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HomeMy WebLinkAboutpcmin6-28-11 KAUAI PLANNING COMMISSION REGULAR MEETING June 28,2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Herman Texeira at 10:35 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. Caven Raco Mr. Wayne Katayama Absent and excused: Mr. James Nishida Mr. Hartwell Blake Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: The first order of business is the approval of the agenda. Mr. Dahilijz: Mr. Chair, I would like to request that as put of the motion to approve the agenda that the Commission removes item A.1 and defer item A.2 pursuant to my memorandum given to the Commission this morning. Chair: Is there a motion to amend the agenda as read by the Planning Director? Mr. Katayama: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed,motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to approve the agenda as amended, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS Letter of Transmittal, Status Report and Time Extension request by Katie Davis of EnviroServices and Training Center LLC for the Department of Transportation, Airport Division, as required by Condition No. 8 of Special Management Area Use Permit SMA(U)- 2008-13, Shoreline Setback Variance SSV-2008-3, Tax Map Key (4)3-5-001:008, Lihu`e, Kauai, =State ofHawai`i.Department of Transportation. Staff Report pertaining to this matter. Removed from the agenda. Director's Report and Recommendation concerning Petitioner Richard Spacer's April_18, 2011 Request for the Commission to Issue an Order to Show Cause pursuant to Chapter 12 of its Rules of Practice and Procedures (June 20, 2011) re: Special Management Area Minor Permit SMA(M)-2009-6,Tax Map Key (44) 5-1-003. Chair: In regards to item A.2 which is why most of you are here today we are going to defer this item but at the same time we want to take public testimony in regards to this. Is there a signup sheet? It depends how many people are testifying. Can you raise your hand how many JUL 2 & 20.11 people want to speak on this item? Before we go forward could you people please sign up on the sheet,there is a lot of people wanting to speak. Commission recessed at 9:08 a.m. Meeting was called back to order at 9:18 a.m. Chair: Before we move forward I need to do one housekeeping matter and that is to receive a number of items for the record. Mr. Jung: There is a June 28ch letter from Widow Ngoc-Lan Phan, an October 22, 2009 letter from Gladys Christian, and October 22, 2009 letter from Pearl Santos, a June 22, 2011 letter from Charles Pereia, a June 28,2011 letter from Peter Waldau, an October 18, 2010 letter from Donald Wilson,June 28,2011 letter from Richard Spacer, a Nude and Naturist letter, no date, an excerpt from Kauai Naturist from a Kauai website, another excerpt from Happy Nature Forum website, another excerpt from Kauai Naturist blog, another printout from a website from Nudist USA, it looks Iike another printout from another website from Island Breath, and it looks like a commentary from a blog at blogger.com from Kauai Eclectic. Chair: Could I have the Commission entertain a motion to receive as read by our County Attorney? Mr. Katayama: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura,to receive letters into the record, motion carried unanimously by voice vote. Chair: Now we are going to go forward with the testimony. Mr. Dahilig: Charles Pereia followed by Tim Kalai followed by Peter Waldau. Mr. Charles Pereia: Good morning, I give you my full name, Charles Blake Pereia. I am looking at you people out there; I don't think you are fishermen or limu pickers like me. I know who is a fisherman and who is a limn picker. The thing is in 1973 I retired from the military. I came home and I drove on that path from the graveyard all the way down to that beach and so did my wife Loki Pereia and my brother-in-law and sister-in-law and everybody else. I know I was on the side of that graveyard because he said say good morning uncle and aunty. But anyway we went to that beach and pulled that limu and anyway, going back now,when the dairy had that portion the cows went all the way on the sand, doo-doo on the sand and drink the water. Now why do we need a fence wire or some kind of wire on beach area? I don't know why because the dairy people didn't do it. But the dairy men also put a fence around the graveyard because the animals were walking all over the graves taking a crap all over them. Anyway he told me that he was going to put a fence around that graveyard to make sure when they move the animals from the beach to the mountain they have no problems walking in there. Now another thing,just recently, I think we have another Donkey Beach down there because from what I have heard what is happening in the past down there is not very nice. These people come from the mainland and they do the dumbest things sometimes. I don't know why, they are educated. I tell you what I wish Loki was here, my wife, because her thing she was fighting for before she passed away was from the mountains to the ocean, that was our thing,that was her thing and my thing. I love the beach and do you know we already had talked to the Mayors before Carvalho to get all these beach accesses. They had four people that went out and named all the beach accesses and what did they do about it, nothing. Our County, DLNR or whatever you call those people, attorneys or what, they are not doing nothing for us. I don't know what is the reason? Right in my place in Moloa`a, we fight that guy too coming to the beach. They put down ten no parking signs. Is my time up? Planning Commission Minutes June 28,2011 2 Chair: Yes, do you want to summarize? Mr. Pereia: I will wait, are we going to have the second round or you don't know? Chair: I don't know at this point but if you want to come back at the end and testify I will call you up. Mr. Pereia: Thank you. Mr. Dahilig: Tim Kalai followed by Peter Waldau followed by Steve Frayley. Mr, Tim Kalai: Aloha Commission, Aloha Chair, thank you so much for giving us finally this time to state our grievances towards this. I want to thank you once again for that time. As our Kupuna just stated, Uncle Charlie as with his beloved wife Auntie Loki Pereia for all that they have done and I am sorry that she is not here so that she too could comment at this point in time. There are just so many things that we feel and we were hoping that possibly we can get the County to possibly evaluate or revisit even the issuance of this SMA Minor permit. So many things have been I guess facts have come close or have been exposing themselves that has shown that even the initial application has a lot of faults and we would like the County of hopefully revisit this or take that into consideration. Because the facts that are unveiling themselves truly are beyond the point of just calling them errata. I know that as we have been looking at this and as Uncle had said that for years we have been trying to be heard about this, beach accesses, and unfortunately it seems that our County is actively moving just a tad bit slow on our behalf to help us preserve these things and we know that once we lose them it is very difficult to acquire them back and not only for the sake of the Kanaka Maoli but for all of us to have this time and this opportunity. In response to Mr. Dahilig and this aspect of lot 4, as he is stating that somehow the trail is open, we know that it is open to the local Ea but from there beyond the vegetation and everything as it goes down to the access to the beach is impassible for anybody to do this. And I am not sure how long or what we have to do to ask the County in terms of requirement by State law that they keep these and maintain these accesses open. And I know that for over a couple of years we have been asking for the County of look at this, even when the County Council went out to look at this there was a fence across it. You know fencing across a public right-of-way is illegal and yet nothing seemed to have been looked into or nothing was even questioned about this. And apparently now that fence has been removed, we don't know by whom, not even the County knows this. Thank goodness that it has been. But in terms of having our access completely open even though we have an easement next to it does not give the County the right not to maintain these things. So we are asking that you please do that and if you could we would certainly appreciate that, thank you so much. Mr. Dahilig: Peter Waldau followed by Steve Frayley followed by Ronnie Bristol. Mr. Peter Waldau: Aloha Commissioners, Peter Waldau for the record. I have passed out sort of a written up version of my testimony so you can read it as your leisure. I am just going to quickly hit on some of the high points; I know we have a lot of speakers today. There is a petition before you and a section of this petition hAs instructions to the Commissioners in their procedure manual and that is that if the Commission finds that any term or condition of a permit has been violated or not complied with the Commission may revoke, amend, or modify or rectify the violation. We have a Planning Director's report and it is recommending against revoking but we are really not seeing any recommendation against amending, modifying, or giving the permit holder a reasonable opportunity to correct, remedy, or rectify the violations. In the original SMA application in 2008, when asked if the proposed development will affect an existing public access to or along the shoreline the answer that was given was no. The permit was subsequently issued with a condition that states that the location of the fence is subject to approval by DLNR and Na`alaheli to ensure public access to and along the lateral coastal trail. Towards that end the applicant was to provide the department a location map as approved by those agencies prior to installation. So what we see in a letter dated yesterday from Planning Commission Minutes June 28,2011 3 DLNR to the Planning Director, it states that DLNR and Na`alaheli have not approved the current location of the fence as apparently required by this permit. And so what we have is that the fence was constructed on the weekend of May 21, 20011 and that would be unlawful because condition 6 has not been met. Therefore it is reasonable to require the permit holder to remove that section of the fence that is blocking the lateral coastal trail. So in summary I am just going to say that there is HRS 115-9 that states that obstructing access to the public property commits that offense if a person is installing a physical impediment or intentionally preventing a member of the public from traversing a public right-of-way. So we have a statute that prohibits that fencing that went up. There is more in the letter and if you are wanting to review it please do. Mr. Katayama: In your letter you submitted a portion of an email, is that the email in its entirety? Mr. Waldau: No. (Inaudible) who was the abstractor for Na`alaheli and I kind of went back and forth for several pages of emails and that can be presented to the Planning Commission. Mr. Katayama: Would you please in its entirety? Mr. Waldau: I can do that, the entire sequence of back and forth on that. Chair: Thank you. Mr. Dahilig: Steve Frayley followed by Ronnie Bristol followed by John Anderson. Mr. Steve Frayle. Good morning Commissioners. I had not planned on testifying today. I am Steve Frayley, I have lived for 30 years on Larsen's Beach Road,I live at TMK 4-9- 021:011 which is about the closest one to the parking lot. Richard(inaudible) lives in front of me, she would be here today but she is on the mainland so I am testifying for both her and me. I am here to testify because I have actually seen over the years just a lot of misinformation as far as I am concerned from my personal experience in talking to people who have lived there. I will write a letter and submit it in writing to you. First of all I talked last night to Peter Sanford who is Richard Larsen's daughter that I have known for 30 years, she talks about the house they used to have down at Larsen's Beach and how they got there. I am going to go over and meet with her this weekend and get a signed statement from her showing the maps and stuff. It totally contradicts some of the things I have seen on the webs about them using the trail to get down there, they drove down the middle of the valley to get to Larsen's Beach. I have aerial photos here that I got from Waioli Mission curator, Moses and I can't pronounce his last name, aerial photo from 1962,no coastal lateral trail down the hill on Larsen's Beach. You can clearly see there is nothing there except the road going down to where her houses were in the middle of Larsen's Beach. Larsen's Beach is over here, the road does not exist, the cane stops about 1,000 feet from the parking lot,there was no road to the parking Iot. Another aerial photo from 1975 the exact same thing, no coastal lateral trail. Another photo from 1987 after Larsen's Beach road was created in 1979 to 1980 when it was cut, you can clearly see Larsen's Beach road, you can see the parking lot and the lateral trail then exists. Before that there was no lateral trail down the hill. I worked for about 18 years when I first moved there with County attorneys, when the County accepted the land from Waioli Mission who was approached by the County and five other property owners out there to create access to beaches Waioli Mission was the only one to work with the County and establish a beach access. When I moved there Bryan Mamaclay at the Planning Department said Larsen's Beach road was not a recorded road. I worked with four County attorneys;in 2002 it was finally recorded as a beach access road although the County maintained it. So up until that point Larsen's Beach road, the fishermen went down the middle of the valley to get to Larsen's Beach road. The lateral trail that everybody is complaining about did not exist. When Larsen's Beach road was created the fishermen's access down the hill was in the thing so there was no possible way of ever loosing access to that beach. There has been a big hullabaloo about the fencing and loosing access. In summary I will say personally I was out there last Saturday, that trail that goes Planning Commission Minutes June 28,2011 4 down the hill is 10 feet wide, it has steps in it,it is a beautiful trail, I weed whack it every month now because the County doesn't do it..I clean it and keep back the grass that comes up. It is a beautiful trail going down the hill and it gets you right to the beach. When they had a meeting down out there about 80 people showed up,the fishermen came up that trail they didn't go down the coastal lateral trail they came up that trail because it takes up right to the beach. So anyway I will submit more testimony, I will write more but I have been here for 30 years and I have seen a lot of stuff and I am really tired of a lot of the misinformation that I see printed in the Garden Island and on the websites that I personally know is not true. Mr. Dahilig: Mr. Frayley, the Commissioners are requesting if you could provide copies of those maps. Mr. Fra la: Yes, I am going back over to the curator's today because I need to take a set I am sending to the County Attorney, I am sending it to the Mayor and I am taking it over to Peter to show her but I will submit one to you. So I am going to get four sets made. Mr. Dahilig: If you could drop it off at the counter. Mr. Frayle: The last thing, actually there is another map in here that is a 1878 certified US geological map and there is a lot of things about the trail that goes around the island.. And when you look it,it is to scale,it is a scaled edition and it shows that foot trail 1,000 feet back from the coastline from K61oa all the way to Hanalei,not along the bluffs. And it is certified and they actually show the old highway as a double line which became Kuhi`6 Highway. But they also had sections of foot traffic went around there. It is an 1878 US geological survey map, certified,not a hand done thing done by somebody else. And I have seen the map they have used a lot of times to say about the trail,when you do an overlay, Moses at the curator's, if I was you I would have him come and testify,when you do an overlay of the coast to that map it lines up with 1,000 feet back not 100 feet back from the coastline. Mr. Dahilix Ronnie Bristol followed by John Anderson followed by Keith Price. Ronnie Bristol? John Anderson? Mr. John Anderson: Thank you for having me here. I have been in the islands all my life,my family and everything,part Hawaiian and all of that. I respect accesses and the beach. Why I am here is I respect the Waioli properties and they are doing their best for you guys and the County with all their rules and restrictions. I am not a lawyer so I know you guys have to settle where the properties and easements are. All I know is that the people at the beach have been,the nudity is uncalled for as far as I am concerned. I was here in the 60's, 68,my family did a lot of stuff, I just represent myself by the way, and I think nudity is unlawful and I am sure it is in the law. This is 2011 not 1968 which they were kind of lax in the law at Donkey Beach and staff like that. Plus the lawyers are smarter and stuff like that so everybody tries to sue here and there and I understand that but I am not a guy who wants to sue and stuff like that. But I just want to say that I respect Waioli Properties,they are doing their best and I can't see anybody saying they are not doing their best. It is the State and the County's decision on property lines and everything else. The next time I come I will be more prepared and get more facts but anyway I just don't agree with the nudity,the kids nowadays, you know what I mean,thank you. Mr. Dahilig: Keith Price followed by Hope Kalai followed by Bell Kaiwi. Mr. Keith Price: My name is Keith Price. First off I would like to thank the Waioli Corporation for all the work they have done in trying to work with both the County and DLNR. My wife and I,my wife is 70 years old this,has MS,we have no trouble getting down these accesses to the beach. And when that fence went up it didn't bother us at all,the Waioli Corporation provided another access, she has no problem, she has MS, she is 70 years old so somebody is shooting the breeze here. I am a computer freak; I like to play around on the computer. I see a lot of the blogs that are going on. Really what it boils down to is I don't believe this is about a fence. I don't believe this is respecting private property. Some of these blogs state we have been thrown off Donkey Beach,we have been thrown off Secret's Beach, this is our last stand on Kauai. That is a precise statement off their blogs. This is all about nudity, it has become offensive, it has become aggressive up the point where we had a family Planning Commission Minutes June 28,2011 5 gathering down there and two nude gentlemen decided they were going to walk right through the family gathering. We had children there. Respect other people,that is what Hawaii is all about, the respect of each other and the respect of other people. And frankly I am disgusted with the way this has gone. I am disgusted with how long this has taken to settle it. I don't think this dispute is about a fence,this dispute is about their last stand for public nudity on a beach,thank you. Mr. Dahilig: Hope Kalai followed by Bell Kaiwi followed by Don Wilson. Ms. Hope Kalai: Good morning gentlemen,thank you for this opportunity. I have a letter to present to you guys as testimony, I am not going to read it, I won't have time. I am not here to talk about nudity. I don't think you guys are the proper venue for that. I don't think we should even be talking about that. What I want to talk about is the process and how this is the first time the public has had the opportunity to discuss this issue. And what I am begging you guys is that we have a public hearing where the community can come forth,talk about this, I can present six differenj registered maps from the State,registered maps that have conflicting evidence but we can't do that in 3 minutes. This is a critical matter to all of us who live in the area, all of us who use the beaches and we would like the opportunity to rationally discuss this and present our evidence. When 20 of us went to the BLNR appeal meeting on Oahu the BLNR realized there was so much overwhelming new evidence that they took a look at this thing,they scheduled 60 days. It took them'6 months to reconsider all the new evidence. And that is what I am asking of you gentlemen is reconsider this permit. My letter addresses the permit,how it was obtained,what was said to get this permit, how there was no history,no endangered species,no impacts, no visual impacts. And that is really what I would like you guys to address is how this permit was obtained,how a critical ancient trail, lateral trail tha� is the segment that connects the whole island is being put to bed without public interest. And all we want is the change to be able to discuss this,look at this permit process. The former Planning Director said that if there were any amendments to the NRCS plan the SMA permit should be revisited and that is just what I am asking for. There are significant changes to the plan,we don't even have a final map yet that is approved that doesn't have lot 4 blocked off. It was a fence project, after-the-fact clearing and now we have after-th- fact maps and we have never had a chance for the public to submit testimony comprehensively. We all need to be able to bring our maps,we all need to be able to sit here with rulers and show I can disprove that. Anybody who drives up and down Koolau Road and looks at the new rock wall and knows topographic features can disprove that 1,000 foot statement. The Na`alahele and the courts in Waipake have determined that the ala loa is coastal so I just want a chance for us to talk about. I have written testimony, I also have two power points I can present to you guys either on disk... Chair: So your written testimony,will you provide that for us now? Ms. Kalai: Yes. Chair: You will have another opportunity when this items comes up again. Before we move forward does anybody else have any other written testimony they want to submit besides this so we can do it all at one time? Mr. Dahilza: Bell Kaiwi followed by Don Wilson. Ms. Bell Kaiwi: Good morning gentlemen,for the record my name is Bell Kaiwi. I would like to just talk about something from the past. My sister and I rode through that area on Sunday and that is why I am there this morning. I didn't know anything about a Planning Commission hearing or anything but as we were returning from Wainiha we passed through Waiakalua, there is north Waiakalua,there is east Waiakalua, and there is west Waiakalua. And as we were heading towards Pila`a area we passed a grove of Kukui trees when my sister remembered my grandfather stopping off when there was the old Koolau road. It wasn't a State highway at the time it was still a County road and my grandpa would stop off over there and he would go into the grove where the Heiau was located. He was the only one that could go there. As we were proceeding on I took the old Koolau road and we decided that we would go down to Planning Commission Minutes June 28,2011 6 the road that I remembered going down with my family and my husband at the time would go and pick up limu and we knew that as Pila`a not as Larsen's but just as Pila`a. And there was a road before that used to take us down,not the walking path but there was another road that used to take us down and there is no longer that road, it is closed off somewhere and I told my sister about that. Today I am going to talk about(inaudible)which is the law of the splintered paddle. In the old days, Kamehameha,when he had his head whacked with a paddle he proclaimed that law which would protect the safety of all men,women, and children to traverse whatever trails there were because there was no roads in those days. There were no wheels; I guess they would walk, rode horses,unless the horses came during Vancouver's time. But it was trails and all trails were protected by his law because he proclaimed that law as his law and anybody that defied that law was killed. So I am just here to bring up that law and in honor and remembrance of my grandfather who used to go to that Heiau in that Kukui grove. His name was Albert Liho Liho and he was a Kamehameha and that is why I am here to testify on his behalf also,thank you. Mr. Dahilig: Don Wilson. Mr. Don Wilson: Thank you Commissioners for the opportunity to testify this morning. It's hard to know where to start there are so many issues relating to Lepauli and Larsen's Beach. I am going to for this morning keep my comments to the actual petition that was filed. First of all there has been the point raised that the State and Na'alaheli have not approved the map. The condition 6 to the SMA permit was put in there at a time when the fence was proposed to be placed clearly within the conservation district. At that time the conservation district permit was requested, granted by the Department of Land and Natural Resources and also approved by the Board of Land and Natural Resources. Subsequent to that that the permit was withdrawn, it was never withdrawn by the department or the board it was withdrawn by the applicant. Subsequent to that the fence was moved back out of the conservation district so it wouldn't have to go through the State process again. The State frankly has no jurisdiction over this thing anymore unless the fence is found to be in the conservation district. The State doesn't have jurisdiction over ag. district fences. So whether or not the State has approved the final fence I think is rather mute right now. Another point has been raised about the shoreline certification boundary determination, those things are not conditions of the SMA permit,they never were,even when we went to the Department of Land and Natural Resources there was never even a hint that we should have a shoreline certification or a boundary determination done. Before filing or amending the SMA permit to move the fence back we had a professional survey done which shows the old�,ertified shoreline, shows the surveyor's opinion of where the current certified shoreline is and the surveyor's opinion of where the conservation/ag. district line is located. The fence is located behind that line.No government agency has requested or demanded those things of us. Concerning the fence allegedly blocking the County trail,the map showed and at one time there was a fence that went across what is one of the two County trails now,that fence doesn't exist anymore. I think also that is kind of a mute issue. We can talk for days about the claims of an ala loa historic trial,I have submitted some copies of the same 1878 survey map that Steve Frayley referred to earlier and it stands on its own. You can look at that survey and see where according to that surveyor the trail was located. That is the proof that some of those who oppose what we are trying to do continually site to,well look at their own proof, you can see where the trail was,measure it off. My final point was that Mr. Kalai mentioned about keeping the existing County trail clean. This isn't the forum for that. The Planning Commission isn't the Public Works Department, it is not the Mayor's office, if he wants that done then he should be talking to the appropriate people this is neither the time nor the place. Thank you and I would like to reserve the right to give further testimony later on. Chair: We have completed our list of speakers, anybody else wishing to come up? Bruce? Unidentified Speaker: I would like to speak last. Planning Commission Minutes June 28,2011 7 Mr. Bruce Layman: Good morning Commissioners, I am Bruce Layman. I am the owner of Paradise Ranch and the current lessee of the land for Waioli Corporation. I think on this small island you all know what has been transpiring down there and what me and my family have been going through trying to run our family business,Paradise Ranch. When I took this lease which I was very happy to get I was informed, and I looked through the documents at Waiole,that this land has been entrusted to the Waioli Board of Directors and they have a fiduciary responsibility to keep it in open space conservation and pasturage which it has been from the 1800s and that has been proven. I was happy to hear Charlie Pereia,finally somebody that knows that area admit that cattle used to go down to the beach because at the testimony on Oahu, including the Sproats and some that are here, said that cattle never went down there before which everyone knows that is not true. The reason why we wanted to put a fence up there is to prevent this and we had the legal right to do that. We had objections to that,they appealed things,they lost their appeals, they took it to lower courts and it just got so burdensome and costly that I decided to withdraw the permit and keep it up higher in the SMA district. One thing you haven't heard here and I find this amazing and maybe you can appreciate this if you own land, you notice that no one ever mentions the word private property. Somehow these people think that this area is public property and that they have the right to go and do anything they want to,tell us and the trust where we can and can't put our fences,what they can and can't do down there. But this is private property and I wish they would respect that. When we put the fence up it was based on lines that we had drawn, the trust was nice enough to give a second access there. The reason I give you folks this thing here is because Richard Spacer and I am not going off track on this because this have everything to do with what they are trying to accomplish,you need to determine what a person's motive is and what their agenda is even though they might come under the guise of ancient Hawaiian ala loa. He has been here 5, 6, or 7 years from the mainland. He is a known worldwide nudist activist. And when you look through these things here,this picture I gave you,that is him. Out of respect for you folks we blotted out this,this is him at Larsen's Beach on the internet that my sister found and she found very offensive. He is standing on Larsen's Beach inviting everyone to come here to this island because Larsen's Beach is a nudist beach. In one of the articles he claims that the Kauai Police Department are racists against nudists, gays and that. And another one he said here and I will sum this up,just to show you what his agenda is, he says"Cattle rancher to close Hawaii nude beach trail,manure we say", Richard Spacer wrote that. If you look through all of his stuff here and I am sorry that we sent you a picture as graphic as it is,we tried to white out the offensive part, but that is his agenda and that is what they want to do. This is private property and we hope that they would respect that. I am trying to run a ranch there. How do you run a ranch with cattle without putting fences up? And that is what we are doing. So I appreciate your time and I hope you give consideration to stop this nonsense that is going on so that we can get back to me and my family doing our business and the trust being able to protect their private property,thank you. Mr. Stewart Wellington: Stewart Wellington. Thanks for giving us this opportunity. I would like to just bring up the fact of private land and the laws that you are allowed to do certain things on private land. I am a cattle rancher. I have been the past President for the Cattlemen's Association and Vice President. This delay in where we can locate this fence affects the success of this ranch. Here we are trying to provide an organic, grass fed beef here in Hawaii which we are trying desperately to get a market going because it is important just for the survival of our industry and to be held up because of something ridiculous about where this fence is to be located. Just to let you guys know I was the Meadow Gold manager for Meadow Gold. I worked in high school in 74, all the way to 1992. And I wish I could find the pictures of our cows on the reef eating the limu. Eddie Nakazawa used to call me up who was my guy on the east side,hey Stu we have to move the cows they are back out on the reef again. So they cannot say that cattle roamed down to the beach,they were on the beach all the time. Basically this is private property. The issue is do they have access to the beach? Yes there is an access to the beach, a good access. And when we are`out there cleaning up and I help put the fence up all the local fishermen went right down that rail,they didn't even look sideways at the lateral trail. They went down with their throw nets and everything. It is upsetting for me Planning Commission Minutes June 28,2011 8 already. This is just dragging on way too long. We need to go take care of business and move on, thank you for your time. Chair: Anybody else, Mr. Pereia, do you want to come back up? Mr. Pereia: I want to say something. Grace Gosslanger with her car drove all the way down to that beach to pick up those shells before. And when the County made that access to the beach they put fence on both sides and I don't know how that thing went all the way down and it must have been a bulldozer or something, that road didn't just stop there it went like a band or something right to the beach. And then they stopped everybody from walking on that path, they closed it off somehow. You know I think that pasture has some kind of special grass that the animals have to eat. What about the pineapple fields and cane fields and all that? He can put those animals in those places. Why worry about putting a fence, we are having all these problems with this fence thing. To me, the thing I want to say, I want to hear the yes, I want to hear the no, I don't want to hear the between, thank you. Mr. Frayley: I am Steve Frayley again. In 1985 we met with Mayor Baptist at that time. There were 20 people who lived out there that signed a letter to him and we met with the Kauai Police Department, the Mayor, Public Works about the problems that were existing at that time at Larsen's Beach. We had:photos of 30 camp sites with multiple units there. We counted about 110 people living in the valleys there. There were fires from their fires that were started continually; even about a month ago another fire was started from people illegally camping down there. That threatens my property because it catches in the pine needles and comes over the hill and the Fire Department comes out. We have vandalism. About a month ago 5:00 in the morning a guy shows up our door with his head broken open from dealing drugs in the parking lot. It just goes on and on problems that are down there because people are living in that valley, in the valleys all along the beach there. I have photos of the camp sites from 85,the police go out there,they go away and come back in 2 weeks. So hopefully by doing what they are doing and actually doing a cattle ranch and people being there the situation will stop and it will make our lives along the road that live there a lot safer,thank you. Chair: As I said we will be coming up again, this agenda item will be coming up again so I am hoping that you folks can come back and testify again. For those that haven't spoken yet do you wish to say something right now? Go ahead. Mr. Steve (Inaudible): My name is Steve (Inaudible). I live in Kilauea. I love Larsen's Beach and I love the trail there. I think it is a treasure for the island to have that lateral trail. I have been walking it since the 80's and I think that it is a very special thing that we don't have too many places like that left on the island and it would be a shame to lose it. I came in late, I just got here. I had a client this morning so I got here as fast as I could and I was hearing just the last man speaking about all the campers and the problems and I am sure there are problems. I go down there regularly, I only see 1 or 2 people camping. I don't notice them. I don't live out there though. Anyway, the beach will always be there and we have lots of beautiful beaches but we don't have that special kind of environment with this lateral trail and I know other people have been researching the history and the historical and cultural things. I haven't had time to do all that I just know it is beautiful and it is a very special environment. I have this friend that comes here every year,he brings in a group of 20 kids or so from California as a special event for them when they are going from the 81h grade to high school and that is one of the special places that they like to go. And they were really sad and disappointed when they came this year and saw the fence had been put up and I think that looking at the future of the island we need to pay attention to not just...right now it still looks like we have lots but I come New Jersey and I saw where everything gets lost and I think we are losing more and more here. So I just would pray that the landowners could incorporate their needs with the long term needs of the island which I think not only the recreation for the people who live here but for our visitors who need these special places,thank you for hearing me. Ms. Martha Jay: My name is Martha Jay and I live on (inaudible) Road near the Larsen's Beach road. I have been frequent visitor to the beach down there and have never witnessed anything untoward. There has never been any nudist that has approached me or been rude in any Planning Commission Minutes June 28,201 I 9 way. I haven't found them to intrude,they are typically shy, they are shy people. They go down there because they want to have some privacy. I walk down there often with my father but now that he is in his 80's he is still fit enough to walk that lateral trail however he is not well enough to do the stairs. It is just too much for him. My father is a very respectable person and very respectful and this is something that diminishes his quality of life. The lateral tail is fenced just next to it on the makai side. It could be fenced on the other side of the trail 4 feet away. The cows aren't going to suffer and starve to death because it is fenced on the other side of the trail. And I don't think it is something to boast of that the cows walked on the reef and ate the limu. I don't think that is something that we would ever have again. I certainly would think that the cows should be fenced away and farther away from the shoreline is better that nearer to the shoreline in my opinion because their feces and manure and urine are not necessarily good for the reef. In the interest of the environmental and social and historical value I think that trail is very import and the lateral trail is what I am talking about because it is how our older people and our younger people can get down there. And the more families that are able to get down there which means the lateral trial,people carrying ice chests and a lot of stuff like families tend to take to the beach with them the less weird stuff we are going to have. I think that families on the beach is what we want to have and that means the lateral trail to me because families with a lot of stuff taking it to the beach aren't going to be able to go down the steps. Anyway that is my opinion, thank you. Ms. Marin O'Ryan: Aloha, my name is Marin O'Ryan and I five on Koolau Road. My property adjoins the Waioli Mission land and I want to say that I feel like they are very good neighbors and I think that Bruce Layman and Paradise Ranch does a wonderful job taking care of that Aina there and I do appreciate the good job that they do. But I was very sad to see the fence go up, as Steve (Inaudible)mentioned the lateral trail was an incredible treasure for the people of Kauai and the visitors that came and it is just really sad to see us lose an access like that. I know it is on private property and I very much appreciate the fact that Waioli Mission has allowed people to use that trail for so long. I just want to say I am surprised, if they didn't want people to camp down there I never saw any kind of no camping sign or anything Pike that. It would have been so easy to have put a sign up. People probably just heard it was a good place you could camp for free and a good place to camp and they just went ahead and did it since there was no sign saying not to do it. And I also wanted to say, I totally agree with Martha, if they could have put the fence just over about maybe 8 feet it would have left the trial and still closed off a lot of the camping area that people were using and restrain the cattle from walking on the reef which I feel is very important as well. Even though it might have been something that happened in the past it is something now we know a Tittle better about how to take care of things and we know that it is not such a great idea to have cattle walking on the reef. And I do appreciate them putting the fence up for that reason but I wish they could have put it over just a hair so that people could still use the trial to walk down. Thank you very much for allowing us to testify. Mr. Paul Keno: Hi, my name is Paul Keno and I just wanted to....I am an advocate of private property rights and I know that Waioli Mission has had that property for a long time and they were good enough, and I have known Bruce Layman also, who has been an excellent land manager at other properties around the island and he is probably doing a pretty good job down there. He invited me to go out to a beach cleaning months ago and I was kind of shocked when I went down there. They literally got three dump trucks filled with trash and it was almost like homes, people had tents down there that were living down there it must have been for months or years even. All that has been cleaned up now and it is really, I mean I go down there and I use the regular County beach trail and I think that that is the way to the beach. You just don't assume that somebody that as private property is going to allow you to go across private property to enjoy their private property, thank you. Chair: Everybody is finished; you wanted to make a statement and then Richard at the end. Planning Commission Minutes June 28,2011 10 Unidentified Speaker: Thank you Commission,just one quick comment and this is in the letter I had presented earlier. I am hearing a lot of statements about private property but this subject property was land courted and the Judge Gary W. B. Chang in his findings of fact of decision stated it very clearly that this property,there is reservation by the State of Hawaii of Public Highways, trails, accesses, or rights-of-way. So there is no question in my mind that this is a public trail not a private property issue. And then I also have a 1960 aerial photo that clearly shows the lateral trail and I will be submitting this to you in the testimony later. Mr. Richard Spacer: Thank you Mr. Texeira and members of the Commission. Please refer to my written testimony dated today that I submitted to you. My petition to the Commission to review and comment upon the Planning Director's report lists a number of points but in three minutes the point that I want to make is that to spite all of the talks about peripheral issues here the issue for the Planning Commission is law. I have never seen a revised County SMA permit for this project that says anything different about condition 6. Condition 6 is to ensure lateral access, that the public will have lateral access. Ian Costa put that condition in this permit and that condition has not been changed it is enforce now. On May 2l't that condition was violated. A fence was put up across the entrance to that trail. There is no dispute what trail Ian Costa refers to, we all agree it is the later coastal trail and the lateral coastal trail was blocked on May 21St The Commission in its powers can revoke, modify, or amend a permit that has been so violated. My personal wish is that this permit be revoked for all the reasons I detail in my testimony both today and in my petition. I think there is ample grounds for revoking this permit based on the permit history of the permit holder, the violation of the permit just referred to and faulty and misleading information on the SMA application including omissions. There are may of these which are all detailed in my testimony to you. If any of the Commissioners have any questions at all about some points that I have raised I invite you to contact me, I will give you my email, I would be very happy to do that. But again, I appreciate the chance for the hearing, I appreciate the deferment and we look forward to discussing this again. Chair: Thank you, I just wanted to remind the public that this agenda item will be coming up again so you will have an opportunity to speak on this item. This will be the last testimony that we are taking today. Mr. Stephen Mandel: My name is Stephen Mandel. I was down doing the beach clean up as well a couple months ago with my three and a half year old son. I have been going to Larsen's through the years and I hadn't been back in just a little while and I was really surprised at the amount of trash and camping remains that were there. Just even going up into the hills into the rocks, even behind they made like little caves into little houses,tons of trash and debris, picking things like that out of the reef. And I used the vertical trail that went down with my three and a half year old and although it is a little rugged it was really no more rugged than half of the trails that we do to access the beaches all along the North Shore. That is all I wanted to say, thank you. Chair: We will be taking a short 10 minute recess but thank you all for your testimony. Commission recessed at 10:17 a.m. Meeting called back to order at 10:39 a.m. COMMUNICATION (NONE) SUBDIVISION(NONE) UNFINISHED BUSINESS Special Permit SP-2011-4 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by of Kauai Ordinance 9-04, in Moloa`a, Kauai, approx. 220 ft. west of Moloa`a Road, further identified as Tax Map Key 4-9- 14:21,and containing an area of.701 acres =David R. Houston. Hearing closed 4/26/11.1 Planning Commission Minutes June 28,2011 11 Department Evaluation and Recommendation pertaining to this matter Supplement to 4/26/11 Staff Report. Staff Planner Mike Laureta read department evaluation and recommendation (on file). Chair: Any questions for our planner? Mr. Katayama: Mike, good report, there is just one conceptual question is that I know that the conditions are sort of made or developed around protecting the neighboring residents. Where is there a right to farm or mitigating urban encroachment in the other Ag. zoned properties that surround the subject property? And I assume that the applicant has no active Ag. going on in any form so it is purely void of Ag. activity. Therefore...you know we have gone through a lot of conditions specifying that they will be good to their neighbors but how do we sort of protect the original intent of the zoning which is to promote agricultural activity around the surrounding properties without have the issue of urban encroachment? Staff: There are a couple of tiers of approach. The zoning is Open not Agriculture. It is Open because of the physical constraints of the property. If it was agriculture I would tend to agree with you but because of the many different variations in these applications that we have seen and because of an enlightening experience I had I think that a really good way to address that concept is to have the applicant establish an agricultural plan and implement it within 30 days. Now that is just to address concerns that Commissioners have expressed the last time regarding the lack of agriculture but what the applicant just mentioned is and he can elaborate on it,he already planted,he started planting. For the other parts of that there are a couple of ways to do that but the Open zone doesn't encourage agriculture the way the Agriculture zone would. The State Land Use Agriculture designation we have to remember is, I will say it nicely,it is a dumping ground for lands that cannot be classified urban,rural or ag. Mr. Katayama: To that point though I think the use or the ability to farm is in the eyes of the beholder and for us to arbitrarily select with our limited wisdom the ability of somebody to farm is not in the prevue of this body. So I guess what I am asking for is,is there the ability to acknowledge the right for surrounding land to farm given the fact that the use for this and they can use it however they see best intended,but not limit the ability for the surrounding landowners to farm because now that you have an urban/residential environment,that agricultural use may conflict with that. Mr. Dahilig: Let me try and explain our rationale this way. We see the issue concerning conversion of agricultural lands to commercial and resort uses pretty much addressed by ordinances 864, 876, and 904. I think the key element is to look at the VDA boundaries,that the VDA boundary is already set in stone,that anything outside of here shall not be urbanized in a resort type manner. When it comes to actual urbanization of land just for residential us,by function of the Open zone overlay on ag. lands, Open zoned areas were still allowed to build houses and so what we have seen happen over the past year is the Council has made a determination to loosen up the density that Open zone has and now treats it as agricultural lands. So there are other statutory considerations now that come into play to mitigate some of the concern, I think maybe, and rightfully so, come up as a consequence of this type of action. When we look at these permits, also these are addressing from an urban form standpoint things that already exist in construction. And so when we are looking at it from intensification of a structure or remodeling we put in here as a curb a condition that does not allow urban form intensification of use so that we can properly address and say well if this guy is going;to start. spreading out and putting pod homes and those types of things we can revisit that application say hey,does this comport with this understanding that this is still an agriculturally zoned area. Mr. Katayama: I agree with all of that and I understand that and that is fine. What I don't see and I find troublesome is the fact of urban encroachment in people who do want to farm because it is silent on that because there are agricultural issues certainly that may arise for people that are either transient visitors or residents in these homes. Certainly the landowner can do what he needs best to do with his land and 1 am not quarreling with that I am just trying to Planning Commission Minutes June 28,2011 12 preserve the right for surrounding property owners if they enjoy or want to try agriculture to have the ability to do that I guess with the least amount of encumbrances. Mr. Dahilia: Can I read into your comments that the concern is potentially the bleeding over of assessed values by the consequence of a highest and best use in one area? Staff: I know what you are looking for. It is similar to a deed condition of approval that used to and I don't know if it still is for the subdivisions, abutting adjacent agricultural operations where people who move in around...and the one that sticks out in my mind is Kaneshiro Farms, as that place got urbanized there was a deed conditions saying you can't complain about the noise, odor, smell, use, is that what you are looking for? Mr. Katayama: Yes. I think there are laws that govern that but I think we need an acknowledgement of these TVRs as they come through that it is agricultural lands and people have the right to farm unencumbered or without any handcuffs just as we acknowledge the fact that these dwellings exist and property owners have the right for the highest and best use of their property as they see fit. I think that would be good. Mr. Jung: I believe there is an HRS provision that doesn't allow for any type of restrictions on the type of farming activity that you do on your property and I don't have the citation, I am trying to look for it but I know it goes to the point of restrictive covenants for people within a CPR can't restrict the type of farming activity within there. So they can choose to farm how they want to farm but I can't find it but I will keep looking. Chair: Anybody else? If not I have a question for Mike, Mike you mentioned on the bullet points starting on the bottom of page 3 and ending on the top of page 4, you mentioned that last bullet point the number of vacation rentals in the area and the cumulative impacts on the neighborhood. At what point, how many units would you consider an adverse impac�l? There is no hard and fast rule, I realize that, but at some point we need to address that for other TVRs that come into the area. Staff: There is no magic number at the moment but it's clear that the complaints were generated because nobody had permits, ordinance 904 was just coming on board, and there were no conditions of approval governing the use which meant people could park anywhere they wanted, they could party hard all day long into the night. These conditions of approval now that they have to be put into the contracts and in any advertisements puts everybody on notice that you can't go wild here. The second part and I am not sure if you've realized it that with these conditions of approval the TVR permit has to be renewed every year. Chair: Every 2 years. Staff. No, the TVR permit. The Special permit is renewed every 2 years which means these uses will be coming in for renewal every year. We will be finding out from the community what that magic number is especially down in Moloa`a,if it is being managed properly or not, the conditions are taking hold. Every year when the TVR is renewed or every second year when the Special permit is renewed the requirements are you discuss what the problems are and how you resolve them. If the complaints still are coming in and people can now point fingers where these problems are we will have a real good discussion of failure to abide by the conditions of approval. So in tightening up this whole use thing we can't address how many is the appropriate number we just establish the conditions, put everybody on notice, especially the neighbors who have had issues and now the owners of these entitlements understand that it has to be managed. That is the part that doesn't exist now. Chair: I hear you. I would just like to request though to have the Planning Department consider such a thing, an example that comes to mind is Hanalei Town for example,the town core where you have a whole bunch of TVRs in the area that impacts the lifestyle, the original lifestyle in Hanalei, not in the last 20 years but prior to that. So I don't know how you could quantify this or how you could come up with some kind of recommendation but just something to consider in the broader scope. Planning Commission Minutes June 28,2011 13 Staff. That was one of the considerations that if you established a number then it becomes how do you apply,is it a lottery, is it luck of the draw and the people who don't get that number,why,what is their legal out. I have run into that one a bunch of times and it is never really been addressed but I am aware of that one. Chair: Anybody else, if not I would like to open this up to the applicant; do you have any questions of the applicant? You have heard some of the conditions,how do you respond to that? Mr. Charles Foster: Charles Foster representing David Houston. The first thing is to Mr. Katayama's concerns. First of all when we prepared the application it reflected the language of 904 which refers to intensive agricultural operations and so our position was we just don't have the means there to do an intensive agricultural operation. We certainly have no objection and we think that it ads greatly to the overall value of the property,the neighborhood,the community, yes,to have personal use,to have trees, fruit trees and such things growing there. And that is something that David can address,he has actually been planting some things. As far as the brainstorm that happened concerning reaffirmations of neighbor's rights to farm,yes,we agree with that, we think that is a good thing and we would have no problem reaffirming any neighbor's rights to agricultural operations. Mr. David Houston: And again, Commissioner, I wanted to go back to the idea,the agricultural issues, since our last hearing we have actually planted I think it was 4 additional trees, 1 on mango, I is avocado, and 2 are papaya. We have about 8 mature banana producing tress and we have about 6 mature coco palms that also produce as well. And the consequence of which is we do that because that is what I think is appropriate for the property. I think it beautifies the property and I don't think anybody would object to going out and actually pick fresh fruit from your property and be able to eat it. So it is a great idea and I certainly agree with you in reference to that we just didn't want to be caught up in the idea that we could run some sort of intensive agricultural opetation because I think as the report has made clear we are category E or classification E on soil conditions,the area in and of its self of.7 acres just simply wouldn't sustain it. But clearly I think you are absolutely correct one of the uses of the property should be and I hate to use recreational gardening but I don't know a better term and I am no great gardener but we will certainly do that. Also you brought up the notion of agriculture somehow being prejudice by virtue of a claim by someone in my position,oh well agriculture doesn't belong there because now it is a TVR or something to that affect. And I wanted you to realize that back some time ago I represented air airport authority and people had moved in around the airport and were complaining about the planes. And my biggest question, and I represented the airport, was when you move into an area that is zoned in a specific way or allows a spo'cific activity that it represents a significant unfairness to the individual landholder that may have been there prior to your arrival that they should be the ones who modify or create additional uses for their property when in fact it is the person who moves in taking notice of what the property is for. And I noted that you wanted an acknowledgement of that and I would be happy to go on the record and indicate I have no objection to agricultural uses in that area and quite frankly I think that would be appropriate. So I am hopeful that acknowledgement would suffice. Mr. Foster: To the County Attorney, 205-4.61 believe is the statute barring restriction on agricultural activities. Mr. Houston: Gentlemen in reference to conditions in and of themselves there was one are, I think it was condition No. 7 located on page 5,that we have had a lot of discussion about not because it is not necessarily a good idea but just because of the legality and actually being able to perform the same. And I wanted the Commission to be aware I have contacted now three separate brokers and two underwriters to determine the possibility of creating a policy where I can name the County without a beneficial or legal interest, insurable interest,in the property and I am being told that is going to be a very difficult row to hoe. But what they did suggest is that we utilize paragraph 12 which is the indemnification agreement wherein I am required to indemnify the County and add language to that particular paragraph where the applicant would be required at least a 3 million dollar Iiability policy obviously ensuring the applicant for the purpose of hopefully deferring any and all litigation that may concern the County by virtue of the Planning Commission Minutes June 28,2011 14 " f � value of the policy its self at 3 million dollars. And I would suggest if we could that we modify condition 7 to require me to carry the 3 million dollars of liability insurance and then use that in conjunction with paragraph 12 so as to avoid the argument from and insurance defense lawyer's standpoint as to whether or not the County truly has what is called an insurable interest or a beneficial interest. If the County owned the land and it was a Special Use permit to put on a concert or something of that nature of course then I would think the governmental entity does have an insurable interest. Koke`e is a good example of governmental interest where there are private residences. But to this point I am having great difficult even finding a company that would be able to ensure that and I know from speaking with the County Attorney that a lot of this may be similar to what has been done on Maui but I would be uncertain as to what company they would use. If it is possible it is possible, and certainly something I am willing to entertain. If it is not possible then I think we could possibly work within the conditions to honor whatever the Commissioners interests may be. And then finally I just didn't want to create a situation where the County was presuming liability above the County's liability cap which I am sure isn't 3 million dollars by way of now stepping to the forefront demanding insurance as though somehow you are liable when quite frankly from a legal perspective I don't think the County would have liability. And that was just an additional concern. Mr. Jung: This put together condition No. 7 was adopted from Maui County's position on issuing Special permits on TVRs especially on Ag. I would have to take a few minutes, if we could take a recess at an appropriate time when all the questions are done and we could evaluate that. I will speak to the Director. Mr. Katayama: Thank you for acknowledging the other farming interests around your property. Could we embed that as one of the conditions? Mr. Houston: Absolutely. Mr. Katayama: To the planner, where does it say that we have a 1 year renewal on TVRs? It is 2 years on these Special Use permits but where does it say 1 year? Mr. Dahilig: This Special Permit if granted would accompany a separate process which is the TVR certification which the Commission doesn't handle. That is a certificate that is required to be renewed annually and it is under ordinances 864 and 876 and 904. Mr. Katayama, So it is outside of this. Mr. Dahilijz: Yes. Chair: Anybody else? Staff. Commissioner Wayne, there are actually two files with every request, you don't see one, that is the TVR file, the only one that comes up to you is the Special permit. So that one goes every year and this one goes two. Chair: Anybody else, if not my concern is...we will take a short recess to go ahead and redo these conditions. Commission recessed at 11:21 a.m. Meeting called back to order at 1 1:41 a.m. Chair: Is there any further discussion on this item of either the planner or the applicant? If not what is the pleasure? Mr. Kata ama: Are there some amendments to the conditions? Planning Commission Minutes June 28,2011 15 Mr. Jung: Before you look at amending any particular conditions there has to be either a motion to approve, amend, or modify or deny. Chair: At this time I would like to ask the public if there is anybody wishing to testify on this item,there being none... Mr. Katayam.a: So moved. Chair: There is a motion to approve, is there a second? Mr. Kimura: Second, Chair: I would like to open it up for discussion purposes. Mr. Dahilig: Commissioners we do have two amendments and maybe we should start with the amendment regarding the indemnification and the liability issue and our Deputy County Attorney has some language on that. Mr. Jung: With regards to condition No. 7 we would recommend striking in the sixth line right after"3 million dollars", striking the language"naming the County as an additional named insured insuring and defending the applicant and the County of Kauai", and insert right after "3 million", "to cover any and all claims or demands for property damage,personal injury, and/or death arising out of this permit including but not limited to". So we would be striking from "naming", right after"3 million dollars", all the way to "County of Kauai", and then inserting right after County of Kauai"to cover any and all" and then continuing on in that language. Chair: You have heard the amendment to item No. 7; is there any discussion or any other concerns about the amendment? The language, everybody is clear about that language? Mr. Jung: Well it continues on to the next page and on page 6 on the fifth line down it says "a copy of a policy" and then we would be striking out"naming the County of Kauai as an additional insured." So it would just read"a copy of a policy shall be submitted to the department within 90 calendar days from the date of the granting of the Special permit." Mr. Kimura: So what are we scratching out? Mr. Jung: Essentially it is the language referencing the County being named as an additional insured. Mr. Kimura: Just taking out naming the County ofKaua`i? Mr. Jung: Right. Chair: Before I call for the vote does the applicant have any problems with No. 7 as amended? Mr. Houston: No. Chair: If not I would like to have a motion to amend item 7. Mr. Katayama: Move to amend the motion per the County Attorney's changes. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to amend condition No. 7, motion carried unanimously by voice vote. Planning Commission Minutes June 28,2011 16 Mr. Jung: Condition No. 12, we would insert a comma so it would be "The applicant, its successor and assigns shall indemnify", and adding a comma and the word"defend", "and hold the County of Kauai harmless from any and all loss, liability claim or demand, property damage, personal injury or death arising out of any act or omission of the applicant, its successors, assigned officers, employees, contractors, agents, under this permit or relating or connected to the granting of the permit. This indemnification agreement shall be submitted for approval by the Planning Department within 30 days from the date of approval of the Special permit and shall be recorded with the Bureau of Conveyances or Land Court with 60 days of approval by the department. A recorded copy shall be provided to the department." So we are adding a comma in the first line and the word"defend"right before "and hold". Mr. Katayama: So moved. Mr. Kimura: Second. Chair: Any discussion on amendment 12, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to amend condition No. 12, motion carried unanimously by voice vote. Mr. Dahilig: I want to refer to Mike and have him read the additional condition. Chair: What condition would that be? Staff: 13 and 14, 13 is "The applicant is on notice that this property sits within the State Agricultural District and adjacent parcels may engage in intensive farming and the subject parcel may experience noise, fugitive dust, and other environmental impacts associated with good farming practices. The applicant shall notify any TVR tenant of potential impacts associated with adjacent farming and to refrain from calling or reporting such activity to governmental authorities." Chair: Is that 13 and 14? Staff: No. Chair: 14 is different then and you want to do it separately. Before I have a motion does the applicant have any problems with amendment 13? Mr. Foster: We thoroughly approve. Chair: Is there a motion? Mr. Katayama: So moved. Chair: We have a motion to approve item No. 13 as ready by our planner, is there a second? Mr. Kimura: Second. Chair: Discussion, if not all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to add condition Ito. 13, motion carried unanimously by voice vote. Chair: Item No. 14. Staff Applicant shall develop and implement an agricultural plan to increase/supplement the agricultural use of the property. Such additional use shall be reflected on a revised plot plan when this Special permit is next renewed." Planning Commission Minutes June 28,2011 17 Chair: Item 14, no problem from the applicant? Mr. Foster: No. Mr. Katayama: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to addition condition Into. 14, motion carried unanimously by voice vote. Mr. Kimura: I have a question. The Open bill that the P.�anning Commission and the Council approved further restricted residential development on Ag. Mr. Dahilig: That is correct. Under the old "regime you could get more density by having Open zoned lands on your property but now the way that the calculations work they treat Open zoned lands as agricultural lands under the County regime. So that means there actually it is meant to curb the amount of density allowed on an Ag. parcel. Mr. Kimura: So what you are trying to say is this bill is for future TVRs, applicants that are applying for TVRs? Mr. Dahilia: There are no future TVRs allowed on Ag. lands because the VDA boundaries drawn do not encompass agricultural lands. Mr. Jung: Let me just give you a little bit of history behind that bill. The County got sued back in the 90s about making a distinction between the Open and Ag. Districts. So the lawsuit essentially resulted in having to separate Open and Ag. The 2000 General Plan said we need to curb this Open density bonus because you can get 1 house per 5 acres. On Ag. it is a sliding scale where you can get 1 house per 3 acres up to the maximum of 13 acres and no more than 5 on any lot on County Ag. But in the Open District you could go 1 per 5 up to however many acres you have. So what the bill did was deduce and correlate Ag. and Open where you can't get more than 5 units on the Open District now but they still have to be 5 acres to get 1 unit. So it doesn't really relate to TVRs at all it is more following what the General Plan wanted to implement when it came up in 2000. Chair: Is there a motion to... Mr. Katayama: Move to approve the motion as amended. Chair: This is the entire motion. Mr. Raco: Chair, there is a motion on the floor already. Mr. Dahilig: You don't need another motion you just need to call for the vote. Chair: I would like to take a roll call on the original motion. Mr. Katayama: As amended. Chair: As amended. On motion made by Wayne Katayama and seconded by Jan Kimura, to approve department recommendation as amended, motion carried denied by the following roll call vote: Ayes: Katayama, Kimura, Texeira -3 Noes: Raco -1 Planning Commission Minutes June 28,2011 18 Absent: Nishida,Matsumoto,Blake -3 Not Voting: None -0 Mr. Jung: Given that there was not a valid action, a 3 to I vote, it will carry over to the next meeting per our rules and it will be a special order of the day. Mr. Foster: Could we close public testimony at this point? Mr. Jung. The public hearing has been closed and the public testimony aspect of it is just 92 public testimony, HRS Chapter 92 public testimony so anybody can come and testify on an agenda item. You need 4 votes for a valid action. Mr. Foster: If in the event that David is not able to come one more time on that date may I represent his interests here and then we would consider that testimony from him would be done in that case as well? Mr. Dahilig: Mike I aim of the understanding that the application packet does have their firm listed as the agent of record, right? Staff: That is correct. Mr. Dahilii�: So I don't think you need to do anything beyond that. PUBLIC HEARING (NONE) NEW BUSINESS For Acceptance into Record—Director's Report(sl for Project(s) Scheduled for Public Hearing on 7/12/11. Use Permit U-2011-15 and Class IV Zoning Permit Z-IV-2011-1 S to permit the construction and operation of a wastewater treatment facility at a property located on Koloa Road, approx. 100 ft. west of the intersection of Koloa Road and Waikomo Road, Kolaa, Kauai, and further identified as Tax Map Key 2-8-008:014 =N.F. Kawakami Store,Ltd. Use Permit U-2011-14 Special Permit SP-2011-28 and Class IV Zoning Permit Z-IV- 2011-14 to permit the construction and operation of a solar power facility at a property located adjacent to the Kaumuali`i Highway and Kekaha Road intersection, Kekaha, Kauai, further identified as Tax Map Key 1-2-006:009, and affecting an area of approx. 20 acres =Kikiaoloa Solar. For Acceptance and Finalization—Director's Report for Shoreline Setback Activity Determination. (NONE) ADJOURNMENT Commission adjourned the meeting at 11:58 a.m. Respectfully Submitted. Lam Agoot Commission Support Clerk Planning Commission Minutes June 28,2011 19