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HomeMy WebLinkAboutOctober 9, 2012 PC Minutes KAUAI PLANNING COMMISSION REGULAR MEETING October 9, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura, at 10:37 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A-213. The following Commissioners were present: Mr. Hartwell Blake Mr. Wayne Katayama Mr. Jan Kimura Ms. Camilla Matsumoto Mr. Herman Texeira Absent and excused: Mr. Caven Raco Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Kimura called the meeting to order at 10:37 a.m. ROLL CALL Planning Director Michael Dahilig noted that five commissioners were present and there was quorum. APPROVAL OF AGENDA Mr. Dahilig requested that item H and I be moved to the end of the agenda. Chair Kimura stated that items H and I will be moved to the end of the agenda. On the motion made by Herman Texeira and seconded by Camilla Matsumoto to approve the agenda, the motion carried by unanimous voice vote. MINUTES of the meeting(s) of the Planning Commission Regular Meeting of f August 28, 2012 1 VA2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes NOV 132012 On the motion made by Herman Texeira and seconded by Camilla Matsumoto to accept the minutes of the August 28, 2012 meeting, the motion carried by unanimous voice vote. RECEIPT OF ITEMS FOR THE RECORD On the motion by Herman Texeira and seconded by Camilla Matsumoto to receive all items for the record, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (None) New Agency Hearing: Class IV Zoning Permit Z-IV-2013-3 and Use Permit U-2013-3 to permit the construction and use of a farm worker housing facility at a site located approx. 0.5 miles west of the southern intersection of Koolau Road and Kuhio Highway in Moloaa, Kauai, further identified as Tax Mats Key 4-9-009-009 (Condominium Property Regime Unit 0002), and affecting a portion of a 592 acre parcel=Ned and Marta Whitlock dba Moloaa Or anicaa. Mr. Dahilig included for the record a letter received in the morning and dated October 9 from Councilmember Joann Yukimura in support of this application. Jeremy Hillstrom testified that he was in support of the application to have farm worker housing. Being able to provide a work trade situation for workers on the farm is crucial to survival of farmers and being able to produce a profit. He is a neighbor to the land owner in the Moloaa area. Louisa Wooten testified that she was in support of the applicants and her friends Ned and Martha Whitlock and their family. She asked the Commission to look at the aerial view of their lot and how productive it is. They worked diligently on the farm worker housing Bill along with a number of farmers. This is the first application for farm worker housing which speaks to how protective the Ordinance was in benefiting farmers only. The Ordinance has been in effect for over a year. The applicants have owned this land for a long time. Agricultural theft is a big concern. She thinks that the Whitlocks merit the support of the Commission. Jay Dorance testified that he has known the Whitlocks for about 10 years and originally met them by buying their produce. He thinks this is a really good Bill for Kauai. The more self- sufficient they are on the island, the more they give farmers the chance to have a good environment to work, and the more they support their farmers, the better off we all are. It is a good Bill and whenever someone wants to get housing they have to come before the Commission. It is not a blanket thing. He supports the Whitlocks, they are good people, and they do farm. Walking on their farm is like walking in the Garden of Eden. They work really hard. 2 VA2012 Master Files\Commissions\Planning\Minutes120I2-10-09 Planning Commission Minutes Ken Taylor stated that the world is running out of cheap oil and in the future they will have to grow more and more of their ag products on island. Having farm housing available on farms is a very important part of a farming operation. He first visited Ned and Martha's farm 6 or 7 years ago with a workshop from KCC and more recently, with the Tropical Fruit Growers Association. They are true farmers. Over the year he has seen tremendous progress. They spend their time working this facility and he understands where it is important to have farm workers and the ability to house them on the facility so they can do even more productive work for the benefit of the whole island. He thinks it is imperative for the Commission to approve their request for farm worker housing. Karen Tilly stated that she lives in Kapahi and would like to support the application for farm worker housing. The Whitlocks are extremely hard working and provide a tremendous amount of certified organic food for the island on their 28 acres of farm land. There are 4 acres of vegetables and 16 acres of fruit trees that have to be picked and cared for. They need to provide farm housing for farm workers and hopes that the Commission supports their application. On the motion by Herman Texeira and seconded by Camilla Matsumoto to close the agency hearing,the motion carried by unanimous voice vote. Commissioner Blake questioned if testifying during this session precludes testifying later. Mr. Dahilig stated that it would be up to the Chair. Continued Agency Hearing(NONE) New Public Hearing: Zoning Amendment ZA-2013 (proposed Draft Bill No. 2439)to amend Chapter 8 of the Kauai County Code, 1987 to create a Planning Enforcement Account to assist the Planning Department with enforcement of the codes, statutes, and regulations it has the authority to enforce=Kauai County Council. Director's Report pertaining to this matter, There was no public testimony. On the motion by Herman Texeira and seconded by Hartwell Blake to close the public hearing, the motion carried by unanimous voice vote. All public testimony pursuant to HRS 92 There was no public testimony. 3 VA2012 Master Piles\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes CONSENT CALENDAR Status Reports (NONE) Director's Report(s) for Project(s) Scheduled for Agency Hearing on 10/23/12. (NONE) Shoreline Setback Activity Determination(NONE) GENERAL BUSINESS MATTERS (NONE) COMMUNICATION (For Action) (NONE) COMMITTEE REPORTS Subdivision Subdivision Chair Texeira stated that the committee approved the staff report which means the following extension request proposed by the applicant was denied. S-99-45, Allen Family LLC/Moloaa Bay Ventures, LLC/Three Stooges, LLC, TMK: 4- 3-003:001, located surrounding the Kapaa Middle School for a 12 lot agricultural subdivision. The following new business, tentative subdivision action items were approved 3-0: S-2013-01, Michael &Barbara Castillo, TMK: 2-3-020: 109 S-2013-02, DLNR, TMK: 3-9-041:002, and 3-9-002:001 S-2013-03, James Nishida, TMK: 4-2-022:015 Commissioner Katayama noted the labeling of the subdivision actions on the agenda were different from the report. Mr. Dahilig clarified that James Nishida should be S-2003-03, Michael &Barbara Castillo should be S-2003-01, and DLNR should be S-2003-02. On the motion by Wayne Katayama and seconded by Camilla Matsumoto to approve the Subdivision Committee report, the motion carried by unanimous voice vote. UNFINISHED BUSINESS (For Action) Request from Keith Robinson (7/23/12) for an additional time extension for Special Permit SP-2006-2 Use Permit U-2006-28 and Class IV Zoning Permit Z-IV-2006-31 to continue operating a helicopter landing facility and botanical tours on Nonopahu Ridge Makaweli Kauai, Tax Map Key 1-7-007:01I—Keith Robinson Helicopters. [Deferred 9/11/12.1 4 VA2012 Master FileslCommissions\Planning\Minutes12012-10-09 Planning Commission Minutes Staff Planner Kaaina Hull stated that the applicant is requesting to extend his subject permits beyond October 12, 2012. On August 8, 2006, the Planning Commission approved the subject permits to allow for a helicopter landing facility and the ability to conduct botanical tours on site. In evaluating the applicants request to extend the time limit, the following should be considered. In the original evaluation it was found that the facility and associated tours were not contrary to Chapter 205, the Hawaii Revised Statutes and the primary goal was to create a botanical refuge of rare and endangered Hawaiian plants funded by no more than two (2) helicopter companies that will be permitted access to the site. The applicant has actively engaged in the planting and maintenance of rare and endangered Hawaiian plants and has significantly reduced the amount of soil erosion occurring in the immediate area as mandated under condition three of the Commission's conditions of approval. The site is located beneath an existing flight corridor with the nearest residential dwelling two to three miles away. The Department has not received any complaints concerning the maintenance and operation of this site for a landing facility or botanical tours. The applicant has remained in compliance with standards and requirements of other respective County, State, and Federal agencies. The applicant has remained in compliance with all conditions of approval established by the Commission on August 8, 2006. The Department concludes that the extension can be considered. Mr. Keith Robinson stated that he is using the income to fund soil erosion measurements. The rate of soil lost from overgrazing from goats and cattle is shockingly high. This was the first time anyone has tried to measure the rate of soil loss from the steep country and the canyons in Hawaii. The income generated from the landing was used to construct catchment dams for soil erosion with a Federal observer from the Natural Resources Conservation Service watching. The results were appalling and concluded that depending on the slope the red earth patches in the canyon and coast are shedding soil at a rate of between 180 and 230 tons per acre per year. On the mainland they consider the loss of 1 or 2 tons per acre per year to be borderline unacceptable. Overgrazing is destroying the whole place and ruining the watersheds. The secondary activity was to preserve Hawaiian endangered species. There is between 2200 and 2600 species of plants and trees are found nowhere else in the World. 1/3 are still holding their own, 1/3 are declining steadily but not yet endangered, and 1/3 or roughly 600 to 800 species are in immediate danger of extinction. In his lifetime he has worked with about 60 or 80 species. He shared photos of highly endangered species that he has been working with over the years. Commissioner Texeira thanked Mr. Robinson for all that he has done in preserving the ecology of the west side of the island and it is fantastic what he has done with little funding. He asked for clarification that the runoff from the erosion is going into the ocean. Mr. Robinson confirmed that the runoff is destroying reefs and destroys marine ecosystems. Nobody thought to try to trap the top soil and measure the amount trapped versus the acreage it was being trapped from even though goats and cattle have been around for 200 years. Commissioner Texeira stated that part of the erosion is on other properties and he questioned what public entities can do in the efforts to alleviate the problem. 5 VA2012 Master Piles\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes Mr. Robinson stated that the problem is so vast and pervasive,the goats are spreading into many places and destroying the vegetative topsoil, not just on Robinson land, but the destruction is 10 times worse on State land in Waimea Canyon and Na Pali Coast. The only long term solution would be to shoot out the goats, but the hunter lobby wouldn't be happy. If they don't do that,the watershed yields may decline by as much as 50%. Commissioner Texeira questioned if there is anything the State can do as far as planting and reforestation. Mr. Robinson stated that in an ideal world they could get rid of all the game animals, but it comes down to people going out and trying to support themselves by shooting their own meat and they want to maintain that resource. He has found that if you remove all grazing animals you can get regeneration of some degree of exceptionally hardy vegetation within about 30 or 50 years but you would still have bare dirt. To recover the steep areas he didn't think they'd be able to do that in 500 years even if they got rid of all the goats. They could drop light applications of fertilizer. Most of the areas have been reduced to sterile hard pan and cannot support vegetation. They could drop aerial application of seeds such as guava which is invasive, but is at least good at holding soil. They would be looking at hundreds of millions or billions of dollars. They wouldn't be able to economically do it. Commissioner Blake questioned if the DLNR has been in sync or is of any assistance. Mr. Robinson stated that he has had friendly relations with DLNR foresters. DLNR constantly faces budget cuts so he has served as a volunteer plant scout and seed collector for many years. He doesn't get paid,just a cut of the seeds or a cut of what they have grown. It has worked out to the advantage of both sides. He was the only person with any Kokia trees left and DLNR lost all of their supply so they were able to get seeds from his reserve, but then the two spotted leave hopper wiped everything out anyway. Commissioner Blake questioned involvement from private organizations such as Kamehameha Schools. Mr. Robinson stated that Kamehameha School tried to get involved with some endangered species in Waipa and Lumahai and he was called in to work with them. They ran into a vine of bonamia menziesii in the morning glory family that has never been seen in wet country before. He paid for his own seat on the helicopter and got the company to fly in some fencing material because the goats were eating the bonamia. Kamehameha School is there to educate children and not necessarily to work on endangered species so they ran out of money and he also ran short of funds, so the project was dropped. They do as much as they can on their property. Commissioner Blake asked on a scale of I-10 with 10 being the highest, where the State's priority is for protecting endangered species. Mr. Robinson stated that the State's priority is probably around 2 or 3. It does not reflect badly on the DLNR managers who have expressed frustrations at the budget restrictions. They 6 v:\2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes can't use their budget on biologically incompetent species which is what the majority of Hawaii's endangered species are. They evolved in benign isolation and tropical ecosystems where they faced no threats, so they became biologically incompetent and lost all competitive abilities. In the continental ecosystems there were other species evolving in savage competition where they overcame all kinds of threats from fires, grazing animals, pests, and diseases. When man breached the islands and introduced non-native species it was no contest. The invaders overran the native species and displaced them. Environmental groups are in denial about this reality. Commissioner Blake questioned if the overgrazing is from goats or cattle. Mr. Robinson stated that the overgrazing is from both goats and cattle and in some areas of Hawaii deer are becoming a problem. Commissioner Blake questioned if the State does anything about controlling overgrazing from cattle. Mr. Robinson stated that there isn't too much cattle on State lands. Some people in the DLNR on Kauai have been reported to be actively promoting the spread of goats in some areas to increase the amount of hunting, but the damage that has been done as a result of the spread of goats in the last 10 or 20 years has been appalling. The lower Waimea Canyon used to be a fairly pristine area, but the goat population has been allowed to explode there. Commissioner Blake questioned if there is any way to capture the runoff of topsoil and redistribute it to where it came from or at least to landscapers or home owners. Mr. Robinson stated that that the amount is enormous. There is no way to trap it and bring it back to where it was. As a commercial fisherman of many years, he used to be able to anchor in about 25 fathoms off the mouth of the Waimea River and you could feel the lead bouncing on a rock shelf. If there was a freshet that would bring out dirt from Waimea Canyon, the water would clear in 2 or 3 days and the fish would come back. By 1988, instead of the fish coming back after 2 or 3 days, it was taking 7-10 days for water to clear up for the fish to come back after a freshet. It has gotten a lot worse since then. He apologized for being gloomy but he has seen a lot and is worried about the situation. Commissioner Matsumoto agreed that it is horrendous and she would hate to think about parts of Kauai being like KahooIawe and the erosion there. She agreed they need to do something about it. Commissioner Katayama questioned if the data from the studies has been published. Mr. Robinson stated that a formal letter was written to him by the local representative of the U.S. Natural Resources Conservation Service and he submitted a copy to the Commission the last time the permit was renewed. 7 VA2012 Master Files\Commissions\'lanning\Minutest2012-10-09 Planning Commission Minutes On the motion by Camilla Matsumoto and seconded by Herman Texeira to approve the request for time extension for two years for SP-2006-2, U-2006-28, and Z-IV-2006-31, the motion carried by unanimous voice vote. Commissioner Blake stated that he wishes they could give an extension for 10 or 15 years. He appreciates the fact that the applicant can come in and report every two years and the public is brought up to speed on what is happening and what efforts are happening to allay the damage to the interior to the island. He appreciates his life and thanked Mr. Robinson. Mr. Robinson thanked the Commission. Mr. Dahilig stated that there was an errata in posting the agenda. Under New Business the phrase "(NONE)" should not be there and it should state"See Agenda F" instead of"See Agenda E". He was informed that it is a non-substantive errata if the Commission entertains a motion to amend the agenda for that purpose. It is necessary to be able to act on the public hearing matters. Deputy County Attorney concurred with the Director. On the motion by Herman Texeira and Seconded by Camilla Matsumoto to amend the agenda to say: New Business,For Action-See Agenda F for Project Descriptions, the motion carried by unanimous voice vote. NEW BUSINESS (For Action) Class IV Zoning Permit Z-IV-2013-3 and Use Permit U-2013-3 to permit the construction and use of a farm worker housing facility acility at a site located approx. 0.5 miles west of the southern intersection of Koolau Road and Kuhio Highway in Moloaa, Kauai, further identified as Tax Map Key 4-9-009-009 (Condominium Property Regime Unite 0002), and affecting a portion of a 592 acre parcel=Ned and Marta Whitlock dba Moloaa Organicaa Director's Report pertaining to this matter. Mr. Hull stated that the applicant is proposing to construct two farm worker housing structures. The first, approximately 1,760 square feet, 1,200 square feet of enclosed area and is proposed to house primarily the farm owners of the respective farm operation as well as other farm workers. The second structure is proposed to be approximately 912 square feet, 600 square feet of enclosed area and is proposed to house additional farm workers and farm interns. He reviewed the specific requirements pursuant to Section 8-7.9 of the Kauai County Code as amended on the Farm Worker Housing Ordinance as included in the Director's report received on September 11, 2012. The proposed operation, the Department has found, should not be detrimental to the health, safety,peace, morals, comfort and general welfare of persons residing or working in the surrounding area and should not cause any substantial harmful environmental consequences. The Department preliminarily concludes that the proposed construction and use 8 VA2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes of two farm worker housing structures should be compatible with other uses on the property and the use should not be detrimental to persons, property or the environment. Commissioner Texeira stated that it is a difficult issue. He questioned if the land owner has the option to sell the property. Mr. Hull stated that the land owner always retains the right to sell his or her property. Should the property be sold, in order to maintain farm worker housing as allowed under the Farm Worker Housing Ordinance the new owner would have to continue to maintain the farm operations which would include but not be limited to having at least$35,000 of gross sales per year per structure, and a litany of other requirements including maintaining the farming plan, annually certifying with the Planning Department, and housing only farm workers as defined under the Ordinance. They would have to meet the same criteria that the applicant met as well as any additional conditions of approval that this body may place upon the permits. Commissioner Texeira noted that the applicant is dedicating 20 acres to agriculture. He questioned if a new owner would have to farm 20 acres or if they could reduce the amount of land that they can farm. Mr. Hull stated that in order to maintain the agricultural dedication as it is,they would have to maintain the amount of farm operations as is ongoing. If the Real Property Division finds that they are not farming up to their standards of dedication, then they levy back taxes on that portion that is found to no longer be in farming. Chair Kimura questioned if they can impose a condition stating that if they do sell the property, that the new owners have to wait a year to prove that they are keeping up to the $3 5,000 a year earnings to have that farm worker housing. Mr. Hull stated that should a new owner purchase the subject CPR unit, and chose to retain the farm worker housing and use it as it was permitted, they would have to maintain at least $70,000 in gross sales. In the event that within a year of purchase they do not maintain that $70,000 per year per unit, they would be in violation if they continue to house farm workers in those structures. Chair Kimura questioned if they can stop the farm worker housing for a one year period. The new owners would have to prove themselves to come before the Commission for the $35,000 per year. If the current owners were to sell the property,the new owners wouldn't have proven themselves yet. Deputy County Attorney Jung stated that when they were crafting the legislation it was a big issue. Generally the land use entitlements run with the land regardless of the purchaser, but the key is that the obligations attached to the use permits also run with the land, so they inserted a provision within Ordinance 903 and turned into a condition that they have to annually certify to the Director of Planning certain requirements are being met, and one is the $35,000 threshold. If not, then it is potentially right for a revocation or modification of the permit. The Director will be managing and maintaining to make sure they are compliant with the requirements. 9 VA2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes Chair Kimura felt that new owners should prove to the Department that they are legitimate farmers, like the prior owners. Deputy County Attorney Jung stated that in looking at the issue he would think that if a new owner comes in, under the Ordinance and one of the conditions in the report, they would have to notify the Department of the transaction, and on the next annual certification they would have to certify that the farm operation is continuing. Chair Kimura felt that new owners should have to submit a new application to use the farm worker housing. The new farmers would have to prove that they are legitimate and have their$35,000 a year limit and can use the farm worker housing. They would have to wait a year to prove to the Department. It has happened in the past, where new owners try to find loopholes to get around the farm worker housing and turn it into a transient vacation rental. He doesn't want to see that happen with farm worker housing. He questioned if they can include a condition where new owners would have to wait a year to prove to the Department that they are legitimate farmers to use the farm worker housing. Mr. Dahilig stated that if such a proposal was on the table he would not recommend it. It is a situation of practical enforcement for this particular type of permit. This is a request of first instance for the Commission so he can understand the discussion on how to implement this new law and the broader concerns about TVRs and the potential for CPR and creating additional density when it shouldn't be there. These are discussions that have gone on before the Commission handled this Bill when it went to Council for review. The Department thinks that in implementing the Ordinance, notwithstanding who owns the property,the $35,000 per unit standard is always going to have to be met no matter what. If a new owner takes ownership the day after the status report is due, if they don't come back within a year and show that they've already had the $35,000 per unit, the Department will move immediately to revoke and modify. To hit the ground they are already on notice that they have to have the $35,000 no matter what. That is the difficulty in balancing who owns it versus how the new person operates. They can insist that the new people operate the way the old people operated based on the threshold, but just because ownership changes, they would be in a difficult land law issue because permits run with the land not with the person. Chair Kimura stated that he disagrees. The applicant came before the Commission and proved that they are legitimate farmers and feel that they should have farm worker housing, which he agrees. But, new owners, he feels need to come before the Commission or the Department and prove that they are legitimate farmers too, not just because they were sold the property. Mr. Dahilig stated that the law is set up based on annual status reports. The new owner or old owner is responsible for yielding $35,000 in gross sales per unit. Chair Kimura asked for clarification that it doesn't start from the sale of the property. Mr. Dahilig clarified that it is based on the annual report. 10 VA2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes Commissioner Texeira respects what the families are doing to farm. His broader concern is regarding Moloaa. He was involved in developing that land for diversified land. That whole parcel was leased for farming purposes and is disappointed that the parcels have been purchased. He felt it was a key parcel that should have been used exclusively for diversified ag. It was purchased like other farm lands and sold for other purposes. He shared Chair Kimura's concern. He is not concerned with the current applicant since they are legitimate farmers. He was concerned about the possibility of 62 CPR units. They will probably be dealing with other individual land owners and maybe not as committed to farming as this applicant, looking for loop holes to develop their property. Commissioner Katayama stated that in the law allowing farm worker housing, one of the stipulations they tried to do was tie the farm activity to the housing. If the farming activity went away, then the housing unit needs to go away as well. He thinks this is a great first case and an easy call, but in the TVRs they looked at the conditions that were in the special use permit and that is one of the things that needs to be added to the list, where the revocation in the event that any of the conditions are not met is the removal of that dwelling. Mr. Hull stated that this discussion came up several times during the Bill regarding having such a requirement in the Ordinance. Ultimately, the closest that came up was requiring it to be a post and pier structures in order to facilitate a removal as opposed to slab. The issue the agency runs into outright requiring removal is that they regulate not just structures and use, but the use of structures and where there is an illegal dwelling unit where they have exceeded their density but are using a structure for a dwelling unit, the response is that the use stop and not the structure itself be removed. Hence it is often transferred into an office or barn. Then a cat and mouse game ensues where it is an office one day and a house the next. He would ask Counsel if they can outright require the removal in the event that an applicant comes in and states that they are going to transfer the use to a different type. Mr. Dahilig stated that since this is an issue of first impression he would suggest that receiving that information in executive session may be more appropriate. Chair Kimura questioned how much time they give the farmer if and when they don't comply with the $35,000 a year before the County informs them that they have to take down the farm worker housing. Mr. Dahilig stated that he would feel more comfortable with the Commission discussing rights, duties, privileges, and obligations with legal counsel in executive session with respect to revocation proceedings. Commissioner Texeira questioned the water tank and water system and if it was transferred to the Water Department. Mr. Hull stated that it is a private system and the Department of Water has commented that they do not provide this particular parcel with any water. 11 VA2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes Commissioner Texeira questioned if the water is controlled by some kind of Board. Mr. Hull suggested referring that question to the applicant. Commissioner Texeira stated that there is a potential for 62 CPR units. There is only a certain amount of water coming out of the storage and water line. He questioned how much is earmarked for agriculture and how much for the subdivision units and if there is enough to satisfy all of those requirements. Mr. Hull stated that remains primarily a private issue and incumbent upon the applicant and his Moloaa Hui to determine. Ned Whitlock stated that he is also on the Moloaa Cooperative Irrigation Board. Basically they are drawing water from the State well next to the Koolau Mountains. They are guaranteed delivery of some 3-4 million gallons a day. The tank is approximately 500,000 gallons. There is plenty of water if you can pay for it. They haven't seen the whole property developed where everyone is irrigating as intensively as he is. Commissioner Texeira questioned if they are also supplying water to neighboring properties besides the 592 acres. Mr. Whitlock stated that water goes to the lots across Koolau Road. It started out as part of the same Hui but became part of a subdivision. They are receiving water off the same system, but it is well adequate. Commissioner Matsumoto questioned how the applicant got into farming. Mr. Whitlock stated that he started out of college in northwest Arkansas. His father purchased some land in Ozarks and wanted to live in the country and make a living. They started with pigs and then got into apple and pear orchards and farmed there for 25 years. He has been farming on Kauai for over 10 years. Commissioner Matsumoto questioned what brought the applicant here. Mr. Whitlock stated that he wanted better growing conditions surrounded by warm oceans. He has been very grateful to farm here. It is a wonderful place. He is in it for the long haul. They have planted a lot of fruit trees that will outlast his kids. Regarding the issue of changing ownership,when they crafted the Bill they were aware of the situation. The onus of making $35,000 per structure will keep you moving. The reality of however many lots are out there with people going at it full time, is not a very high possibility. He stated that he could probably handle three structures economically in the future but he kept it at a reasonable rate. Chair Kimura commended the applicant on his legitimate farming and wishes there were more people like him. He questioned the staff if farm worker housing is rented to the workers or if it is free because they are working on the farm. 12 VA2012 Master Files\Commissions\PlanningkMinutes\2012-10-09 Planning Commission Minutes Mr. Hull stated that they are prohibited under law from renting or even charging a rate for electricity. It is essentially a trade. The farmers get to live there so far as they actively engage in farming the specific parcel. Commissioner Katayama congratulated the applicant on completing the application himself. Normally an attorney needs to be hired. Chair Kimura questioned if the Commission would like to go into executive session. Commissioner Katayama stated that they have received the proposed recommendations from the Department and they talked about the nuances about the enactment of the test case. He doesn't want to delay the permit and questioned the right way to discuss formulating a condition that could be embedded later. Mr. Dahilig stated that he is hearing an issue of enforcement on the$35,000 and the question of remedies to ensure conditions are complied with if it falls below the threshold. He is hesitant to say outright that the Department would immediately look to removal of the structure should the $35,000 not be met. Part of the Department's authority is to also compel compliance with the law through fines, education, notices of violation_ He wouldn't necessarily want to say that removal of the structure is the only remedy for not complying with the permit. It is something that they could bring up in a revocation on the permit if they feel it warrants it. There may be grey areas he wouldn't want to be boxed into if the value is zero and they stop farming versus missing it by a few cents. Commissioner Katayama stated that in the development of the act, the intent was to strongly tie the agricultural activity with the housing unit to remove any shades of grey that the structures would have the ability to morph into something else. He understands the Department has legal proceedings they must go through, but he thinks that as they develop conditions for this special use permit specifically dealing with farm worker housing, it should be clear that the activity of agriculture is the only allowable means of having this amenity on the land. The farmers here are true farmers and they helped craft the Bill that became the farm worker housing law. He did not want to burden the applicant as the Commission wrestles through the policy portion, but have them keep going and do what they have to do to farm. At the same time the Commission needs to strengthen that connection and zero ambiguity is unreasonable, but make it as clear as possible. Mr. Dahilig suggested an additional condition stylized in the matter of a notice stating that failure to abide by the conditions under law may result in required removal of the structure. He suggested that they use the word"may"as a means of notice. Commissioner Katayama stated that"shall"would probably be better. He stated that he did not want to hold up the applicant's ability to proceed and is looking for guidance on the smartest way to do this. Deputy County Attorney Jung stated that Mr. Dahilig came up with a good solution because notices are entitled under due process, but when you get to a violation and move into the 13 VA2012 Master Files\Commissions\Planning\,Minutes\2012-10-09 Planning Commission Minutes revocation proceedings, there has to be an order to show cause, and a representation of why that condition has not been met. Then they move to a full contested hearing to outline the issues. There's an option of modifying the permit. You can revoke it with a set standard of what happens to the revocation or you can modify. There is a bit of discretion on how you can evaluate what types of conditions are violated and how, and then you can modify it to how you can prevent a future violation. There is room to in terms of how to apply a new standard or a clear revocation, but it depends on the context of which condition has been violated. It goes on a case by case standard. If the Commission wants to incorporate the Director's proposed additional condition, he did not have a problem with it. When they crafted the legislation, the post and pier was developed so they could have the structure easily removed as an option. They can go into executive session, but the Commission should all be familiar with the revocation proceedings. Commissioner Matsumoto stated that they have done a lot of talking about farm worker housing. She felt they should go into executive session. In her mind it would be nice to say if the house has to be removed, give it to another farmer and it would be at the expense of the person who bought it and doesn't want to farm the land. Not only is the house valuable, the land is valuable. It has water and good soil. She is for protecting agriculture and people who are in the business. Chair Kimura asked for clarification that if the land is sold, they would have to farm on it and they wouldn't be able to build a house. Mr. Whitlock stated that there is no density on the property. Commissioner Matsumoto stated that they are talking about the possibility of stalling. Chair Kimura questioned if it would still need to go through Council if the Commission makes any changes. Mr. Dahilig stated that the basic structure of the law is essentially they are affirmatively saying that you can give something that looks like density via a use permit if it meets these conditions. As long as they stay within the parameters of the Council's authority that was delegated to the Commission,no further tweaks in the law would be needed by the Council unless there is something fundamental that the Commission sees as a loop hole or flaw, it could be initiated through a Zoning Amendment that would go to Council for Administrative action. Chair Kimura questioned that whatever comes out of executive session would be implemented into the applicant if they vote on it first, then go into executive session. Mr. Dahilig stated that he prompted a discussion in executive session because Commissioner Katayama is bringing up discussions on two levels; one on what they do on this specific instance, and how it translates to how they view other applications when other things come in. It helps from a formulation standpoint to understand the broader context of the law in terms of how it applies across the board versus this one instance. 14 VA2012 Master Fiies\CommissionsPlanning\Minutes\2012-10-09 Planning Commission Minutes Chair Kimura questioned if the suggestion is that they vote on the application first and then go into executive session. Deputy County Attorney Jung stated that if they want to attach conditions to the application, then before they take action they need to attach the conditions. Mr. Dahilig stated that the issue of how to stylize conditions may have legal rights, duties, privileges, and obligations that the Commission may want to discuss in executive session. Commissioner Blake questioned if they could have a standard provision in the granting of every permit that states the granting of the permit does not preclude the Department or the Commission from adding new conditions that may become germane or relevant during the course of the permit. Mr. Hull stated that can be done, but essentially they would notice the applicant if it comes up so they would be present to discuss the potential impacts of the conditions placed upon them. Commissioner Blake stated that they could be sent a notice that something has become important one year after they received their permit, so the Commission would like them to come in because they are thinking of imposing it. He questioned the difficulty. Mr. Dahilig stated that may be another issue for executive session. Deputy County Attorney Jung stated that he can outline proper procedures in executive session. Mr. Dahilig suggested a motion on executive session but indicating that they would go into executive session after lunch break then reconvene after executive session. He suggested also talking up the Weatherwax matter in executive session. EXECUTIVE SESSION Deputy County Attorney Jung stated the Commission may go into executive session on an agenda item for one of the permitted purposes as listed in Section 92-5a Hawaii Revised Statutes, without noticing the executive session on the agenda when the executive session was not anticipated in advanced. The executive session may be held however upon affirmative vote of two thirds of the members present which must also be a majority of the members to which the Board is entitled. The reason for holding executive session shall be pubiically announced and the question posed was what type of conditions can be attached relative to enforcement based on revocation of a specific permit and whether or not structures can be removed. Also, they will commence with agenda item H which is pursuant to Hawaii Revised Statutes 92-4 and 92-5(a)(4) Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Planning Commission to discuss the settlement of the Fifth Circuit Civil No. 12- 1-0103, Weatherwax Family 2000 Trust vs. Planning Commission of the County of Kauai and 15 VA2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes County of Kauai, regarding Special Permits SP-2011-24 and SP-2012-34, Tax Map Key 5-3- 04:20, Kalihikai, Kauai Weatherwax Family Trust and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and other liabilities of the Planning Commission as they relate to this agenda item. He clarified that they are going into executive session for two items. On the motion by Herman Texeira and seconded by Camilla Matsumoto to move into executive session as read by the Deputy County Attorney, the motion carried by unanimous voice vote. Chair Kimura announced that they will be breaking for lunch and then moving into executive session when they return. They will reconvene the meeting between 2:00 p.m. and 2:30 p.m. (The Commission broke for lunch at 12:22 p.m.) (The Commission reconvened at 2:18 p.m.) Chair Kimura questioned the staff planner if he has come up with any solutions. Mr. Hull stated that regarding the Commission's concerns about transfer of land use rights and ensuring that the conditions of the permit are adhered to as well as those standards established under Farm Worker Housing Ordinance, the department recommends the commission include two additional conditions of approval. Condition number 20 would state: The applicant shall execute a farm worker housing agreement with the County of Kauai setting forth set agreements, obligations, and penalties under law. The farm worker housing agreement shall set forth such penalties as removal of the farm worker housing structure or structures should the terms of this permit and/or Ordinance 903 be violated. Condition 21 would state the applicant is made aware that under Ordinance 919, violations of these permits may be subject to a$10,000 fine per instance and/or per day. Mr. Whitlock stated that on first and second reading it seems doable. Mr. Dahilig stated that based on the proposal by the Department as well as on the record the indication that the applicant has no objections to the additional recommendations the Department would recommend approval of the permit subject to the 21 conditions provided to the Commission. Chair Kimura thanked the staff planner for coming up with a solution so quickly. On the motion by Wayne Katayama and seconded by Hartwell Blake to approve Class IV Zoning permit Z-IV-2013-3 and Use Permit U-2013-3 with the conditions as read, the motion carried by unanimous voice vote. 16 VA2012 Master Files\Commissions\Planning\Mjnutes\2012-10-09 Planning Commission Minutes Chair Kimura thanked the applicant for their patience and for their hard work as a farmer. New Public Hearing Zoning Amendment ZA-2013-1 (,proposed Draft Bill No. 243 9)to amend Chapter 8 of the Kauai County Code, 1987,to create a Planning Enforcement Account to assist the Planning Department with enforcement of the codes, statutes and regulation it has the authority to enforce=Kauai County Council. Mr. Dahilig requested a deferral on Item FA.a. to the second meeting in November. He noted that as is customary with Zoning Amendments,the Department does not provide their recommendation until the public hearing has been closed. Mr. Hull stated that given the amount of scheduling shifts that has occurred due to the case load over the past month, he suggested an open ended deferral to the next meeting the Commission sees fit. Mr. Dahilig suggested the next available meeting after the first of November. He noted that the meetings are currently scheduled for November 13 and 27 but there may be issues with quorum. On the motion by Hartwell Blake and seconded by Camilla Matsumoto to defer item F.4.a to the next available meeting after November 1, the motion carried by unanimous voice vote. Action on Special Permits SP-2011-24 and SP-2012-34, Weatherwax Family Trust, pursuant to Court order. Deputy County Attorney Jung stated that based on the stipulated order he suggested a motion to issue the permits pursuant to the Court Order under Special Permit SP-2011-24 and SP-2012-34. On the motion by Herman Texeira and seconded by Camilla Matsumoto to issue the permits pursuant to the Court Order under Special Permit SP-2011-24 and SP-2012-34, Weatherwax Family Trust, the motion carried by unanimous voice vote. ANNOUNCEMENTS t Mr. Dahilig stated that the Department is aware that two Commission meeting days, March 26 and June 11, 2013, fall on holidays. Given those dates, the Office of Boards and Commissions is trying to coordinate scheduling for the meeting room and is asking whether the Commission would be amenable to moving the meeting to the Wednesday of those weeks or a different day. 17 VA2012 Master PileslCommissions\Planningv4inutes 12012-10-09 Planning Commission Minutes Commissioner Texeira suggested holding the Wednesday dates as noted. Chair Kimura announced that the following scheduled Planning Commission meeting will be held at 9:00 a.m. or shortly thereafter at the Lihue Civic Center, Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street, Lihue, Kauai, Hawaii, on Tuesday, October 23, 2011 ADJOURNMENT Chair Kimura adjourned the meeting at 2:43 p.m. Respectfully submitted by: Duke Nakamatsu, Commission Support Clerk 18 V:\2012 Master Files\Commissions\Planning\Minutes\2012-10-09 Planning Commission Minutes