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HomeMy WebLinkAboutpcmin8-30-11 KAUAI PLANNING COMMISSION REGULAR MEETING August 30, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair,Herman Texeira at 9:50 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 Ms. Camilla Matsumoto Mr. Wayne Katayama Absent and excused: Mr. James Nishida Mr. Caven Raco Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: The first order of business is to determine our quorum and right now we have five members present so we do have a quorum. We have two excused absences and that is Caven and Jimmy. So at this time I would like to call for the approval of the agenda please. Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: Any discussion, if not all those in favor say aye, those opposed,motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve the agenda, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD Chair: The next item of the agenda is the receipt of items for the record. Ms. Matsumoto: Move to receive items. Mr. Kimura: Second. Chair: Any discussion, if not all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to receive items into the record, motion carried unanimously by voice vote. MINUT.VS Chair: The next item are the minutes, I will be jointly putting those two minutes together so we will have a motion to approve the minutes based on the meetings of July 26th as well as August 91"unless you avant to do it separately. Is there any problem with that? If not is there a motion to approve both those minutes please. Ms. Matsumoto: Move to approve the minutes. Planning Commission Minutes August 30,2011 1 SEP 2 7 2011 Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve meeting minutes of 7/26/11 and $/9/11,motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS (NONE) COMMUNICATION (NONE) SUBDIVISION Mr. Kimura: Subdivision Committee Report, committee members present Kimura, Matsumoto and Blake. (Inaudible) recommendations for the following items listed below, General Business Matters, none, Communications, none, Unfinished Business, none. New Business,tentative subdivision action, S-2002-21, O`ma`o Ranch Lands, LLC, TMK: 2-7- 003:005, approved, 3-0, final subdivision action S-2008-19, State of Hawaii, Department of Land and Natural Resources, TMK: 4-5-015.006, 028, approved, 3-0. Final subdivision action, S-2010-09, Wailua.Kayak, LLC, TMK: 4-1-006:034, approved 3-0, tentative subdivision extension request, S-99-45, Allen Family LLC/Moloa`a Bay Adventures, LLC/The Three Stooges, LLC, TMK: 4-5-003:001, approved with amendments, 3-0. Chair: Could I ask a question on that last one, what was the amendment? Mr. Kimura: The amendment was from December 31, 2013 to December 31, 2012 so instead of a two year extension we gave them a year with a status report. Ms. Matsumoto: August 31St Mr. Kimura: August, I am sorry. Chair: 2012, so the status report will be due in six months. Mr. Kimura: Yes. Chair: I would like to entertain a motion to approve the subdivision report. Ms. Matsumoto: So moved. Mr. Blake: Second. Chair: Any discussion on the report, if not all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve Subdivision Committee Report, motion carried unanimously by voice vote. UNFINISHED BUSINESS (NONE) CONTINUED PUBLIC HEARING (NONE) NEW PUBLIC HEARING Use Permit U-2012-01, Special Permit SP-2012-02 and Class IV Zoning Permit Z-IV- 2012-01 to permit the construction and operation of a zip lining outdoor recreation area. The staging area for the zip lining activities is proposed to be located at that area generally referred to as the K61oa Mill, located approx. 2,600 ft. east of Ala Kinoiki Road, further identified as Tax M4p Key 2-9-002:001. The zip lining outdoor recreation area is proposed to be located at a site on a cane haul road approx. 1.75 miles north of that area generally referred to as the Koloa Mill Planning Commission Minutes August 34,2411 2 further identified as Tax M--._7leys 2-8-001:001 and 2-8-002:001ya� effecting an approx. 2.66 acres =Koloa Zipline,LLC =(Director's Deport received 8/9/11.1 Letter(8/22/11) from John Jardin, Vice-President Garden Isle Bassmasters in Support of application. Staff Planner Kaaina Hull: Good morning Chair and members of the Commission. Before I read the Director's report into the record I want to submit a submission by the applicant which is a color rendering and more accurate depiction of where the zip lines are proposed to fall. Staff planner read report (on file). Chair: Thank you, before I proceed dny further I would like to acknowledge the fact that we have in receipt two items so I would like to have a motion to receive for the record. Ms. Matsumoto: So moved. Chair: Any second on that motion to receive for the record, these two? Mr. Kimura: Second. Chair: Any discussion, those in favor say aye,those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Jan Kimura, to receive items into the record, motion carried unanimously by voice vote. Chair: Are there any questions of kaaina? Ms. Matsumoto: This is in the General Plan area you are saying in La that the use needs to be maintained. How is that measured? Do you make site inspections? i Staff: Which one are you referring to again? Ms. Matsumoto: The General Plan section, La, sorry, in the Use Permit, 1, that part wasn't read, that whole paragraph wasn't read. Staff: The lands included... agricultural lands. Ms. Matsumoto: "A Use Permit may be granted only if the Planning Commission finds"...that page. My question is how is the maintenance managed? Staff: That is specifically referring to the Commission's action if they find not only the structure it's self that is proposed and the operation that is proposed but the way in which the land and/or structures are maintained or proposed to be maintained I should say. Ms. Matsumoto: So you go out and make periodic inspections? Is that how...because... Staff: Periodic inspections aren't a practice of the Planning Department particularly given the amount of structures and the amount of staffing alone. We do respond on complaints and if we go out there and find that the operation does not meet specific approvals or more specifically conditions of approval then they can be sited for a violation and the necessary procedures are implemented. Chair: Anybody else? If not I have a question Kaaina, the actual location of the zip line, could you give a better description of it? I notice that part of it is in the Conservation area, how close is it to the mountain range? How close does it go back and how far from the... Staff: I don't know exactly how far it goes back into the mountain range, I can't say that specifically right now but it isn't in the Conservation area. Planning Commission Minutes August 30,2011 3 Chair: Okay, so that map that you presented to us I can't really tell how far it is from the—is that the Hauupu Mountain range, the back end of it? Staff: Correct and I would actually direct that to the applicant. Chair: Is there any watershed that this project goes over? Staff: Not that we are aware of Chair: You mentioned that is project is over a mile long, right, I mean it is like 7,000 some odd square feet, not square feet but 7,000 feet. Not in a.straight line but this is quite a distance wouldn't you say? Staff. One of the lines is approximately 25 or 26 hundred feet long. Chair: That is about almost a half mile, right? Staff: Correct. Chair: I guess I can ask the applicant other questions that I might have,thank you. I would like to call on the applicant to come up please. Ms. Laurel Loo: Good morning Commissioners, Laurel Loo, agent and attorney for the applicant and with me is one of the principals of K61oa Zip Line, Derek Green. He can answer your technical questions; he will be the person actually building the platforms for this permit. Let me just make a few preliminary statements. Kaaina, did they get the letter or petition from Teddy Blake? Staff: They did. Ms. Loo: The applicant met with Koloa Community Association a few days ago and took interested people on a tour, a site inspection, deriving from that we got one letter from Ted Blake in support of the application. And K61oa Community Association has indicated that they had no comment and we provided them with a copy of the application as well. Mr. Green will be able to mace a clarification on one of Mr. Hull's statements on the height of one of the platforms because what they did is after they walked with the community, re-evaluated where the platforms would be placed they made some minor changes to make the access from a trail to the platform closer. So you are closer from a trail to actually getting on a platform. Because that involves some changes in the terrain, I think one of the platforms may be between 50 and 20 feet but I will have Mr. Green clarify that. Mr. Green: To provide for less invasive clearing out of the land like she had mentioned we just went ahead and moved the platform over for the natural lay of the land instead of digging out ground we decided to put a higher pole up there. So the platform will be a little bit higher that what we originally thought. Chair: So what is that? Mr. Green: We are looking at about 18 to 20 feet, it depends once we get up there and can actually string out the first line,the tape line, to see how close it hits to the highest part of the land. Mr. Kimura: Are there any other activities on that site right now besides the proposed zip line? Mr. Green: There is Kauai ATV but that is a separate entity. Mr. Kimura: How far, is it in the same general area? Planning Commission Minutes August 30,2011 4 Mr. Green: The trails that Kauai ATV uses for one area, they are driving to the tunnel it's self on that road. The first two lines will be parallel to the road so you will only be able to see the platform for the first line,the start platform and the landing for No. 3. I'm sorry, the take off for No. 3, from the road. But we will not be zip lining over any roads where the ATV's will be. Mr. Kimura: Will you guys be crossing over any streams, rivers? Mr. Green: Not the steams,we are going parallel to the ditch but we won't be crossing over it. We will be crossing over the Waitahi and the Waitah. Chair: Can you just generally describe the terrain that these zip lines will traverse? Is it former Ag. lands? Mr. Green: It is former Ag. land that has grown over. There is forest hau bush lands, there is cattle grazing over some of them, there is plonty of Albesia and buffalo grass for some of it but no real streams or vegetation. In between each platform where guests are walking we do plan on planting some native plants and beautify it with some botanicals. Chair: The landowner is Grove Farm? Mr. Green: Yes, Chair: So my question is what if somebody came to Grove Farm with a proposal to use part of that area for diversified Ag. for an agricultural activity, do you foresee a problem with that. Mr. Green: No sir,the course it's self,the platforms will be blocked for anyone who isn't a guide or tour participant,they won't be able to have access to the actual platforms. So if they want to plant things underneath the zip lines or anything as long as it is not directly under the line it should be okay. Chair: What is the general height of some of those zip lines average, over 10 feet? Mr. Green: Yes sir, we are looking at potentially upwards of 200 feet at the very highest but usually about 60 feet. Chair: At the lowest point. Mr. Green: Yes sir, average, below 100 feet. Chair: So we are not looking at relatively flat land you are looking at sloping lands that are not high quality agricultural lands then. Mr. O-een: Exactly, and very covered by the Albesia. Mr. Kimura: I have one more question. Are you guys going to have some type of portable toilets up there? Mr. Green: Definitely. Mr. Kimura: It is not going to be anything permanent, right? Mr. Green: No sir, the porta-potties, yes sir, and they will be maintained on a minimum of a weekly basis. Chair: You are aware there is another zip line activity that will be coming aboard at Kahili in the near future. Mr. Green: Yes sir. Planning Commission Minutes August 30,2011 5 Chair: In terms of advertising and marketing promotion will you be targeting the same visitor market? Mr. Green: Yes sir we are going to be targeting pretty much most of Kauai in general. We are looking at with the sudden influx of all the new zip lines out there we are pretty much creating a new market, kind of like the more the merrier type of idea. Mr. Kimura: You are not that far away from the other zip line that is coming up then, right? Mr. Green: No sir, I believe that is in O`ma`o. Chair: Kahili. Mr. Kimura: Wasn't that by Halfway Bridge somewhere? Chair: No, Kahili, which is not that far away. Mr. Kimura: It is still in the same vicinity. Chair: There being no further questions... Mr. Kimura: Would that impact the other zip line? Of course it will impact it, would that be fair to them? I am just curious. Chair: That is an economic concern, I don't think that...I am sure you folks thought about it and determined'that there is a market for another zip line in the area so I don't see...this is an economic concern (inaudible). Mr. Kimura: I guess K61oa with all the development coming up they probably would fill up two zip line companies. Staff: I just have an injection concerning the porta-potties. We recently received comments from the Department of Health stating that it objects to the use of portable toilets for permanent uses and approves only such facilities for temporary uses. And as such they would be disallowed or a comfort station would be required. Probably that can be resolved with them at building permit time but just to be made aware of. Ms. Loo: There are also porta-potties already at K61oa Mill where the staging area is and at the office where they check in, in Koloa Town. Obviously we will work with the Department of Health and follow their rules. Mr. Green: Excuse me, I am sorry, I misunderstood that,there are actually permanent toilets, bathrooms, at the K61oa base yard next to the mill. Chair: Thank you, I would like to call on the public at this point. I would like to ask for any public testimony, anyone from the public wishing to testify on this agenda item please come forward. I don't see anybody, do you want to give us your...before I call on you Kaaina I would like to ask for a motion to close the public hearing. Mr. Katayama: So moved. Mr. Blake: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Hartwell Blake, to close the public hearing, motion carried unanimously by voice vote. Planning Commission Minutes August 30,2011 6 Staff Planner Kaaina Hull read department recommendation (on file). Chair: Thank you. I would like to ask the applicant have you heard the conditions set forth and do you approve or do you have any comment in regard to that? Ms. Loo: Thank you Mr. Chair, Laurel Loo, no objections, thank you. Mr. Katayama: Kaaina, as part of the review for,zip lines is there a procedure to de- conflict with any air helicopter traffic lanes? Staff: The Fire Department is actually requiring them to notify or generally I should say. I don't think there is an official statement or regulation under the fire code but I am aware that during building pen-nit review the Fire Department requires the applicant to notify the helicopter touring agencies on island. Mr. Katayama: Would that come under condition No. 3? It seems that as we get more and more zip lines we should have some mechanism to de-conflict with airways, tour helicopters or even visual helicopter rides. People take observations and in fact even Fire and Rescue or Coastguard needs to be aware of zip lines. I don't think the zip lines are going to be marked. Staff: No. That is covered under condition No. 3 in a broad range. It also is required during building permit by the Fire Department however if you feel... Mr. Katayama: I think general airways notification, whoever controls visual flight paths needs to be aware of these zip lines. Staff: We can have a requirement that they notify the FAA. Mr. Katayama: I don't know if that is the right agency. I don't know who he is but it seems that if you are riding aroun3 in a helicopter it would be good to know that these things are there especially if you can't see them. Mr. Blake: I have a question. This application gets routed through all of the departments, right? Staff. It is routed through certain County and State agencies. Mr. Blake: So has Fire received this, Fire and Police? Staff. Fire has received this, yes. Mr. Blake: And the police? Staff. Police haven't received this particular application. Mr. Blake: I think Wayne has a good point and at a minimum it should go to the people who would be involved flying around these valleys if they had to rescue someone or insert someone for some reason. Chair: I think it is a valid point too. I would like to call on the applicant to comment on that. Ms. Loo: Thank you Mr. Chair, Laurel Loo. Our plan was if the permit was ap0roved we would definitely work with the Fire Department and look at emergency conditions and also give them our map of where our structures are located. Most of the zip lines are within the tree line so if a helicopter is going to get that close they are in the trees. Staff: If I also might interject, in reading the specific Fire Department comment,which was received August 14t�, it states that"An emergency plan shall be produced and submitted for Planning Commission Minutes August 30,2011 7 Fite Department review. FAA shall be informed of zip line locations." So I think it is under the Fire Department's prevue that they felt it was necessary to notify the FAA. Chair: Do you accept that? Mr. Katgyama: I just want to ensure that commercial air craft, tour helicopters and people...for example if Grove Farm wants to give a tour of a potential buyer to survey their property they will probably rent a helicopter. They need to be aware that there are obstacles crossing valleys, basically. And I venture that most of these zip lines want to create some kind of drama in crossover, valleys in this, crossover Waitah Reservoir. And to me that is one of the places where Fire would want to take water from in case of fires, brush fires and things. I think more and more as we get more zip lines you have again integration issue or de-confliction issue with both commercial as well as emergency use. And I just want to make sure that the proper agencies are aware. I am not sure which ones those or what the mechanism, especially on visual flights, they are pretty liberal on that here on the island right now. Ms. Loo: We will definitely work with Fire at the very least and any other agency we are required to. Chair: Okay, thank you. Mr. Kimura: I have a question. I don't see anywhere here the times of operation. I see the days but not the times. Ms. Loo: It will be daylight hours and it will be based on need but Derek, do you want to address that? Mr. Green: During the peak busy season we will operating probably a little earlier starting at like 7:30 or 8:00 and run until the last tour at 5:30 to 6:00, but through the slow periods probably going from 8:30 to 9:00 to about 4:30 to 5:00, Monday through Sunday, 7 days a week. Mr. Kimura: Thank you. Chair: Going back to Wayne's comment I think it is, as I mentioned earlier, I think it is very good and my question is, is it possible for the Planning Department to work with the applicant to be sure that the proper agencies are notified? Staff: Yes and I think it is well received, the comment, and I think we will be contacting both the FAA as well as DOT Airports to see if they are not the appropriate agencies what agency and/or mechanism would be most appropriate to do such notifications. Chair: I have a question,the zip lines,the lines themselves, they kind of blend in with the environment. Mr. Green: Yes sir. Chair: Is it possible at some point some of these could be identified in some kind of color code or maybe a string or something to identify that this is a zip line? I don't know if that is a good idea or not I am just saying that in terms of visual, if you are flying by it would be hard to identify these zip lines if they kind of blend in with the environment. I was just wondering at some point since you don't want to bring attention to these colorful zip lines, I am not suggesting that but maybe at some points along the routes there would be some kind of identification that these are zip lines. I just wanted to throw that out. Mr. Green: We can't actually put anything on the cable its self because it would risk a danger to the participants however the platforms that we can use we could definitely have a marker or something between the platforms. And in working with the agencies let them know... Chair: Maybe like a blinking light at night or something. Planning Commission Mimites August 30,2011 8 Mr. Green: We weren't really hoping for power to be out there because that introduces a whole new realm of necessity but we would be more than willing to work with some way to identify them. Chair: Thank you. Mr. Blake: So where are we leaving this issue of location of zip lines and notification of whoever should be notified? Chair: I requested that the Planning Department work with the applicant to go ahead and make sure that the proper agencies were notified. If that is not adequate for you do you have any suggestions sir? Mr. Blake: If the County agencies, Federal agencies, and the private;operators,tour operators ought to be aware of this. They fly higher than these zip lines, I don't think they can fly 200 feet or they are not supposed to anyway but I would rather we inform them before anything happens. Chair: Does the department have any comments? Staff: Just speaking from history and dealing with applications or(inaudible), I do know the FAA.requirements mandate that aircraft keep a minimum of 1,500 feet above the ground unless on takeoff or approach. That is not to say as Commissioner Katayama brought up say a helicopter, a fire helicopter is retrieving water from say the Waitah Reservoir or anybody who may or may not be in violation of that FAA requirement. Given the amount of commercial operators, State and government operators,private operators who have their own operators as well as though who visit the islands who don't operate over here but have their own aircraft. At this time all I can say is that if the FAA and DOT Airports is not the appropriate agency maybe they can put us in the right direction on who we can to notify operators. Chair: In view of the fact that we have so many zip line operations now it is not only incumbent upon asking them but other zip lines on the island to also look into that situation. I think could the Planning Department come back to us come up with some kind of plan or what can we do to make sure this is done. Mr. Dahilig: What I would suggest Chair is if you look at condition No. 9 and also...it is a general standard condition we have in this permit as well as the other zip lines that have been approved by the Commission. If there is a requirement that is imposed by the Federal Aviation Administration or let's say the Coastguard or let's say Civil Air Patrol, etc., what we can do is notify the holders of these permits based on this conditions in this particular permit and also other similar conditions in other permits of additional conditions that may be imposed as a consequence of these agencies. What we can do as a plan, Chair, is do the element of research based on the Commission's request and then use the catchall provision to notify the landowners or the permit holders that there may be other requirements that they need to meet. Chair: Everybody comfortable with that? Mr. Kimura: I wanted to add a condition if it is possible. I notice there are no cultural surveys. I know they are not doing a lot of digging but... Chair: That is totally fine. Before we do that could we entertain a motion to approve and then we can go ahead and incorporate the condition because no sense if we are not even going to get approval. Mr. Blake: Move to approve. Mr. Kimura: Second. Chair: Any discussion? Planning Commission Minutes August 30,2011 9 Mr. Kimura: I would like to add a condition, if they do find any bones or anything related to culture if they could notify the department or the right department. I just don't see it on here. Just in case. I know they are not doing a lot of digging but in case they do. Mr. Dahilip,: We do have a standard condition relating to a notification of the landowner's responsibilities under the State Historic Preservation law that if things are dug up that they need to contact SHPD. Mr. Kimura: So we don't have to add anything? Mr. Dahilia: We can include that standard provision and we do have that language. Chair: So we can make that condition No. 10. So could we read condition No. 10 as you described? Mr. Dahilig: I don't have the specific language in front of me but I think it would essentially say... Chair: Do you want to take a short recess to get that? Mr_Dahilig: That would be great. Commission recessed at 10:35 a.m. Meeting called back to order at 10:42 a.m. Chair: Calling the meeting back to order, Kaaina could you please read condition No. 10? Staff. So for proposed condition No. 10 concerning burials and archeological sites it would read, "The applicant is advised that should any archeological or historical resources be discovered during ground disturbing construction work, all work in the area of the archeological, historical findings shall immediately cease and the applicant shall contract the State Department of Land and Natural Resources Historic Preservation Division and the Planning Department to determine mitigation measures." Chair: Jan, are you comfortable with that? Mr. Kimura: Yes I am. Chair: Everybody else comfortable with that amendment? If that is the case I would like to get a motion on the amended condition. Mr. Kimura: So moved as read by the planner. Chair: So this is condition 10 as read by our planner, is there a second? Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to add condition No. 10, motion carried unanimously by voice vote. Chair: I want to go back to the main motion, we already have a first.and second on the approval, is there any further discussion on this motion, if not could we have roll call please. On motion made by Hartwell Blake and seconded by Jan Kimura, to approve staff recommendation as amended, motion carried by the following roll call vote: Planning Commission Minutes August 30,2011 10 Ayes: Matsumoto, Blake, Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Nishida, Raco -2 Not Voting: None -0 Use Permit U-2012-02, Variance Permit V-2012-01 and Class IV Zoning Permit Z-IV- 2012-02 to permit the construction and operation of a telecommunication facility that includes a 120 ft. high stealth monopine (a mono inp e designed to look like amine tree) and associated equipment at a site located on a cane haul road approx. 500 ft. north of the cane haul road's intersection with Kaumuali`i Highwgi intersection, said intersection is located approx. 2,600 ft. west of the Kaumuali`i Highway and Aakukui Road intersection, further identified as Tax Map Key 3-4-005:01$ and affecting a 2,500 sq ft portion of a 25.42 acre parcel = Veri�on Wireless [Director's Report received 8/9/11.1 Staff Planner Kaaina Hull read Director's report(on file). Chair: Thank you Kaaina, are there any questions for our planner? Kaaina, in your report you did not say much about the collocation potential possibilities, is that something...? Staff. It's not something that was discussed too much in their application however in discussions with the applicant concerning the height they actually responded to our first review that it be reduced to 100 feet and that they were more than willing to accommodate that height. And the additional height that they had requested was in fact to not accommodate so much their antenna but it was to accommodate collocation as this is an official policy of the FCC as well as somewhat of a practice of the Planning Department and Planning Commission. Chair: Is collocation possible under 100 feet? Staff. In speaking with the applicant,yes. Chair. Okay, I guess I will bring it up to the applicant. Mr. Kimura: I have a question, Kaaina, I remember back when Caven asked for a map of all antenna locations whenever an application like this came forth, can we get one? Staff: It was requested for a specific application but if you want to take a brief break I can run to the office and actually get that map for you. Chair: Is it important for you to do that? Mr. Kimura: Yes so we can see more or less where these antenna are, how close are they together and then we can figure out if we have to... Chair: Sure we can accommodate that. We will take a 5 minute recess to get some maps. Commission recessed at 10:52 a.m. Meeting called back to order at 11:00 a.m. Chair: We have a map that shows all the different antenna locations on the island so at this point do you have any further questions of our planner? Mr. Kimura: I do have some questions for the applicant. Chair: There being no further questions of Kaaina I would like to call on the applicant please. Unidentified Speaker: I would like to thank the Planning Commission for allowing Verizon to make this presentation today. Just for the record, in discussions with the Planning Department Verizon has agreed to reduce the height of its request from 120 feet to 100 feet. Planning Commission Minutes August 30,2011 11 There is the ability to even collocate below 100 feet. Verizon actually only needs 80 feet and we could even go down to 80 feet and it would work but again in discussions with the planner it was decided to keep it at the 100 foot level. But we will officially agree to reduce it from 120 to 100. Just to give a general background this site here will assist Verizon in connecting its proposed Knudsen gap site back to Puhi. This site here sits pretty much right in the middle of it. It will help us cover both highway east and west and also into the upper corridors of Niumalu Valley which we don't have very good coverage at this time. We are hoping to cover some of it by this site also. We are trying to or in our analysis of the situation we understand esthetics are important so Verizon decided to set back the site 500 feet from the roadside just so that it is set back away from the view planes. We are using a monopine to make it more esthetically blending with the area. The entire area right now is pretty much in cattle grazing except for its situated due west of the Kauai Humane society but other than the Kauai Humane Society there is very little structure. The entire area is pretty much owned by Grove Farm. Verizon also plans to put on the site up to 6 equipment cabinets, a generator; the landlord has also set aside additional lands for the facility. While we only need between 758 to maybe 900 square feet of property, the landlord. has set aside about 2,500 to allow for collocation so I think collocation will be accounted for in our application. Other than that I think it is more answering of questions that I think you probably have of us. Mr. Kimura: Talking about collocations, I am just curious, when Sprint came in to apply for their antenna they asked Verizon, I am assuming they asked Verizon, if they could collocate with you. And whatever reason you guys gave I guess they couldn't collocate with you so the people of Kauai now have to put up with 2 antenna instead of 1. What is your reasoning for not collocating with them? Unidentified Speaker: Actually we encouraged Sprint to come on to our pole. I think it was more a landlord issue;they were having difficulties in dealing with the underlying landlord. But as far as they collocating on the Verizon pole,that was never an issue. Mr. Kimura: Okay. My second question, can you come up here on the board and show us where your existing antenna are now in the area,just around the general area. Unidentified Speaker: This is where the proposed site is. We have one back here in Puhi. This one here in Puhi, there is I think about 4 carriers on now, I think Sprint, Verizon, there are several carriers here. Ms. Matsumoto: How tall is that one? Unidentified Speaker: This one here is about 60 feet. I am not exactly sure because Verizon is on the lower level so I only know Verizon's height but the actual pole is I think about 60 feet. It is right below the Grove Farm yard,their main office, it kind of sites towards the ocean. This is the proposed site near the Humane Society. Our installation that we are proposing or we got approval for but heaven forbid it is taking so long to build, our Knudsen gap site, is about here and we have another site here at Kukuilono Park which I think is owned originally by Nextel. There are about 3 carriers there now. Verizon is also going to be locating here at about the 30 foot level,there is going to be about 4 people on that pole. But it is right on the, I guess on the Kalaheo side of the golf course so that is where Verizon is now. So right in this immediate area we will have 1, 2., 3, 4 to connect through this area here. Mr. Kimura: I have a question, from the Grove Farm facility, with the yellow check mark, will that antenna service that antenna in Knudsen gap? Unidentified Speaker: No. Mr. Kimura: What is the reason for that? Planning Commission Minutes August 30,2011 12 Unidentified Speaker: Topography, because if you notice here there is a whole bunch of trees, mountains, that kind of goes in and out, in and out, and even within the roadside it kind of goes up and down, up and down and that is why we needed this site here. Mr. Kimura: With an antenna at Grove Farm facility can that antenna service Sprint antenna from your Knudsen gap antenna? Unidentified Speaker: Actually that is why...here,this kind of sits in perfectly because it sits in the middle. We can, it will connect from here to here to here so the 3 will connect. Mr. Kimura: Have you talked to Sprint about coexisting with them in the gap? Unidentified Speaker: As far as on this side or on this side? Mr. Kimura: That side. Unidentified Speaker. We actually looked at this one with Sprint but the problem is that it is too close to the Knudsen gap site and it will have difficulty connecting to our site in Puhi. Mr. Kimura: Difficulty meaning what? Unidentified Speaker: It will have dropped calls, as you go along the roadside there are too many hills and peaks and valleys and we will have problems covering here. And also this site here will not cover tree tunnel. This site here is right above the tree tunnel and will cover the tree tunnel, where this site will not cover the tree tunnel. This site here, I am pretty sure...Sprint covers tree tunnel by a site up in the mountains up above the tree tunnel. We wanted to stay lower and I think that is the general want of the Commission is to stay lower so we went here to cover the tree tunnel where this site will not. Mr. Kimura: But if you coexist with Sprint to your Knudsen gap you can catch the tree tunnel, right? Unidentified Speaker: Yes but then we would not connect back to Puhi. That is the problem is that here, we would connect here but we would not connect here. Because if you notice right outside in the area by Kauai Nursery it kind of goes up and down, up and down, that is the area that we are having problems with now. Mr. Kimura: This is a short distance; we are not even talking a mile. Unidentified Speaker: You would be surprised how many people complain when they are.._ Mr. Kimura: Well you shouldn't be driving and talking...we Oo have a law now. Unidentified Speaker: Yes but that is where we are trying to, again, we are trying to cover as many of the gaps as possible. And this one here, again, all of our sites are pretty much set back quite a ways from the roadside. We are not putting any site next to the roadside. This one here is approximately 500 feet; our Knudsen gap site is closer to maybe three eights of a mile off of the road, main highway. Chair: Anybody else, do you have a question Hartwell? Mr. Blake: Once you put this up there will be no dropped calls in the tree tunnel? Unidentified Speaker: I am hoping. I hate to say there will be none but we believe that the only weakness of the tree tunnel, we got I think the tree tunnel covered pretty well and we are have it pn the way up. It is right,how would I say, about maybe right outside of Koloa Town is the only area that may be slightly weak but we are not sure. We have a site at Koloa Big Save: that is shooting up that is supposed to cover that area. Until it is actually up we don't know exactly how extensive the coverage is but it is supposed to cover right in that area;right outside Planning Commission Minutes August 30,2011 13 of...you know the cemetery? Right in that area as it goes down it kind of hits...you have 2 valleys,right in that valley about maybe 50 yards, 60 yard area. We are not sure how coverage is going to be in there but other than that area we should be pretty decent. Mr. Blake: Right now my experience has been that as soon as you hit the tree tunnel at either end, nothing. Unidentified Speaker: And that is where Knudsen gap is supposed to cover down and we have Big Save coming up. Mr. Blake: But they are in place already, right? Unidentified Speaker: No they are not. Mr. Blake: When will they go on line? Unidentified Speaker: Big Save is in construction now so that is supposed to go on line in let's say in the next 90 days. Knudsen gap, goodness, we have been in that site forever and we are hoping to start construction some time later this year. Again it is all subject to FCC approval. Mr. Blake: And that is what the holdup has been? Unidentified Speaker: We started this bird study deal with Fish and Wildlife back in 2007 and we are just in the final stages of it now, it has been 4 years and literally we are hoping to have as I said this site shortly, starting construction. Chair: I have a question, in your introduction you mentioned the top of, how do you pronounce that, Omoi Ridge, what is that? Unidentified Speaker: Yes, that is where we have the site now. It is right sitting above and hopefully I have got it correct but I guess to the Lihu`e side of tree tunnel there are 2 large antenna there, a tower, we are trying to get off of that tower on the very, very mountain top. Obviously when you are on a mountain top it covers everything so for us to get off of that site we have to build a lot of short sites but it is right above the Lihu`e side of the tree tunnel. Chair: Okay. So environmentally that might be a good thing then to get it off the... Unidentified Speaker:, Yes, for one thing we can only access that site by helicopter so when it goes down, it goes down. Whenever you have sometimes emergency high winds, that site goes and the whole area of Verizon goes down because we cannot service it and the helicopter cannot get there. So there have been times where we have been out of service for a day. Mr. Katayama: Has there ever been an attempt by the different wireless carriers to form a consortium on just site locations where you will get together so you can collocate your equipment to (inaudible) environmental impact(inaudible) rather than have individual sites that sort of spring up very close to each other. Now I don't think that should impede the competitive environment for your subscribers but it sure would address the environmental issues, the different site issues, hopefully it even may provide some economies of scale in terms of site development rather than having individual companies negotiate with the various landowners for specific sites. And by looking at this map you have a lot of, you have several sites that to me if they are moved to a site that would provide the right coverage for your needs, collocation or joint pole agreements between the different carriers should benefit everyone. Has that ever been considered? Unidentified Speaker: Actually we try to collocate where we can. If you look at our...we hive a site,now that we have in to the Planning Department that doesn't require any Commission approal but there are 4 carriers there now. We are locating there even if it is at 30 feet. That Puhi site that we mentioned, we are sitting I think at the, I don't know maybe 35, 40 foot level, there are 4 carriers there now also. Where we can weary to collocate but there are a Planning Commission Minutes August 30,2011 14 lot of issues that go beyond just the sitting,there is a lot that goes into it. For example there are some anti-trust implications when carriers get together,there are legal issues there. But let's say forgetting the legal issues for now,there are also frequency issues,for example it gets pretty technical but we all operate at different spectrums per FCC guidelines you buy the different spectrums. Different spectrums cover different areas of coverage, for example the lower the spectrum technically the longer...it is called broader band and it shoots farther as compared to your higher band frequencies. The higher band frequencies you need more sites as compared to your lower band. So it is not just a matter of trying to say this tower, everybody goes on this tower. Mr. Katayama: But isn't the frequencies that are assigned to the various carriers regulated? Unidentified Speaker: Yes. Mr. KataXama: You apply for those, it is de-conflicted... Unidentified Speaker: Yes. Mr. Kataama: And why can't a part of that de-confliction be based on collocating at various sites so we don't have proliferation of these towers and every time a carrier comes in we have to go through environmental impact statement or have the Planning Department do an analysis on the impact of where the site is located. All these things I understand and all of these things are regulated and to me part of that regulation is assigning frequencies tb the various carriers should have this de-confliction element in there. Unidentified Speaker: It is not the interference that we are concerned with,that is why we can locate 4 carriers. We are on sites that we have 4 carriers there. It is more the location and how it all corallites to each other. For example currently some people are at let's say at Wilcox Hospital, not everybody is but some are. If you are at Wilcox that site may correlates, it correlates' back pretty well with our Puhi site so we have here and here. But it doesn't mean that everyone is here so if some others are located at another area so this area here may not correlate back. So it is a network of sites.. Again,we try and much as possible to collocate because number one, and foremost, it is cheaper for us, it substantially reduces our cost, we don't have to go through a lot of zoning and things like that. But the reality of it is that not everybody can collocate at the same location each time especially as we move into the next generations of service. For example Verizon in its self,AT&T,it does not operate at a single frequency it operates at,I think Verizon will operate at 3 frequencies eventually, AT&T is operating at 4 different frequencies. Each of the frequencies covers different areas, cover different needs so in certain instances you need more sites closer together than another carrier may not need as many sites. It gets very technical so it is not just a matter of saying all the sites can locate here. Even if we tried to do that you would have gaps all over the place because again there are technology type differences that require more detailed analysis of okay, you go here,I can go here,I can go here. Again,but we try as much as possible to collocate whenever possible. Mr. Blake: In line with what Commissioner Katayama asked,my question was going to be how many more do you expect to put up? It looks pretty crowed now. Unidentified Speaker: We have in our works, obviously we have Knudsen, we have the one at Kalaheo,the last two that we are seeing that we have in the permit/build plan is probably going to be in Kapa`a. We see problems in our service in Kapa`a right now and we are still evaluating the areas. Bixt again a lot of this is forward thinking in that we have no problems currently but at current subscriber growth and the type of services that people are using it is going to take more band width and more...especially you hear about these iphones taking a lot of band width, so whenever you take a lot of band width your coverage shrinks, literally shrinks. So that is why we see over the next several years the need to improve Kapa`a. It is Hine now but that is the next area that we see some need for improvement over the next 3 years. Planning Commission Minutes August 30,2011 15 Mr. Blake: And so you are going to put up antenna in the same location as your present antenna or are they going to go in other places? Unidentified Speaker: Other places in Kapa`a. Mr. Blake: And when you talk about the next generation generating if you will different problems one of the things you are going to have to do is put up more antennas. Unidentified Speaker: Probably, yes. And again more people today are using data oriented plibnes; they are using phones that take a lot more capacity. And again once they use more capacity to keep credit quality or call quality the coverage area automatically will shrink down. And that is where again, it is fine now but we see where we will probably need to improve Kapa`a service over the next year or two or three. Mr. Blake: And you can't do that with just an improved antenna? Unidentified Speaker: No. It is already reaching capacity at our Kapa`a site now. Mr. Blake: It is reaching capacity right now based on what you have right now. Unidentified Speaker: Right now. Mr. Blake: So if you are going to need more band width why can't you get a more band width capable antenna? Unidentified Speaker: Again we are pretty much...distance wise what happens is because the coverage shrinks. I mean there is only so much the antenna can do and when the antenna reaches its maximum or equipment reaches its maximum you have to have another. site. It would be perfect if we could operate but that is where in the old days they used to have these very tall sites that covered a huge distance but as quality has improved and the use has increased you find that a lot of these tall sites have been eliminated to go to shorter sites, but you need more sites. And that is just inherent to the technology of providing kind of 24/7 type service to the users. Mr. Blake: So what we can look forward to is like aill old city scape with thousands of TV antenna. Unidentified Speaker: That would be astronomically expensive. I don't think...you will not in Kauai ever see that because, again... Mr. Blake: Hundreds then. Unidentified Speaker: Right now you have about what, about maybe 30, 20, let's say you have 30. We plan to put probably 2 more in the Kapa`a area. Mr. Blake: And 1 in Kaldheo. Unidentified Speaker: And 1 in Kaldheo. That is what we have in our current build plan. Staff: The Kaldheo one is an existing site though. Unidentified Speaker: It is on an existing site. And we are even in Kapa`a Town we are looking at an existing site also. So again we try to collocate where we can and it is trying to mesh all the technologies and the coverage together. Chair: Couple more questions. Mr. Kimura: Does Verizon see anywhere in the near fixture going to satellites and eliminating all those antenna? Planning Commission Minutes August 30,2011 16 Unidentified Speaker: That is a long way away. Mr. Kimura: Why is it such a long way away? Unidentified Speaker:, It was tried,the technology isn't there and you have this bouncing back. That is why like in the old days you used to hear, they used to try that and you would have an echo going back and forth. The technology right now is not available that would service that and some very smart people, I know Bill Gates at one point with Microsoft tried to look at that but right now the technology as I say will be years and years away. Mr. Kimura: I mean the Federal Government uses it; they use satellite phones, why can't the public use satellite phones? Unidentified Speaker, Again, understand that technology is years away to do it to that level. Again, if you could get satellite to work well it would be cheaper because you could go world but again the technology is just not there. Mr. Kimura: Okay,just wondering. Ms. Matsumoto: So if say for example a tall antenna doesn't work or is no longer efficient because the technology has evolved then you and the other companies would take down that existing tower. Unidentified Speaker: Yes. It is similar to like what we are doing at this site here where we are coming off of the mountain site once we get our sites there. Ms. Matsumoto: Because over the past few years we have had applications come in where they said we need to have the higher the better because we have more coverage and now we are being told otherwise. You can see where we are coming from, we don't want a profusion of towers and number two, we are encouraging collocating,that the companies work together to provide service for everyone. Unidentified Speaker: And that is understood. Chair: Thank you. Mr. Blake: I have one more question. Chair: This is the absolute last question. I want to wrap this up already. Mr. Blake: Now that we have cable TV we don't have all the antenna so what is the likelihood of having cable telephone service? Unidentified Speaker: They still have to hook up through the lines. Mr. Blake: They have the telephone lines in place already. Unidentified Speaker: I think Oceanic does provide telephone service but again it is not a wireless service it is similar to kind of like a landline type service, that is available today but it would not he mobile. I believe also Hawaiiantei, I just saw a recent application of them,they are also trying to get into what Oceanic is basically serving TV but their service would also not be wireless it would be kind of connected...you would have to be next to a land or within maybe 10 or 15 feet of a line. Chair: Thank you, I would like to call on the public if anybody wishes to submit any testimony on this matter please come forward. I don't see anybody wishing to do that, Kaaina, could you, wait... here we go again, I am always forgetting to close the public hearing. I would like to entertain a motion to close the public hearing please. Mr. Katayama: So moved. Planning Commission Mindtes August 30,2011 17 Mr. Kimura: Second. Chair: Any discussion, all those in favor, those opposed, motion carried. On motion made by Wayne Katayama and seconded by Jan Kimura, to close the public hearing, motion carried unanimously by voice vote. Staff Planner read department recommendation(on file). Chair: At this point do you want to modify or change any of the conditions? I would like to have you folks entertain a motion to approve. Mr. Kimura: So moved. Mr. Katayama: Second. Chair: Any discussion, at this point I can mention that as we look at the conditions do we wish to change, modify any of the existing conditions that are proposed? If not do we want to incorporate any new conditions? Seeing none I would like to...we already had a first and second, any discussion on these conditions, if not I would like to have roll call please. On motion made by Jan Kimura and seconded by Wayne Katayama, to approve staff recommendation, motion carried by the following roll call '.vote: Ayes: Matsumoto, Blake, Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Nishida, Raco -2 Not Voting: None -0 Mr. Katayama: May I just make a comment? Director, what is the department's plan of managing applications for these tower sites? It seems that given the future vision of the landscape we will probably be having more and more applications with companies approaching this body on an individual basis. That is sort of a catch as catch can methodology. Is there some planning mechanism to better manage this to create a little more order? I understand that there is no one tower fits all but at least here in the corridor we seem to have at least 4 sites or 5 sites. And I understand the topography is an issue however if you look at individual towers with one user...I don't share the same concern about how this would have anti-trust because telephone companies share the same poles with cable companies that share the same poles with power companies and they are all utilities as well. Airports, all the airlines share the same airport and we don't have one airport for each airline. So I think this is the future for our community. I think we need to provide a mechanism to more orderly provide the proper capacity to service the needs. Mr. Dahilig: Commissioner, you bring up a good point, it is almost as if the department is constantly having to hit a moving target on this ogle. It is a function of population growth, user subscription, as well as evolving technologies. Whether band widths can be accommodated with the existing infrastructure who knows but I am sure that the cell phone companies have that in mind given the expense it costs to actually more and more towers up. I don't have a crystal ball but at this point what it does require us to do and it is opportune that we are looking at the General Plan Update at this point, whether from a policy standpoint we can comport these telecommunication needs with what the physical landscape should look like, also within the bounds of whatever parameters the Federal Government sets for these towers. And so it is an intricate complex web and I don't know if our resident expert, Kaaina, wants to weigh in on that but those are the general ideas. And from a physical landscape standpoint it is something Commissioner that we can bring up as part of our General Plan discussion. ' Staff. I am in complete agreement with the Director. Two things that have essentially evolved over the past 10 to 15 years concerning telecommunications have been the use of monopines and to mitigate the visual impact as well as collocation. Previously there was no requirement before the use of monopines or blending into buildings or a requirement for Planning Commission Minutes August 30,2011 18 collocation. Given the same concerns that you have now a proliferation of these sites, that is, how those evolved and became not an official written policy of the department or the Commission however they are practices that have been pursued for the past several years. It may be time to start looking at additional strategic plans or practices to put into place. Chair: Wayne, are you thinking that we should look at some kind of master plan or some kind of plan, coordinated plan by the Planning Department? Mr. Katayama,: Well I am more looking at the mechanism to help distill these decisions rather than having individual companies come before this body saying that this site is the only site that is best for me. I view this not as a luxury but as sort of a fabric of our community and of our society so we need to have the capacity as well as to plan to accommodate the needs. Chair: So this mechanism could be a plan. Mr. Katayama: And a criteria that says that you have to look for sites that are not only good for you but for other carriers like yourself It can't be that all these carriers are so unique that this is the only site that works for them and nobody else. Chair: Does any other County in Hawaii have any plans like what we are talking about, a mechanism in place in other areas in the State? Unidentified Speaker: At this time no other County has it. I understand what member Katayama is saying. It is over the last several years there has been proliferation of sites without question. A lot of it is generated by what people need and what they expect. I think in the end though what you are going to see and I don't know if it is all that great but because it is so expensive you are going to see more consolidations in the carriers themselves which would potentially eliminate a lot of this. Because already you have Team Mobile being bought by AT&T, already you have 2 sites next to each other,you don't need that, right, one side will be de-commissioned. But I foresee that kind of stuff happening more than the other stuff. Chair: I would like to just make a recommendation. I would like to stop this discussion right now because it is not an agenda item. So what,%A e would like to do is if it is important we can take it up at another time. We can talk about it and decide whether we want to have it as an agenda item at a later date. Unidentified Speaker: We would be more than willing to attend. Chair: Certainly, thank you very much. Use Permit U-2012-03 and Class N Zoning Permit Z-IV-20122-03 to construct a single- family residence on a parcel located along the northern side of Waikomo Road in Koloa, situated approx. 250 ft. south of its intersection with Weliweli Road, further identified as Tax Map Kev 2-8-009:018, and containiu a total land area of 12,721 sq. ft. =Peter Thielen Construction. [Director's Report received 8/9/11.1 Staff Planner Nani Sadora read Director's Report (on record). Chair: Thank you. Are there any questions of the planner? There being none...go ahead Hartwell. Mr. Blake: Are we looking at, is the department looking at the design to make sure that it comports with the Special Treatment standard? Ms. Sadora: Yes. Mr. Kimura: Is this part of the VDA? Mr. Dahilig: No. Planning Commission Minutes August 30,2011 19 Mr. Kimura: So is that residence or should I wait for the applicant, going to be used for TVR? There is already 1 residence there right? Is it the same owner? Ms. Sadora: Yes. Mr. Kimura: Should I wait for the applicant? Chair: Would the applicant please come forward. Unidentified Speaker: My dad owns the property and the proposed house is going to be for me and my wife and our kids. Chair: Could you just state your name please. Mr. Jesse Thielen: Jesse Thielen. And so I have been doing the paperwork on this based. on the proposed house, it's going to be for me. My dad is the owner of the property so you can ask questions to both of us. Mr. Kimura: So it's not going to be used for a TVR then, right? Mr. Thielen: No. Chair: Anybody else? Mr. Blake: How many residences are built on that property? Mr. Thielen: There is 1 residence that is completed and it is a CPR with 2 units so this is the second unit. Mr. Blake: And this is the only one that has come in for a Use Permit? Mr. Thielen: When the other one was built there was no, we were not notified that it was a culturally significant district and none of the other houses that were built around us; they were all constructed without notification as well. And it was only when we put in our building permit application for this part of the property that we were informed that it was a culturally significant area. Mr. Blake: So my question is for the planner then, how many units fell through the cracks there? Mr. Dahilig: Commissioner that is an operational matter that certainly we can get statistics for you on as a side inquiry and we can definitely provide that as part of information to you but I would suggest that maybe that discussion shouldn't bear on the application that is before the Commission at this t1me. Chair: Any further questions Mr. Blake? Mr. Blake: No. Chair: Anybody else have any questions of the applicant? Who lives in the other residence, is that a rental? Mr. Thielen: That CPR has been sold so it is a different owner. Chair: Thank you. I would like to call on the public, anyone from the public wishing to...? Mr. Thielen: The owners are in the application that I put in. It has all their signatures that they approved our design and everything. We are doing everything by County standards to make Planning Commission Minutes August 30,2011 20 it as simple as possible. We are trying to make a single story house as apposed to making a two story, big house. We are trying to do the best possible thing with the space that we have. Chair: Anybody from the public wishing to testify on this matter? Seeing none I would like to get a motion to close the public hearing. Mr. Kimura: Motion to close the public hearing. Mr. Katayama: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Wayne Katayama, to close the public hearing, motion carried unanimously by voice vote. Staff Planner read conclusion and department recommendation(on file). Chair: I will just go ahead and ask the Commissioners if they have reviewed the proposed conditions and if we have then it is not necessary to read them, is that okay? Mr, Kimura: Yes. Chair: That being the case does the applicant have any objections to or concerns in regards to the conditions that were presented to us? Have you seen the conditions? Mr. Thielen: Yes, I do have the conditions. For the outside lighting we are not planning on doing any outside lighting that would affect birds or anything and we have no opposition to anything. I actually have made a landscape plan and color scheme that they asked for so I have that ready to submit. Chair: So you have no problem with the conditions set forth? Mr. Thielen: No. Mr. Kimura: I snake a motion, move to approve. Mr. Katgyarna: Second. Chair: Any discussion, there being none,roll call please. On motion made by Jan Kimura and seconded by Wayne Katayama, to approve staff recommendation, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Katayama, Texeira -5 Noes: None -0 Absent: Nishida, Raco -2 Not Voting: None -0 Unidentified Speaker: Before you go to lunch I was just curious, from my understanding the Creekside Development people have been given approval of a three story... Mr. Dahilia: Sir that matter is not on the agenda. Unidentified Speaker: I wanted to know one thing, is it the same type of situation as a builder that your building permit is good for one year and if they don't start construction within one year... Mr. Dahili`g; Sir we can take that discussion offline. It is not on the Commission's agenda. Planning Commission Minutes August 30,2011 21 Unidentified Speaker: Sorry, it's not meant to be on the agenda I just figured you people would know better than anyone the answer. Chair: We can't discuss it if it is on the record. Commission recessed for lunch at 12:00 p.m. Meeting was called back to order at 1:17 p.m. Chair: We now have 4 members, our quorum is 4. Our last Planning Commissioner (Jan Kimura)had to recuse himself. NEW BUSINESS Interim Director Michael A. Dahilig's Motion to Dismiss Sandy Saemann's Notice of Appeal to the Planning Commission, Designation of Record on Appeal and Statement of the Case for Untimely Filing` a. Notice of Appeal to the Planning Commission; Designation of Record on Appeal, Statement of the Case; Exhibit"A"• Certificate of Service 7/21/11 from Sand Saematim Trustee. b. Interim Director Michael A. Dahilig's Motion to Dismiss Sand Saemann's Notice of Appeal to the Planning Commission, Designation of Record on Appeal'and Statement of the Case for Untimely Filing: Memorandum in Support of Motion• Declaration of Dee Crowell: Certificate of Service(8/16/11) from Alfred B. Castillo, Jr., Esq., and Ian K. Jung. Esq., Attorneys for Interim Director of Planning. c. Appellant's Response to Interim Director Michael A. Dahilig's Motion to Dismiss Sandy Saemann's Notice of Appeal to the Planning_Commission,Designation of Record on Appeal and Statement of the Case for Untimely Filing• Declaration of Lorna A. Nishimitsu: Exhibits "A"through "C", Certificate of Service (8/22/11) from __ Lorna A. Nishimitsu, Est.,Attorney for Appellant. Chair: Before we take up the matter concerning the motion to dismiss we will first receive all submitted documents for the record. Is there a motion to accept for the record those documents? Ms. Matsumoto: So moved. Mr. Katgyama: Second. Chair: Any discussion, if not all those in favor say aye,those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to receive all submitted documents, motion carried unanimously by voice vote. Chair: We are on the motion at hand; first I will entertain at this time any requests for public testimony pursuant to HRS Chapter 92. Please remember that e<1ch individual is provided 3 minutes for oral testimony before the Commission. I ask that once the beeper sounds to please have you remarks come to a close. We will afford the same amount of time for each individual. Parties will be allowed time to discuss their positions before the Commission later. With that is there any public testimony? Unidentified Speaker: Who is the applicant? Chair: This is in regards to Sandy Saemann. If you have the agenda in front of you, if you don't, we modified the agenda; we changed the order of the agenda so right now we are taking F.5. So again I would like to ask if there is anyone from the public wishing to speak on Planning Comriiission Minutes August 30,2011 22 this agenda item. We don't have any public testimony at this tune. I would now ask that each of the parties to this petition please come forward,take a seat and if you can identify yourselves. Mr. Jung: Good afternoon Chair,members of the Planning Commission,Deputy County Attorney Ian Jung on behalf of Mike Dahilig,the Interim Director of Planning. Ms. Lorna Nishimitsu: For the record, Lorna Nishimitsu for the limited purpose of arguing against the Director's motion to dismiss. Chair: We will now begin the oral presentations and I will allow each part 5 minutes to discuss. Mr.;Jung: Again, good afternoon Chair and Planning Commission members. The issue that is before you is not only just the application that was submitted for 3 single family TVRs on agricultural land for a Special Permit and nonconforming Use Permit but the issue of whether or not the denial by the Deputy Director that was issued and a subsequent appeal and whether or not that was filed timely. So just to run through the facts real quickly that is in our memorandum, there was an application for 3 TVRs, after the department did the review the department's decision was that only 1 qualified as a single family dwelling. So the 2 other alleged dwelling units that the application suggested were in existence,TVRs,were denied the right to apply. Ms.Nishimitsu: Excuse me,just for the record I want to note an objection. The motion before you is to dismiss the appeal for an untimely filing. And the problem is now the Director is arguing the merits of the case and asking you to decide whether or not to support his decision or not. So we are getting to the merits so I I.hink it is one or the other, either the appeal was timely or untimely filed. And if he wants to get into the merits of the case then the matter should be set for a contested case proceeding,thank you. Mr. Jung: Noting the objection,the intent of that was just to give a little bit of background so you are aware of the issues that are at stake. So when the notice went out on July lSt of 2011 the appeal never came down,the original appeal never came down until August 1, 2011. Now the rules specifically say under Chapter 9 that you have 21 days to appeal the decision of a Planning Director. Now in this case the decision to appeal was on whether or not these zoning permits were valid permits for particular dwelling unit.',,. So it is not necessarily an appeal under the code which refers to the TVR ordinance but as to whether or not there was a change in use for those zoning permits. But looking at whether or not the appeal was timely or not there are rules of procedure that each party has to abide by. The allegation that you are reading in the response refers to due process.Now due process is only good as far as getting to the rules that allow due process to occur, so the fundamentals of due process are notice and opportunity to be heard. We provided notice on July 1"that they wouldn't be able to apply for more than 1 single family transient vacation rental and then after that we did not receive an appeal within that 21 day period. Now the 21 day period is clear in the rules that it is after the adverse decision. Now the appellant has tried to argue that it is after receipt of the decision but clearly the rules say it is after the adverse decision. So that decision occurred on July lst, 2011, and again the original which is required under the rules,they require an original plus 12 copies,was not received until August 1s,2011. Chair: You have 3 minutes to respond. Ms.Nishimitsu: Chapter 9 of the Planning Commission rules affords a person 21 days within which to file an appeal and section 8-19.7 of the Kauai County Code similarly requires that a notice;of appeal be provide within 21 days of the quote"adverse decision", end quote. To determine as the Director asks,that the 21 day period commences when he makes the decision or signs that decision letter effectively means that anyone that is adversely affected will have far less than 21 days to file the notice of appeal. Unlike with the rules of court that say that a pleading is deemed to be served within 2 days after it has been certified as having been mailed, neither the Kauai County Code nor the Commission's rules not Chapter 21 address the timing of the event of reaching the decision by the Director. I am not talking about the Commission decision. And the adversely affected party being notified of that adverse decision isn't even Planning Commission Minutes August 30,2011 I 23 aware of the act of the Director until it is actually received. Chapter 91's countdown of days is specific to appeals to the Circuit Court only and it doesn't even address an appeal from the decision of the Director of the Planning Department. If you give this Director the arbitrary right to determine when an adver§e decision letter is dated and when it is put in the mail you have procedurally denied anyone,not just an applicant, but everyone who might take issue with his decision,less than a 21 day period to file yin appeal. In this case his adverse decision denying transient vacation rental nonconforming use certificates was dated July 1St. We don't know when it was put in the mail because it was not sent by certified mail and you have basically short changed Mr. Saemann by 7 days his right to appeal. The Director is basically asking that you accept whatever timing they decide to move on dating a letter and then putting it in the mail and getting it to the adversely impacted party. If the department had mailed it's letter on July 8th for example which is the date I actually received it, it would make,no difference if yoo adopt his rationale nor would it make a difference if it was mailed on July 20th,2011 which would basically give the adversely affected party no time at all within which to file an appeal. To accept his reasoning means that the Commission in effect sanctions depriving any aggrieved person including members of the public with having a 21 day period within which to make a decision and file an appeal. You should not entertain his arguments about the merits of the appeal at this time as I have earlier stated because the issue before you is did Mr. Saemann's notice get to the department within the 21 day period that should fairly be given to him. They received it on July 271h. Shortly after that the original and copies were delivered and for those reasons we ask that you allow Mr. Saemann his day before you to argue the merits of his TVR NUC. Chair: Okay, do you wish to make your arguments? That was just your rebuttal. Ms.Nishimitsu: We are rebutting because they are the movant in the particular case. Mr. Juna: Now for rebuttal. The key here is that 21 day time limit. When you have rules it establishes the game of which fairness is played. Once the decision was made that 21 day clock starts. Now if they received it on the 8th that still gives them 14 days to then work on their appeal and file it. And in the next appeal you will see that an appeal was worked on, it was timely filed and they actually even amended the appeal so there is also the opportunity to do the work that is needed to be done within the small window of time be it 12 or 14 days and then supplement that appeal by ariiending it. In this case if you do not follow the rules you are not allowed, because it is an issue of jurisdiction,this body would not have jurisdiction over the appeal because of what we call statute of limitations. Now the administrative machinery that this body offers has to work within those rules and if you don't;follow the administrative rules that make that machinery go forward then you defeat the intent of why you are having rules for both sides to balance and play within. So here, because they failed to timely file their appeal they are not entitled to the due process to get their merits of their appeal heard because they missed the window of time,missed the jurisdictional window of time to allow that appeal to go forward. And just to follow up on the issue of the 27th, when you look at...even if it was submitted by facsimile on the 27th it is still not a valid filing because the rules specifically say that you need to file an original. And when the attorney for the applicant filed the original on August 1St, even if they received it on the 28th it is still outside and alternatively even if you look at the 8th as a starting point,because we received the original on the 1"it is still outside the window of the 21 day period from the 8th on that. Ms.Nishimitsu: May I respond to that? Chair: Mr. Attorney, can she respond to that? Mr. Mauna Kea Trask: I believe under the rules it is in your discretion, Chair, but I believe that Ms.Nishimitsu already used her rebuttal preemptively,I guess;but it is up to you. Chair: I would grant your...go ahead. Planning Commission Minutes August 30,2011 24 Ms.Nishimitsu: Notice was given to the department on July 27th that Mr. Saemann wanted to appeal the Director's decision. You are getting into a matter of form over substance at this point by saying the original didn't come in until August 1St. The original was the same as the copy that was delivered. And then if they are going to talk about the number of copies that need to be filed I think my rebuttal or my written rebuttal addresses numbers of copies when they tell us we have to submit 30 copies of applications when the rules only require 12. So if we are going to get into this nit picking I guess I can get down into nit picking with them but I don't want to get into that,thank you. Mr. Jung: Just to respond to that, still the fact of the matter is the date after the adverse decision is still the lst,right,so July 1"is when the decision came down. Even if you go to the 8th of when you received it that is not how the courts do it that is not how this body should do it. The way this body should do it is looking at the date after the adverse decision is when you start counting that 21 days. If we do a return receipt which is not required under the rules that but that has sometimes been the customary practice then we know exactly when it comes but who knows if they can say and stamp it at a later date and soy well we received it on the 12th so we should start our time frame from that point on. So that is why that firm date that is firmly affixed to the notice of what the denial is should be the date on when to start that clock. Chair: Any Commissioners have any questions? Mr. Blake: I don't have any questions but you know,we are faced with a situation where we have a specific rule and the appellant questions the fairness of the rule but I don't believe that this is the forum for questioning the fairness of the rule. We know that the time started to run according to the rules on the 2" ,I believe it was the 2°d, even allowing for a the time within which the appellant filed his notice if you want to call it a notice, if you want to accept the electronic notice as appropriate or proper, even if you allow that time it is still over the time limit. So to me that is the rule. That is what we are bound by. And the issue of whether it is fair or not is to be taken up at another time. Chair: Wayne, do you have any comments? Mr. Katayama: Actually it is for our Attorney. Aren't these issues almost black letter in terms of the meter when it starts and what the gates are,whether a filing in the form of fax is valid or not? I mean I don't believe that it is grey based on past practices of the Commission or other bodies. It seems that we are trying to rule on something that should be black letter. Mr. Trask: That is correct Commissioner. The appellant is correct in its brief on page 5, second paragraph, citing the rule 1-9-2 of the Commission rules,appeal has to be submitted to the Planning Commission within 21 days after the adverse decision not after the receipt of the adverse decision. And so when you look at statutory interpretation you take the plain language of the statute,what does it say. And also too I think what may be of assistance to you in this case is a rule that I don't think either party has brought up. It is actually Commission rule 1-3-3.e, when service is complete. And in this case service shall be regarded as complete upon mailing unless otherwise specifically directed by the Commission. What I think is interesting in this case is that the certification by the appellant states that, "I certify that on July 21, 2011 a true and correct copy of the notice of appeal", etc.,"was duly served upon the County of Kauai by depositing the same United States Post Office." So that certificate of service would indicate under 1-3-3.e that service was made on that day. However that letter according to the pleadings and the record it appears was never received by the Commission, it was actually given to Ms.Nishimitsu and then was had delivered after that. So if the letter was received by the department say after July 27th or August 8th but it was sent on the 21St to the proper party then it would have been deemed complete under 1-3-3. However it looks like there was a break in that chain and it went to somebody else and then from there went to the Commission which I think 1-3-3 provides guidance because if that certificate of service was true then I don't think there would be an issue. But it looks like that wasn't the case and therefore the black letter is clear as you said, it shall be 21 days after the adverse decision which would have Planning Commission Minutes August 30,2011 25 been the 21St which would have been all right but according to the certificate of service it doesn't appear that is what happened. Chair: Are you satisfied with that Wayne? Anybody else wishing to...have any questions? Mr. Trask: In this case Commission, the Commission must entertain either one of three actions, one, to grant the Interim Director's motion to dismiss or two, deny the Interim Director's motion to dismiss and set a date for a contested case hearing, or three, take the arguments under advisement and defer the matter to a later date. Chair: Do we need to reread those three choices? Do we have a clear understanding what those three choices are? What is your pleasure? Mr. Blake: I move to grant the Interim Director's motion to dismiss. Chair: Is there a second? Mr. Katayama: Second. Chair: Any discussion on that motion, if not can we have roll call please. On motion made by Hartwell Blake and seconded by Wayne Katayama, to grant Interim Director's motion to dismiss, motion carried by the following roll call vote: Ayes: Matsumoto, Blake, Katayama,Texeira -4 Notes: None -0 Absent: Nishida, Raco -2 Not Voting: Kimura -1 Petition(8/9/11) from Jonathan Chun, Esq., to Appeal the Decision of the Planning Directon; Exhibits "A" and"B": Certificate of Service for the issuance of a Non-Conforming Use Certifs.s'ate for the Diane Leiding Trust (TVNC 42 78) due to the lack of 75% authorization, Tax Map Key 4-4-3:69 (CPR Unit 3), Kapa`a Homesteads, Kauai and Amendment Petition (8/12/11) from Jonathan Chun, Esq., to Appeal the Decision of the Planning Director, Certificate of Service. Letter(8/22/11) from Jonathan Chun, Esq., ec mandin a contested case hearing before the Planning Commission under HRS Section 91-14're ag rding the Department's denial or refusal to process the above application for a Nonconforming Use Certificate and a State Special Permit. Mr. Dahilig: Commission, I would ask that you receive the letter from Mr. Chun for the record before I get into my recommendation. Ms. Matsumoto: Move to received Mr. Chun's letter. Chair: Is there a second to receive? Mr. Katayama: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to receive letter from Jonathan Chun, motion carried unanimously by voice vote. Mr. Dahilig: Commissioners, given the subject matter entertained in the above referenced petition for appeal I recommend the Planning Commission grant the petition for a contested case hearing. And just for the record Mr. Trask is sitting as counsel for this particular matter. Further I recommend the Commission delegate authority to conduct said contested case hearing to a hearings officer duly selected from a list of qualified candidates pursuant to Hawaii Revised Statutes; Chapter 103 (d). This hearings officer will be responsible for conducting the Planning Commission Minutes August 30,2011 26 agency hearing pursuant to Chapter 6 of this Commission's Rules of Practice and Procedure, entertaining all motions including any intervention requests,conducting the hearing and receiving all evidence and delivering to the Commission a recommended decision and order. Lastly I request that the Commission delegate to me as secretary of the Commission the authority to finalize the appropriated hearings office appointment documents on behalf of the Commission. Chair: You have heard the comments of the Planning Director. I would just like to ask if there is anyone from the public wishing to testify on this matter. How many people wanted to testify on this matter? Go ahead sir. Z. Mr. Geor eg_Volker: Good afternoon,my name is George Volker. My testimony is in support of the decision of the Planning Director to reject TVNC-4278 and 4279 applications due to a lack of 75% authorization. My wife and I are owners of Unit 1 of this 3 unit agricultural condominium. The owners of the other two units both operate transient vacation rentals without use certificates. This unlawful use began in late 20,07. This use violates the bylaws and declaration of our condominium and the ordinances of the County of Kauai. Number one, it violates the farm dwelling agreement on our parcel which is recorded with the State of Hawaii. Number two,it violates our CPR declaration 8, "Purposes of buildings and restrictions as to use". Quote, "Units of the projects shall be occupied and used only for agricultural uses and where permitted as private residential dwellings by the respective owners;thereof and for no other purposes." And furthermore, quote,"No hotel or timeshare use shall be allowed,"end quotes. It also violates our CPR bylaws, section 5.3, Use of Project. One, "All units of the project shall be used only for such purposes as permitted by Kauai County zoning ordinances by the respective owners thereof. And four, as of March 7, 2008, it violates ordinance 864 which prohibits TVR operations on State agricultural lands. We have since received from the Planning Department 4 zoning compliance notices, 2 dated June 17,2010 and 2 dated November 12,2010 ordering the owners of these two vacation rentals to 4uote, "Cease and desist the use of the single family dwelling as a transient vacation rental operation immediately," end quote. Neither owner has complied. We just learned of this hearing this past Sunday, August 28th,when it was published in the Garden Island newspaper. Due to such last minute notice I respectfully request the right to intervene in this matter when it is next heard by the hearings officer,thank you. Chair: Thank you. Anyone else wishing to testify on this matter? Unidentified Speaker: Aloha and thank you for letting me testify on this matter. I am an adjacent property owner to the property in question as well as two other properties in this CPR. I did grant easement over my property... Chair: Excuse me,could we have your name please? Ms. Marge Denti: My name is Marge Denti. I live in the Waipouli Ahupua'a. I am adjacent to this CPR a�d I granted an easement,utility easement over my property to the property in question here with Ms. Leiding many years ago. To this date she has never ever come to my property to introduce her shelf or been friendly in any way and that is so against everything on our hill. I am familiar and good friends with everybody on our road but not Ms. Leiding, sh6 chooses not to be forthcoming. I filed a letter with Ian Costa on November 16,2010 asking to be notified of any hearing on this issue,it is right here, it is dated as having been received by him and his office. To date I have never received a hearing notice. I only learned of this because I accidently ran across it in the August 28th Garden Island,that was Sunday and that I why I am here, but having to give up my job to get here. The Mayor had a press release published on August 5, 2010 saying that only bonafied farming operations prior to March,2008, would be considered as facts to give anybody transient vacation rental permits. So the Mayor said this. My argument is if the Mayor is saying this then he must be backed by some kind of administrative results. The Kauai ordinance 904 says any conforming use can be granted only if lawful use was prior to the effective date of this ordinance 904. That ordinance was d4ted August 16,2010. Planning Commission Minutes August 30,2011 27 There has never been a lawful use of this property of the applicant. As documented by a certified letter from Andres Emayo, I am sorry if I don't pronounce this correctly, dated November 12, 2010. I have copy of that here. This applicant has never had a lawful business on this property at any time that s6 was the owner or previous to that And this says that the single dwelling as a single family TVR outside the Visitor Destination Area constitutes a violation. It is in this letter and she is to cease and desist. The owner has not complied. Chair: Thank you, anyone else wishing to testify on this matter? Mr. Jonathan Chun: Good afternoon,Jonathan Chun on behalf of the applicant,the appellant. I am just going to keep my comments short. There is a pending request by my office t have this contest§d case hearing. We heard the recommendation of the department on that. I want to just highlight two facts that came out today, one is as a contested case hearing the department and the Commission is only allowed to as a matter of policy to consider relevant evidence and testimony from the public and also from the parties. The relevant testimony at this point is only in regards to the 75% so any testimony or comments in regards to any violations of declaration or farm dwelling agreements or whether they were renting it prior to or after 2008 is irrelevant. The only relevant question in front of the Commission today and in any contested case hearing is whether or not the 75%requirement is valid or was met. That is the only comment I have so I would ask that any kind of questions or comments regarding anything other than those matters be struck by the Commission from the record. The last thing I want to mention is that because there is a contested case request we can open the public hearing which I think the Commission and Chair has done properly today,they have opened the public hearing for that, but under the rules for contested case hearings you can open it and then close it and then convene if the Commission decides to convene the contested case. I would suggest that as a procedure to use since we have already had a public hearing,we have had testimony that even though is irrelevant we have testimony. So we request that if you decide to have a contested case you open which you have done already the public hearing portion and then you close it. That is all I have. If you have any questions I would be happy to answer your questions. We would be happy to present our case in front of the hearings officer. Mr. Dahilig: Mr. Chun,just for clarification,the whole gambit of Chapter 6 procedures including opening and closing of the public hearing and also the noticing would be handled by the hearings officer as well. Mr. Chun: Yes,that would be one portion of it but I am just concerned that the hearings officer, depending where he or she holds it and what timing,I don't want to have a situation where like we heard in the testimony today, didn't hear about the notice of the hearing. Mr. Dahilig: We would 'instruct the hearings officer to go into the full gambit of notice. Mr. Chun: That is just my...that is the call of the Commission. Chair: Does anybody have any questions of the applicant's epresentative? Mr. Blake: For our Attorney. Chair: Thank you Jonathan. Mr. Blake: The testimony that the applicant objects to is objectionable any time during the proceedings or only after contested case hearing has been awarded or granted? Because there is no contested case hearing yet so if people want to testify about whatever they want to testify about they can, right? Mr. Trask: The public testimony is just that. There are no allowed interveners at this point. The public can always say whatever they want so I would agree. But then again you said the issue at hand is whether or not to grant or deny the request for the contested case. Planning Commission Minutes August 30,2011 28 Chair: With that in mind is there anybody else in the public wishing to speak on this matter? There being none, at this point I would like to ask the Commissioners if there is a motion. What is your motion? Mr. Katayama: Chair, may I ask sort of a...could you summarize the basis for the contested case hearing on the 75%? Mr. Dahili2: Based on the pleading what we are reading is that there is a challenge to whether Hawaii Revised Statutes actually trump a County ordinance in terms of how the County ordinance is written and we have been applying it. And so hence my desire to have a hearings officer handle the matter on behalf of the Commission because it does involve technical elements of the law concerning whether State law does supersede in this case. Mr. Blake: What State law? Mr. Dahilig: Specifically we are looking at the Real Estate Commission statute concerning condominium regimes and how limited common elements or other portions of ownership actually need to be treated under State law as separate parcels of record. Mr. Katayama: So how does that impact the 75% calculation hurdle? M_ r. Dahilig: The 75% calculation would mean that if we...currently 75% of the owners of a condominium property regime project have to consent to any type of application before the Planning Commission or the Planning Department. What the alleged petition says is that that particular provision is superseded by State Statute which says that each CPR unit should be treated as ail independent piece of property. Mr. Trask: So in effect each one of those, if there are three, then you don't need 75% because each CPR is one. So if the owner of one of those or say four, to use the 75%, if the owner of one of those says I want to do this on my separate lot of record then that is 100%, you don't need the other three. Mr. Blake: There are other as I understand it rules that apply only to condominium units because they are condominium units like your...despite the fact that there is this law that says you are supposed to treat them independently. Like if you wanted to change the common elements or move boundaries or anything like that, it is not just a matter of I feel like I want to do it or me and the guy next to me want to do it and that is all that it takes, there still has to be a percentage amount of agreement amongst the unit owners. So is the request here saying just for purposes of the 75%but not for anything else? Mr. Dahilig: Yes. Part of it is because the adverse decision that is being appealed is based on the application of that particular provision of the Comprehensive Zoning Ordinance. Chair: We are back to a motion and that is to appeal the Planning Commission... Mr. Katayama: The motion is that we will grant the authority to the Director to appoint a hearings officer. Mr. Dahilig: It is a two part motion Commissioners, one, that you grant the contested case hearing, and then second would be to delegate authority to a hearings officer pursuant to the memo as outlined. Chair: Chn we treat this separately? Mr. Katayama: You have to because one doesn't follow the other. I£we decided not to have a contested case you don't need a hearings officer. Mr. Blake: I move to deny. Mr. Trask: Deny the request for a contested case? Planning Commission Minutes August 30,2011 29 -Mil, Blake: Yes. Chair: Is there a second for that? Mr. Kimura: Second. Chair: Any discussion on the denial? Mr. Dahilig: Commissioners, I am not your attorney but I may want to suggest that you entertain going into executive session with the County Attorney concerning the denial of request in this form and the procedures that are required to do such an action. That is just my suggestion. Chair: Do you guys want to do that? Let's have a motion to go into executive session. Mr. Dahilig: You may want to ask the Attorney to read the magic words. Mr. Blake: And I will suspend my motion. Mr. Trask: Pursuant to the notice provided on today's agenda, Tuesday August 30, 2011, the Commission may go into an executive session on an agenda item, in this case item FA for one of the purposes listed in section 92-5(a), Hawai`i Revised Statutes, without noticing the executive session on the agenda or executive session was not anticipated in advance,pursuant to HRS Section 92-7(a). The executive session may only be held however upon affirmative vote of two thirds and the reason for holding this executive session is to consult with the Commission's legal counsel about its right, duties, and responsibilities regarding the motion made to deny the contested case. Chair: Is there a motion to go into executive session? Ms. Matsumoto: So moved. Mr. Kimura: Second. Chair: All those in favor say aye, those opposed, motion carried. On motion m4ide by Camilla Matsumoto and seconded by Jan Kimura, to go into executive session, motion carried unanimodsly by voice vote. Commission went into executive session at 2:00 p.m. Commissioner Wayne Katayama was excused at 2:30 p.m. Meeting called back�o order at 2:30 p.m. Chair: We suspended that motion before convening, would you like to..? Mr. Blake: I will withdraw it. Mr. Kimura: I withdraw my second. Chair: Motionn has been withdrawn. We would like to entertain another motion. Mr. Kimura: I make a motion to approve. Chair: Can you state to approve the request to appeal. Mr. Kimura: I make a motion to... Planning Commission Minutes August 30,2011 30 Mr. Dahilig: It would be to grant the petition for a contested case hearing. Chair: We got that? Is there a second? Ms. Matsumoto: Second. Chair: Any discussion on the motion? If not,roll call. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to grant the contested case hearing, motion carried unanimously by voice vote. Ayes: Matsumoto, Blake, Kimura, Texeira -4 Noes: None -0 Absent, Nishida, Raco, Katayama -3 Not Voting: None -0 Mr. Dahilig: Commissioners, I would ask in a second motion that the Commission delegate authority as set forth in my August 29th memorandum. Mr. Blake: So moved. Mr. Kimura: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Hartwell Blake and seconded by Jan Kimura, to grant authority to Interim Director as set forth in 8/29/11 memorandum, motion carried unanimously by voice vote. Zoning Amendment ZA2012-1 pro poses amendments to Chapter 8,Article 7 of the Kauai County Code to clarify permitting requirements concerning farm worker housing_ County of Kaua`i, Planning Department. Staff Report pertaining to this matter. Staff Planner Kaaina Hull read staff report(on file). Mr. Dahilig: Commissioners, there is a Ramseyer document that is the department's recommended changes based on the agency findings, it is exhibit A, marked by the planner. There are certain elements that area bracketed for deletion and then 'elements for addition are underlined. Chair: So noted. Do you have any questions of the planner? Mr. Blake: Can the farm dwellings exceed the permitted density? Staff. The ordinance actually goes over farm worker housing so farm dwellings are specific density allotted under Hawaii Revised Statutes and then subsequently under the Kauai County Code. In going over the history it about a year and a half ago an ordinance was proposed to allow farm worker housing that is additional housing for specifically farm workers on agricultural properties. So essentially it goes above the density indeed but it is supposed to be solely used for farm workers of the specific or respective lot or CPR. Mr. Blake: So if this ordinance is passed,the farm worker housing ordinance, the density would exceed what is permitted by State and County zoning laws? Staff: The farm worker housing ordinance was passed about a year and a half ago and it allows for farm worker housing under certain provisions,the most significant being the requirement of 35 thousand dollars of gross sales to be made per farm worker housing structure. Planning Commission Minutes August 30,2011 31 In addition to that they have to receive a Use Permit from this body to construct and operate a farm worker housing unit. Mr. Kimura: Per structure you said? Staff: Per structure. The ordinance before you folks today is actually just a clarification of the previously passed ordinance clarifying the term property to mean lot and/or CPR limited common element. Mr. Jung: Commissioners, there has to be a fine line distinction here between density and the farm worker structures which are the habitable structures that would be tied specifically to a Use Permit, a farm worker housing Use Permit. I would caution you guys from referring to them as density because they really aren't density on the property they are just a structure entitled to be used as a habitable structure through the Use Permit. Mr. Kimura: If I am not mistaken this has to be annually brought forth to the department. Mr. Jung: Yes, they have to certify annually that they are in compliance with a certain set of the conditions that were outlined in the ordinance. Chair: Anyone else wishing to...anybody else have any oomments? Mr. Blake: And the 19 hours is a fact already in the ordinance. Staff Yes that is established under the ordinance. Mr. Blake: If you have a farm worker house there is no limit on how many people live there as long as one person works 19 hours... Staff. No the farm worker housing structures themselves are to be solely for farm workers working 19 hours or more on the respective farm with the exception of cases in which the farm worker housing structure is used by the owner of the CPR unit and it can be demonstrated that that owner does not have density elsewhere,that the farm worker housing be his or her exclusive residence. That person can have their immediate family and, sorry, I have to make a correction; that applies to the farm worker housing structures for farm workers as well in which they can either use them themselves or their immediate family. Mr. Blake: So if you have a 20 member family, as long as one of them works 19 hours a week the whole family can live there. Staff: That would be correct. Mr. Jung: But bear in mind that these structures are limited in footprint so they can't exceed, each structure can't exceed 1,200 square feet or if you cumulatively put them together they can't exceed 1,800 square feet. Mr. Blake: Well we don't limit the number of people, right, in a family because is a family is at least 5, it is a blood relation or 5 unrelated people. Staff: In this case they would have to be related though. It is for the immediate family only. Mr. Kimura: But we are not here to amend the ordinance, right, but just to clarify from property to lot to CPR. That is all we are doing here, right? Mr. Dahilig: That is the proposal. And just to also further clarify that the CPR would have had to have been recorded prior to the enactment of the previous ordinance so that also comes into play in terms of us maintaining that line. Planning Commission Minutes August 30,2011 32 Ms. Matsumoto: I am looking at exhibit A and let's look at page 2, so you are suggesting to change the language from property to subject lot or CPR limited common element or portion thereof, right? Mr. Dahill;;: That is correct. Ms. Matsumoto. So that is the phrase you are going to use throughout. Mr. Dahilig: That is correct. Ms. Matsumoto: I started to have a question on page 3, number 3, because you used lot here but you are talking about the CPR and all of that so I think I am clear on that. Chair: Anyone from the public wishing to testify on this item? Ms. Louisa Wooton: My name is Louisa Wooton and my family owns Kauai Kuana Dairy and we have worked with the Planning Department and a group of farmers on this bill for a long time. I am in agreement with the changes in this wording. I think it does clarify something that we did not take into consideration enough. I just want everyone here on the Commission to understand that right now most of the Ag. land on Kauai that is available for farming is a CPR. And my check of the inventory of real estate here, there are very few agriculturally zoned pieces of property that aren't already CPRs so we need to address that and I think that changing this wording is really a good idea. There is one thing here that was not talked about yet and it is a change in the wording and that would be on page 3, item No. 2. The whole thing here is underlined here where it says "The Planning Commission may issue a maximum of one farm worker housing", etc. Prior to this the wording actually said "The Planning Commission shall issue a maximum of one farmer worker housing Use Permit per lot". We didn't really address here why that wording was changed. I do understand why it was changed because I think that gives the Planning some discretion and I think that can be good or bad, it can be a double edged sword. But no one here spoke to that so I don't know if anyone wants to speak to it. I just want to say it doesn't really bother me one way or the other. But as I am hearing here today some of you folks weren't here on the Commission when this bill originally came before it ever went to the Council to decide so there are a lot of things in here that might be new to you that certainly aren't new to these people back here and the folks like Kaaina that have worked on this all along. But this is actually just to clarify the wording on an already passed ordinance which will definitely benefit farmers. There is enough protection, I feel maybe over protection when we are trying to design our farm worker housing right now but you have to have those income requirements, you have to have already dedicated your property to agriculture, you already have to have your recorded CPR before you can even come forward and apply for this. And you have to go through this long list that Kaaina gave us earlier that we have to meet just to come and get ready to put our Use Permit in front of you folks. That is one thing that I am concerned about in the changing of the wording but I just feel like it can't be arbitrary but it can be discretionary by using "may"or "shall". Chair: Thank you, anyone else? Mr.Ned Whitlock: Good afternoon, I am Ned Whitlock. I am a fulltime farmer in Moloa`a Hui lands and I support Kaaina's recommendations for changing the wording because if I went for this Use Permit before everybody else there would be other farmers left out in our CPR and there are definitely a need for more workers, more farms and I hope you will consider this,thank you. Chair: Thank you, anyone else? Seeing none... Staff: If I may just respond to Louisa's concern, the actually language in the ordinance uses the term"may". I believe if you look in the bracket section is the existing language which is the term "may be built on the property". The term"shall"was originally conceived I think Planning Commission Minutes August 30,2011 33 e during our group meetings and I think at that time it was both the department, the County Attorney's office, as well as some of Council staff pointed out that the use of the term shall would actually automatically bind the Commission in approving the Use Permit. But the Commission's Use Permit is a discretionary permit, so once the condition of say the income and the dedication and the CPR requirements are met then the Commission could go on to review the Use Permit and hence the term"may". Chair: Thank you for that clarification Kaaina. Mr. Blake: Can I ask another clarifying question? You have to work 19 hours a week every week or can it just be seasonal? And if it is seasonal do you still get to live there the whole year? Staff. The way that would be regulated would be they would have to work 19 hours a week to reside in the farm worker housing structure. If it cannot be demonstrated that the individual is working,there then in fact they would be in violation of a Use Permit if a Use Permit was granted. Mr. Blake: So it is 52 weeks. Staff. That is correct. Mr. Kimura: I make a motion to close the public hearing. Chair. Any second in closing the public hearing? Mr. Blake: Second. Chair: Any discussion, if not... Mr. Dahilig: Commissioners, I just want to...Kaaina's amendments are very limited and narrow and I really want to just thank him for the work that he has done with the public as well as in the department. It takes a lot to actually bring a bill like this forward especially given the subject matter and how contentious it was so I just want to publicly thank him for his amendments. Chair: It has been duly noted, motion carried. On motion made by Jan Kimura and seconded by Harwell Blake, to close the public hearing, motion carried unanimously by voice vote. Mr. Dahilig: Maybe the County Attorney could give light on the proposed action. Mr. Jung: The option, with regard to Kaaina's amendments, are to approve, deny or modify and then it would get sent up to the County Council. Chair: Approve the amendments? Mr. Jung: Yes. Chair: How many amendments are there? Mr. Jung: Well you can say approve the staff report which incorporates all of Kaaina's amendments. Mr. Kimura: I want to.make a motion to approve Zoning Amendment ZA-2012-1 proposed amendments to Chapter S, Article 7 of the Kauai County Code to clarify permitting requirements concerning farm working housing, County of Kauai, Planning Department. Ms. Matsumoto: Second. PIanning Commission Minutes August 30,2011 34 Chair: As recommended by the County Attorney. He made that statement about all the... Mr. Kimura: As recommended by our County Attorney, Mr. Jung: My only recommendation is not on the amendments themselves. Mr. Kimura: I know,the Chair asked. I am just doing what the Chair is asking me to do. Chair: It is my clarification. It is not his recommendation but actually clarification on the statement. W. Matsumoto: Second. Chair: Is there any discussion? Mr. Blake: On page 4, item (g), the owner of farm worker housing shall certify to the Director and so on and so forth. "If any interest in the property, subject lot, or CPR limited common element or portion thereof that is the subject of the Use Permit is transferred the successor in interests shall immediately notify the Director of such changes in ownership". Why was that the successor in interest instead of the seller? Mr. Dahilig: I am not familiar with the legislative history on this one but maybe Kaaina... Staff: I would actually turn to our County Attorney on this one. Mr. Jung: That provision was should an owner come in and apply and receive a Use Permit for farm worker housing and then they subsequently transfer the entitlements then they would inform the department of the transfer. Or the successor who gets the entitlements would then have to also inform the department so they are made aware of the conditions that are , attached to those entitlements. It is really a notice issue so we can make sure that there is on annual report that is coming in identifying compliance with the conditions. Mr. Blake: Whether or not either of them informs the department of the change in ownership all the conditions still apply. Mr. Juniz: Correct. Mr. Kimura: This is just for discussion, if the applicant breaks the rules in any way there will be no second chance, am I correct? They come to you in the Planning Department and they say well if you fix this then you can continue doing what you are doing. Is something written in there saying that if you break the rules... Mr. Juniz: It is a little more complicated than that where if there is a violation of one of the conditions then they would have to...either the department or someone else could initiate a revocation proceeding and ultimately the Commission through revocation proceedings can revoke, amend or modify those conditions. So it is not necessarily the last chance permit. Mr. Kimura: That is what I mean,why...it's like it is so important to the farmers to have these farm dwellings and I feel if they break the rules then they break the rules. But if you are legitimate farmer you are not going to break the rules because you need it and if they break the rules I feel that those permits should be revoked a.s.a.p. Mr. Dahilig: Well Commissioner, it ultimately is a Commission permit and it is up to the Commission based o j'z a departmental recommendation to take such a type of action. And so it really comes down to a case by case factual basis when you look at violations. And when you look at Kaaina's amendments in this particular case we are really trying not to get into the policy discussions that have already been hashed out, rather just trying to limit it to just technical issue Planning Commission Minutes August 30,2011 35 that maintains our ability to still treat CPRs the way we treat CPRs operationally and at the same time vet the issue of intent. And that is really the approach we are trying to have. Mr. Kimura: I am just saying that you know everybody testified today and when the ordinance came about they are 100% genuine farmers and I am pretty sure none of them would ever break the rules because they need this. That is why they fought so hard for it. But I am sure there is one person out there that figures you know what I am making 75 thousand dollars a year, I can get 2 dwellings on the property, 2 farm dwellings on the property, farm units or whatever you want to call it and they rent it out. Do you know what I am saying? It is Pike somebody is always out there trying to break the system you know, Mr. Dahilig: I understand and that is why,the comments you have regarding the subject matter we will take into account when we actually start receiving applications and are in a position to start enforcing on these permits. But right now really we are limited to the amendments that Kaaina has proposed here, and that is really what is on the table. Mr. Kimura: I just wanted to discuss that. Chair: Thank you, any further discussion? If not,roll call. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to approve staff recommendation, motion carried by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Texeira -4 Noes: None -0 Absent: Nishida, Raco, Katayama -3 Not Voting: None -0 Pursuant to Section 91-3 Hawaii Revised Statutes to consider the Recodification and amendment of administrative rules pertaining to Coastal Zonis Management and the Special Management Area (SMA A. Recodification of previous amendments to the SMA rules; B. Amendments to accommodate changes pursuant to Act 153, SLH 2011. and C. Fee_structure changes to reflect the actual cost of publication. County ofKaua`i,Planning Commission. Director's Report,pertaining to this matter. Mr. Dahilig For your information the proposed amendments are actually first and they are in a typeset, I kuess a courier typeset and right after those amendments is my report on the matter. If you have had a chance to read the report I can just summarize or I can read it verbatim. Chair: Just summarize for us. Mr. Dahilig: Essentially what the proposal is, a project was started by the department a while back to compile all the separate sets of SMA amendments that were made to the rules over the years to actually put them into one document or accuracy purposes as well as to avoid having to flip back and forth. That process was started, it wasn't completed until recently. At the same time what happened is the legislature passed Act 153 during this past session and Act 153 made some amendments to the definition section of what does not constitute a development within the SMA as well as raise the minor/major threshold from 125 thousand dollars to 500 thousand dollars. Part of the legislature's findings was along the lines of trying to have more efficient permitting by allowing more things to go through the minor process. Consequent to the posting and under Chapter 91 there has to be public notice that it put in the news papers. We did receive some comments and Commissioners, I do want to note that there is one item that was received for testimony that you can receive for the record later from Barbara Robeson and Maka`ala Kaumoana. They provide a punch list of 17 items concerning their desire to adjust the proposed rules that are in front of yo4. We have already had some Planning Commission Minutes August 30,2011 36 ........ ......................................... ..................... .......... conversations and a lot of these comments mimic what has already been shared with me prior to this meeting and some of those items I have already referred to the Office of the County Attorney for issues concerning how the State law supersedes the County authority to enact any of these items. So we anticipate some type of legal communication between the Attorney's office and the Commission. But essentially the changes encompass Act 153 to adjust the definition section and to raise the threshold. I am also proposing three minor dinendments additionally to that and one is just public posting so that everything so that everything that is my determination on minor permits actually gets put on the County website for transparency sake. Another concern was regarding boating and that I included as part of an amendment that any actions concerning boating activities that are not under the jurisdiction of the Department of Land and Natural Resources Division of Boating and Recreation, the DOT, or any other type of Federal agency would be automatically kicked up as a Commission handled permit regardless of whether it is a minor or a major permit. And then the third one was that there would be an automatic expiration date for emergency permits rather than letting emergency permits run indefinitely. You will also see some minor changes regarding capitalization, terming the Director in a politically correct tense and also just looking at grammatical correctness. And then finally yoii will notice in terms of fee changes, we are trying to change the fee structure so that rather than 150 dollar filing and processing fee what we are doing is we are asking for 100 dollar base fee and on top of that we are going to also change the actual cost of publication Statewide. These SNIA permits do require Statewide publication and so what we are attempting to do here is recover the costs from the applicant of what it actually costs us to do the publications. So that Commissioners I would ask that the Commission open the public hearing, receive the testimony, close the public hearing and then also defer the matter so that we can appropriately vet the comments and provide it back to the Commission for possible amendments at its' October 11th meeting. Chair: Thank you, anyone from the public wishing to testify on this matter? There being none... Mr. Kimura: I make a motion to close the public hearing. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried_ On motion made by Jan Kimura and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by voice vote. Mr. Kimura: I make a motion to defer this agenda item. Ms. Matsumoto: Second. Mr. Dahilip,: To October 11th. Mr. Kimura: To October 11th. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. On motion made by Jan Kimura and seconded by Camilla Matsumoto, to defer action to 10/11/11, motion carried unanimously by voice vote. Mr. Dahill Commissioners,just as an announcement,the n0xt Commission meeting is scheduled on Tuesday, September 13, 2011 at 9am. Planning Commission Minutes August 30,2011 37 For Acceptance into Record—Director's Reports) for Projects) Scheduled for Public Hearine on 9/13/11. (NONE). For Acceptance and.Finalization--Director's Report for Shoreline Setback Activity Determination. (NONE). ADJOURNMENT Commission adjourned the meeting at 3:10 p.m. Respectfully Submitted. Lani Agoot Commission Support Cleric Planning Commission Minutes August 30,2011 38