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HomeMy WebLinkAboutPC 8-28-12 Minutes KAUAI PLANNING COMMISSION REGULAR MEETING August 28, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura, at 9:21 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A-2B. 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 9:21 a.m. ROLL CALL Planning Director Michael Dahilig noted that five commissioners were present and there was quorum. APPROVAL OF AGENDA On the motion made by Camilla Matsumoto and seconded by Herman Texeira to approve the agenda,the motion carried by unanimous voice vote. MINUTES of the meeting(s) of the Planning Commission Regular Meetin of f July 24, 2012 On the motion made by Camilla Matsumoto and seconded by Herman Texeira to accept the minutes of the July 24,2012 meeting, the motion carried by unanimous voice vote. VA2012 Master Piles\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes OCT 0' 9 2012 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: (NONE) New Public Hearing (NONE) All public testimony pursuant to HRS 92 Mr. Dahilig stated that Mr. Sherman Shiraishi is signed up for testimony on the agenda item relating to the Department of Water. Chair Kimura informed Mr. Shiraishi that they are asking for public testimony on all agenda items at this time, but he would have the opportunity to speak when they discuss the application. There was no public testimony. CONSENT CALENDAR Status Reports (NONE) Director's Report(s) for Project(s) Scheduled for Agency Hearing on 9/11/12 (NONE) Shoreline Setback Activity Determination Commissioner Texeira with concurrence from Commissioner Matsumoto requested moving item G.3.b. pertaining to SSCR-2013-4 and SSD-2013-8 out of the consent calendar to new business for discussion. 2 VA2012 Master Files\Commissions\P1aElning\Minutes\2012-8-28,Planning Commission Minutes Shoreline Setback Commission Review SSCR-2013-2 and Shoreline Setback Determination SSD-2013-2 for a shoreline activity determination, Tax Map Key 5-4-02:011, Princeville Kauai for acceptance by the Commission=Joan Frank. Director's Report pertaining to this matter. Shoreline Setback Commission Review SSCR-2013-5 and Shoreline Setback Determination SSD-2013-9 for a shoreline activity determination, Tax Map Key 2-6-005:014, Koloa Kauai for acceptance by the Commission=Douglas Roland c%Albert Fernandez, Kuhio Shores Management Office. Director's Report pertaining to thi§matter. Shoreline Setback Commission Review SSCR-2013-6 and Shoreline Setback Determination SSD-2013-10 for a shoreline activity determination Tax Map Key 5-8--008:031, Wainiha Kauai for acceptance by the Commission=Robert Rucker. Director's Report pertaining to this matter. On the motion by Camilla Matsumoto and seconded by Herman Texeira to approve the consent calendar, the motion carried by unanimous voice vote. EXECUTIVE SESSION (NONE) GENERAL BUSINESS MATTERS On the motion by Camilla Matsumoto and seconded by Herman Texeira to move general business matters to the end of the agenda, the motion carried by unanimous voice vote. COMMUNICATION (For Action) (NONE) COMMITTEE REPORTS Subdivision Commissioner Texeira presented the subdivision committee report. 3 V12012 Master Files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Final Subdivision Action: The following was approved unanimously, 3-0: 5-2010-12=State DLNR, Land Division, 2-lot Subdivision, TMK: 4-6-003:04, 10, 21, 34 Tentative Subdivision Extension Requests_ The following was deferred to the 9/11/12 meeting, unanimously, 3-0: 5-99-45 Allen Family LLCIMoloaa.Bay, Ventures, LLC/Three Stooges, LLC 12-lot Subdivision, TMK: 4-3-003:001 The following were approved unanimously, 3-0: 5-2006-27=Grove Farm Properties, Inc., 26-lot Subdivision, TMK: 3-3-003:041 5-2009-13=Grove Farm Properties, Inc., 57-lot Subdivision, TMK: 3-3-003;041 5-2009-14=Grove Farm Properties, Inc., 63-lot Subdivision, TMK: 3-3-003:041 5-2009-15=Grove Farm Properties, Inc., 109-lot Subdivision, TMK: 3-3-003:041 5-2009-21=Grove Farm Properties, Inc., 21-lot Subdivision,TMK: 3-3-003:041 Commissioner Katayama questioned the deferral of 5-99-45. Mr. Dahilig stated that it is unusual for the Department to be proposing denial of an extension, and they felt it best to provide a two week deferral for further discussion before the Committee. Commissioner Katayama questioned if specific ambiguity would be cleared up in the two week period. Mr. Dahilig stated that they would be able to bring forward more information concerning the proposal before the Board of Water and discussions of what is being requested, and other types of issues concerning affordable housing for more clarity. Commissioner Blake questioned if the Department expects that the additional information would buttress their recommendation. Mr. Dahilig stated that it would be in tandem with the statement in the subdivision report concerning their issues with self-induced delays versus delays caused by agencies that are out of the applicant's control. On the motion by Camilla Matsumoto and seconded by Hartwell Blake to approve the subdivision report, the motion carried by unanimous voice vote. 4 V A2012 Master files\Commissions\Planning\Mnutes\2012-8-28 Planning Commission Minutes UNFINISHED BUSINESS (For Action) Class IV Zoning Permit Z-IV-2013-1,Use Permit U-2013-1 for improvements to the existing Ornellas Tank site in Kapahi which includes construction of two Q 0.5 million a� lion (MG) concrete reservoirs and drilling of an exploratory well and Variance Permit V-2013-1 to deviate from the land coverage requirements within the Agriculture District, pursuant to Section 8-7.6 of the CZO on a parcel situated at the Kaapuni Road/Kawaihau road intersection further identified as Tax Map Key 4-6-011:003 and affecting a total area of 0.836 acres= County o Kauai, Department of Water. [Director's Report received 7/24/12,hearing closed 8/14/12.1 Staff Planner Dale Cua stated that the Department has prepared a supplement to the Director's report. The Director's report was transmitted to the Planning Commission at the meeting held on August 13, 2012. At that meeting the immediate neighbor who was opposed to the project expressed concerns regarding the aesthetics and the visual and drainage impacts to the property. After considering the testimony,the Department offers the following conditions that serve to supplement the requirements in the Director's report dated July 18, 2012 to mitigate the neighbor's concerns: • Prior to building permit and construction plan approval,the applicant shall work closely with the Department of Public Works to address and mitigate any drainage impacts to the surrounding parcels. The measures shall be incorporated into the plan approvals. • The applicant shall submit for review and approval by the Planning Department a landscape plan composed of Native species or species common to the area to assist in screening proposed water tanks and integrate tht site with its surroundings. • The final condition incorporates requirements of the Department of Health which addresses the noise and health concerns regarding the proposal. Glen Koyama representing the Department of Water clarified that the proposed well is an exploratory well as opposed to a production well to test if there is sufficient ground water to provide a sustainable yield for a permanent production well. If the results are positive,then efforts would go into planning design and constructing a production well. With the production well there would be another environmental assessment and all related permits would be obtained. If the results are negative then the well would be capped and abandoned. Commissioner Texeira questioned if there is a Plan B and if other potential sites were in mind. Mr. Koyama stated that they are looking for proper pressure zones in this area, but they have looked at a possible site several hundred feet mauka of the existing well. Commissioner Texeira asked for clarification that this pressure zone area is important for developing future water sources for the Kawaihau area. Mr. Koyama stated that it is very important that they consider the pressure zone because it determines how the water is fed into the system and reduces the pressure in the system to supply the customers. 5 VA2012 Master Filcs\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Commissioner Texeira noted that the report indicates a deficit in this area. Mr. Koyama stated that there is a deficit in terms of storage. They are proposing two half million gallon reservoirs on the site. It is an odd configuration so they were constrained by design options and could not go in with a one million gallon reservoir. They need this source to meet the projected demand for the area. Commissioner Blake stated that with the concerns expressed by the residents in the area and the poisons that were used to kill nematodes during pineapple production, he questioned if soil studies were done to ensure that will not affect the water. He referenced the Heptachloride that was in pineapple that were fed to cows causing concerns of contamination in dairy products. It is a serious concern and there is no sense exploring a well if there are soil issues with insecticides that remain in the soil. Mr. Bill Eddy,the Deputy Manager at the Department of Water stated that they have done a complete environmental assessment that did not involve an in-depth soil analysis for contaminants, but the drilling of the well would include testing of the ground water. The ground water they are aiming for is in the range of 300 feet below the ground surface. The ground elevation is about 310 feet above sea level, so a successful well would have a water level that floats slightly above mean sea level which would put a layer of soil of several hundred feet between the ground surface and the ground water. They would do extensive testing of the water in accordance with the Safe Drinking Water Act. Commissioner Blake questioned if they will also be testing for pesticides and herbicides given the surrounding farming around the well. Mr. Eddy stated that there is a long list of chemicals that are tested. Every year they print out a consumer confidence report that is mailed out to customers listing the chemicals that are tested for in accordance with the Safe Drinking Water Act. Generally the herbicides and pesticides are in the organic contaminant category and they do extensive testing for those chemicals. In general the chemicals that are applied are engineered and designed to have a short life and quickly break down. They are not long lasting chemicals. Commissioner Blake questioned if there is a high concentration of chemicals, but a good production of water, if it would be converted to agricultural water. Mr. Eddy stated that it is possible but the cost of pumping the water for ag purposes might be prohibitive. Commissioner Blake asked for clarification that ag water is at a lower rate. Mr. Eddy stated that there are general use rates and ag use rates for the same distribution system. They sell water for ag at a reduced rate, but it is high quality drinking water. There may be another option of treating contaminated ground water that is done on other the islands. 6 VA2012 Master Files\Commissions\Piaii�iijig\Minutes\2012-8-28 Planning Commission Minutes Commissioner Blake stated that he would hate to waste money on water they are not going to use. Chair Kimura questioned what decision would be made if the chemicals that the neighboring farmers are using will affect the water. He expressed concern that the farmers would be asked to stop. Mr. Koyama stated that the only thing they can do is comply with the Department of Health regulations in terms of providing good quality water to the customers. Mr. Dahilig stated that the applicant is requesting to potentially provide safe drinking potable water. He noted that farmers are also required under environmental protection agency and other regulations to use pesticides and herbicides that are within the bounds of safe distribution. How and where those items percolate through the subsurface to drinking water table are subject to safe drinking water Federal monitoring by the Department of Water. It would become a two sided issue where farmers can't use certain types of chemicals. Chair Kimura questioned if farmers would be penalized for using chemicals 40 years ago in the pineapple days. Mr. Dahilig stated that they wouldn't necessarily be penalized because it comes as a consequence of exploratory drilling. They are asking to drill a well, stating that they have looked at the hydrology. The exploratory well is to determine if what is drawn can be used for potable purposes. He didn't feel there is any penalty that would happen because the regulation on what a farmer can and cannot do as a consequence of spraying chemicals would come from Federal regulations. Chair Kimura questioned the status of the Commission's request for the Department to work with the farmers. Mr. Dahilig stated that the Department tried to incorporate as much as they felt appropriate based on the August 20t1, letter that was appended to the supplemental report, fleshing out the concerns of Mr. Shiraishi's clients,the Yamamotos. There is still some discussion that the representative may want to bring before the Commission. Commissioner Blake stated that there has been a lot of talk about sustainability and that farmers markets to hotels are malting an effort to use locally grown produce. He would be very hesitant to stop or impede a farming operation because a new well is going in where their farms have always been. Providing potable water is as important as growing food, but since the farm has nowhere else to go, and the Water Department has other places to go, he would be hesitant to vote for something that would impede an ongoing farming o�eration. He hopes it will be worked out to the satisfaction of all parties concerned. Commissioner Matsumoto agreed with Commissioner Blake. 7 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Commissioner Texeira stated that the development of the well is very important to the area and the cost benefit would have to be weighed against the whole community, He questioned what happened to the Moloaa farmers operation when they created the agricultural subdivision. Commissioner Blake noted that conditions would need to be unfavorable to make someone move their family and equipment. Commissioner Texeira stated that it was an opportunity and they created a treatment plant for the papaya operation. He agreed that it is an important ag parcel, but he felt that things can be worked out. Commissioner Blake stated that this family has been there for generations. Mr. Eddy stated that sustainability is important to the Department of Water and is a priority. One of the reasons for drilling the well is to try to reduce energy consumption. Currently they have to pump water to a high elevation, and then drop it back down. The well would allow them to pump up to the elevation of the tank site. He felt they can work with the surrounding farmers and they have been neighbors with the existing tank for at least 50 years. They have been able to coexist and can continue to coexist without causing any changes to the farming activities. Mr. Koyama noted that the Department of Water has a very stringent water quality requirement. Any signs of contamination would be detected through the continuous monitoring program to ensure public safety,but they have no authorization to tell the neighbors what they cannot do. It is within their power to ensure quality water to the public. Commissioner Blake questioned how far a cesspool or septic system would have to be from a well. Mr. Eddy stated that there is a 1000 foot rule that applies to any new septic system. He noted that the ones that are currently in place are fine. Mr. Sherman Shiraishi, representing the adjoining land owner Gary Yamamoto, and members of his family that also own adjoining parcels, stated that the Department of Water has been very receptive and open and they have met to discuss their concerns. The current reservoir feeds from the top, creating a lot of noise. His client has stated he is willing to live with the noise and has hung a picture of a water fall. The reservoir was stated to be 18 feet high, but is actually 22 feet high, however they are willing to live with that. Their only concern is that this is a third generation fanning family and they want to ensure that the proposed development will not constrain the Yamamoto family from continuing their agricultural activities. Technology is such that pesticides and other chemicals are strictly regulated and the Yamamoto faanily abides by best practices as put out by manufacturers, As conditions change and standards evolve, they just want to be sure that they will not be penalized or constrained from their continued farming activities. 1 8 VA2012 Master files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Commissioner Katayama questioned the location of the reservoir on the map. Mr. Shiraishi stated that the reservoir would be at the corner of Kaapuni and Kawaihau Roads. There is an existing reservoir on the third parcel and the Water Department proposes to install two additional reservoirs. Commissioner Katayama questioned the drainage issues that were addressed in the letter. Mr. Shiraishi stated that when he met with the Department of Water representatives they indicated that all drainage is going to be diverted to Kapahi Road which satisfies the Yamamoto family. The Department has stated that they are willing to revoke and cancel any rights to drainage easements on the Yamamoto parcels. Commissioner Katayama questioned the ditch easements on the map. Mr. Shiraishi stated that he did not know in whose favor the easements run, but the Department of Water has indicated to him that if they have any rights to those easements, they are willing to waive their rights to use those them. Commissioner Blake questioned the location of the farm from the yellow outlined areas on the map. Mr. Cua stated that based on the discussions the farm is either on parcel 2, directly adjacent to the water tank site on parcel 3, or on parcel 140. Mr. Shiraishi provided an aerial photo showing the majority of the parcel in agriculture. Commissioner Texeira questioned the location of the home. Mr. Shiraishi stated that the home is on parcel 2. There is another house on 138 and one on 148 and the rest is the farm. Commissioner Matsumoto questioned the type of farming. Mr. Shiraishi stated that there is truck farming,papayas, orchards, and fruits. They make a living from their active farm. Commissioner Texeira questioned the status of the 20 acres operation leased in Moloaa. Mrs. Yamamoto stated that at one time all the farmers were experiencing difficulty due to Blite disease that wiped out the tomatoes. The State opened the Moloaa farms and her husband was instrumental in gathering the farmers to Moloaa to allow their land to rest. They planted papaya in Moloaa, but they had to borrow a lot of money to operate. They had to farm hard to repay the loans and they were paying$500 a month for water from the well. They planted papaya, but they had a hard time marketing them. Her husband was appointed to the papaya committee and they promoted them in Japan. They also planted truck crops but Kauai couldn't 9 VA2012 Master Files\Commissions\PlanninglMinutes\2012-$-28 Planning Commission Minutes take the amount they used to sell, so they used to sell produce on Oahu bidding for the Army and the Navy. As time went by the plant didn't do well and their land was in Ferrell long enough so they left Moloaa and returned home. Commissioner Texeira questioned what happened to the land. Mrs. Yamamoto stated that it was all leased land. Some farmers purchased the land after the plant closed down, but her family had their own land. Commissioner Katayama stated that the minimization of an urban encroachment or urban impact on the development of resources needs to be addressed to ensure that the farmers are able to maintain their activity unencumbered. He questioned whet kind of understanding has been reached with the farming community in assembling the project. He questioned if the reservoir was for post water in surplus of the tanks for water going into the tanks. Mr. Eddy stated that most of the watez sources in the Department of Water are from wells, and them there is the storage component that stores source water. Then there are distribution and transmission lines. They are proposing to construct 1 million gallons of storage mainly to serve existing critical customers, including Kapaa High School and Elementary, and Mahelona Hospital. Currently they are in a deficit of storage in that system. The additional tanks would eliminate the deficit and provide for some growth in the future. Commissioner Katayama clarified that the reservoirs are tanks. Mr. Eddy clarified that that they are tanks. They are reinforced, circular shaped, concrete enclosed reservoirs. Commissioner Katayama questioned what assgrances the neighbors have for quiet enjoyment. He felt that rapport should be developed with the farmers. Mr. Koyama stated that the project is the development of a utility to serve the community. Because it is not a land use that generates impacts related to growth or development there's no specific zoning designation. It becomes a use that is allowed in the different zoning districts through the use permit process. Because it's not a residential or commercial use, you don't look at uses as either compatible or incompatible. How they determine compatibility with the community is through construction. They apply mitigative measures to reduce any conflicts in uses, and they apply best management practices during the construction process to mitigate impacts of dust, noise, etc. Commissioner Katayama stated that he is more focused on the right to farm. He questioned the proposal if any development or encroachment impinges their ability to farm.. Mr. Koyama stated that farming is another use that the utility serves. Commissioner Katayama stated that without the utility,there would not be any of those activities and the area is in deficit so they need to move forward with the increase in capacity. 10 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes That in itself is encouraging an urban usage of the land. He stated that the Yamamoto has been the classical farming community that they want to preserve and expand. He questioned what they propose in terms of policy. Mr. Koyama stated that the general plan takes the different activities and uses into consideration and establishes goals and objectives. The general plan has a goal on sustainability and promoting agricultural activity. The policies are developed to sustain agriculture in the County. The Department of Water has a 2020 plan that is designed to serve the uses and the goals of the General Plan. The Department of Water provides a special rate for agricultural use of water. Chair Kimura thanked the Department of Water for working with the farmers and it shows good character. Mr. Dahilig stated that there is an additional condition based on the discussion that has ensued before the Commission. Mr. Cua stated that condition nuinber 12 would read that the applicant is made aware that intensive agriculture in the vicinity of the project site which may entail dust, active pesticide use and other nuisances associated with agriculture uses will occur. The approval of this permit shall not limit or prevent the continuation of intensive agricultural activities within the immediate surroundings. Mr. Koyama stated that they had no problems with the condition that was read. Mr. Dahilig clarified that the applicant has read and has no objections to'the other conditions. Mr. Koyama stated that they have reviewed the conditions and are okay with those as well. Commissioner Matsumoto questioned if all of the five points in the August 20t1' letter from Mr. Shiraishi have been addressed. Mr. Cua noted that all of the concerns have been addressed. Deputy County Attorney Ian Jung stated that a motion would be needed to approve, approve with modifications or deny. He questioned if the Department is incorporating the conditions. Mr. Dahilig noted that the additional conditions have been incorporated into the Director's report so no particular amendment is needed to the main motion. Commissioner Texeira questioned if the farmers had any comments. 11 VA2012 Master Files\commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Mr. Shiraishi on.behalf of t1le adjoining land owner stated that condition number 12 addresses their number one concern in their August 20i" letter and they approve of the additional language. On the motion by Wayne Katayama and seconded by Camilla Matsumoto to approve Class IV Zoning Permit Z-IV-2013-1,Use Permit U-2013-1 for improvements to the existing Ornellas Tank site in Kapahi the with conditions 1-12 as written and orally stated, the motion carried by unanimous voice vote. NEW B SI3 NESS Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2013-4 and Shoreline Setback Determination SSD-2013-8 for a shoreline activity determination, Tax Map Key 4-3-009.002, Kapaa, Kauai, for acceptance by the Commission=Dileep G. Bal, Directors Report pertaining to this matter. Staff Planner Jody Galinato stated that this is for a concrete block fence with a gate adjacent to the house on the side and mauka of the house along the road and a vinyl fence along the side of the house to the property line. The applicant is off island. Commissioner Texeira expressed concern about the view plane toward the ocean. He noted there is nothing in the Ordinance to prevent it, but felt that the Commission should be concerned about view plane being blocked to the ocean. Mr. Dahilig noted that the requirement under law for the Department's analysis is riot the development. He stated that the concerns being raised are addressed more in special management area analysis. What is being presented is a calculation of whether what is being proposed meets the setback requirements and where the line needs to be drawn. No comment or analysis is provided with respect to the type of development that is proposed when doing these types of determinations. Commissioner Texeira emphasized that he understands,but he wanted to bring public attention that they should be concerned about things like this. Chair Kimura questioned if future discussions in the consent calendar can be discussed in the consent calendar. Mr. Dahilig clarified that any discussions need to be pulled out of the consent calendar. Commissioner Texeira questioned the height limitations to the height of the fence proposal. 12 VA2012 Master Filcs\Commissions\Plaiming\Minutes\2012-8-28 Planning Commission Minutes Mr. Dahilig stated that the activity before the Commission is to determine whether the line has been properly set. He stated that they still need to go through permitting. Chair Kimura stated that they are discussing the setback of the fence. Mr. Dahilig clarified that the discussion over the actual fence versus what they are proposing and where it is placed is different. On the motion by Wayne Katayama and seconded by Camilla Matsumoto to accept the Shoreline Setback Commission Review SSCR-2013-4 and Shoreline Setback Determination SSD-2013-8 for a shoreline activity determination,the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS Update on recently enacted amendments to Hawaii Revised Statutes Chapter 92, re a_g rdinp Hawaii's Sunshine Law. This update will briefly discuss Act 177 (which creates two new permitted interactions) and Act 201 (which allows boards to conduct meetings by "interactive conference technology"), [Deferred 8/28/12.1 Deputy County Attorney Ian Jung stated that the Legislature recently passed two acts in the last session. Act 177 with regard to the Sunshine Law in terms of what types of authorized permitted interactions are allowed for Commissioners dealing with other Commissioners at presentations or informational meetings. Act 201 allows for interactive conference technology. He will have the new Sunshine Law guide emailed. Chair Kimura noted that they do not yet have their ipads, so they would be unable to have it with them when they come to meetings. Mr. Dahilig stated that the ipads have been purchased,they are installing pdf software and will be doing trial runs in the next month or two. Chair Kimura stated they were being purchased in June and it is now three months later. Deputy County Attorney Jung stated that Act 177 addresses cancelled meetings due to lack of quorum or natural disasters. They are able to now receive testimony and presentations and allow for the public to testify without actually having a quorum. There can be brief discussion, but there has to be discussion at a next duly scheduled and noticed meeting. They can create like a sub-committee report that they bring back to the full Commission for discussion and deliberation following the canceled meeting. Chair Kimura noted that he does not agree with the Act. 13 V A2012 Master Files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Commissioner Texeira questioned if the people testifying would be able to testify again at the next scheduled meeting. Deputy County Attorney Jung stated that by functional law they would be able to testify again at the next public meeting, but they would be able to accommodate those who took the day off to testify and present materials. The Commission can collect the materials for the record and carry the materials over to the next meeting. Act 177 expands the rule of two. Less than a quorum could attend an informational or presentational meeting, but the caveat is that it cannot be directed for or set up specifically for the Commission. Informational meetings or presentations on matters relating to official board business can include meetings with another entity such as another Commission, Legislative hearings, a convention or seminar or community meeting, provided that the meeting or presentation is not specifically or exclusively organized for or directed for members of the board. It can't be set up for the Commission to specifically have three people sit and have and informational briefing. The other facet is that if there is an informational presentation held in which three members are attending and it relates to official board business, they need to collect the materials and bring it before the full Commission at a next duly noticed meeting, presenting a report and then discussed before the full commission before any action is taken. Commissioner Texeira questioned if two Commissioners can meet informally. Deputy County Attorney Jung stated that the rule of two is that they cannot agree to vote. Commissioner Texeira questioned if they can now include a third person. Deputy County Attorney Jung stated that it can include a third person, but it cannot be a meeting set up or directed for a meeting between the three Commissioners. They would halve to be attending a separate meeting of another entity, Legislative meeting, or community meeting. Commissioner Texeira questioned if Commissioners would be able to have lunch. Deputy County Attorney Jung stated that they can have lunch, but they just can't discuss business, because that would not be considered a hearing or community meeting. He noted that the rule of two remains the same, but if there is a community meeting or informational meeting, then more than two, but less than quorum can attend,and they can deliberate and discuss, but would have to bring the materials back and report to the full Commission. Commissioner Texeira questioned a site inspection. Deputy County Attorney Jung stated that because it's a meeting for the Commission, the new law could not be used. They could do a full Commission site visit, they could also set up a permitted interactive group which would allow a committee to do a site visit. They would need to avoid serial communication. With the new Act 202,the both venues would have to be open to the public. If testimony is received, technically the written testimony would need to be at both sites. If not, they would not be allowed to take action. 14 V:\20I2 Master files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Mr. Dahilig stated that the major change is that they no longer need to set up video conferencing. The previous law was that they were allowed to have satellite meetings, but now all that is required is voice communication that facilitates an easier setup. If a Commissioner is on another island laid still wanted to participate in the meeting, they would have to notice both sites and testimony would need to be at both sites. Commissioner Texeira questioned the use conference technology if there was a regularly scheduled Commission meeting with no quorum and there was a Commissioner was on another island. Mr. Dahilig stated that there is an emergency provision on the interactive communication. Generally you would notice a-meeting, but if there is a last minute emergency where perhaps a bridge washes out,then he believes they could utilize conference technology to maintain quorum. Deputy County Attorney Jung noted that a board member with a disability that limits or impairs the member's ability to physically attend the meeting may participate in a board meeting from a location not accessible to the public. He stated that it would be limiting in terms of someone with an actual disability. He noted that an act of God may not be covered. Mr. Dahilig stated that if a bridge washes out and a Commissioner is unable to get out., they would want to notice that as an available site with interactive audio technology. Deputy County Attorney Jung stated that he thinks that they could move to amend the agenda to include that under an unanticipated event. Commissioner Blake asked for clarification that if a Commissioner is on another island, it would have to be noticed that he is on the Big Island and members of the public would be allowed to go there. Mr. Dahilig stated that the intent would be to provide Commissions and Boards more options to be able to obtain quorum and hold meetings. If two members were out of state and one was on the Big Island, they could still hold a meeting. Commissioner Blake questioned why they would need to extend the meeting all over the world. Chair Kimura noted that the ipads would have Skype ability. Mr. Dahilig stated that they are only options. He noted that it is not necessarily a change as to how they intend to do business. He noted that if airlines have to shut down and there is no access with a Commissioner on another island, then audio technology could be used to still conduct business and move things forward. The reason the sites would be open and available to the public is because you would want to treat it the same as the Board room. Chair Kimura requested an email with all the necessary information. 15 V:\2012 Master Files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes Deputy County Attorney Jung stated that the Office of Information Practices has updated their pamphlets that they issue as guidance for interpretation. He stated that the details come when the laws are implemented. They will wait to see what the first opinion letter will be like, but in the meantime he will email the pamphlets. Commissioner Matsumoto thanked the Deputy County Attorney for the update. It is important to know the changes so they can help serve the public. ANNOUNCEMENTS Mr. Dahilig noted that they anticipate the subdivision agenda on September I 1 h to be lengthy and one item will probably involve a lot of discussion, so they may start a little earlier than usual. Commissioner Texeira requested the packet ahead of time so they have time to review the information. Mr. Dahilig stated that they will try to get the information out as soon as possible. Chair Kimura announced that the following Planning Commission meeting will be held at 9:00 a.m. or shortly thereafter at the Lihue Civic Center, Tuesday, September 11, 2012. ADJOURNMENT The Commission adjourned the meeting at 11:16 a.m. Respe ally submitted by: rr DukYNakamatszu, Commission Support Clerk 16 W20I2 Master Files\Commissions\Planning\Minutes\2012-8-28 Planning Commission Minutes