HomeMy WebLinkAboutpc 11-13-12 min KAUAI PLANNING COMMISSION
REGULAR MEETING
November 13, 2412
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair Jan Kimura, at 9:41 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room
2A-213. The following Commissioners were present:
Mr. Jan Kimura
Mr. Hartwell Blake
Mr. Wayne Katayama
Ms. Camilla Matsumoto
Mr. Caven Raco
Mr. Herman Texeira
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Kimura called the meeting to order at 9:41 a.m.
ROLL CALL
Planning Director Michael Dahilig noted that there were six commissioners present.
APPROVAL OF 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 October 9, 2012
On the motion made by Herman Texeira and seconded by Camilla Matsumoto to
accept the regular minutes of the October 9, 2012 meeting, the motion carried by
unanimous voice vote.
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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 Hearin
Class IV Zoning Permit Z-IV-2013-4, Use Permit U-2013-4 and Special Management
Area Use Permit SMA (U)-2013-2,to accommodate improvements to the existing Wailua
Wastewater Treatment Plant(WWTP) and to upgrade the existing SCADA system servicing this
facility, located on property along the northern side of Nalu Road, approx.. 200 ft. east of its
intersection with Leho Drive, further identified as Tax map Kos (4) 3-9-006:019&027, and
affecting a total area of 3.676 acres=County of Kauai, Department of Public Works. [Director's
Report received 10/23/12.1
There was no public testimony.
On the motion by Herman Texeira and seconded by Camilla Matsumoto to close
public hearing,the motion carried by unanimous voice vote.
Class IV Zoning Permit Z-IV-2013-2, Use Permit U-2013-2 and Special Management
Area Use Permit SMA(U)-2013-1,to allow after-the-fact improvements involving Lot 6 of the
Kahili Makai Subdivision,which includes construction of a concrete retaining wall, drainage
sump, and extension of concrete driveways, on parcel situated along the makai side of Kuhio
Highway, near the terminus of Kahili Maki Road, further identified as Tax Map Key (4)
021:006, and affecting a portion of a 27.56-acre parcel=Laurel Nicole SwIlman Smith and Brian
John Smith. [Director's Report received 10/23/12.]
There was no public testimony.
On the motion by Herman Texeira and seconded by Wayne Katayama to close
public hearing, the motion carried by unanimous voice vote.
Special Management Area Use Permit SMA(U)-2013-3 to construct a new commercial
office building and Barking for 13 stalls on a parcel situated along Kuhio Highway in Hanalei
Town, approx. 700 ft. east of the Aku Road/Kuhio Highway intersection, further identified as
Tax Map Key 5-5-010:079, and containing a total area of approx. 10,977 sq. %=Halelea
Investment Company.-
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Mr. Dahilig stated that the Department has received information that the applicant has not
notified the required adjacent land owners as required under the rules so the public hearing will
be rescheduled for another date at the cost of the applicant. The applicant will have to reapply.
Class IV Zoning Permit Z-IV-2013-5,Use Permit U-2013-5 and Special Permit SP-2013-
1 to allow after-the-fact permits relating to the operation of construction baseyard for stockpiling;;
and the storage of construction materials equipment&vehicleson property situated near the
terminus of Ehiku Street in Lihuegpprox. 800 ft. west of the Ehiku Street/Kahakolu Street
intersection further identified as Tax Map Key 3-8-004:001 (Portion), and affecting at total area
of approx. 4 acres=Pacific Concrete Cutting& Coring Inc. [Director's Report received
10/23/121*
There was no public testimony.
On the motion by Herman Texeira and seconded by Caven Raco to close new
agency hearing, the motion carried by unanimous voice vote.
Continued Public Hearin~ (None)
New Public Hearing (None)
All public testimony pursuant to HRS 92
Actiori by the Planning,Commission on the Hearings Officer's Proposed Findings of Fact
and Conclusions of Law and Decision and Order in the matter of Petition to Appeal Decision of
the Planning Director Tax Map Key (4) 5-1-006-002: CPR 0004 Robert D. Ferris Trust for a
Non-Confonning_Us_e Certificate for property located in Kilauea, County of Kauai, State of
Hawaii, more particularly designated as Tax Map Key (4) 5-1-006:002; CPR 0004, Appellant
Mr. Dahiiig stated that Mr. John Freeman was signed up to testify. He noted that Deputy
County Attorney Jung was representing the Planning Department.
Mr. John Friedman of 4690 Kapuna Road, one of the CPRs within the project, stated that
he has read the report and commends the hearings officer for his careful and thoughtful review of
the circumstance and would strongly recommend that the Commission accept his conclusions
and facts of law without modification and alteration. He thanked the Commission.
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CONSENT CALENDAR
Status Reports
Annual Status Report No. 5 (11/7/12) from Michael J. Belles, Esq., Belles Graham
Proudfoot Wilson& Chun LLP, for Special Management Area Use Permit SMA(U)-2007-13,
Project Development Use Permit P.D. U-2007-25 and Class IV Zoning Permit Z-IV-2007-29,
Tax Map Key 2-8-16:3 &4 and 2-8-15:43, 44 & 82, Poi�pu, Kauai=SVO Pacific, Inc.
Director's Report(s) for Project(s) Scheduled for Agency Hearing on 11/13/12.
Class IV Zoning Permit Z-IV-2013-6 and Use Permit U-2013-6 to construct a storage
shed on property situated along Weliweli Road, immediately adjacent to the Koloa
Neighborhood Center in Koloa Town, approx. 400 ft. southeast of the WeliweliRoad/Koloa
Road intersection further identified as Tax Map Key 2-8-008:019, and affecting a total area of
4,367 sq. ft=Ole ario &Anne E. Rivera.
Class IV Zoning Permit Z-IV-2013-7, Use Permit U-2013-7 and Special Permit SP 2013-
2,to allow establishment of a rg_oup child care home facility on a parcel located within the
Wailapa Subdivision, along the western side of Wailapa Road, situated Uprox. 1,700 ft. makai
of the Kuhio Highway/Wailalia Road intersection, further identified as Tax Map Key 5-1-
005:015, and affecting a portion of gpprox. 22.10 acres=Brianna & Cynthia Fehrim
Class IV Zoning Permit Z-IV-2013-8 and Variance Permit V-2013-8 to deviate from the
setback & lot coverage requirements within the Neighborhood-Commercial (C-N) zonin
district,pursuant to Section 8-5.5(b) & 8-5.5 g. of the Kauai county code (,1987), as amended,
and Special Management Area Use Permit SMA(U)-2013-4 to permit the construction of an
outdoor deck (after-the-fact) for the Anchor Cove Shopping Center, on property located on the
makai side of Rice Street in Nawiliwili, further identified as Tax Map Key_3-2-004:005,_ 06 &
056 with a total land area of 2.70 acres=JJ's Enterprises, LLC.
Shoreline Setback Activity Determination
Shoreline Setback Commission Review SSCR-2013-07 and Shoreline Setback
Determination SSD-2013-12 for a shoreline activity determination,etermination, Tax Map Key 2-6-011:013,
014 015 Koloa Kauai for acceptance by the Commission=Kukuiula Development Company.
Shoreline Setback Commission Review SSCR-2013-08 and Shoreline Setback
Determination SSD-2013-14 for a shoreline activity determination,Tax Map Key 1-2-006:003,
Waimea, Kauai, for acceptance by the Commission=Kikiaola Land Company, Ltd
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On the motion by Herman Texcira and seconded by Camilla Matsumoto to approve
the consent calendar, the motion carried by unanimous voice vote.
EXECUTIVE SESSION (NONE)
COMMUNICATION (For Action) (NONE)
COMMITTEE REPORTS
Subdivision
Subdivision Committee Chair Texeira reported that the following were deferred until
December 11, 2012:
Tentative Subdivision Extension Requests:
S-2006-45, Kealia Properties LLC, TMK: 4-7-003:002
S-2006-46, Kealia Properties LLC, TMK: 4-7004:001
The following was approved 3-0:
Tentative Subdivision Action:
S-2013-04, Kukuiula Development Company (Hawaii) LLC, TMK: 2-6-015:014
The following was deferred:
S-2012-08, Princeville Prince Golf Course, TMK: 5-3-:006:001,014
Commissioner Texeira noted that this deferral was open-ended as to when it will be
picked up again.
On the motion by Hartwell Blake and seconded by Camilla Matsumoto to approve
the subdivision committee report,the motion carried by unanimous voice vote.
UNFINISHED BUSINESS (For Action) (NONE)
NEW BUSINESS
New Agency Hearin
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Class IV Zoning Permit Z-IV-2013-4,Use Permit U-2013-4 and Special Management
Area Use Permit SMA (U)-2013-2, to accommodate improvements to the existing Wailua
Wastewater Treatment Plant WWTP, and to upgrade the existing SCADA system servicing this
facility, located on property along the northern side of Nalu Road, g0rox.. 200 ft. east of its
intersection with Leho Drive, further identified as Tax map Keys (4) 3-9-006:019&027, and
affecting a total area of 3.676 acres=County of Kauai, Department of Public Works. [Director's
Retort received 10/23/12.1
Staff Planner Dale Cua read the Director's Report into the record. (On File)
Commissioner Texeira questioned how the treatment plant would affect the facility in
Wailua near Coco Palms.
Mr. Cua stated that they are all connected and all lead to this plant.
Commissioner Texeira questioned if there would be improvements to the Coco Palms
plant.
Mr. Cua stated that any improvements would be processed through a separate application.
This application is to allow the needed improvements to the existing wastewater treatment plant.
Commissioner Texeira questioned if it would increase the capacity.
Edward Chock, Chief of the Wastewater Management Division, stated that he had no
problems with the staff recommendations. This plant preceded the SMA, but it was brought to
their attention that under current SMA rules it would be appropriate to submit under SMA
coverage. They have three separate projects. The first would replace process and electrical
equipment and take down a structurally defective building. The second project is the SCADA
project replacing the existing system that is losing its reliability. The new system will switch to a
radio based system. The third project is energy savings replacing energy hog equipment with
equipment that performs at a lower energy footprint. All three projects are operational, repair
and maintenance type activities, none focused at anything other than improving reliability. They
are not expanding the plant capacity to the Coco Palms pump station. That station pumps to the
Lydgate plant, but is not being touched as part of any of the three individual projects.
Commissioner Texeira asked for clarification that the cost of the three projects will be an
estimated$4.5 million.
Mr. Chock stated that is approximately correct and they will know when the bid results
return.
Commissioner Texeira questioned if it will positively impact the odor problem.
Mr. Chock stated that it will probably not make much of a significant impact one way or
another. The odor problem focuses more on the Coco Palms pump station. There is a project
that they are working on that has identified some equipment they want to install to address that
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odor problem. having new effective aeration blowers will help, but it is more equipment
reliability and updating.
Commissioner Matsumoto questioned the shelf life of the SCADA technology and if
there are alternatives.
Mr. Chock stated that SCADA technology is like any telecommunications type system.
They plan on them lasting about 20 years if they can upgrade the system midcourse. Some of the
current systems were originally proprietary to a specific company and there is much more in the
current plans for open architecture. It will be easier to maintain with the current system with
broader capabilities.
Commissioner Texeira stated that this facility is important. He noted other midterm and
long term plans that were submitted. He questioned if it would be more costly if they do not
upgrade. He questioned if it is a high priority.
Mr. Chock stated that all of the wastewater systems are important public facilities and are
critical and economically important to the community. The community the size of Wailua-
Kapaa, without wastewater solutiops, shuts down growth. It is important to project forward long
enough that they can do whatever improvements are needed before they go through another
growth cycle. This plant was originally built around 1964 and has been expanded a couple of
times since then. The last major work was done in the 90s. There is a lot of equipment that have
been replaced as they get to the 20 year phase. They were concerned in 2005, 2007 because they
were looking at a number of applicants wanting to build hotel complexes that they wouldn't have
capacity in Wailua. They did the facility plan.study to identify needs and they projected a
capacity expansion in the next few years. They are okay for capacity now, unless more hotels
come in and want to connect. They are trying to make sure there will be capacity when capacity
is needed.
On the motion to approve by Caven Raco and seconded by Camilla Matsumoto to
approve Class IV.Zoning Permit Z-2013-4, Use Permit U-2013-4 and Special Management
Area Use Permit SMA (U)-2013-2, TMK: 3-9-006:019 & 27, the motion carried by
unanimous voice vote.
Class IV Zoning Permit Z-IV-2013-2, Use Permit U-2013-2 and Special Management
Area Use Permit SMA(U)-2013-1,to allow after-the-fact improvements involving Lot 6 of the
Kahili Makai Subdivision,which,includes construction of concrete retaining wall, drainage
sump, and extension of concrete driveways, on parcel situated along the makai side of Kuhio
Highway,Highwgy, near the terminus of Kahili Maki Road further identified as Tax MqP Key 4 5-2-
021:006, and affecting_a portion of a 27.56-acre parcel=Laurel Nicole S,oellman Smith and Brian
John Smith. Mireetor's Report received 10/23/12.1
Staff Planner Jody Galinato read the.Director's report into the record. (On file)
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Mr. Dahilig stated that they recommend deferral based on the letter received from
SHPDA until December 11. They would like the matter to go before the Kauai/Niihau Burial
Council before rendering a decision. That meeting is scheduled for December 5.
Ms. Galinato stated that they would also request the applicant waive the 60 day time
limit.
Mr. Dahilig stated that they may want to request that the applicant consent to the deferral
due to the pending outcome from SHPDA.
Lorna Nishimitsu representing the applicant noted a correction to the applicant's name as
listed on the agenda"Lauren Nicole Spellman Smith" should be"Laurel Nicole Spellman
Smith". She stated that they have no quarrel with the staff report which accurately states what
transpired. They have not done any work on the property other than planting more fruit trees.
They intend to continue with what had previously been planted. She stated that the seller was
intent on doing a lot of planting and because of the erosion where the slopes are more evident,
they extended the retaining walls. That was part of the work that was done in addition to
needing to extend driveways so that during the rainy seasons, vehicles could maneuver down to
do the work for the agriculture. That is the extent of the work, which should have been
permitted,that was done to enable the agricultural activities to continue without continuing
damage to the property or to minimize risk to the workers. The Smiths have been exploring
markets for the crops being grown. The market is flooded so they will be continuing to explore
the types of crops and the market so they can have the income and not be the sole consumers of
the food crops. They do have a long term tenant who also is allowed to pick whatever they want
to consume.
Chair Kimura questioned if they have any considerations regarding the deferral matter.
Mr. Brian John Smith stated that it is fine with them. The archeological report is mostly
done and there is just a couple of wording changes that the State has asked for on the Cultural
Surveys Hawaii report, but the report from the archaeologists came back clean saying there was
no damage to the archaeological sites in 2007.
On the motion by Caven Raco and seconded by Camilla Matsumoto to defer to
12/11/12, with the consent of the applicant, the motion carried by unanimous voice vote.
Class IV Zoning Permit Z-IV-2013-5, Use Permit U-2013-5 and Special Permit SP-2013-
1 to allow after-the-fact permits relating to the operation of a construction base, and for
stockpiling, and the storage of construction materials, equipment&vehicles on property situated
near the terminus of Ehiku Street in Lihue approx. 800 ft. west of the Ehiku Street/Kahakolu
Street intersection, further identified as Tax Map Key 3-8-004:001 (Portion), and affecting at
total area of approx. 4 acres=Pacific Concrete Cuttino,& Coring„ Inc. [Director's Report
received 10/23/121.
Mr. Cua read the Director's Report into the record. (On file)
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Commissioner Texeira questioned the longer tern implications.
Mr. Cua stated that the applicant has not indicated whether they have plans to relocate
their operations to another facility. The application is to permit what-has been going on since
2006.
Chair Kimura asked for clarification that they have been operating illegally all those
years.
Mr. Cua noted that it was unpermitted.
Chair Kimura noted that without a permit it is illegal. He questioned why it hasn't come
to the County's attention for all these years.
Mr. Cua stated that the trigger for the Use Permit was the permitting requirements
through the State Department of Health. The Department is unaware of any complaints made
regarding the facility.
Chair Kimura asked for clarification that the County only acts on complaints.
Mr. Cua replied that until they know of it,yes.
Lorna Nishimitsu representing Pacific Concrete stated that she was accompanied by one
of the officers,Julie Simonton. To address the Chair's concerns,the applicant had the lease from
Grove Farm and the uses described in the lease were the activities. She noted that they had the
Department of Health permit. It wasn't intentional not to come before the County because there
was seeming approval of the activities and there have been encouragement because of the need
to provide some kind of recycling of concrete rubble so that it could be reused. The Department
of Health was the entity that notified the applicant that they need to have Land Use Permits at
which point the applicant needed the land owners consent acid authorization to apply for the
permit to sanctify its operations. Remaining on the site is dependent on the landlord. There
aren't any other industrial zoned properties large enough to allow this kind of operation.
Chair Kimura asked for clarification that the owners of the company did not operate the
company without permits on ag land on purpose.
Ms.Nishimitsu clarified that they didn't do it intending to ignore the law.
Chair Kimura questioned why it has gone on for so long.
Ms.Nishimitsu stated that there were no complaints and they had the Department of
Health permits to run the operation.
Ms. Simonton stated that there were impediments to completing the permit application.
They were aware that there were impediments outside of their control. They had a letter from
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the Department of Health that said they were doing a site inspection and they noted that a permit
was required for the site. That was the official complaint. They were able to overcome
challenges outside of their control to complete the application. There is a need for this business.
Chair Kimura stated that he understands the need for this business.
Ms. Simonton noted that they were looking at other sites that they could complete the
permitting process. It wasn't something they took lightly. They feel they are stewards. Taking
the concrete and being able to reuse it has a lot of benefits.
Chair Kimura stated that he is not against the company and What they stand for. He
believes there is a need for this company. His concern was that it took six years to get the
permitting process down.
Commissioner Raco stated that spoke to the owiier and questioned why it was taking so
long. There are certain circumstances that they had no control of. The owner was working
diligently to get his application through. It was not the County that found the violation; it was
triggered by the Department of Health. He knows that the o wners have been looking for a
location and has been leasing from Grove Farm. He stated that he was aware of some of the
background circumstances and complications.
Chair Kimura stated that he respects Commissioner Raco and his honesty. He did not
have the same knowledge and he frowns on after the fact permits.
Ms. Simonton stated that they understand and have done everything they can. They have
filed all the paperwork with Department of Health under the Solid Waste branch.
Commissioner Raco stated that they are holding on to a single thread and if they don't
resolve the issue, they could dissolve because of the requirement.
Chair Kiinura stated that there is a.need for this business and he appreciates the business.
Mr. Dahilig questioned if the land owner was aware that the business was operating
without permits.
Ms. Simonton stated that they were aware. They are a licensed construction company but
only for those particular activities.
Commissioner Texeira questioned if they are looking at longer term leases for this site.
Ms. Simonton stated that not owning the site, they are at the mercy of the land owner.
They have looked at other sites,but it seems to be the best location and they have no plans to go
anywhere else.
Commissioner Texeira questioned if Grove Farm has looked at other possible sites on
their properties.
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Ms. Simonton stated that they have not.
Commissioner Texeira questioned how this impacts the Lihue Development Plan and if it
is in conformance with the future growth of Lihue.
Commissioner Raco noted that it i� outside of the Lihue Development Plan.
Commissioner Matsumoto questioned approximately how many people they serve and
where the recycled materials are used.
Ms. Simonton stated that they work with large construction companies to private home
owners. The recycled materials stay on island and are used for structural fill and a Whole range
of products.
Commissioner Raco questioned which projects have used the recycled materials.
Ms. Simonton stated that they used the material for structural fill in the affordable
housing in Port Allen, the heliports, etc.
Eli Brainerd from Pacific Concrete Cutting& Coring, Inc. stated that they have supported
many projects like Kalanipuu including the road base. All of the concrete from that development
from the sidewalks that would have been thrown into the landfill were recycled and is under the
asphalt road. Below the helipads at the Lihue Airport are all recycled concrete. The widening of
the roadway used a lot of recycled materials. They recycled 350 tons of concrete from a private
residential house in Kilauea that was scheduled to be hauled to the landfill.
Chair Kimura questioned if they have ever been in violation with the County on any of
those jobs.
Mr. Brainerd stated that they have never been in violation.
Commissioner Matsumoto questioned when the process of seeking the permit was
started.
Ms. Simonton stated that it has taken six years and they came to a poirit where they
couldn't do any more and there was no way around it, but the demand was still there so they
have been in limbo.
Commissioner Texeira stated that it seems like they are providing a service for the island
and they have provided a more affordable material. He questioned if there is a greater demand
for the service.
Mr. Brainerd stated that they will be able to get the word out if approved.
Commissioner Matsumoto questioned how they came up with this idea.
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Mr. Brainerd stated that they are a demolition company that produces concrete that needs
to be disposed. They started with their own materials and it grew from there.
Chair Kimura stated that with the permitting, he is sure business would pick up. He
questioned if they plan on expanding the property with Grove Farm.
Mr. Brainerd stated that the current site can handle what they are doing currently and
more.
Commissioner Matsumoto questioned the number of staff.
Mr. Brainerd stated that they have 12 people on staff.
It was moved by Caven Raco and seconded by Camilla Matsumoto to approve Class IV
Zoning Permit 7,IV-2013-5, Use Permit &-2013-5 and Special Permit SP-2013-1.
Commissioner Katayama asked for clarification that the use permit is really going to be
issued to the land owner, Grove Farm.
Mr. Dahilig stated that it will run with the land. The entitlement is held by both entities.
He was not certain of the specific lease arrangement, but his understanding is that the lessor is
responsible for meeting the entitlement conditions. If this entity decides to move on, the
entitlement runs with the land, so Grove Farm could find another entity to rune it. A lot of it
depends on the terms of the lease.
Chair Kimura questioned if they could require a.status report.
Ms. Nishimitsu stated that her recommendation to her client is that as a permtttee, the one
obligated to meet the conditions that the Commission establishes, if they are told that they can no
longer use that site, that they should send a letter to the Commission asking for a withdrawal of
the permit for the property they are no longer occupying. if another company wanted to operate
at the same site, their project operation should be disclosed to the Commission so they can make
an informed decision on whether or not they should operate fiom that location.
Chair Kimura questioned that if they were planning to relocate, they would need to apply
for another use permit.
Ms. Nishimitsu stated that the Commission would need to consider a permit with the
impacts to the new location.
Chair Kimura questioned if the condition could state that the permit be dissolved if the
company moves from that particular location.
Mr. Dahilig suggested the question be referred to the County Attorney.
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Cornmissiorier Raco questioned if there could be a condition that if there is a new
applicant;that new applicant should apply for an updated permit or provide a status Ppdate.
Mr. Dahilig stated that some of this is incumbent on the leasing agreement between the
entity and Grove Farm. There may be an arrangement that the land owner still holds the permits.
He is not aware of the arrangement. With respect to triggers that automatically dissolve on an
approved permit upon transfer of the rights to operate by land owner, the County Attorney
should address it for the record.
Deputy County Attorney Jung noted that permits run with the land. The issue of
prohibiting transferability has been an ongoing debate. The conservative approach is to say that
that the permit is attached to the land; the County enforces conditions on the land owner. If the
permittee or licensee enters into a disagreemeTit, the County is going to look at Grove Farm.
Then Grove Farm will look at the company to fulfill the conditions. If there is a dispute on the
obligations, it would be between them. He advised against competitive issues because if they let
a permit run with a specific company,then they would be giving the company the edge of
competition. They want to attach it to the land and avoid any issues with.competition. If they
want to impose conditions for a stated period of time, they would have to reup the application. If
they want an annual status report and request a notification of transfer so the County is notified
of a new leasee, they can do that, but advised against conditions that require the permit to be null
and void.
Chair Kimura felt that each applicant should come in to apply for their own permits. He
felt if the applicant is ever forced to leave and Grove Farm wants to bring in another company,
they should come in for their own permits.
Deputy County Attorney Jung stated that the philosophy is that they should be affecting
the land use on the land and not the specific applicant. It's not a matter of who it is, but what is
happening.
Chair Kimura questioned if they could state that if the applicant moves from that
particular property that the permit would no longer be good with the consent of the applicant.
Deputy County Attorney Jung stated that if the land owner consents to withdraw the
permit they can,but it would be between the company and the land owner negotiating a
withdrawal.
Commissioner Katayama stated that was the core of his question. TI-le land owner is not
mentioned in the application. The conditions are addressed to the operating entity. In following
the current relationship where the use runs with the land owner, he questioned why the land
owner is not the applicant with the tenant as the obligor.
Deputy County Attorney Jung stated that it brings it back to the core function of who an
applicant really is. Within the CZO there is a 75% authorization issue. In this case, Grove Farm
executed an authorized letter to apply on their behalf
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Mr. Dahilig stated that technically it is one of Grove Farm's LLCs. Page 2 of the
application in paragraph 1.3,.it specifically lists Haupu Land Company which is a Delaware
LLC. They attached the authorization from Haupu.
Ms. Nishimitsu stated that the Department of Health permit issued is issued to Pacific
Concrete. If they leave the site, however may want tO succeed will have to independently apply
for a Department of Health permit, so some of the Commission's concerns may be addressed by
that fact.
Where was no public testimony on this agenda item.
Commissioner Katayama questioned Condition 4 pertaining to employees of Pacific
Concrete Cutting & Coring, Inc. He questioned if it would be a violation if they are not there.
Chair Kimura stated that only employees can operate the business.
Deputy County Attorney Jung suggested that for clarity, the condition state employees of
the operating entity rather than a specific name. If the conditions are interpreted specifically,
they could be in violation if another permittee comes in to operate the facility.
Commissioner Matsumoto agreed on changing the language.
On the motion by Caven Raco and seconded by Camilla Matsumoto to adjust the
recommendations to paragraph 4 to reflect the advice of the Deputy County Attorney, the
motion carried by unanimous voice vote.
Commissioner Matsumoto stated that she applauds the effort to recycle on the island and
she is glad to see more companies like this. It speaks to the General Plan in keeping Kauai
beautiful and healthy.
On the motion on the floor by Caven Raco and seconded by Camilla Matsumoto to
approve Class IV Zoning Permit Z-IV-2013-5, Use Permit &-2013-5 and Special Permit
SP-2013-1, the motion carried by unanimous voice vote.
GENERAL BUSINESS MATTERS
Action by the Planning Commission on the hearings Officer's Proposed Findings of Fact
and Conclusions of Law and Decision and Order in the matter of Petition to Appeal Decision of
the Planning Director,Tax Map Key (4) 5-1-006-002: CPR 0004, Robert D Ferris Trust for a
Non-Conforming Use Certificate for property located in.Kilauea, County of Kauai, State of
Hawaii, more particularly designated as Tax Map Key (4) 5-1-006:002; CPR 0004, Appellant.
Deputy County Attorney Mauna Kea Trask stated that the parties were present to make
their arguments as to whether the Commission should accept in its entirety, modify, or reject in
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its entirety the recommendations of the hearings officer. He stated that Mr. Chun is representing
the applicant.
Mr. Jonathan Chun,representing the Ferris Trust, stated that he opposed the proposed
findings of fact and conclusions of law by the hearings officer. They feel that the hearings
officer made substantial mistakes in the law and in the facts.
Deputy County Attorney Ian Jung on behalf of the Planning Department and Planning
Director stated that this matter was an appeal of the Planning Director's decision. Under Chapter
9, once there is an appeal, it comes before the Commission. In this case,the Commission
referred this matter to the hearings officer. Several hearings were held; one hearing on an
intervention request that was denied and three separate days of hearings on taking evidentiary
issues and witnesses. As a result of the parties litigating the matter and submitting a significant
amount of briefing and holding evidence,the hearings officer came up with a report which the
Department supports and asks the Commission to accept and adopt as presented by the hearings
officer.
Commissioner Katayama questioned the material points of contention in the applicant's
view versus the 31 page findings of fact, and decision of order.
Mr. Chun stated that they argued two main points. First,the Department's position
focuses on two important matters;the definition of applicant in the CZO and its own rules
regarding processing the State's special permits. The rules state that they will adopt all the
definitions of the CZO when they are processing State special permits. The CZO states that the
definition of applicant is the owner of 75% or more of an interest of a legal and equitable title of
the property. The applicant's argument is that the Planning Department was applying the
definition in its favor in one situation and not applying it in another. They did not apply the
definition in 8.5 for all properties in the urban district. They didn't require 75% ownership. For
NCUCs within the State ag,they stated that they have to have 75%. They don't believe it is
proper to apply one definition for one set of properties and then turn around and apply it another
way. The second point they raised is that under 205,the State law allowing people to apply for
State special permits states that all persons have the right to apply for State special permits; no
limitations to 75%. The question raised to the hearings officer was that if the State law allows all
persons to apply,how can the County limit it to only people with 75%interest. That question
was never answered. They will raise those questions in front of another forum.
Deputy County Attorney Jung stated that the first point has to do with the difference
between an urban TVR and an ag TVR. He referenced Ordinance 904 and its implementation
giving land owners who have been operating TVRs on State land use district agricultural land the
ability or due process to apply for a permit. There is a clear distinction in terms of land use
classifications. Ordinance 864 and 876 outline specific requirements to establish a registration
system to recogni to them as clear non-conforming uses. Ordinance 904 further clarified the
distinction between ag TVRs and urban TVRs. With Ag TVRS they could prove that they are
operating and they had to come in for a discretionary permit before the Commission which is the
State special permit,pursuant to Chapter 205. Under the State Special permit there are specific
rules that are applied. Under Chapter 13 of the Planning Commission's Rules of Practices and
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Procedure there is a specific section laid out in the hearings officer's report that states the same
definitions that apply in the CZO shall apply through the Planning Commission's rules. The
permit runs with the land and owner has to give the proper authorization.. There are two CPR
owners of a four unit CPR that wouldn't provide authorizations for this operator to apply for the
TVR through Ordinance 904. They couldn't get the 75% authorization outlined in the rules and
outlined in the permit application form. In Ordinance 904,the word applicant is capitalized, in
effect to refer back to the definition section of the CZO. In reading Ordinance 904 in concert
with the specific language in the definition section, the Planning Director in his interpretation
said that the definition of applicant applies as in any other permit other than registration of non-
conforming use certificates. There is a clear distinction between urban and ag. Ag requires a
permitting process. Urban requires a registration process to recognize the prior use. Regarding
Mr. Chun's second point,205 is a law of implementation in terms of establishing the ability to
issue special permits. If it is 15 acres or less, it is under the confines of the Planning
Commission in each respective County. Within 205-6 there is the ability-to create rules and
specifications of what is required for a person to apply for a permit. Documentation is there to
suggest that authorization is required based on Chapter 13 of the Planning Commission Rules as
well as the definition section of the CZO. If the applicant wants to challenge the way the
Counties interpreted and created rules and standards for implementation of 205-6, it would bd in
a separate forum at the Circuit Court rather than the Planning Commission.
Commissioner Katayama noted there is quite a discussion on requiring the 75%
authorization. He questioned if the conclusions of law based on the identified points in
paragraphs 18-31 did not clearly identify the issue.
Mr. Chun statedthat he is not saying that the hearings officer didn't identify the issue.
He thinks the hearings officer avoided the main issue;the distinction between urban lands and
agriculture lands. They pointed out to the hearings officer that the actual Ordinance states that
the procedure for agriculture needs to follow the same procedure as urban for NCUC. The
County argued that the word applicant is used differently because of ag and urban. The applicant
is questioning how the County has the right to say that the word applicant in ag land is different
from the word applicant as used in urban land. It is the same Statute and the same Ordinance.
The second point of their argument is that they know the County adopted their own rules and
regulations, but the general rule is an agency cannot adopt any rules that conflict with a State
Law or Statute. It has to be consistent. They are saying that it is not consistent.
Deputy County Attorrmfy Trask stated that the Commission will be making a decision
whether or not to adopt the hearings officer's ,recommendations and findings of fact and
conclusions of law. Based upon the Commission's decision to adopt, reject, or modify, it will go
to Circuit Court and possibly various other courts. If the Commission has read the report and
they concur and they defer to the hearings officer's decision,they can adopt it in its entirety.
They could also deny it in its entirety or modify it based on their degree of comfort and
understanding of the decision.
On the motion by Wayne Katayama and seconded by Herman Texeira to accept in
its entirety the decision in order, the motion carried by unanimous voice vote.
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ANNOUNCEMENTS
Chair Kimura announced that the following scheduled Planning Commission meeting
will be held at 9:00 a.m., or shortly thereafter on Tuesday,November 27,2012.
ADJOURNMENT
Chair Kimura adjourned the meeting at 11:48 a.m.
Respectfully submitted by:
a amatsu,
Commission Support Cleric
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