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HomeMy WebLinkAboutpcmin3-22-11 KAUAI PLANNING COMMISSION REGULAR MEETING March 22, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Vice Chair, Caven Raco at 9:04 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 Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA SWEARING IN OF COMMISSIONER AND NEW COMMISSIONER Mr. Wayne Katayama was sworn in as Planning Commission member by County Clerk, Peter Nakamura. Mr. Herman Texeira was reappointed as Planning Commission member by County Clerk,Peter Nakamura. APPROVAL OF THE AGENDA Chair: Prior to approving the agenda I would like to move item E.l right after item A.6, if we could entertain a motion to move the agenda item. Mr.Nishida: Motion to move. Mr. Kimura: Second. Chair: All those in favor say aye,motion carried. On motion made by James Nishida and seconded by Jan Kimura, to move item EA on the agenda, motion carried unanimously by voice vote. Chair: Can I get an approval of the agenda as amended? Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: All those in favor say aye, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve the agenda as amended, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Camilla Matsumoto and seconded by Jan Kimura, to receive items for the record, motion carried unanimously by voice vote. MINUTES--MEETING OF FEBRUARY 8,2011. APR 12 2011 On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve regular meeting minutes of February S,2011, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Letter 3/15/11) from Chairperson James Nishida, Jr., submitting resignation as Chairperson of the Planning Commission. Chair: Would you life to say anything? Mr.Nishida: No thank you. Chair: Motion to receive the letter? Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: All those in favor say aye, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to receive letter dated 3/15/11 from James Nishida, motion carried unanimously by voice vote. SELECTION OF PLANNING COMMISSION CHAIRPERSON Chair: Nominations are now in order for the position of the Planning Commission Chair, Mr.Nishida: Move to nominate Herman Texeira for Planning Commission Chairperson. Mr. Kimura: Second. Chair: Are there any further nominations? If not, a motion to close the nominations. Mr. Nishida: So moved. Mr. Kimura: Second. Chair: All those in favor say aye, motion carried. On motion made by James Nishida and seconded by Jan Kimura, to close the nominations for Planning Commission Chairperson, motion carried unanimously by voice vote. Chair: Are there any absentees? No absentees, so I will call for the vote for Commissioner Herman Texeira, all those in favor say aye, motion carries. On motion made by James Nishida and seconded by Jan Kimura, to nominate Commissioner Herman Texeira as Planning Commission Chairperson, motion carried unanimously by voice vote. Commission recessed at 9:10 a.m. Meeting was called back to order at 9:14 a.m. COMMITTEE ASSIGNMENTS Chair: I was a member of the Subdivision Committee and as the recently appointed or elected new Chair I will resign from the Subdivision Committee and therefore I open this up to the floor. Does anybody have any nominations for the Subdivision Committee? Planning Commission Minutes March 22,2011 2 Mr. Nishida: I nominate Hartwell Blake. Mr. Kimura: Second. Chair: Any discussion, all those in favor, opposed, motion carried. On motion made by James Nishida and seconded by Jan Kimura, to nominate Hartwell Blake as Subdivision Committee member, motion carried unanimously by voice vote. Status Report(2/26/10) (errata- correct date should be 2/26/11) from State of Hawaii, Department of Land and Natural Resources, State Parks Division, as to Condition No. 3 for Special Management Area Use Permit SMA(U)-2007-2, Tax Map Key 5-9-008: por. 1, Hd'ena, Kauai =State ofHawai`i,Department ofLand and Natural Resources. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report(on file). Chair: Anybody from the public wishing to speak on this matter? I am sorry, this is the applicant that is up here right now, go ahead. Mr. Russell Kumabe: Aloha Chair Texeira and members of the Commission. I am Russell Kumabe. I am the Development Branch Chief with the Division of State Parks, Department of Land and Natural Resources. We stand by our status report and I can answer any questions the Commission may have on our report. Chair: I have a question please, could you further describe the affluent disposal system? Mr. Kumabe: We are talking about a sewer system so I hope nobody is eating but it kind of starts out with your basic septic system, you septic tank,your basic catchment of the raw sewage coming from our comfort station. In this system that we have, we have two septic tanks, basically one acts as a pre-loader that catches most of the solid waste whereas whatever liquid affluent is transmitted, transmits the second septic tank. And from there,in a usual septic leech field system from there that liquid affluent which is considered treated within the septic tank because microorganisms, the ambient microorganisms that are in the septic tank containment its self acts as a treatment, it kind of breaks down the contaminants. Usually in comfort stations your primary contaminants or substances of concern are nitrates and nitroits. So these bugs kind of eat them up. So what happens in our system is after the second tank the liquid affluent passes through what we want to call a constructed wetlands system. There have been different types of systems that were utilized elsewhere but the ones that we are using for Hd'ena is basically built kind of like on the surface. What we are going to do is we are going to berm off the area of the wetlands treatment component, we are going to line it, we are going to be putting in gravel fill, cover it with groundcover and plants. What will happen is that the liquid affluent that comes out from the second septic system tank would pass through this wetlands component and with the plant would serve as a treatment component in which whatever residual nitrates or nitroits can be pretty much taken up by the plants. So in this case through gravity evapo-transportation the liquid affluent is taken up. That is the form of treatment that we have learned from the Hd'ena community as one that the community wanted to see being implanted at Hd'ena. So what happens is that you will have liquid that will be coming out so what will happen with this is it will be disbursed like a conventional leech field type of system. We feel that at least with the constructed wetlands component at least it provides an additional level of treatment that we feel comfortable in disbursing in the area. Just to explain a little bit of the features of our system is the constructed wetlands component,we are berming it up in case there are any surface flows that may come up to the area. It is kind of fortified and protected from that type of intrusion. And also we are going to Planning Commission Minutes March 22,2011 3 be constructing a drainage Well along the areas where we believe the natural flow from Hd`ena roadways go to the lower areas where the system is and be safely diverted to its natural course. So that in several nutshells is how our system is constructed and how it works. Chair: I have another question. What about the flooding in the area, how does that impact the system? Mr. Kumabe: We had hoped that the berms and the drainage swales that we had designed in would basically address the normal or the ambient type of flows of surface runoff that will happen. In cases where we would have an unusual weather event then we will try and take measures ahead of time if we know something is coming. We would try to fortify the constructed wetlands component and try to see if we can divert the surface flow within our project area to follow the natural course to the lower areas of the natural wetlands. We would want to point out though that the raw sewage will be contained in septic tanks so there will not be any introduction of that raw sewage that will be introduced into the treatment, wetlands treatment or the leech field as designed. So we are hoping with all these safeguards that we can address foreseeable impacts. Chair: Thank you, any other Commissioners has any comments? Mr. Nishida: The tanks that you have for the sewage treatment, like my house tank, there is a primary tank and then there is a diverter box and then it goes into the leech field. Yours have two tanks. Mr. Kumabe: It is a two tank system so basically the first tank is going to act as the pre- loader, it accepts all that, and the second tank would act as accepting the liquid part. Mr. Nishida: And both of them are designed the same way as my house one with the walls inside to stop the solids from getting through and just the affluent would get through? Mr. Kumabe: Right. You are talking about like a baffle type of thing, like a little wall. Mr. Nishida: Yes. Mr. Kumabe: It doesn't go all the way up but... Mr. Nishida: Right. And these are two tanks instead of just...like my house is just one. Mr. Kumabe: Right and usually for most of our facilities we just have one but in this case we have two hooked up in sequence. Mr. Nishida: Hd'ena State Park is maximally used. I have been out there when every parking space is taken. So this is the only comfort station right now for the area? Mr. Kumabe: Actually it is the only comfort station in the State Park, further up we have the County Park and I do believe they just completed their new comfort station up there. But as far as for the area that the State manages this is the only comfort station that we have. Mr.Nishida: When you designed the capacity for the comfort station what did you design for? Mr. Kumabe: The capacity, well what had driven that was the capacity of the existing septic and leech field that we are going to be converting away from and the comfort station was designed for the same amount of fixtures as the old bathroom that we had back there. We had replaced that bathroom but what we did was the bathroom looks bigger but the number of fixtures is still the same just so we could match the existing capacity that we had. So the new system with the constructed wetlands was designed to accommodate the same capacity. Chair: Thank you, anybody else? Planning Commission Minutes March 22,2011 4 Mr. Blake: No. 4 of your status report,page 3, attachment A, it states that the development of a secondary or alternate comfort station site that would be less susceptible or prone to significant coastal hazard events. It is planned or is it just in the...is it actually planned or is it just theoretical right now? Mr. Kumabe: Right now we are working with members of Hd'ena and other individuals and organizations on a Hd`ena master plan, it is a master plan update actually, a master plan was started years back but never finished up so in this we are working with the community as far as indentifying what would be appropriate facilities. There is I do believe another comfort station that if needed will be planned out but it will not be near where the existing one is it would be further inland, kind of more towards...you know where the overflow parking or that parking area that we have next to our helipad emergency area, it will be somewhere located within that footprint. The exact location will depend on further studies as far as hydrology and things like that. But if we do plan to construct another comfort station and it will probably be in an area around there. Mr. Blake: But you are actually looking at another site? Mr. Kumabe: What will drive that is when the master plan is completed. Right now the master plan is still in development. I do believe that the master plan, I think we have set a time frame of maybe in about a year or so with everything, EIS and everything all included to have that completed. We still need to get confirmation of the locations but I do believe from the last discussions and working with the community it appeared that that area by the surplus parking and the helipad may be a more appropriate area for another comfort station. We are exploring other wastewater treatment systems that could be implemented. Mr. Blake: This would be included in your next year's status report? Mr. Kumabe: We certainly can, if we have any updates we definitely can provide that to the Commission if the Commission wants that. Chair: Anybody else? Mr. Nishida: Did they start actual construction? Mr. Kumabe: Yes. Construction started in February and the contract time period is slated for 9 months. We have a construction end date of November but we understand that the contractor has been kind of jamming along and a lot of the components of the system have already been constructed. I do believe that the septic tanks are already in, the leech fields are already in, and they have put in the transmission line from the comfort station to the new septic tanks. That area was of concern to us because it did cross an area of the old septic system in which it had raised concerns about cultural resources found in that area. But we have our Parks archeologist on site during every time of excavation and nothing was found as far as for the trenching. As far as for the leech field what was discovered on a corner closest to the comfort station was a small deposit of charcoal and what our archeologist immediately did was consult State Historic Preservation Division and we are taking the appropriate mitigation steps, collection of data recovery. Currently the contractor is building the wetlands component and the last would be that protective drainage swale so they are kind of ahead of schedule. We don't want to pinpoint an exact date, hopefully with the weather we are hoping maybe in two months it can be pau. Chair: Thank you, anybody from the public wishing to speak on this matter? There being none, Lisa, do you want to give us the recommendation? Staff Planner Lisa Ellen Smith read department recommendation (on file). Chair: What is the pleasure of this body? Mr. Blake: So the State expects to complete construction 9 months from now, isn't that what he said? Planning Commission Minutes March 22,2011 5 Mr. Nishida. Yes. Mr. Blake: So the report would be due a year from now, right? Would it be appropriate to ask that the report contain whatever developments have been effected regarding the second site? And the reason I say that is because I have never been down there when the place wasn't crowded or people were standing in line or the janitor hadn't arrived yet. Mr. Dahilig: If the Commission is going to ask that as an addition to the approval I would ask that the applicant consent to providing that status report as well because it is was not enumerated originally in the original permits so you may want to call him up. Chair: Can you speak to that matter? Mr. Kumabe: Sorry, I didn't hear the... Mr. Blake: If the planets all line up and you finish this project within 9 months,the final report is due within 3 months which would be in about a year from now and so my question was could we have a report from you at that time on the status of the second site,the development of the second site? Mr. Kumabe: We can provide the Commission with whatever information we can provide. I guess I would have to note that it would be proposed and being that I do believe that at that time we still may be seeking finalization on the master plan. I guess the point I am trying to make is I don't want to corrupt the master plan process by committing that State Parks will be building a facility here because we have been working really hard with the Hd'ena folks their mano and their kokua. We want to make sure that everybody is on the same page as far as where is the appropriate site but we would gladly share with the Commission whatever we know at that point in time. Chair: I have a comment, it is going to take one year for this project to finish and then you have the master plan that you are working on, what is the time table for the master plan? Mr. Kumabe: In comparison to this project? Chair: Yes. Mr. Kumabe: I think this project will be finished before the master plan is done because we have to go through the EIS process so we anticipate probably another year. Chair: So two years? Mr. Kumabe: For the master plan we are hoping maybe about a year and a half from now. I know our consultants are jamming as hard as they can and we are having additional meetings with our advisory committee comprised of community and other members so we are trying to get that ahead. But whatever information we can share with the Commission we will gladly share. Chair: So you could give us, could you give us some kind of update at some point as you go through the master plan process could you give us some kind of update as to how the master plan is progressing and what changes you plan to incorporate into the master plan? Mr. Kumabe: Sure, shall we,that is State Parks,DLNR, come back before the Commission a year from now to provide you the information that has been requested and also information upon staff's recommendation? Chair: Yes. Mr. Kumabe: We are agreeable with that, no problem. Planning Commission Minutes March 22,2011 6 Mr. Dahilig: So I guess it would be required along with the recommendation would be an additional status report on the park master plan to include items related to condition No. 4 which is the secondary comfort station. Mr. Kumabe: On a personal note I would like to thank the Commission for hearing us out and giving us the opportunity and the various Chairpersons that we have been before, thank you very much and congratulations Chair Texeira. Chair: I appreciate it, thank you very much. Can we get back to a possible motion? Mr.Nishida: Move to approve staff report. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor, opposed, motion carried. On motion made by James Nishida and seconded by Camilla Matsumoto, to approve staff report, motion carried unanimously by voice vote. Annual Status Report of Compliance with Permit Conditions (2/22/10) (errata- correct date should be 2/22/11) from Naomi U. Kuwaye, Esq_for Special Management Area Use Permit SMA(M-2006-4, Project Development Use Permit P.D.U-2006-6 and Class IV Zoning Permit Z- IV-2006-9, Tax Mau Key 4-3-2:15, 16 and 20, Waipouli, Kauai = Coconut Beach Develo ►Went LLC. Staff Report pertaining to this matter. Staff Planner Lisa Ellen Smith read staff report(on file). Chair: Does the applicant have any comments? Ms.Naomi Kuwaye: Good morning Chair,Naomi Kuwaye and Mitch Heller for Coconut Beach Development. We have nothing more to add. We have submitted a detailed update in our status report of all things current as of February, 2011. If you have any questions we will be happy to answer them. Chair: Do any Commissioners have any questions of the applicant? I just wanted to alert you that we did receive a submittal from the Building Permit Division of the County. Ms. Kuwaye: Yes Chair, your staff person has graciously provided us a copy of it and we have reviewed it and we have no concerns regarding the requested division. This is consistent with our continued discussions with staff to this date. Chair: Does anybody have any questions for the applicant? Mr. Blake: Condition 3.c,page 3, regarding acceptable documentation for the major infrastructure improvements, has the acceptable documentation been submitted and if not what has been rendered mute? Mr. Heller: I believe sir that item 3.c was modified subsequent to the issuance of the entitlements in 2007. I am sorry; I believe 3.c was modified in 2009 deleting certain requirements placed upon us to participate in the major infrastructure improvements and accordingly certain provisions of 3.c would be rendered mute. For example the performance bond with the Community Finance District bond. Mr. Blake. I didn't hear you. Mr. Heller: Because this permit condition has been modified subsequently to the issuance in 2007 the acceptable documentation referred to the performance bond or insurance of Planning Commission Minutes March 22,2011 7 the Community Finance District bond. It is no longer required of the applicant thus we refer to this condition as perhaps as being rendered mute. Mr. Blake: So the performance bond is the only thing as of this time that is mute? Mr. Heller: I believe both the performance bond and the Community Finance District bond would be rendered mute, no longer required of us. Mr. Raco: So none of it. Mr. Heller: That is correct. Mr.Nishida: I would like a clarification on Hartwell's question. This one is related to the infrastructure improvements that the court took away, right? Mr. Dahilig: In terms of what the department's understanding is, based on the court order this was one of the items that was redlined by the judge saying this is not,you cannot require these particular conditions. The way the department is reading the response in the applicant's status report is saying we are not going to be providing this documentation but if you look at the language in terms of(c) as well as other lists...there are other certain items that could be interpreted by the Commission as being required. And so we are viewing this as kind of a catchall saying okay, the documentation is not required but there are other elements that could be required and therefore we intend to comply, speaking as the applicant, we intend to comply with whatever is remaining of item 3.c. Mr. Nishida: So some performance bond and Community Finance, well some of it may apply and may not apply. Mr. Dahili�z: It wasn't a total redline of the whole condition but it was certain elements so they just wanted to make sure as a catchall that everything is being covered. Mr. Nishida: And then the Community Finance District Bond, there are items that still may apply for that bond? Mr. Dahilig: Maybe the applicant can... Ms. Kuwaye: Without going into too much detail the subject of the litigation covered certain infrastructure improvements that were imposed by the Planning Commission that the court deemed basically beyond the applicant's responsibility and therefore struck a lot of those things out. In our negotiations and discussions with the County's attorney we decided to keep this language in just to give the County some comfort and flexibility in the event that we are able to structure some type of settlement that the County feels would be necessary for the...it is essentially what the Planning Director has explained, it is a catchall and it is just basically to give the County some type of comfort level. Mr. Nishida: So as far as that particular Community Finance District Bond there is no plan right now. Ms. Kuwaye: Right now there are no plans but as I indicated we are still in negotiations with the County and we might want to just keep that language in just as a safety precaution. Chair: Anybody else want to comment? Mr. Blake: I have another one, another question about condition 4, (c), location of the north/south vertical multi-use access paths, is the communication from Public Works going to be included in this? Mr. Dahili2: The action that is before the Commission right now is only to receive and approve a status report. The action that the Building Chief is requesting is specifically to amend the permit condition within the master permit. That is not listed for action today before the Planning Commission Minutes March 22,2011 8 Commission for their consideration. What my understanding is, is that both the County and the applicant are in negotiations about the various locations and the various widths of these easements that were to run both laterally and vertically to accommodate construction of the multi-use path along the shoreline. What will happen if as the applicant indicated, if they do come to some agreement there will probably be a request to amend that is submitted probably jointly by both the County and the applicant asking for this permit condition. Essentially the only language that is being added is the five words saying"Prior to building permit application" and that is from my understanding a means to try to time when the easements would be granted over to the County. So that is the only change that is being requested but it cannot be part of today's action because all that is before the Commission is the status report. Mr. Blake. So any issues regarding signage and maintenance and appearance of these proposed easements are for another time? Mr. Dahilig: Certainly, yes, it is for another time and if there are concerns that maybe the Commissioners do have as this process moves along maybe what we can do is we can convey them while the Building Division and the applicant are in discussion so that they are alerted as to certain items that may be addressed before an actual permit amendment does come before the Commission. Mr.Nishida: Herman I would just like a clarification from Mike, aren't the easements like standard, well these easements are part of the original application. Mr. Dahilia: That is correct. Mr. Nishida: And then what they are asking for as far as the signage isn't that like..,I think we talked about it before, sometimes it is like part of the standards for the easement its self is that some signage is provided. It is not like it is not here. Mr. Jung: If the attorney wants to weigh in. Mr. Trask: The easements are pertaining to the bike path, that is what this is talking about. Mr. Nishida: Two different... some are lateral easements to the shoreline and then the bike path easement. Mr. Trask: And they would be linking up and providing access to the bike path and possibly used as fire lanes too. And just because like the Director said, this is not an agenda'd item and because the bike path is such a big issue within the community I would recommend against talking about that because I am sure if some bike path issue comes up before you the community is going to be very interested in that. And I don't think we should discuss it today without giving them notice so we could just put it as an agenda item at the next meeting I think that would be appropriate. Mr. Blake: My question was actually focused on the vertical path, that is to the shoreline and it was just my concern that it is adequately signed and that the public sees it because often times these get overgrown and nobody knows they are there except the Planning Department. Mr. Dahilig: Commissioner I remember you raising a concern regarding Princeville, I think that was an issue there regarding how the signage was put in and how it was being maintained and certainly that is something that we can express as a communication to the applicant and the department of Public Works as to some of the department's or the Planning Commission's concerns regarding public access signage. Chair: Could I just add one thing about the timeliness of negotiations. I won't discuss any specific things but just that I believe it is important that these negotiations be included as soon as possible. I think the County has funds for these projects. I think there is a deadline, am I correct Doug? Is that a concern,the timeliness of these negotiations? Could you speak to that please? Planning Commission Minutes March 22,2011 9 Mr. Doug Haig_ Douglas Haig, Department of Public Works. Yes, we submitted this request because it is important for us to execute the easement as soon as possible. The bike path is largely funded by in-kind match and it is through property owners dedicating land, donating land to the County of Kauai to help build the path, it builds up our soft match which then allows us to obtain the Federal Highway funds to build the bike path. And we are getting to the point where we are running out of soft match so we are anxious to move forward. And we have been working with the property owner and things seem to be going very well so hopefully we can get the easement going even without having to have this condition amended to the permit. But I think even in the future as you folks look at easements and requiring easements it is important to put a timing of when the property owner provides that easement. And I think prior to building permit application is a very good, appropriate time to require the easement is done because at the time of building permit application they should have the plans done and they should know exactly where that easement is going to be. So they should be able to provide the property descriptions which allow us to execute an easement document. Chair: Thank you Doug, any other questions of the applicant? Mr. Nishida: I just wanted an explanation, item 6,the environmental assessment fee of 1,000 dollars per dwelling unit, what is that? Mr. Dahilia: As a consequence of constructing these...it is in the code that requires as a consequence of putting up dwelling units the department can levy what is essentially an environmental assessment fee of 1,000 dollars per unit. Mr. Nishida: That is in lieu of some other item? Mr. Dahilig: No it is on top of what are the normal processing fees and other requirements that are under the code. Mr. Nishida: Where do you apply that? Do you apply that to a Class I permit, Class II and all of that or its just...? Mr. Dahilig: I have only really seen it in Commission permits so I can't answer whether it is beyond Class IV permits but I can definitely find an answer for you on that one. Mr. Nishida: And then the park dedication fee is because sometimes developers provide a park and if they don't provide a park then the park dedication fee is applied based on a calculation of the units and all that. Mr. Dahilig: That is correct. Mr. Blake: When is it payable? Have you paid it yet? Mr. Dahiliw: My understanding is because everything is in litigation this has not been paid yet. When it is actually due, I am not 100 percent sure. I can get an answer for you on that but I know at this point because of the litigation nothing has been paid out to the County because all these conditions have been scrutinized by the judge and they are currently in negotiations. Ms. Kuwaye: According to condition 6 which is consistent with most types of assessments and fees it is due at the time of building permit application since it is usually tied to the amount of units that you are constructing. At that time let's say you submit a building permit for 100 units then it is easy for the County to calculate how much is owed at that time. Chair: Thank you very much, anyone from the public wishing to comment on this? I don't see anybody wishing to comment,that being the case what is the pleasure of this Commission? Mr. Raco: Motion to accept status report for SMA(U)-2006-4 and P.D.U-2006-6 and Class IV Zoning Permit Z-IV-2006-9, TMK: 4-3-2:15, 16, and 20. Planning Commission Minutes March 22,2011 10 Ms. Matsumoto: Second. Chair: Any questions in regards to this, all those in favor,those opposed, motion carried. On motion made by Caven Raco and seconded by Camilla Matsumoto, to accept status report, motion carried unanimously by voice vote. Request for Reconsideration(3/9/11) from Carl G. Young, Site Acquisition Consultant, Sprint/Nextet of Use Permit U-2011-6, Variance Permit V-2011-1 and Class IV Zoning Permit Z-IV-2011-6 fora proposed 165' monopine near Halfway Bridge. Use Permit U-2011-6, Variance Permit V-20111-1 and Class IV Zoninz Permit Z-IV- 2011-6 to permit the construction and operation of a telecommunication facility that includes a 165 ft. high stealth monopine (a monopole designed to look like a pine tree) and associated equipment at a site located on a cane haul road approx. 90 ft. north of the cane haul road's intersection with Kaumuali`i Highway intersection, said intersection is located gpprox. 1.7 miles west of the Kaumuali`i Highway and Kipp Road intersection, and approx. 40 miles north of that area generally referred to as Halfway Bridge, further identified as Tax Map Key 3-4-001: 003, and affecting a 600 sq. ft. portion of a2,668.037 acre parcel=Sprint/Nextel jDirector's Report received 12/14/10,hearinp,closed 1/11/11, deferred 2/8/11, application denied 2/22!11.1 Mr. Jung: Just for the Commissioner's edification this is a request for reconsideration and when looking at a motion for reconsideration the standard in whether or not reconsideration is valid pursuant to Robert's Rules of Order because our Planning Commission Rules entertain reconsideration at the next meeting however there is not standard so we have to refer to the Robert's Rules of Order. It states, "The purpose of reconsidering a vote is to permit correction of hasty, ill-advised, or erroneous action or to take into account added information or a changed situation that has developed since the taking of the vote." So bear that in mind when you look at whether or not a motion for reconsideration is at hand. Chair: Mr. Young would you care to come up? Mr. Carl Young: Carl Young, Sprint/Nextel, good morning Mr. Chair, Mr. Director, Commissioners. Sprint is proposing to reduce the height again which is the change that has been added, it has been dropped down to 145 feet. We did want to come forward and try to request this pole one last time. The conditions of receiving funding for Universal Service Funds for this area was based on the designation by the PUC as an ETC and I forgot what that means....I think they made an exceptional...I forgot what it means, sorry. But the consumer advocate for the PUC said that Sprint is acting in the public good and what Sprint did was they petitioned these funds based on the fact that they are trying to serve the greater good of the public by being an E- 911 provider, working with the ambulance service on Oahu, and providing backup emergency service. And so they have gone through extra measures to do that and we have to make our best effort because Sprint does stand before the PUC, I think it's every year, and they have to justify what happened with the funds, did they make the proper effort in trying to get sites that cover basic areas. The highway is a basic area. This 3 mile stretch may become very critical as recent events with the tsunami have brought to light. People have reacted differently and California was actually panicked, there was actually gridlock on the Big Island if you look in the Hawaii Tribune. There were incidents on Oahu where people did panic as well,there was overreaction and nothing actually happened that was significant. I was here 19 years ago fixing roofs, cutting trees a couple months after Iniki and I remember what it was like and looking at people and counseling them and it is a matter of time. As I state before it is projected that El Nino will be coming back in 2013 through 2015 and they are projecting large waves and also potential hurricane winds. It has been a while, it is easy to forget, and it has been almost a generation. But when I was 35 and I looked at the faces of the people that had lost their homes and I had owned a home it was difficult to look at and before this long gap it was basically every 10 years. Planning Commission Minutes March 22,2011 11 So I am asking the Commission to reconsider again. There is a 3 mile stretch here of basic highway that has no coverage. Currently AT&T does have coverage however during this recent incident there was no coverage because their system was not able to handle it. The introduction of the IPhone has caused the system to block and they are not able to handle it. And there is probably not going to be an opportunity for them to fix it with this recent announcement of a merger, it is going to freeze their system. So currently you have a carrier that has a single site on the mountain that may be available in the event of an emergency. In the event of an emergency this 3 mile stretch which currently takes about 5 minutes to travel will not take 5 minutes, it will probably take an hour at least when there is gridlock as the recent reports have stated. There has been gridlock even in California at the announcement of a potential tsunami coming in. If something happens there will be problems, there will be gridlock. There is an emergency phone, one emergency phone for that 3 mile stretch. Other than that it will be cell phone coverage and that is all you will have. Civil Defense is on record in your report as stating that cell phones will be vital in the event of an emergency in saving lives. I know I had mentioned earlier that this is a difficult decision. That you are weighing how things look to the public and you are also looking at the greater good of the public and communications are an essential that. And in this day and age 911, more 911 calls are made by cell phones than on landlines. I know the Commissioners did ask me to reconsider alternative candidates. We went back and we talked to the landlords, we talked to Knudsen Trust, we also talked to Grove Farm about the Humane Society. In both cases Verizon already has an agreement that already exists. That agreement gives them certain responsibilities to that tenant and based on the opinion of the Planning Department what would happen in the event of let's say an additional tower, it was communicated to me that the existing permit might be pulled. So let's say Sprint enters into an agreement with let's say Knudsen Trust, Knudsen Trust would then allow us to build this tower. Let's way we get the permit, the Planning Department says they would probably deny it because there are two towers and that at that point if they were to deny allowing two towers, let's say they would allow one tower, they will pull the existing permit from Verizon. That puts the landowner in a precarious situation. They cannot enter into an agreement with us knowing that because they have already agreed to cooperate with Verizon, they have an agreement. The same exact situation exists with Grove Farm. They already have an existing agreement with Verizon. By entering into an agreement with us it jeopardizes their position with Verizon because it would remove their potential of getting a permit which they already have a bird in the hand. Also the terms of their agreement are more than what the terms that we have negotiated as a smaller carrier. So it is not in their interest to jeopardize an existing agreement. Again we are locked. We looked at everything, everything is far more expensive. We have come to the same conclusion that the Verizon engineers have come up with that it is either in the middle, it is on these two outer locations, and that is all we have. That is the only things that work. We have explored the mountain but he power situation behind the quarry, in order to get it to a location that would actually work would require a two mile run just to get the power to the site. The hillside, same thing, it is over a mile to get power to the site and we would have to build a road so the costs are way, way out of reach for those alternatives to even be considered. I knew that the application had to be changed so we did lower the height a little more. I ask that this Commission consider the actual visual impact as you drive by and the actual view plane that was mentioned before. It mentions a viewing corridor but most people drive by this area at 50 miles an hour and there is no place to stop and have a viewing corridor. So in light of recent developments, in light of the change in the application I would like to request that you reconsider this application. Chair: Any comments from the Commissioners? Mr. Blake: At 145 feet how high is the top of the pole above the tree line? Mr. Jung: Commissioner Blake, the request for reconsideration has to be handled first before you entertain the proposal so if there is a motion to reconsider, that motion should be now before any discussion of the proposal for the 145 foot change. So procedurally how it would work is first there has to be a motion for reconsideration and then that would reopen the old Planning Commission Minutes March 22,2011 12 motion to either approve or deny and in that case it was the motion to approve from the last meeting. So first you have to deal with the motion to reconsider before you start discussing the merits of the new proposal. Mr. Raco: Chair, if I may, I would like to make a motion to reconsider Use Permit U- 2011-6, Variance Permit V-2011-1 and Zoning Permit Z-IV-2011-6, for the consideration of information and change of the application. Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, those opposed...can we have a roll call on this to be sure. On motion made by Caven Raco and seconded by Hartwell Blake, to reconsider permit application, motion carried by the following roll call vote: Ayes: Raco, Matsumoto, Blake, Texeira -4 Noes: Kimura,Nishida -2 Absent: None -0 Not Voting: Katayama -1 Mr. Raco: Chair, may I ask for a deferral on this agenda being that there is no report now that we have the reconsideration. Mr. Dahilig: Because the decision to reconsider is within the province of the Planning Commission we did not prepare or entertain an evaluation or any evaluation information regarding this particular letter that Mr. Young had sent. I would concur with the Commissioner's request for a deferral to give us time to re-review the resubmitted materials as well as supplemental 'information and we will come back to the Commission with a recommendation within two weeks. Mr. Nishida: Do you need a second? Chair: Yes. Mr. Nishida: Second. Chair: Any comments? Mr. Blake: Just as a point of discussion, as I view the map and from what I have heard so far you go through Halfway Bridge, you climb to the top of the hill on the west side of Halfway Bridge... Mr. Nishida: Chair, I am not sure but I was watching...I looked through the Robert's Rules of Order, I think motion to defer there is no discussion you have to vote right away. In addition you are going to come back with a report that we can deal with. Mr. Jung: The motion was just to reconsider the action that was taken at the last meeting so now it reopens the main motion to either approve, deny or modify. Mr. Nishida: There was a motion to defer. Mr. Dahill : Caven made a motion to defer. Mr. Raco: I made a motion to defer because I feel that I did not see a report from the department and rather than have the discussion now I would prefer to have that discussion when we have the report. There is no sense having that discussion now in my opinion. I am just saying that because I am going to withhold my comments when I see the report. Chair: With that in mind all those in favor...go ahead Cammie. Planning Commission Minutes March 22,2011 13 Ms. Matsumoto: In line with that there were some comments about the Humane Society and Verizon, would it be appropriate to ask for written statements? Mr. Dahilig: As part of the review process we can definitely do that. Mr. Jung: Just bear in mind that this particular permit application is site specific for that point at Halfway Bridge. Mr. Raco: Carl can add information or background as he commented on. Chair: Any further discussion, all those in favor say aye, opposed,motion carried. On motion made by Caven Raco and seconded by James Nishida, to defer action, motion carried unanimously by voice vote. Chair: If the Commissioners don't mind we want to make another adjustment to the agenda, we are going to move D.1, this is the Anaina Hou application, we are going to do it right now unless you want to take a short...we are going to take a 5 minute recess. Commission recessed at 10:14 a.m. Meeting called back to order at 10:31 a.m. UNFINISHED BUSINESS Class IV Zoning Permit Z-IV-2010-15. Use Permit U-2010-1, Special Permit SP-2010-3 to construct and operate a,pavilion consisting of an indoor auditorium, conference center, certified kitchen, and an outdoor amphitheater on a property located along Kuhi`o Highway, 4pprox_ 1,500 ft. northwest from the Highway's intersection with Kolo Road,Kilauea,further identified as Tax Map Key 5-2-017:028, and affecting a 6.55 acre portion of a 15.17 acre property=Anaina Hou.LLC. (Postponed 4/27/10, Director's Report received 6/8/10, Intervener granted 'intervener status and contested case hearing scheduled for September 28, 2010, 6/22/10, contested case held 1/11, 1/12, 1/13, 1/28 and 1/31/11.1 Withdrawal of contested case hearing by stipulation by all parties (3/7/11). Report of Hearings Officer, Richard P.Nakamura(3/16/11) Supplement No. 1 to Planning-Director's Report pertaining to this matter. Chair: At this time I would like to ask anybody from the public that wishes to provide testimony on this proposal. Please limit to 3 minutes if you don't mind. Mr. Mark Goodman: Good morning, my name is Mark Goodman. I am a resident of Kilauea. I just wanted to address the dropping of the intervention. The hearings officer report that you have is incomplete which I was one of the ones that participated. We had 5 days of testimony and argument that were discarded; it is not in your report. The KRCA Board who filed the intervention didn't allow their attorney to complete the closing statement and the KRC Board was removed and they arrived at a settlement with a new Board that as a petition to replace the old Board by Anaina Hou. So they reached a settlement quickly and so now we have quote, an agreement,that doesn't reflect the community of Kilauea. Testimony from the applicant, if the applicant really wanted to have an unbiased opinion from this hearings officer that the County appointed, the County obviously had faith in this hearings officer, Anaina Hou would have encouraged the KRCA Board encourage them to complete the process. So you may want to ask them why they didn't encourage because that would have been the best information for the Planning Commission is to get a third party opinion from the hearings officer about this project. That would have been the best thing to get a permit to have unbiased opinion. So they said they have a settlement,that is their reason they came to a Planning Commission Minutes March 22,2011 14 decision but the decision with the Board was the new KRCA Board which was made like that which was a petition by Anaina Hou to have the old Board removed before any of this report could be. So I just wanted to enlighten you to the incompleteness of this report and that is my story. Chair: Thank you, anybody else wishing to speak on this? Will the applicant please come up and introduce yourselves please. Mr. Randy Vatuseck: Good morning Chair Texeira and Planning Commission. I am Randy Vatuseck, I am the attorney that represented Anaina Hou in the contested case hearing and in the permit application and with me is Michael Kaplan from Anaina Hou. Also with me is Karen Tang who is participating on behalf of the applicant. As you recall when we were before the Commission the last time the Kalihiwai Ridge Community Association made a petition to intervene and the applicant brought to the Commission the declarations of many members of the Kalihiwai Ridge Community Association who said that the board never gave them notice of its intention to intervene and never asked if they agreed,never asked the members if the association whether or not they agreed with the intervention and whether or not they supported the project. And so the intervention was approved as it should have been and the matter went into contested case hearing with Richard Nakamura but at the same time the members of the Association brought a request for a special meeting of the Association which was held on February 15th, and in that meeting the members of the Association,not Anaina Hou, voted to remove the Board. So the members of the Board of Directors were removed and replaced with new members of Board and the new members of the Board then came to Anaina Hou and said we support your project,the community supports your project and while we want to have conditions in the permit which protect the environment and protect the noise issues we support your project and we want to withdraw the request for a contested case hearing. From the very beginning in the contested case hearing the hearings officer was encouraging the parties to try to find a resolution, find a settlement which a good hearings officer will do. He didn't participate in the negotiations because he is a hearings officer and not a mediator. But there were several proposals made during the contested case hearing for resolutions that were rejected by the Kalihiwai Ridge Community Association, by the Board, and then when the Board was replaced the new Board came forward and said hey, we agree with those conditions and we agree that we support the project and we want to get before the Commission with these proposed conditions. Let me just say that in the contested case hearing and in this process completely I have... Chair: Can I interrupt one second, I just want a clarification. You are talking about the Kalihiwai Ridge Board that was replaced with new Board members. Mr. Vatuseck: That is correct. And the new Board members withdrew their request for a contested case hearing and entered a settlement with Anaina Hou that set out certain proposed conditions that are now offered to the Commission. In other words the parties agreed that they would offer these conditions as proposed conditions of approval of the permit. So if the Commission decides to approve the permits the parties are requesting that these conditions be included as conditions of approval. And if I may Mr. Chairman, in my involvement in land use process in Hawaii which goes back 20, 30 years now, I have never been part of a project where there has been as much heartfelt widespread support in the community. I have been frankly humbled by the members of the community who have come forward and written letters and testified in the contested case hearing,Linda Sproat, Gary Pacheko, Keoni Kealoha,people who have spent their lives in this community and who have been in the community for generations who say this was the first time that someone proposing a project had come to them and said what do you want? What does your community want? What will help your community grow in the directions that you want your community to grow? So I think this project was conceived with the idea of serving the community and conceived with the idea of helping the community grow in the directions that it felt was appropriate for its self. It was trying to promote a sense of community by providing community meeting places,trying to promote activities for youth and adults like movies, like being able to Planning Commission Minutes March 22,2011 15 have performances, being able to have a venue for meetings,being able to have a place where people can have baby luaus, weddings that would be community centered. And I think in conjunction with the mini-golf course which has already been permitted by this Commission has been built and is successful beyond the expectations of Anaina Hou primarily with local people, it is jammed now with spring break. So the different activities they are proposing for this landscape for this particular project compared to what was initially proposed as a strip mall is frankly amazing. You have the already built park-and-ride facility, the already built golf course which is really a unique facility and then this new proposed Kilauea Pavilion which would as we said provide indoor theater, an outdoor theater, a conference room, and a commercial kitchen that would be available for events at the facility and also available for farmers in the community to do that kind of value added work for their products. We spent a lot of time on the contested case hearing showing how it met the criteria for section 8 under the zoning code for Open Zone. We spent quite a bit of time on Chapter 205 and on your rules and regulations 13 on the Special Permit and we feel that this project does meet the criteria for issuance of the Zoning permit, the Use permit and the Special permit and we ask that the Commission approve the application with the conditions that are submitted by agreement of the former parties to the,contested case and supported by the Planning Department. Chair: Has the Kilauea Community Association, have they looked at the conditions brought forward and do you have any commentary on that? Mr. Vatuseck: They have approved the conditions in detail. They have signed an approval to those conditions and it was negotiated Mr. Texeira, it was back and forth. We went back and forth with the new Board and we reached an agreement on the conditions as they are proposed. Chair: Any questions of Mr. Vatuseck and Anaina Hou, thank you very much. For the Commissioners,the first item is D.1.a, a motion to receive both a&b. Mr.Nishida: So moved. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor, those opposed, motion carried. I have a clarification; this is to receive or to accept? Mr. Dahilig: Receive. On motion made by James Nishida and seconded by Camilla Matsumoto, to receive withdrawal request, motion,carried unanimously by voice vote. Chair: Now we move into item D.Lc which is the action required but I will have the Planning Director report:on this matter. Planning Director Michael Dahilig read Supplement No. 1 (on file). Mr. Nishida: Mike,how does the department,this is a theater in the Agricultural District so how does the department reconcile the Open zoning in the Agricultural District along with 205? Mr. Dahilig: That is part of the reason why a Special permit is being required in this case, it is a 205 Special permit not a County Special permit. When we look at uses that are reasonable, unusual but reasonable and comport with the characteristics of the community we find that as part of the evaluation of that particular activity as well as the measures that are being taken to reduce noise and also mitigate any types of heavy impact to the area, we think a Special permit is warranted in this particular case. So it meets that unusual but reasonable standard. Mr.Nishida: So approval of this is going to approve what you just said in an Opened zoned land in Agriculture District? Planning Commission Minutes March 22,2011 16 Mr. Dahilig: That is correct. Mr. Nishida: So that same standard can be applied to other Open zoned parcels in other Open zoned districts or is there something different about this Kilauea one? Do you know what I mean? Mr. Dahilig: I understand and again it is really... Mr. Nishida: Because my gut feeling is that this shouldn't be approved. So what I am asking is how is it that an approval can come through from the department on something like this? Mr. Dahilig: Again when we look at these applications as they come in they are on a case by case basis. And when we look at the types of activities that are allowed in the County Open zone as well as those that comport with Chapter 205 we immediately said already a Special permit from a 205 standpoint is required. So from an agricultural standpoint, yes, and then when we look... Mr. Nishida: Clarify just that one point because I have several points. The ability to apply for a Special permit is different from approval for a project within...the Special permit requirements is a real broad based thing where you can apply for something, right, that is the Special permit... Mr. Dahilig: With certain standards. Mr. Nishida: So it is pretty broad based. Mr. Dahilia: Correct. Mr.Nishida: So that doesn't mean just because you can apply means that it complies and it is approved, right? Mr. Dahilig: Certainly Commissioner, as I mentioned we take a look at the applications on a case by case basis and so when we look at Chapter 205 and we look at what is required, what are allowed uses within the Agricultural District we said okay, a Special permit application is required. So it is not something that is carte blanche,just allowed based on the agricultural uses that are defined in Chapter 205 so that is why the Special permit is in here. So when we look at the Special permit standards that are set forth in Chapter 205 what we look at is something that is unusual but reasonable. And when we look at what is being proposed, especially in the totality of circumstances here, we think that this is something that does meet that criteria that is unusual but reasonable. Mr. Nishida: How is it reasonable? I can see how it is unusual but how is it reasonable? Mr. Dahilig: I think the reason why it is reasonable is again when you look at our June report, our June report mainly focused on concerns regarding noise. And as you can see from the record a lot of the public testimony that was brought up in opposition to this particular application involved issues of noise impacts and so that was something that was left open ended by the department in our initial report that was issued in June, 2010. The reason why we think it is unusual but reasonable is because it is a gathering space, it is for outdoor recreation and so it is not what we would characterize as intense commercial activity in the area, it is gathering space. What the applicant also mentioned is that there is a commercial kitchen there and as we know from farming these days they are looking at ways to add value to their commodity and so by having a commercial kitchen appended to the overall facility also provides an opportunity for farmers to come in and add value to their product and sell it at a higher price. Mr. Nishida: That particular thing about, sorry to break it up, that particular thing about the commercial kitchen, actually a commercial kitchen on farm land you don't need a Special Planning Commission Minutes March 22,2011 17 permit for that,right, you can come in for just a Use permit and get that. I don't think it is a requirement. Mr. Dahilig: And that is part of the grey area that I think we are reading into. Mr. Nishida: What I wanted to do was separate out the parts that were not Special permit and the parts that are Special permit. The Commission has a different,to me our responsibility is really to look at the use and how that use impacts the surrounding areas. So one of the things is definitely the sound level which I am not an expert so if the department says that the sound level is taken care of I will accept that but we still have the idea of the use. So what you are saying is the department is saying that a rock band with people dancing around is outdoor recreation? Mr. Dahilig: It is one of the many things that can occur in an outdoor amphitheater, if we were to... Mr.Nishida: So we are back to the outdoor amphitheater then. So outdoor amphitheaters are,the department is saying that that is a reasonable use, an acceptable use. Well actually it is an unusual but acceptable use in the Open zoned land in the Agricultural District? Mr. Dahilza: When we look at...let's take a step back. Mr. Nishida: I think what is unusual about this one is the support from the community for the project and the distance that it is from the commercial center of Kilauea and that this was at one point an industrial area that got converted based on I don't know what, whatever reasons, so then this Special permit came in. What I am worried about is in spite of all that stuff although the proximity to Kilauea, the support from the Kilauea community and that this once was an industrial area is considerations I think. But from what the report is saying that this is something that is unusual but allowable, unusual but reasonable, is that the exact words? Mr. Jung: Let me just go back a little bit here. When you look at Chapter 205 it delineates a specific set of uses under 205-2 and 205-4.5. The key here is that the legislation allowed other uses, other types of uses through the Special permit process so it created a discretionary permitting process so that is why it is here. And then it becomes upon the Planning Commission with the recommendation of the Planning Department to look at what is the...the standard is unusual and reasonable. And it is laid out in the LUC rules and also our Chapter 13 of the Planning Commission Rules. So it lists specific criteria, 5 different items that you have to meet. Mr. Nishida: I get all that but I don't know if that is a reasonable use because I am thinking about the others. If you had a computer I could type in...you would have a video of somebody right in the greater Kilauea area with a stage,theater in the round, so to me you are saying that these other people, I think there are two other places like that, can come in for a Special permit and get it? Mr. Dahilia: I would hesitate to make a carte blanche determination. Mr.Nishida: But what I am saying is you are sort of making that when you say that it is a reasonable but unusual... Mr. Dahilig: And as I had mentioned before as we got into the discussion we do take this on a case by case basis and when at least for our recommendation and certainly whether our recommendation comports with your standard Commissioner, that is your prerogative and your authority alone. So we are just providing the recommendation that we think based on our evaluation of the application that it is reasonable and unusual in this particular circumstance. Mr. Nishida: So we are down to whether, like my vote is on whether my view of whether this project is reasonable and unusual. Mr. Dahilig Yes. Whatever your na`au is telling you on this one. Our recommendation based on what we have found and what we have done through our research we think it meets the Planning Commission Minutes March 22,2011 18 205 standard and it also comports with uses that are enumerated for the Open District and so that is why a Variance is not required in this particular case. And that is why we have the Use permit and the Special permit in there and the Class IV Zoning permit. Whether you think it rises to the standard set forth by the Hawaii State Legislature to grant the Special permit under 205,that is your authority and you authority alone but that is our recommendation that the Commission should adopt it. Mr. Blake: This application is approved and with reference to Commissioner Nishida's concerns I think that his fear and he can correct me if I am wrong is that this becomes some precedent for other types of proposed uses in the Open/Ag. areas. To me from what I have seen there are facts associated with this application that are unique to this application and we have gone over them already and that, I understand the department's position,that is one of the reasons why the department is recommending approval. And so I would be concerned that the facts that make this unique be stated specifically so that it is just not a blanket"well you let them do it why can't I do it",it doesn't deteriorate into that type of situation at some fixture date. Chair: Is that doable? Mr. Dahilia: It is doable and we can definitely include language that says this application has been evaluated alone, it has been evaluated on an individual basis, it is not precedent setting. We can include language to that effect if that is what you are seeking Commissioner in the permit should it be authorized by the Commission. Or are you looking for something a little more... Mr. Blake: It's just like the previous application where the department recommended approval and that the approval should not be viewed as precedent setting and to me that is living in never,never land, of course it is going to be utilized. Just that statement in there isn't going to prevent a future applicant from using it as precedence. We should say why this is special and if I want to do something like this in some other Ag./Open area at least I have a guide as to what went before other than just a blanket permit approval. Mr. Raco: Isn't that stated on page 6 under the Special permit regarding,"provided it meets the criteria of unusual yet reasonable use of the land." To me,Director,that is what he is asking for. When he says I am accepting portions of 3 regarding,in writing(a)through(e),that is the reason you are giving for the consideration for this, right? Mr.Dahilig: That is the language that we include to represent essentially what we found through the review of the application as well as the public testimony, as well as everything that has come in. That is essentially what we put in there as that language to represent that finding to make sure that it comports with(inaudible). I hear your concern Commissioner Blake. Are you looking for a detailed findings of fact type of situation because we are looking at it from a totality standpoint and not specific factual items unless this Commission has certain specific factual items that they would like to include as part of the record to distinguish this from other circumstances. Mr. Blake: It would be appropriate and I know that when you are doing things like this you try and be as broad as you can so that you are not backed into a corner on a subsequent application. Mr. Dahilig: Correct. Mr. Blake: And so I appreciate that philosophy but by like token I recall a case where the Commission was found to be too general in its denial,this was a denial,and therefore the denial that was issued by the Commission was overturned by the Fifth Circuit Court. So I just want to make as sure as we can without hampering us in the future that the pubic and subsequent applicants know that there were items that we considered a satisfaction of the Special permit guidelines or the Special permit requirements that brought it within the prevue of the Special permit guideline and the subsequent approval. That is my concern as a Commissioner not as a lawyer who is going to sue on one side or the other. Planning Commission Minutes March 22,2411 19 Chair: Mr. Trask would you care to weigh in on this? Mr. Mauna Kea Trask: Thank you Chair. Honorable Commissioners I think Commissioner Nishida makes a lot of good points. Chair: Could you state your name for the record. Mr. Trask: Deputy County Attorney Mauna Kea Trask on behalf of the Planning Department. I represented the Planning Department during the contested case hearing. Again like I stated I think Commissioner Nishida brings up a lot of good points and the issue at hand of course is, is this an allowable use under a Special permit in the Open/Ag. District. I also think that Mr. Dahilig as well as Mr. Blake make the correct arguments and I just want to illustrate briefly why,that this particular parcel is very unique both in its history of use in the distant past as well as in the recent past. The lay of the land,the topography, and the way this application and the applicant approached the community and worked with the department in scoping this project. One of the community members that testified very in favor of this was Mr. Gary Pacheko as Mr. Vatuseck had stated. Mr. Pacheko is a long standing active community member throughout the island of Kauai but within Kilauea specifically and the benefit that Mr. Pacheko provided largely was his own personal knowledge of the history of that area. And that whole are was Kilauea Sugar land back in the day. This particular parcel is not good for Ag. as he clearly stated in the record. This was Kilauea Sugar's baseyard, which is what they used it for,they serviced all their tractors, this was essentially the loudest place in Kilauea up until Kilauea Sugar went under in the late 70's. After that it was up-zoned around the hurricane in 92 because there was a proposed strip mall development and for a while as detailed in the report there was boat building shops and various other industrial uses, highly industrial uses. Like Mr. Nishida said within the Ag. District there are certain Ag. related industrial uses that are allowed and so this had in effect been an industrial area for a long, long time. And the reason why it was subsequently down-zoned was because of a condition of the up-zoning to Urban Light Industrial the community did not want to see that development go in. They wanted to make a condition upon that approval that if certain actions weren't taken by that developer it would be down-zoned into this. And so the applicant came in, the property changed hands, and when this went through and what we are specifically talking about is the lower portion or the mauka portion of this parcel because where the mini-golf is located it is still zoned Commercial Industrial or something it is not Open/Ag. The community wanted this there. And one of the things that you look at that is allowable in Ag. is a religious institution which is I think the term used. And if you look throughout Kauai what kind of religious institutions there are, in modern days it has gone away from traditional churches, rock wall buildings and stuff like that to these kinds of new wave churches that have all these community aspects to it. You look to the Kauai Christian Fellowship on the Koioa bypass road, on the Hyatt side of it, they have a skate park there, they have a community center there and the reason why these religious institutions do it is to provide a community center feeling. You look at, I forget the name but there is another church within Kilauea on your way toward the Light House, it is under a big tent and they have shows there, they hold venues there. I think it is the Academy of the Pacific or something like that that. If you look in Princeville there is another one. The reason why I am speaking in favor of this is because my client really believes and after doing a lot of work on it this is an unusual and reasonable use because of the history, because of the community development. Throughout the contested case hearing it became clear that a lot of these uses where requested by the Kilauea community. They wanted to see not a big commercial theater and this is not according to the representations of the applicant which is all we have to work off of, it is going to be like the old Kilauea Theater was. And you look at everything else they wanted there, a commercial kitchen where farmers could take their products and create value added products. You look at the nursery, you look at all these other things and in my view the department looked at that and they saw that it was a special unusual and reasonable used because of those specifics. And I just would request respectfully that this Commission grant this so as to encourage no litigious settlements of these types of permit applications. As you are aware we recently got Planning Commission Minutes March 22,2011 20 finished with other permit contested case hearings that took years and cost hundreds of thousands of dollars to process. And so in addressing what Mr. Goodman said about this isn't complete or a third party would be better, that is not necessarily so. The department likes to settle these matters. They like when the parties meet together so it is less expensive so everyone is happy. And it is my position today that this should be granted so as not only do I think my client is correct but I think we should encourage settlement of these issues. If the Community is behind it,the applicant is behind it, and the opposition is behind it there is no reason to stand in front of these things. I would just like to add one more thing,the people that were mentioned that spoke in favor of this application you know them well,you know them extremely well, Linda Sproat, Gary Pacheko,Kehaulani Kekua submitted. These are the very people who pretty much in every other issue that comes before this committee they are opposed to. Aunty Linda has been in Kilauea forever. The issues are very high profile but they spoke in favor, she testified in the hearing in favor of this. And I think and the department believes when a developer does come in who is willing to work with the community,who is willing to provide these kinds of services to them at their own expense. This is a facility the County could never build and the people want it. And I think under all those conditions this is that unusual reasonable use that the State Legislature provided for. Mr. Dahilia: If I could, Commissioner Blake, if you take a look the original...and this is I believe what Commissioner Raco was trying to point out,the original report if you look at page 6 and specifically item No. 3,this is exhibit(a) of the report,the supplemental report. It is really interesting to note that this has been a year in process. When we evaluate the Special permit we take a look at 5 different criteria,"The use shall not be contrary to the objectives to be accomplished by Chapter 205 and 205 A and the rules of the(inaudible). The use would not adversely affect the surrounding property. The use would not unreasonably burden public agencies to provide roads and streets, sewers,weather drainage, school improvements, and Police and Fire protection. Unusual conditions,trends and needs have arisen since the district boundaries and rules were established and the land upon which the proposed use is sought is unsuitable for uses permitted within the district. What we have done is we have taken each of those five criteria and we have done a more factual evaluation on each point. So for instance with respect to the uses not being contrary to the State land use law as well as 205 A the proposed footprint of the pavilion is relatively small and should not displace productive Ag, activity that could take place at a future date. The proposed facility acts in coordination with other facilities on the site to promote among other activities local Ag.production. When we take a look at adverse effects to the surrounding property we note that there is a low elevation of the property as well a secluded nature of the pavilion. The noise in this particular case has been mitigated. As we found a year ago there could be adverse impacts by the noise,we have seen that mitigated as a consequence of the settlement so that is where,we think that(b)is okay. When we take a look at particular burdens on other public agencies we found that existing roadways already are there. There is a waterline that is going to be put in and installed. They have a septic type of system that will take care of wastewater. And when we look at fire protection it is not something that will increase a burden on those agencies. When we take a look at unusual conditions,trends and needs what we found through the public testimony especially is that the community has said they need a pavilion like this,they need a facility like this. So this is where community input and community testimony comes into play when we take a look at this particular element of the Special Permit standards. And so we look at it from Ag. production standpoint, for instance fostering more groups to come and promote agriculture by providing value added opportunities as well as creating more of a community center. And when we take a look at the land upon which the proposed use is sought and is unsuited for the uses permitted in the district,again the footprint is relatively small and it shouldn't necessarily displace Ag. activity. So those are, Commissioner Blake, if the factual findings are what we are looking for in terms of ..and this report would be incorporated should the Commission approve the application,that it would signal to anybody that would come in for a future type of use that these are the kinds of things in this particular application that made it unique and made it unusual yet reasonable. And so I don't know if these are the types of factual Planning Commission Minutes March 22,2011 21 findings you are looking for or if there is more that you are looking for but this is how we have gone about looking at it from a point by point basis, looking at the application from a totality circumstances standpoint. Mr.Nishida: Mauna Kea's point about the...so part of the land is still commercial/industrial, light industrial? Mr. Trask: Yes, currently where the mini-golf is. Mr. Nishida: So this land is the same parcel is it just has this dual zoning on that part. Mr. Trask: Correct and I think there is a map contained in here. Mr. Nishida: As long as that is true. Mr. Trask: It is. Mr. Nishida: One of the things that bothers me about the proposal is the structure its self but if it is adjacent to a commercial/industrial area then the structure its self, not the size, not the use,not any of that stuff but just the structure,the theater structure, if it is next to commercial/industrial then... Mr. Trask: And to illustrate if you think about a square this parcel, single parcel is cut in half diagonally, top corner to bottom corner. The top corner is actually 25 feet above the bottom corner and if you follow the contour, this is the makai side of the lot, it goes down like this and there is a differential in height, about 25 feet. The auditorium/pavilion area is going to be built on the lower portion and will not exceed the height of that natural berm and that is what we are looking at. Mr. Raco: Chair, are we approving this project today? Chair: I thought that was the intent. Mr. Dahilig: That was our recommendation. Mr. Raco: Being that we have a new Commissioner and that he will be voting on it would it be wise if we could ask for a brief presentation? Because I had to go and ask our secretary to bring up the application again being that it was a year for us to...I don't recall, I think it was last year when I was Chair, I think we took a brief description of the project but I don't remember going through the nuts and bolts on the project. I didn't know that today we were going to actually vote on the subject. If I could I would like to maybe defer the item to the next meeting and maybe bring myself up to date. Mr. Dahilig: Commissioner if we are looking for a deferral then maybe we can work with the applicant to come up with I guess more of the nuts and bolts as you mentioned of the project in a presentation to bring also Commissioner Katayama up to speed and to refresh the Commission's understanding of the project. And certainly we can talk off-line with you Commissioner Blake if you feel like there is some more factual information you desire to have included in the report from a unusual and reasonable standpoint to try to bolster that if that is a concern still and certainly we can try to provide that. I probably need to check with the applicant though and see what their schedule is if they are available for the next Commission meeting to come up and provide that presentation. M r. Raco: And again, Chair, the only reason I ask for your consideration is and this is only my own personal opinion but I would like to just bring myself up to date but if the rest of the Commission feels that... Chair: Let me ask the rest of the Commissioners if they feel they would like to be updated on this project. Are you ready to vote? How about you Cammie? Planning Commission Minutes March 22,201.1 22 Ms. Matsumoto: This is for our new Commissioner meaning if you need more time that would be appropriate. Chair: I thought that since Mr. Katayama was a new Commissioner that he wasn't going to vote on this subject. Usually when you come in you...that is what I thought, it happened when I came in that if there was a vote I wasn't involved in or had any information on I just wouldn't vote on it. Is this something new that I am not aware of? Mr. Jung: As long as Mr. Katayama has made himself familiar with the record he is entitled to a vote. Chair: So would you like more information? Mr. Katayama. I do and I think what Commissioner Nishida brought up is sort of an interesting point and the Director pointed out is that in condition 3(a), my and with Commissioner Blake is what is the impact to the surrounding Ag. area? We understand that this project's footprint in a very familiar (inaudible)with the parcel having been there for a while and I think the project has an impact to the community that is positive and I think the impact in terms of the surrounding area is probably modest. However the question is as we go through the criteria allowing unusual activity in Ag. and in Open areas how does it impact the continued use of that area in Ag. and in Open. Chair: So is the consensus to defer and to have more updated information? Mr. Jung: There has to be a motion first. Mr.Nishida: Move to defer this item to the next meeting. Chair: Before we do that you wanted to make a comment? Ms. Matsumoto: I have a comment about use. In reading all this information I wonder if it is appropriate to ask the applicant to consider, well we haven't talked about renting, rental rates of the facilities. I am assuming that people are going to rent the facilities. Mr. Jung. That is private enterprise that the Commission shouldn't get involved with.. Chair: Before we have the motion I just wanted to get a clarification from the Planning Director in terms of the time frame. If we do defer is it within our...? Mr. Dahilia: It is certainly within your discretion. We think that because of the contested case hearing the mandatory deadlines have been tolled as a consequence of the contested case hearing. So assuming that the applicant is willing to come back to the next meeting for a presentation, again, I don't know what their schedule is like but if the Commission were to go with a deferral that we would have to make sure that that is scheduled appropriately. And if they cannot make it then we may need to discuss with them a waiver of the deadline if we start running up against it. Chair: So with that in mind... Mr. Nishida: Move to defer the item to the next meeting. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, opposed, motion carried. On motion made by James Nishida and seconded by Camilla Matsumoto, to defer action to 4/12/11, motion carried unanimously by voice vote. Commission recessed at 11:26 a.m. Planning Commission Minutes March 22,2011 23 Meeting was called back to order at 11:43 a.m. CONTINUED PUBLIC HEARING Zoning Amendment AZ-2011-3 (Draft Bill No. 23 86) proposes to add a new Article 28 to Chapter 8 of the Kauai County Code 1987, as amended,to authorize the Planning Commission of the Count 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 [Hearing continued 2/8/11 Information-Only Workshop 2/22/11. Supplemental I Staff Report pertaining to this matter. Mr. Katayama: Chairperson, I would like to announce a potential conflict and recuse myself from this issue. Staff Planner Marie Williams: Good morning Planning Commission members, before you is the staff report and the amended bill and some recently received testimony from the Housing Agency as well. If you don't mind I will summarize the staff report through a presentation that highlights some of the main amendments that the department is proposing to the draft bill 2386. Here is an overview of the presentation, we will be going over the amended definition for TAU, how the TAU certificate allocation is computed, adjustments to the timeline and then the applicability and exemption sections. Beginning with the amended TAU definition, here is the original definition with the struck out language. Let me read what the new definition will be that we are proposing, "Transient Accommodation Unit means any and all of the following: a hotel unit in an apartment hotel,hotel or a motel, a hotel unit located in a Visitor Destination Area, a hotel located in a Resort District, a timeshare unit or any other type of similarly used fractional ownership dwelling or hotel unit, a transient vacation rental, a single family TVR and/or a multi-family TVR." We removed dwelling unit from the first three items because there are dwelling units in apartment hotels in the VDA and in the Resort District that are not used for transient purposes. For example it might be somebody's primary home or it might be their second home or a long- term rental. Moreover, if such units were in fact used for transient purposes then they would fall under the definition of transient vacation rental. We also added in the language on(d) which now reads, "A timeshare unit or any other type of similarly used fractional ownership dwelling or hotel unit"to be more consistent with the wording in Charter section 3.19(c). In short,these changes attempt to exclude units not used for transient purposes. Next, the computation for the TAU certificate allocation was amended to exclude TAU lots from the equation. It now reads, "The total number of TAU certificates available for issuance to all applicants for any growth rate year shall not exceed one and a half percent of the total number of TAUS existing at the beginning of each growth rate year. The purpose for this amendment was to prevent our yearly allocation of TAU certificates from being disproportionately high which would be the case if we included TAU lots which essentially are potential TAUS. This reasoning was described in the first staff report on February 8th. In short, we didn't want to factor TAU lots into the equation for determining the annual allocation of certificates. Adjusted timeline,through this bill a new program that the Planning Department will have to staff and manage will be created. In consideration of this we wanted to simplify the allocation process as much as possible and one step was to use the calendar year, January 1St to December 31St, as our growth rate year instead of what was previously proposed and that was going to from December Sth to December 4th. We adjusted the timeline to fit this and all references to the growth rate year were thus changed as well. As you can see we are going to use the first three months of the year as the time when the lottery and the preparation for it will take place. And in terms of what this Commission will do, you can see that there are at least two meetings where you will have to deal with this process and in the meeting in January you will adopt the number of TAU certificate allocations available for the growth rate year and in the meeting in March you will hold the lottery which will be conducted by the Planning Department. Planning Commission Minutes March 22,2011 24 Applicability,this section serves to clarify what exactly is applicable to this draft bill in terms of permits that have been retrospectively granted and they are not applicable. We can't make somebody who has received all their necessary permits to come back to the Planning Department and get another zoning permit attached to TAU certificates. These projects do not apply to the draft bill and they can thus move forward. In summary,projects that have their necessary permits as of the effective date of this will not require a TAU certificate to move forward. Regarding the exemption section we kept everything the same except for this language which now reads,regarding what a substantial sum is, "Substantial sum means the amount including costs associated with architectural and engineering professional services but not for planning and permitting exceeding 20%of the real property assessment of the land value for the existing resort project for the 08/09 tax year. This change was in regard to a concern that was brought up at the workshop last month on the 22"d where if soft costs were included in the substantial sum requirement for exempt projects and the Planning Director did determine that soft costs would be considered. And also this is language that is consistent with how the Federal Government views professional fees and cost sharing situations so soft costs will in fact be considered as part of the substantial sum requirement. As I just said everything in the exemption section was kept the same with some changes and except for this part, 3,it will now read,"Either the owner or the owner's predecessor in interest must have obtained zoning approvals for expended substantial sums on and have commenced construction of any of the following prior to December 5,2008", and of course that list of items remains. This was changed to reflect how we are defining an existing resort project in the bill. An existing resort project is one or more parcels approved and established prior to December 5,2008 pursuant to an ordinance and located in a zoning district which was also approved and established pursuant to an ordinance. Obviously if an existing resort project had all their necessary permits they would not need to apply for an exemption and so this amendment corrects that reference. Before you is the flow chart which you have already seen several times, it is the original flow chart based on the original bill. This is the flow chart based on the amendments that the department is proposing. The components that have changed are highlighted in the red circles. The first that you see reflects the adjustment of the dates according to our new growth rate year. I will go through it very quickly; January 21"is when the Planning Commission,well by that date is when the Planning Commission will adopt the number of TAU certificates that can be allocated through that year. March 1"is when completed applications for the use, zoning, variance, or subdivision permits for more than one TAU in addition with their request for TAU certificates,that is the deadline. By the second Planning Commission after March 1St is when the lottery will be held. The next change reflects how the TAU certificate allocation will be computed. We are deleting from that TAU(inaudible). It will just be existing TAUS upon which we base the 1.5% allocation. I believe that concludes the presentation,thank you. Chair: The public hearing is still open at this point so is there anyone from the public that wishes to discuss this agenda item? Mr. Imparato. Mr. Carl Imparato: Aloha Commissioners,my name is Carl Imparato and I am speaking on behalf of the Coalition for Responsible Government which is a coalition of groups including Thousand Friends of Kauai, Sierra Club, People for Preservation of Kauai and a number of others and individuals who joined together to spearhead the enactment of the Charter Amendment that requires the County of Kauai to respect and make meaningful Kaua`i's General Plan. That Charter Amendment as you know was passed by voters in 2008 by 64 to 36%margin because residents were very, very concerned about the many negative impacts that unlimited tourist unit development would have for Kauai. The General Plan envisioned that the high end of its growth scenario 25,000 additional tourist units being brought on line over the 20 year period of 2000 to 2020 but in the first 8 years of that period more than 4,000 additional tourist units were already approved or under construction. Planning Commission Minutes March 22,2011 25 There has already been a broad consensus I think on the island that Kauai should not become another Maui but of those 4,000 units that got approved, if only 1,000 of them are built and the other 3,000 aren't Kauai would have more tourist units per capita than Maui. So there are substantial concerns about the need to intelligently manage Kauai's tourist industry's growth and that is what I think motivated people to basically vote for the Charter Amendment which then resulted in now bill 2386. I want to make it very clear that it was not the purpose of the Charter Amendment to stop growth. The purpose was basically to give teeth to the General Plan and basically say that whatever the voters and residents of Kauai approve in the General Plan whether it is the current one or a future one is what should guide Kauai's growth and so that was really the purpose of the Charter Amendment. The really important thing that is before us today is that the 1.5%rate of increase that is mandated in the Charter Amendment at least pursuant to the current General Plan,that that rate of increase must be based on the number of actual transient accommodation units and that that number 1.5% is a number that needs to be met. We don't disagree at all with the concerns that people have about equitable treatment for existing projects that have acquired vested rights and we think that that equitable treatment can be provided under the Charter Amendment and under bill 2386. We have submitted to the Commission detailed comments on the draft of bill 2386 and on the methodologies and I just want to highlight three of the most important points here. The first is that the calculation of the base number of transient accommodation units should occur only once. For example December 4,2008,that base number shouldn't be adjusted every year because if you basically say okay, I am going to calculate the base number every year then if we have a year where a hurricane destroys 4,000 units is the base number going to be half as big as it would otherwise have been? That is really not right. What you do is you calculate the base at the beginning, extrapolate it 20 years and you come up with the total number of units you can allow,new units, over a 20 year period which based on the Planning Department staff s numbers would be roughly 3,200 units over a 20 year period which is still a 35%percent growth in the transient accommodation units on the island and it is considerable. That is point number one. The other point was that the calculation of transient accommodation units should be consistent with...the Charter Amendment said 10 which was transient accommodation units,not vacant lots. And while I haven't seen the details of staff s proposal it seems from what Marie just raised that maybe that issue is pretty much being properly handled. The third and most important issue and maybe it is the most important point I want to make today is that with respect to existing resort projects,those projects need to be very carefully defined. What is a fully vested project? If fully vested projects are projects for example like Kukui`ula where we know was approved in recent years, they have spent a ton of money on housing,they have spent money on infrastructure,those are reasonable to be considered existing resort projects. On the other hand if existing resort projects includes basically everything that has current zoning for transient accommodation uses, empty hotel sites in Po`ipu and Princeville, where projects haven't even been proposed in the last five years or so,then if we let those all become existing resort projects and let them all go through the door as exempt then basically you have gutted the entire Charter Amendment because you would be saying we are going to allow everything that already has zoning for hotels and transient accommodations to skirt the Charter Amendment. Well then the Charter Amendment does nothing because if everything is skirted, we do know that it is unlikely that the County will approve new zoning for new hotels so what have we really achieved with the Charter Amendment if we say that 6,000 units now can by bypass the Charter Amendment's requirements for one and a half percent growth rate annually. And those 6,000 units by the way under the Charter Amendment would not be prohibited from building,they would be allowed to be built but over a longer period of time, it would be a question of paced growth. So where the rubber really hits the road and this was our question in the original testimony one month ago or a month and a half ago was we need to know what is intended in the bill when the bill talks about existing resort projects. What exactly are they? How many units do they constitute,the subdivisions that have tentative approval,how many parcels are contained in them? If those numbers are reasonable I think we are all on the same page and I think we can achieve something here: If those numbers are basically allowing everything that is already zoned for transient accommodation use to skirt the Charter Amendment then I think we probably have Planning Commission Minutes March 22,2011 26 substantial concerns at least on the part of the Coalition that spearheaded this. I am hopeful that we can look more in detail into that, get that information and find out if we are really working towards the same objective because I believe that if we are working towards the same objective then we can really achieve something which will work very well for Kauai over the future. Thank you for considering the testimony, thank you for the extra time. Mr. Nishida: Your first point regarding the set rate, does the proposal that the Planning Department proposed, does what they propose and what you proposed meet the letter of the Charter Amendment in your opinion? Mr. Imparato: On the first point that I raised? Mr.Nishida: The set rate. Mr. Imparato: From what I could see of the presentation it seemed to me that it might not because it seemed to me that the presentation said that every year the number of certificates that would be allowed to go on the market as it were would be based on the number of units that existed that year, in the prior year and I am not sure exactly what that meant. If what staff was proposing was saying we know that we have calculated at the starting point that we can do 3,200 units over 20 years and now every year we are just calculating what do we have, how many do we have compared to the previous year and that says that within the 3,200 we have this much more we can allocate then I think we are in agreement. If on the other hand what the staff proposal is saying is that every year we are going to see how many units we have, this year we have 8,000, next year we have 9,000 and then we are going to take one and a half of 9,000 this year and then next year we are going to take one and a half of 9,500 and after that one and a half of 10,000 then we are in disagreement. Because when you do the math basically one and a half percent of this increasing number every year is going to end up mathematically more than what the Charter Amendment says which is one and a half percent over the long term. So Commissioner I am not sure, I don't know exactly the details of that. Mr.Nishida: What you are saying is, what your point was it complies with the Charter Amendment. That was the intent or that is what the Charter Amendment says is your calculation of how to do that. Mr. Imparato: There may be other ways to do the calculation. We believe that our calculation does that and that at least the previously discussed approach which says every year we are going to calculate what is around and then do one and a half percent of that,that does not comply with the Charter Amendment. Again it is easier to think of it even on the downside where if another hurricane comes through and knocks out 2,000 units are you now going to say well now we are only allowed to build one and a half percent of a smaller number. Well that is kind of counterproductive, you really should be saying you get to rebuild, if the number was 8,000 you have one and a half percent of 8.000 plus what got knocked out so I think the details of that need to be worked through a little bit more. But again the really big ticket item is what do we mean by existing resort projects. Mr.Nishida: I have a clarification, Ian, that particular one regarding...the proposed amendment allows for a recalculation each year based on the number of TAU certificates that were given up as well as the ones that were—you are going to recalculate based on the given up certificates too? Will that reduce the amount of TAU certificates for that year, the base number? Mr. Jung: It's problematic to try and come up with a computation and the reason is because we have the baseline number from the Visitor Plant Inventory and then every year, and those are the ones that are actually constructed and done. There are some out there that have been permitted but not built yet and some that have been given zoning with conditions for infrastructure that still have to come in for certain permits before this body or even before the Planning Director if it is a Class I or Il permit. Mr. Nishida: So that calculation still has to be made. Planning Commission Minutes March 22,2411 27 Mr. Jung: That calculation,those would have to come on line because there would be new ones coming in which would allow the future computation to include those. Mr.Nishida: That is why you are allowing for future computation because these visitor units are not on line but have been previously allowed. Mr. Jung: Right. Mr.Nishida: Rather than computing them one time at the beginning even though they are not built yet. Mr. Jung: Then it wouldn't accurately reflect the current number of TAUS each year. Mr. Nishida: Existing. Mr. Jung: Yes. Mr.Nishida: On the idea that a hurricane would come and reduce the amount of units, a TAU certificate is not going to be given up until one year later or voluntarily, right? Mr. Jung: To withdraw the certificate? Mr. Nishida: Withdraw the certificate. Mr. Jung: They would actually have to come in for the certificate through the lottery process. Mr.Nishida: So his point about the hurricane, if a hurricane came in and a unit wasn't rebuilt how would the department handle that, a question for Mike? Mr. Dahilig: The only way that we can take a look at a situation like you are describing is if there is evidence that there is a voluntary abandonment of the use. In certain circumstances where you are referring to the one year I believe that would be applicable based on the quota in terms of when we look a length of time for when you can say somebody has abandoned use. But in circumstances where a hurricane comes in and let's say people want to restore what their use is certainly we would want to just from a hypothetical standpoint, and don't hold me to this,what we would probably try to do is if my staff isn't turning out emergency permits and those types of things probably we would take a look at revising the data and doing some type of evaluation as to what is the evidence of abandonment. Mr. Nishida: And that would be natural causes so you would tend not to consider the construction of the unit as an abandonment of the use. Mr. Dahilig: Right but I am not one hundred percent...I am not a numbers guy so I would like Marie to kind of weigh in, in terms of maybe explaining where does the baseline come from in the first place because we rely on data that comes from DBET as well as other sources. A census element, let's say if we were to go out and count is not what I would say is the means of us coming up with this number so in some ways we may also want to be consistent with what DBET comes out. And I don't know how DBET comes up with that methodology, if they do a discount or abandonment of use and those types of things. Staff: DBET's Visitor Plant Inventory is the State's official census of resort projects, resort hotels,transient vacation rentals as well and they actually do a census, it is an actual count. Every single year they hire a consultant to do that, perform that task for them so it is the most accurate number you are going to get but it is what is existing that year so what is actually being used as a hotel unit for example. Mr. Nishida: It's done the same time every year? Planning Commission Minutes March 22,2011 28 Staff. I believe their date is May I"of every year but of course it takes about a year to compile all their various sources. Mr.Nishida: Do they count the TVR certificates that we issued on the non-VDA areas? Staff: They do consult the various Planning Departments so I would imagine in the future that is a resource that we may provide to them to assist them in their census. Mr. Nishida: So even the TVR certificates within the VDA, they wouldn't call each individual owner, are you still there, they would call the County and ask for the count. Staff. They use a variety of sources so I believe they contact individual owners, contact the Hotel Association,the timeshare associations, and the County Planning Departments and Real Property Departments as well so they are very thorough. Mr. Nishida: And because they do it once a year their number would reflect destruction of units for a particular year? Staff. Absolutely. Mr. Nishida: Or renovations, it will show a decline, if a hotel is being renovated for that year and the unit wasn't... Staff. Yes, they actually do provide...it is a pretty thick report so they do include listings for every single property and if it does fall out of use there would be a note indicating the reason why. Mr.Nishida: And for this particular bill the Visitor Plant Inventory is proposed to be used only once at the beginning,right? Staff: I believe that we would seek to base our allocation on what is existing in the County and the point of that is to include the growth that is not addressed by Charter section 3.19, growth beyond that would be through a zoning, use, variance, or subdivision for more than one TAU. It is growth that comes about through transient vacation rental certificates, there is the growth that is exempt, and there is other growth that might now apply to the draft bill. Mr. Nishida: So you might use the Visitor Plant Inventory as a resource to come up with that number. Staff. Most likely, that is the most exhaustive resource there is. Mr. Nishida: So it is possible the thing can go up and down from one year to the other? Staff: There is variability in our Visitor Plant Inventory that is correct. Mr. Kimura: On the lottery, not the lottery but on the proposed beginning of each year after the lottery, say a certain developer wins the lottery, he has up to 4 years to allocate or we are going to allocate up to 4 years. How would that affect the other developers coming up in the following year? How would they—how many units would be available to them the following year? They are going to have to wait 4 years? Staff: If the Commission decides to use that option and in fact issue all the available TAU certificates for 4 perspective years including the existing year then yes, the lottery would not be held in any of those 4 years and obviously it would affect developers seeking to obtain a TAU certificate. They would have to wait until the next lottery. Chair: Any more questions for Carl? Mr. Imparato: If I could just make one clarification on Commissioner Nishida's point. Maybe the easy way to look at it is if there are 9,200 units now the Charter Amendment says Planning Commission Minutes March 22,2011 29 over a 20 year period one and a half percent growth would be 12,400 units. And so as the number of units changes whether it declines to 6,000 from disaster or it goes up to 8, 9, 10,000, what is left below the 12,400 cap is what is available for allocating certificates for over the 20 year period. And then it is a question of do you allocate them just once over 20 years of in 4 year chunks but the idea is that the Charter Amendment says you take what you have today at 1.5% growth over 20 years and that gives you a new number, 12,400. And if you exceed that number then you are violating the Charter Amendment and if you stay within it then you are consistent with it. Mr. Jung: Commissioner Nishida, if there is a disaster of some sort there was the Iniki Ordinance that came into play which allowed the rebuilding on existing footprints so that could likely come into play as well. Mr. Nishida: Just as a clarification, if I understand what Carl is saying is that we could come up with one big number now and just proceed as normal until that number is hit. That is what you are saying, right? Mr. Imnarato: That would be one option. Of course then basically you spent all your money the first year and then the next 19 years you have nothing to allocate, that is an option of course and that would comply with the Charter Amendment. I don't know that it would be the best option in terms of the development community. Mr. Dahilig: Maybe after the public hearing what we can do is we can discuss some of the rationale in terms of the department's concurrence or non-concurrence with this particular item because there was some discussion that did go on about this issue of do you go with a static baseline or a variable baseline. Mr. Nishida: I just wanted to throw into the mix what he just suggested which was a big number now and then we can discuss it at another time. Mr. Jung: It would be like debt balance type of situation. Mr. Imparato: That's right. Chair: Carl, thank you, anyone else from the public wish to speak? Mr. Raco: Chair, I have a question regarding Jan's comment. If you have a zoning and you have this growth rate,this growth rate, what Carl just said that would be in violation with the Charter if there was any more. But as a landowner if you are zoned to do a type of development and with this growth rate that caps you from not doing what you are allowed on that property. Is that considered a taking? Who is really in violation then here with this growth rate? Mr. Jung: Is see your point of the potential conflicts of law situation but I would prefer to have that conversation in executive session given the potential liability of the County so we do have an executive session listed on this particular item so if you would like to make a motion you could to discuss that. Chair: Anyone else, Jonathan. Mr. Jonathan Chun: Good afternoon members of the Commission. I would like to thank the staff for doing some good solid work in terms of doing some of the revisions to address some of the concerns that were raised at the workshop. I do have one question though based upon the proposed and that has to do with the process for exempting existing resort projects, that is in section 8-28.5 and how that relates to the new section 4 that was drafted or that is being proposed that says, "The ordinance shall not retroactively be applied to lots or parcels that have received zoning permits, use permits,preliminary subdivision map, or final subdivision map approvals and variance permits to construct transient accommodation units." The bottom line is if you fall within section 4, the new section 4, and the ordinance does not apply to these lots or parcels that have received zoning permits for their projects do those projects still need to go and comply with section 8-28.5 to receive an exemption? So I am not quite sure of the relation between section 4 Planning Commission Minutes March 22,2011 30 which on one hand says you are not subject to the entire ordinance and there is another provision where it says if you are an existing resort project you have to get an exemption. So I am just going to ask for clarification on that. The real reason is this, I have a client that is buying or at this point is probably now the owner of an existing timeshare project in the Visitor Destination Area. That owner wants to renovate, not increase the size but renovate the existing units in there. So is he exempt from the entire ordinance or does he need to get an exemption and if he doesn't get an exemption does he need to apply for a TAU to just renovate an existing project. You are not adding new units to the whole situation so this determination is important because again what does he have to do to basically improve those existing units. And from the construction industry side we are getting calls from the construction industry,when do we want to go out and put out the bid to renovate those existing units. And if you have to get a TAU and he doesn't get the TAU because he doesn't get the lottery obviously he is not going to renovate. Mr. Jung: Objection, compound question. Mr. Chun: Yes it is. Mr. Jung: As Marie stated and I will make this brief because it is a complicate question, the purpose of section 4 was, and one of the questions raised by one of the Commissioners in open session last meeting, what happens to existing permits like Coconut Beach Plantation and those because they already got their permit entitlements. This bill cannot retroactively attach to that so it is projects with permits or with a subdivision. The problem is if you have a bigger lot that entitles to you greater densities then you have to come in for a zoning permit for more than one then there is the question there whether or not the Charter applies. Apparently the Coalition may not have known that there are different classes of zoning permits when this was written so we are trying to address that. Mr. Chun: So it is just an issue that needs to be addressed as we go further in the process. Mr. Jung: Right. Mr. Chun: So I wasn't quite off base in terms of not being able to understand totally what the whole process was. Thanks, it was a compound question. Chair: Is there a motion to close the public hearing? Is there any more public testimony? If not is there a motion to close the public hearing? Mr. Nishida: Move to continue the public hearing. Mr. Raco: Second. Chair: Any discussion, all those in favor, those opposed, motion carried. On motion made by James Nishida and seconded by Caven Raco, to continue the public hearing, motion carried unanimously by voice vote. Mr. Blake: I don't know whether this is better taken up in executive session but when the County projects 20 years down the line what we anticipate the growth to be at that time and for purposes of discussion say it's 1,000 units, we expect to have 1,000 more units 20 years from now. An applicant comes in and asks to build 900 units and has the backup plan and financing to show that they can do this and it will be to code and so forth. Are they allowed to do that or are you only allowed to do 1.5%per year? Is that 1.5% on an annual basis or on a projected term or both? Staff. The number of units that could be applied for, you are right, it would be capped at a certain amount, it would be the existing growth rate year's allocation plus the four perspective growth rate years and their allocation amount and somebody would have to essentially win all those allocations to do a project of that size. And then those allocations must be used up and we Planning Commission Minutes March 22,2011 31 would have to wait until the fifth year to begin the lottery again for those allocations. But yes, essentially we would be projecting that this many allocations would be available in those four perspective years. Does that answer your question? Mr. Blake: I don't know. I don't know if this is meant to just piecemeal development to a certain discreet number of total units per year and thereby block or militate against a large development that exceeds that yearly 1.5%block. Staff: You could argue that the lottery, especially one of the projected size which will be about approximately 150 units would be sort of prejudice towards smaller resort projects versus larger resort projects. But say if by chance a big project does win the lottery and the Planning Commission decides to aggregate the perspective allocations in future years then they would be able to go forward at the expense of all the other projects. Mr. Blake: So right now there is that much flex in the definition? Staff: That is how the process is laid out in the draft bill. But a resort project could be a small project, it could be a huge project. Mr. Blake: It could be a mega project. Chair: We did make a motion to continue the public hearing and so right now I would like to entertain a motion if you desire to defer this to the next meeting. Mr. Nishida: It is continued public hearing, we already did that. Mr. Dahilig: Item F.La because we also listed it for action in case the Commission... Mr. Nishida: Move to defer F.La. Mr. Raco: Second. Chair: All those in favor, those opposed, motion carried. On motion made by James Nishida and seconded by Caven Raco, to defer item F.I.a, motion carried unanimously by voice vote. Chair: We are going to go into executive session right now. COMMUNICATION (NONE) Mr. Dahilig: The Commission has cleared all the agenda except for the executive sessions so they won't be reconvening, they will be reconvening just to adjourn in public session. Chair: We have one more housekeeping duty and that is the subdivision report. SUBDIVISION Ms. Matsumoto: Item D,New Business, final subdivision action for S-2011-10, Kukui`ula Development Company, Hawaii, LLC, TMK: 2-6-016:056, 057, the recommendation was to approve the action. Mr. Kimura: Second. Chair: Any discussion? Mr. Katayama: Mr. Chair, I would like to recuse myself from this as for a direct conflict. Chair: You are recused, is there any discussion on this subdivision matter, all those in favor, opposed, motion carried. Planning Commission Minutes March 22,2011 32 On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve Subdivision Committee Report, motion carried unanimously by voice vote. GENERAL BUSINES MATTERS Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4) the purpose of this executive session is to consult with the County's legal counsel on questions issues, status and procedural matters. This consultation involves consideration of the powers duties, privileges,_immunities, and/or liabilities of the Commission and the County as they relate to Compliance with Permit Conditions 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. Executive Session: Pursuant to Hawaii Revised Statutes Sections 92-4, 92-5(a)(4) and (8), and Kauai County Charter Section 3.07SE),the Office of the County Attorney requests an executive session with the Planning Commission to provide a briefing regarding legal issues, related to the implementation of Kauai County Charter Section 3.19. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the County as they relate to this agenda item. Ms. Matsumoto: Move to go into executive session. Mr. Kimura: Second Chair: All those in favor say aye, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 12:50 p.m. Meeting was called back to order at 2:00 p.m. NEW PUBLIC HEARING (NONE) For Acceptance into Record—Director's Report(s) for Project(s) Scheduled for Public Hearing on 4/12/11. (NONE) For Acceptance and Finalization--Director's Report for Shoreline Setback Activity Determination. (NONE) ADJOURNMENT Commission adjourned the meeting at 2:00 p.m. Respectfully Submitted. C&' &d&V Lani Agoot Commission Support Clerk Planning Commission Minutes March 22,2011 33