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HomeMy WebLinkAboutpcminutes9-13-11 KAUAI PLANNING COMMISSION REGULAR MEETING September 13, 2011 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair, Herman Texeira at 9:36 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, Caven Raco Absent and excused: Mr. James Nishida Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA Chair: Good morning, I'm calling this meeting to order. Our apologies for starting so late but the Subdivision Committee had a lot of things they had to discuss so we have to follow, our meeting starts after theirs. Today is Tuesday, September 1P and this is the regular meeting of the Kauai Planning Commission. First of order of business is to call the meeting to order and before I do that I just want to acknowledge the fact that we do have a quorum and we have two members that are absent and excused. I would like to ask for the approval of the agenda please. Ms. Matsumoto: So moved. 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 the agenda, motion carried unanimously by voice vote. Chair: Just to let you know for the agenda we are juggling this agenda around a little bit. The first two items which is the executive sessions 1 and 2, we will be moving that further down on the agenda list and we will be starting with the Subdivision Committee and then it will be followed by item No. 3 which is both petitions. And then we will go back to the normal order of the agenda. With that in mind I would like to now ask for your approval of the receipt of items for the record please. Ms. Matsumoto: Move to receive the items. 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 receive items for the record, motion carried unanimously by voice vote. SUBDIVISION Planning Commission Minutes September 13,2011 1 OCT 1. 1 2011 Mr. Kimura: Committee members present me, Commissioner Matsumoto, and Commissioner Blake. General business none, communication none,unfinished business, tentative subdivision extension request, 5-2006-44, George Hoffberg, TMK: 4-3-003:004, approved 3-0. Tentative Subdivision extension request, 5-2009-01, Alexander& Baldwin Properties, Inc., TMK: 2-1-001:003, 051, approved, 3-0. New business, final subdivision action, 5-2011-18, Kukui`ula Development(Hawai`i) Company, LLC, TMK: 2-6-015:010, 011, 2-6- 006:002, approved 3-0. Tentative subdivision extension request, 5-2008-01, Stanley Narramore, TMK: 2-6-014:032, deferred. Chair: Thank you, is there a motion to approve the subdivision report? Ms. Matsumoto: So moved. Mr. Blake: Second. Chair: Any discussion? I certainly would like to ask a few questions if I could. For the tentative subdivision extension request could you discuss the extensions, is it for one year? What are the extensions for? Mr. Kimura: Which one? Chair: The unfinished business,the tentative subdivision extension request (a) and (b), both have been given extensions, right? Mr. Kimura: Yes, it is in the report. Chair: So:it is for one year? Mr. Kimura: Yes both of them are for one year. Chair: I was just wondering if the extensions were changed or not. I don't have any other...any further questions in regards to the subdivision 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 the Subdivision Committee Report, motion carried unanimously by voice vote. For Acceptance and Finalization—Director's Report for Shoreline Setback Activity Determination. (NONE). s NEW BUSINESS Petition(8/18/11) from Jonathan Chun, Esq.,to Appeal the Decision of the Planning Director; Exhibits "A" and"B", Certificate of Service for the issuance of a Non-Conforming Use Certificate for Robert D. Ferris Trust(TVNC 4183) due to the lack of 75% authorization Tax Map Key 5-1-6:2 (CPR Unit 4), Waipake, Kauai. Memorandum (9/7/11) from Mike Dahilig, Interim Director or Planning and Secretary. Kauai Planning Commission, to Chair Herman Texeira and Members of the Kauai Planning Commission, recommendinz the Planning Commission grant the petition for a contested case hearing. Chair: Is there anyone from the public wishing to speak on this matter? If not I just would like to remind the public that although we received all the items for the record, I just wanted to remind you that we also have a memorandum from Mike Dahilig to me and members of the Kauai Planning Commission recommending the Planning Commission grant the petition for a contested case hearing. Since there is no further testimony from the public I would like to ask the applicant's representative to come up please. Planning Commission Minutes September 13,2011 2 Mr. Jonathan Chun: Good morning Mr. Chair, Jonathan Chun. I was the applicant's attorney but the applicant as of a couple of weeks ago has requested to represent himself in this matter. But since I am here if I can clarify any questions the Commission has I will be happy to do that at no charge to the applicant because he is representing himself right now. But if you have any questions, since I am here, I can answer them. Chair: Can you just stand by? I just want to find out if there is anybody that has any questions. Any Commissioners have any questions? If not, thank you. Mike, do you have any...? Staff Planner Mike Laureta: Staff has been in contact with three of the abutting neighbors who expressed their concern, applicable concerns that were also stated for tj le Diane Leiding case that was previously sent to the hearings officer. Because Lawrence Smith is also in that same CPR there are at least three neighbors who wanted to preserve their opportunity to submit testimony and/or intervene at a later date whether it be at the hearings officer stage or in court. Chair: We have no further comments from the Planning Department, what are the wishes of the Commission? We have an opportunity to accept the recommendation of the Planning Director which is to approve a pudic hearing, right? Mr. Mauna Kea Trask: Yes, Chair,that is correct. The recommendations are as follows, to grant the request for a contested case as well as to refer and delegate the hearing of the contested case to a hearings officer. Mr. Blake: Was that for this specific case or another one? There are two of them,right? Chair: We are taking them one at a time. Mr. Blake: So that recommendation applies to this case. Chair: This case, correct. Mr. Blake: I would like to discuss the legal ramifications of granting the request for a hearings officer or rejecting it. I would like to move into executive session to review those issues. Chair: Okay, a motion was made by Hartwell to go into executive session to review this matter, is there a second? Ms. Matsumoto: Second. Chair: All those in favor say aye, those opposed, motion carried. On motion made by Hartwell Blake and seconded by Camilla MatsumotQ,, to go into executive session, motion carried unanimously by voice vote. Mr. Trask: The Commission may go into an executive session on an agenda item for one of the permitted purposes listed in section 92-5(a) of the Hawaii Revised Statutes without noticing the executive session on the agenda where the executive session was not anticipated in advance. And in this case it would be to discuss with the Commission's County Attorney regarding its rights, duties, and responsibilities as it relates to New Business item F.4 and F.4.a on today's agenda. Pursuant to FIRS section 92-7(a), the executive session may only be held however upon an affirmative vote of two thirds of the members present which must also be a majority of the members to which the board is entitled, pursuant to HRS section 92-4. The reason for holding the executive session shall be publicly announced. And for the record there was a unanimous vote today by five members of the Commission which does constitute a majority of members to which this Commission is entitled. And again the reason for Planning Commission Minutes September 13,2011 3 holding the executive session is stated to be to consult with myself, Deputy County Attorney, as far as the Commission's rights, duties, and responsibilities. Chair: Do we wish to invite anybody into this executive session at this time? Mr. Kimura: I would like to invite Mike and Dee for informational purposes. Mr. Trask: I think procedurally I would feel more comfortable given the Fifth Circuit's ruling in an unrelated case but in a related situation if we could start without Mr. Laureta and Mr. Crowell present and if they are asked to be a resource they can come in then. Mr. Kimura: And then if need be we can invite them in. Commission went into executive session at 9:51 a.riz. Meeting was called back to order at 10:10 a.m. Chair: We are still on the petition from Jonathan Chun. Mr. Chun, would you kindly come up? Mr. Chun: This is on Ferris? Chair: Ferris. Mr. Chun: Okay but knowing that,I am no longer representing Mr. Ferris, I would be happy to answer any questions that you might have as to what I did prior to being replaced. Mr. Kimura: You just answered our question. We wanted clarification if you were still representing him. Mr. Chun: No. About two weeks ago I sent a letter to Planning indicating Mr. Ferris wanted to represent himself pro-say. Mr. Kimura: Okay, second question, did you notify them of this hearing? Mr. Chun: No I did not because I asked Planning in my letter to forward all correspondences and notices to Mr. Ferris directly. Mr. Raco: How come we don't have a letter in here, in the file? Chair: I don't know the answer to that. We were confused. We just wanted to know if Mr. Ferris was notified. Mr. Chun: I wouldn't know. Mr. Trask: Mr. Chun, you submitted the petition for appeal of the decision of the Planning Director, it was received August 23, 2011, that was prior to your representative terminating with... Mr. Chun: Correct. Mr. Trask: And so your,position is that although you no longer represent them currently you were representing them at the time this petition was filed and it was timely filed. Mr. Chun: Correct. And I did inform him that he needs to participate in any further hearings or matters with the Commission directly. Mr. Trask: Pursuant to his decision to no longer employ youL Mr. Chun: Yes, he wanted to do it pro-say, pro-say means individually by himself. Planning Commission Minutes September 13,2011 4 Ms. Matsumoto: When did you say, you...? Mr. Chun: It was about two weeks ago. I can go check my letter but I believe it was the ending part of August that he sent me an email saying that he wanted to represent himself. Ms. Matsumoto: I guess my question is about his September 7, 2011, it is a date, I am just trying to track the sequence. Mr. Chun: That is the Planning Director's memo. Chair: Any further questions Cammie? Mike, I have a question, do you recall if the applicant received any written testimony concerning today's meeting? Staff: I would have to grab the file, give me about fiv6 minutes. Mr. Raco: Chair, if we could just defer the item so that proper notice can be reissued and be put back on the agenda. Chair: We could do that. Mr. Raco: There is no sense looking over the file if we are already know what the issues are. Chair: That is true. Mr. Raco: So I motion to defer the agenda item to the next Planning Commission meeting based on the reasoning that proper notice be out from the department. Mr. Kimura: Second. Chair: Any discussion on this motion? That is why I wanted Mike to go check his records because communication was sent to Mr. Ferris. Mr. Kimura: Whether it was sent or not we still are going to defer, fright? Mr. Raco: I would rather have it just deferred unless Mike can say right now on the floor was public notice sent on that letter from the Attorney, Jonathan Chun, was proper notice sent for this meeting to the owner directly. Staff. I couldn't say. I would have thought that the notice would have come from Jonathan to him that when the meeting came even though he was...but that was...I would support that motion. Chair: We will take roll call on this please. Gan motion made by Caven Raco and seconded by Jan Kimura, to defer action, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Raco, Texeira -5 Noes: None -0 Absent: Nishida, Katayama -2 Not Voting: None -0 Petition (8/26/11) from Jonathan Chun, Esq�, to Appeal the Decision of the Planning Director• Exhibits "A" and"B"• Certificate of Service for the issuance of a Non-Conformiin Use Certificate for Laurence Kyan Smith (TVNC 4279) due to the lack of 75% authorization, Tax Map Key 4-4-3:69.(CPR Unit 2), Kapa`a Homesteads, Kauai. Memorandum (9/7/11) from Mike Dahilig, Interim Director of Planning- and Secretary, Kauai Planning Commission to Chair Herman Texeira and Members of the Kauai Planning Planning Commission Minutes September 13,2011 5 Commission,recommending the Planning Commission grant the petition for a contested case hearing_ Chair: I just want to remind the public that we also received a memorandum from Mike Dahilig to myself and members of the Kauai Planning Commission recommending the Planning Commission grant the petition for a contested case hearing and also a letter from Marge Denti urging the Planning Commission to grant the applicant's petition for a contested case hearing. I'm sorry,not to grant the petition for a contested case hearing, and the date of that letter was 9/12/11. I would like to call on the public if there is anybody wishing to testify or comment on this agenda item? Seeing none, I would like to call on the appl'icant's representative to come forward please. Mr. Chun: Good morning,Jonathan Chun. I am still retained by this applicant. I am happy to answer any questions the Commission might ask. I believe the item before the Commission though is I guess there was a letter a we did send el4iier requesting a contested case upon which I guess the memorandum from the Planning Director recommends approval. So that is the action pending before the Commission. Mr. Kimura: What is your take on Ms. Denti's letter? Mr. Churl: I don't know. I haven't seen it. Chair: Can we give him a copy of the letter to review? So while Mr. Chun is reviewing the letter we will take a five minute recess. Commission recessed at 10:21 a.m. Meeting was called back to order at 10:27 am. Chair: You have looked at the letter,what are your comments in regards to the letter? Mr. Chun: Good morning, Jonathan Chun on behalf of the applicant. Thank you for giving me time to read this letter by Ms. Denti. Apparently it was received by the Commission yesterday. They have some interesting statements and allegations by Ms. Denti. At this point in time I think the Commission really should ask themselves what is before the Commission body. I think before the Commission body is the request of the contested case. And that really is the point of a contested case to find out the truth of any of the matters being alleged. Ms.Denti has of course her opinions and her allegations and her statement Of what the facts are. Apparently my client also has his view of what the proper facts are. And that is the point of a contested case,to give everybody a chance to have their say in a very orderly process,to have their sdy of what the facts and to allow a hearings officer or if the case may be a Commission, to listen to both sides of the story,to give both sides the opportunity to hear each other out and to decide what the true facts are. And that is just basically our request, to have a contested so we can have this opportunity to address of the facts. I am not here to address her allegations just like she is not able today to be here to address our facts and I think both of us areiasking the same thing that we want to be able to say our side of the story and to hear the other side. Chair: Thank you, any Commissioners to comment on that? Mr..Kimura: The applicant was notified to cease and desist the use of a single family dwelling TVR, are they`still renting out their dwelling as a TVR? Mr. Chun: I have not asked them. I don't know. But I must remind both the Commission and the County that the State Law prohibits the County from prohibiting a valid nonconforming use and it is my client's position that their use occurred way before 2008. And if that is correct and again that is the whole point of a contested case to get all the facts together in one place. But if that allegation is correct and their nonconforming use,i.e. their rentals, Planning Commission Minutes September I3,2011 6 occurred way before 2008 before the TVR law started then they are allowed by State law and also by County law to continue it. Mr. Kimura: If it was legal why would the County send out a cease and desist letter? Mr. Chun: You need to ask the County that question. Chair: Anyone else wishing to comment? Mr. Kimura: I want clarification. Mr. Trask: I think I am not prepared to answer that question right now. Again as stated the issue at hand in the agenda item is strictly relating to the granting or denial of the contested case, not the merits thereof or any allegations of violations. Accusations can always be made, I am not saying that those are unfounded accusations however again it is beyond the scope of today's agenda item. I know a lot of people probably would be interested in this discussion if it were agenda'd and that is why I don't want to have this discussion. Mr. Kimura: Okay, so we arti going to leave that up to the contested case. Chair: Any other Commissioners wishing to comment on Mr. Chun's comments? If not I would like to ask our planner, Mike, do you have any comments that you would like to address? Staff: This process is complicated but it came down to the fact that 904 says you have to have proved you were in operation prior to March 7, 2008 and by that proof you are going to provide to the Planning Director evidence that you paid GE taxes, the TAT taxes, copy of your Federal and/or State income tax, and your reservations list prior to the March 7, 2008. If you did that you were then given a provisional permit. The provisional permit provided you the opportunity to be in operation up until the time the Planning Commission or the Land Use Commission granted or denied your Special Permit. The question about are they still in operation,they should have a provisional permit. If they don't have a provisional permit they shouldn't be in operation. That is from the Council ordinance. The issuance of the cease and desist was proper, operation of the TVR if it is still occurring and if they don't have a provisional permit is not proper. Mr. Jung: And just in response to what Mr. Chun had represented,that would be one of the issues that would be dealt with within the contested case is this issue regarding 464 and the zoning authority. As of right now it is the department's position that it should not be operating because they don't have the provisional certificate yet. The courts have upheld the issue of requiring registration of nonconforming uses because the law does not like nonconforming uses so it is moving forward. But the registration process was to recognize the prior use but if they don't go through the recognition process or the registration process then they lose out on their chance to apply for the nonconforming status. But these are the issues that will be addressed. Staff And lastly a provisional permit would not have been issued in this instaj,rce because they couldn't get 75% authorization to apply for the Special Permit which is what they are appealing. So the provisional permit was never issued. Chair: Any Commissioners have any comments or any statements they would like to make at this time? If not I would like to call for the question. Mr. Blake: And the question is? Chair: To approve the request by the Planning Department to hold a contested case hearing. Mr. Blake: That is a request by the Planning Department or by the applicant? Planning Commission Minutes September 13,2011 7 Mr. Trask: It is the recommendation of the Planning Director to approve the request for a contested case as well as appoint a hearings officer. Mr. Blake: So moved. Ms. Matsumoto: Second. Chair: Any discussion, if not, roil call. On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to accept the memorandum from Mike Dahilig,Interim Director of Planning,to grant the petition for a contested case hearing, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Raco, Texeira -5 Noes: None -0 Absent: Nishida, Katayama -2 Not Voting. None -0 UNFINISHED BUSINESS Special Management Area Use Permit SMA(U)-2011-3 for the construction of an additional dwelling unit, located in Po`ipu, Kauai Tax Map Key 2-8-018.005 =Karen R Brent Olson. [Hearing closed 7/26/11.1 Chair: I would like to ask for public comment in regards to this item, seeing none our planning staff Dale is here so Dale, do you wish to make any commnts on this application at this time? Staff Planner Dale Cua: None whatsoever. Just to kind of refresh the Commission's memory off the permit application and report was presented to the Commission at a previous meeting and there was a question raised by the Commission as far as the use of the property as a TVR. And that question was then forwarded to the County Attorney's office for t4eir response. Mr. Jung: I did prepare an opinion on this issue. I was hoping we would cover that first in executive session if you guys would like to. Chair: That being the case we will take this up in executive session. Mr. Blake: I move that the Commission reconvene in executive session to discuss the Iegal findings and recommendation with regard to the building of a new residence on this property and its use as a TVR. Ms. Matsumoto: Second. Chair: Any discussion, all those in favor say aye, those opposed, motion carried. Mr. Jung: Before we do the roll call I just want to state for the record the Commission may go into executive session on an agenda item for one of the permitted purposes listed in section 92-5(a) of Hawaii Revised Statutes without noticing the executive session on the agenda or the executive session was not anticipated in advance. The executive session may only be held however upon affirmative vote, two thirds of the members present which must be the majority of the members to which the board in entitled. The reason for holding this executive session shall be publicly announced. So the purpose of the executive session is to go over an opinion that was just submitted yesterday to this Commission. On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 10:42 a.m. Meeting was called back to order at 11:45 a.m. Planning Commission Minutes September 13,2011 8 Chair: We are still on SMA Use Permit SMA(U)-2011-3 for the construction of an additional dwelling unit located in Po`ipu, Kauai and this is for Karen and Brent Olson. At this point Dale, do you have any comments you would like to add? Staff: I guess the only question is from the last meeting back in July, at the time the application was closed as far as the public hearing but there was no conclusion or recommendation made at that point, right? Chair: Correct. So are you going to provide that right now? Staff: Whenever you guys are ready. Chair: I think we are. Staff Planner Dale Cua read the conclusion and department recommendation(on file). Staff: Did you want me to read the conditions? Chair: Do we need to read all the conditions? You have read does anyone wish to make any changes or amendments to the existing conditions? Before we proceed any further has the applicant reviewed all of the conditions that were set forth by the planning staff? Mr. Chun: Yes, good morning Mr. Chair, Jonathan Chun on behalf of the applicant. Yes we have reviewed the staff report and the recommended conditions contained therein and we have don't have any objections to the recommended conditions. Chair: Thank you. So what is the motion? Mr. Kimura: I make a motion,move to approve. Mr. Raco: Second. Chair: Any discussion on the motion? Mr. Kimura: Yes. At the Iasi meeting I was one of the Commissioners that suggested that they only have one TVR on the property and after further investigatioTi and putting a lot of thought into it, we should encourage more TVRs in the VDA. And with that being said I want to withdraw my comment about having just one TVR. If they want to put two TVRs and it is still in the VDA, to me that is acceptable. Chair: So noted, any other comments by our Commissioners? Mr. Blake: Just one question,parking for a specific TVR is on property not off property, right? Staff: Correct. Just for any residential development parking should be off-site, sorry, parking should be on-site. Chair: Any further discussion? Ms. Matsumoto: Given that, how many spaces are available on that property on-site? Staff. I believe in the applicant's representation I believe there is a total of four, two for the main dwelling and two for this residence. Chair: Anyone else? If not I would like to call for the question, we will have roil call. On motion made by Jan Kimura seconded by Caven Raco, to approve staff recommendation, motion carried unanimously by the following roll call vote: Planning Commission Mindtes September 13,2011 9 Ayes: Matsumoto, Blake, Kimura, Raco, Texeira -5 Noes: None -0 Absent: Nishida, Katayama -2 Not Voting: None -0 Chair: Going back to the main agenda, a couple of things we would like to clear up, one is the executive session A.2, I would like to... Mr. Kimura: I make a motion to move to defer. Mr. Raco: Second. Chair: Any discussion, all those in favor say aye, those opposed,motion carried. On motion made by Jan Kimura and seconded by Caven Raco, fo defer item to 9/27/11, motion carried unanimously by voice vote. Chair: I would. like to just add that the executive session will be held at the next meeting. For Acceptance into Record—Director's Report(s) for Proi ect(s) Scheduled for Public Hearing on 9/27/11. Use Permit U-2012-04 and Class IV Zoniniz Permit Z-IV-2012-04 to allow construction of two (2) columbarium structures within the Kauai Veteran's Cemetery facility in Hanapepe and Variance Permit V-2012-02 to deviate from the requirements noted in Section 8-5.5(a) of the Kauai County Code (1987)relating to the maximum land coverage requirements within the Oven(0) Zoning District, on property situated on the Highway, further identified as Tax Map Key (4) 1-8-008:038, and containing a total area of 5.45 acres =State of Hawaii Department of Accounting and General Services and County ofKaua`i Department of Parks and Recreation. Director's Report pertaining to this matter. On motion made by Jan Kimura and seconded by Hartwell Slake, to accept into the record for public hearing on 9127/11, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 11:58 a.m. Respectfully Submitted. Lani Agoot Commission Support Clerk Planning Commission Minutes September 13,2011 10