brushes,painting us into an
anti-development stand. Which is the furthest thing from what I have been thinking or I have
been pushing. We have never gone against any development in K61oa. We have supported them
including the K61oa Marketplace,including the Creekside, we have supported them all. They
got dumped by suing the County,not from the K61oa community. But we have had to live with
very sensible and very sensitive developers who we really appreciate and on the other hand there
are insensitive developers.
Now the challenge I see with this is for new bills to come up to level the playing field. I
hear a developer talk about this is what I have done,this is what I have done,but this is what you
agreed to do,this is not a gift that you are doing. This is what you agreed to do to do your
development. And if we can address all of this insensitivity because we can bring in a group of
residents from K61oa and you will find out exactly how it affected them and how it will affect
them for a long period to time. Our laws are archaic,they need to be addressed,they need to be
brought up to standard and we just have to take better look at it. And that is probably why this
amendment got good support,people have seen what is going on and they are very concerned
about how they are going to live in the coming years,thank you.
Chair: Questions for Ted,thank you. Rich Hepner followed by Terry Kaman.
Mr. Rich Hopner: Good afternoon,my name is Rich Hepner. This is an appropriate
place to discuss this because eventually when the Council passes something it is going to come
back to you and it is going to be in your lap how you handle it. But the main thing is I have
already talked to somebody at the County Attorney's office to clarify in my mind what takes
precedence. The County Charter is our law and no matter what you do here,no matter what the
County Council does it has to comply with the County Charter. In other words 3.19 is the rule so
that is what everybody has to look at, eventually there is going to be the 1.5 percent. No matter
what happens you have to comply with the County Charter because if it is not complied with you
are going to have to look at how much money is going to be spent on legal matters. So I am
basically here to support the sixty some percent of the people that voted this Charter Amendment
in,thank you very much.
Chair: Questions for Rich,Terry.
Mr. Terry Kaman: Commissioners,I am here to read into the record the handout that
Chet Hunt gave to you folks. Dear Commissioners,thank you for allowing me to speak here
today. I am here to speak on behalf of the Po`ipu Beach Estates Subdivision...Terry Kaman. I
am here to speak on behalf of the Po`ipu Beach Estates Subdivision and the eight properties
known collectively as Kiahuna Mauka Partners in relation to bill No. 2386. The reason I am
here is that bill 2386 as written is ambiguous as to the exemptions invested interest for our
properties. The five Kiahuna Mauka projects received their zoning in 1979. It took millions of
dollars and many years to meet and pay for the County and State conditions that were imposed as
part of the 1979 rezoning. The final subdivision approvals and Class IV Zoning permits were all
issued prior to the passage of the Charter Amendment. We therefore appear to be exempt
however in our discussions with the County Planning Department the wording is not one
hundred percent clear on the ADU and VDA issues.
I am here to present three County of Kauai documents that clarify our rights prior to the
County Charter vote. Document 1 is the approval letter of the Kiahuna Mauka Partner's water
master plan approved by the Department of Water on June 14,2004. The plan required the
property owners to build and pay for a water system that was dedicated to the County upon
completion. This off-site County water improvement consisted of miles of water lines, a water
tank,and money to complete a new well. Document 2 is a single page from the water master
plan showing the unit cap for each of the projects in KI MP. In particular the(inaudible)water
master plan states"Each of the 110 single family house lots in project 1 will be allowed to
construct guest cottages,ADU' up to a maximum of 1,200 square feet to accommodate these
additions. A portable use rate of 850 gallons a day has been applied to all 110 lots. That is 350
gallons per day above the normal DOW allocations. We also provide two non-potable irrigation
systems that fiirther reduce the need for County water."
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The third document is ordinance No. 436 signed on the 22nd day of September, 1982, by
Mayor Eduardo Malupit, it is the ordinance amending the Comprehensive Zoning Ordinance.
On page 3, section 8-17-2 of the ordinance states "Trans-vacation units are allowed in the Po`ipu
area as more particularly designated on the County of Kauai Visitor Destination maps and
attached thereto and incorporated herein by reference. The boundary lines established by these
destination maps shall be transferred onto the official zoning map for reference purposes." I
have attached the full document and maps clearly showing that the entire Kiahuna Mauka Partner
lands are included in the Visitor Destination Area. We ask that the Commission make it very
clear on this ordinance that the projects of Kiahuna Mauka Partners are exempt from this
ordinance and the fact that the County has previously given them rights to the respective zoning
and TVR status. In addition we ask the Commission to make it very clear that the Po`ipu Beach
Estates Subdivision, project 1, has vested rights that allow the ADUs on each lot and that the
ADUs and the main house are allowed to have transient vacation rentals.
With the exemption of our projects and the statement of our vested rights would we
support this bill for future projects. We humbly submit the following language to add to the bill
so the Building and Planning Departments do not have to deal with less than precise language.
Quote, "The eight Kiahuna Mauka Partners LCC property that are exempt from this bill, TMK 4-
2-8:31, 32, 33, 34, 35, 4-2-8:15, 77, and 4-2-8:14, 38, and 4-2-8:14, 42,they are all located in the
Visitor Resort designated area. Each parcel of land in the Po`ipii Beach Estates Subdivision,
including lot 4-2-8:15, 77, 4-2-8:14, 38, and 4-2-8:14, 42, allowed to have a main home and an
ADU. Both homes are located in the Visitor Resort designation area and area therefore allowed
to have transient vacation rentals in both houses. Further, due to size restrictions on the ADU the
County would allow either the ADU or the main house to be built first." I thank you for your
time.
Chair: Thank you Terry, questions for Terry? Anyone else want to speak on this agenda
item? Seeing none, Mike,we talked about the next meeting, is that still on, are we able to do that
workshop?
Mr. Dahilig: Let's look at having the workshop scheduled for the 22nd at 9 a.m. and have
the regular meeting starting at 1:30. I guess we can consult with you, Chair, about a workshop
agenda and how we want to set it up for that morning.
Chair: So that is going to be set for the next meeting.
Mr. Dahilig. Yes.
Chair: So I need a motion to defer or continue public hearing?
Mr. Continue public hearing.
Chair: Can I have a motion to continue the public hearing?
Mr. Texeira: So moved.
Mr. Kimura: Second,
Chair: Moved and seconded, all those in favor say aye, opposed, motion carried.
On motion made by Herman Texeira and seconded by Jan Kimura, to continue the
public hearing, motion carried unanimously by voice vote.
Mr. Blake: Mr. Chair, I would ask that there be a strict three minute time period and if
you think you are going to go over three minutes submit it in writing also so that we don't go on
and on and on. We will have had another two weeks to develop our questions with the assistance
of what Marie has provided.
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CONTINUED PUBLIC HEARING (NONE)
Chair: Can I have a motion to go into executive session?
Mr. Jung: Commissioners, 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: Can I have a motion to go into executive session?
Mr. Kimura: So moved.
Ms. Matsumoto: Second.
Chair: Moved and seconded, all those in favor say aye, opposed, motion carried.
On motion made by Jan Kimura and seconded by Camilla Matsumoto, to go into
executive session, motion carried unanimously by voice vote.
Commission went into executive session and lunch at 12:30 p.m.
Meeting was called back to order at 2:00 p.m.
NEW BUSINESS
For Acceptance into Record—Director(s) Report for Project(s) Schedule for Public
Hearing 2/22/11. (NONE)
For Acceptance and Finalization—Director's Report for Shoreline Setback Activity
Determination.
Shoreline Setback Commission Review SSCR-2011-4 for a shoreline determination Tax
Map Key 5-8-008:027 Wainiha, Kauai, for acceptance by the Planning Commission„_,Rod and
Suzanne Fisher.
Director's Report pertaining to this matter.
Staff Planner Lisa Ellen Smith read Director's Report (on file).
Chair: Questions for Lisa Ellen?
Mr. Raco: What road it this on Lisa Ellen?
Staff: (Inaudible). This is Alamo`o Road.
Chair: Any other questions for Lisa Ellen? Can you state your name for the record?
Mr. Robert Haughton. Robert Haughton,project architect, Chairman and
Commissioners, good afternoon.
Chair: Do you have anything to add?
Mr. Haughton: No, I think it is complete.
Chair: Questions for the applicant? What does the Commission want to do?
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Mr. Raco: I will motion to approve.
Mr. Kimura. Second.
Chair: Moved and seconded to approve, any discussion, all those in favor say aye,
opposed, motion carried.
On motion made by Caven Raco and seconded by Jan Kimura, to approve staff
report, motion carried unanimously by voice vote.
Commission recessed at 2:02 p.m.
Meeting was called back to order at 2:09 p.m.
Chair: We are on the Sprint/Nextel tower, Kaaina.
Staff. Good afternoon Chair, members of the Commission. The department's
recommendation stands as is as received in the supplement to the Director's report however at
this time we have been informed that the applicant's representative has been in an accident of
sorts. He did speak with us but he is unable to appear before this Commission and partake in
further discussions on the application. However the action date,this is the last Commission date
in which the Commission can take action pursuant to timeline restrictions under section 8 of the
Kauai County Code. The applicant did convey that he was willing to waive those timelines and
if we can continue this matter at the next scheduled Commission meeting date.
Chair: Can I have a motion to defer the item?
Ms. Matsumoto: So moved.
Mr. Kimura: Second.
Chair: Moved and seconded, all those in favor say aye, opposed,motion carried.
On motion made by Camilla Matsumoto and seconded by Jan Kimura, to defer
action, motion carried unanimously by voice vote.
ADOURNMENT
Commission adjourned the meeting at 2:11 p.m.
Respectfully Submitted.
cf( � /
Lani Agoot
Commission Support Clerk
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