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Home My WebLink Aboutpc2-14-12minutes KAUAI PLANNING COMMISSION REGULAR MEETING February 14, 2012 The regular meeting of the Planning Commission of the Couhty of Kauai was called to order by Chair Jan Kimura at 8 :42 a.m. at the Lihu` e Civic Center, Mo` ikeha Building, in meeting room 2A-2B . The following Commissioners were present: Mr. Herman Texeira Mr. Jan Kimura Ms. Camilla Matsumoto Mr. Hartwell Blake Mr. Caven Raco Absent and excused . Mr. Wayne K.atayama Discussion of the meeting, in effect, ensued: APPRO'V'AL OF THE AGENDA Mr. Dahilig: Mr. Chair, before you approve the agenda I would like make a couple suggested amendments to the agenda this morning. First if we could take the Subdivision matters up first, followed by item B which is Koamalu Plantation, and then take Public Hearing F.2 and action G. l .a next, and then the fourth thing would be item F.2.b followed by G. Lb, which is My Growing Place. And then the Special Permit Public Hearing and New Business matter relating to Class IV Zoning Permit Z4V-201243 , Use Permit U-2012- 11 , and Special Permit 2012-36 relating to Deanna Kanehe and . . . I'm sorry, Special Permit 2012-25 related to Richard Adkins, he did not meet the service requirements concerning notifying immediate neighbors so we are going to have to take that Public Hearing and that Special Permit off the agenda for this morning. And that would be my suggested amendments to the agenda, Mr. Chair. Chair: Can I get a motion on that? Mr. Texeira: So moved. Mr. Raco : Second. Chair: All in favor say aye. On, motion made by Herman Texeira and seconded by Caven Raco, to accept amended changes to agenda as Oroposed by the Director motion carried unanimously by voice vote. Mr. Texeira: So moved. Ms. Matsumoto : Second. Chair: All in favor say aye. Qn motion made by Herman Texeira and seconded by Caven Raco, to approve the agenda as amended, motion carried unanimously by voice vote. RECEIPT OF TIMES FOR THE RECORD Planning Commission Minutes February 14, 2012 1 MAR 2 7 2012 MINUTES Chair: Receipt of items for the record and minutes of September 27, 2011 and January 10, 2012. Mr. Texeira: So moved. Ms. Matsumoto : Second. Chair: All in favor say aye. On motion made by Herman Teixeira and seconded by Camilla Matsumoto, to receive items for the record and approve regular meeting minutes of 9/27/11 , motion carried unanimously by voice vote. SUBDIVISION Mr. Texeira: Mr. Chair and members of the Planning Commission, I would like to report on the Subdivision Committee held earlier this morning. All three members of the Subdivision Committee were present and there was no General Business nor were there any Communications as well as Unfinished Business. Under New Business we had two items that we voted on, one was final subdivision action bin S-2010-06, and this was for Patrick Ibbs, TMK: 4 4-004 : 003 , 028 , 053 , the recommendation was; for approval and that was unanimous. On the second item on the agenda was tentative subdivision extension request and this is for application S-2007-38 and that is for SVO Pacific Inc, Kauai Blues Inc. , TMK: 2-8-015 : 043 , 044, 082, and TMK: 2-8- 016: 004, and again the recommendation was for approval and we had a unanimous approval. Chair: Any questions for the Subdivision Chair? Seeing none can I gei a motion? Mr. Blake : Move to accept. Ms. Matsumoto : Second. Chair: All in favor say aye, motion carried. On motion made by Hartwell Blake and seconded by Camilla Matsumoto, to approve Subdivision Committee report, motion carried unanimously by voice votF„ GENERAL BUSINESS MATTERS Status Report Q 2/5/1. 1 ) from Todd Dorny, Manager, for Project Development Use Permit P.D.U-2009-9 and Class IV Zoning Permit Z4V-2009-6, to develop a 220 unit residential condominium project within an existing Residential District R-20 zoned prolierty, Tax Map Key 3 - 8-5 :22 Lihu` e Kauai — Koamalu Plantation L.W. Director' s Report pertaining to this matter. Staff Planner Kaaina Hull: The applicant is submitting the staff report which is actually a requirement of condition No . 10 of the conditions of approval for the subject permits . The submission is a little over a year beyond what was originally allotted under the condition however the providing of beyond a year has not had any impacts that are harmful in any way to the surrounding environment, surrounding neighborhoods. The applicant will elaborate further on financial reasons for that but the department is recommending that the Commission accept the status report and bring the permits into conformance. Second, the department is also recommending that condition No . 10 requiring a status report actually be removed. The reason that this condition came around and for the most part these types of conditions are established concerning statiJs reports are to ensure that agency Planning Commission Minutes February 14, 2012 2 3 requirements and review are held t© by the applicant. And this is a practice that has been done by the department and the Commission over several years and it relates back to originally when the department operated somewhat as a clearing house for building permits and zoning permits. Howover with the codification of building permit review requirements as well as inter-agency cooperation during building permit review the department is moving towards suggesting that the Commission somewhat nix the practice of requiring status reports when it pertains to agency review and comments. There may be other reasons to cease a zoning impact and the placement of temporary permits or coming back to explain what has been going an for the past few years. But in situations where we are looking at it as operating as a clearing house the department is recommending moving away from that and actually removing condition No . 10 from the subject permits. Chair: Any questions for the planner? Mr. Texeira: Can you discuss the timeline again? Staff: I will read condition No . 10 specifically. The second portion of condition Nb. 10 says, "The applicant shall provide an annual status report to the Planning Commission beginning from one year from the day of approval of the subject permits. The report shall be submitted to the department no later than thirty days prior to the annual anniversary date of approval of this project. The report shall provide project status and progress towards compliance with conditions of approval", and so on and so forth. So the permits were approved on November 14, 2,009! so they were supposed to have submitted their report on November 14, 2010 however that didn't happen and it hasn' t happened until now. Mr. Texeira: So the timeline hasn't changed then, the completion date is going to be . . . expected completion date is going to be 2014? Staff. I think you want to direct that more toward the applicant. Chair: Any other questions? Mr. Blake: I was reading your status report and I appreciate the fact that you include the diacritical marks in the Hawaiian words . Chair: The applicant is here? Mr. Todd Dorny: Yes, Todd Dorny. Chair: Any comments? Mr. Domv: Yes. Obviously due to the economy it has been difficult to move forward with this as planned but mostly what we have been dealing with is the Department of transportation. They have taken a large portion of land that they have used for the building of the freeway out front and we have been back and forth with them for about three and a half years now over the dollar amount, the fair market value for the land that they are requiring. They actually were supposed to give us an appraisal not this November but last November and we barely got it this November. So we are in the process with them now to agree to that amount for the transfer of that land and once that takes place we will get an appraisal and then financing is after that. So we plan to move forward with most likely a three phased type project. I doubt the economy could handle all 220 units at this time. Mr. Texeira: So going back to the question about the timeline, the expected completion date of 2014 is that doable or what are you looking at? Mr. Donny: That would be in the best case scenario if we started right now and I was utider the interpretation of the letter and this is partly why I am here is what he read, I interpreted that approval subject to permits, I didn't realize it was this letter. I thought it was after we submitted the actual plans and started the permit is when we needed to give you a yearly update . PIanning Commission Minutes February 14, 2012 3 And I also thought that once the permits were issued then I thought the timeline started for five years, I didn't realize it was of the date of this letter. We are planning to move forward as fast as we can to do that, we would hire all local people to build and that is how we plan on moving forward. Chair: Any other questions? Staff Just to clarify, the condition that you are referring to Commissioner Texeira is condition No . S . That condition requires that commencement, substantial commencement of construction shall occur within one year of full permit approval which is reference to not only zoning permit but building permit as well. So they have that one year timeline to commence substantial construction from building permit but they haven' t even received building permit approval yet. Chair: Any more questions for the applicant? I have one, what is your reason? I mean the status report should have been accepted here November, 2010. You didn't hand anything in until February, 2012. Mr. Dora: When I read this, in the second paragraph on No. 10 it says "The applicant shall provide an annual status report to the Planning Commission beginning from one year from the date of approval of the subject permits." 1 thought the subject permits were the building permits. I didn't realize that this letter constituted a permit so that is why. And then having talked with Avery Youn he said no, and there is some ambiguity in that meaning so he said you better just send th4t in to be safe. Chair: Question for Mike, is that a yearly status report? Mr. Dahilig: That was the intent in terms of what the original permit had stated. Chair: I don't think it is asking too much to hale a yearly status report done on this particular project. Mr. Dahilia : It is a requirement. Chair: So in the future can we have a status report on time? Mr. Dornv: Yes. Chair: Any more questions for the applicant? Mr. Raco : What was your timeframe for construction? What have you done so far that we can see besides . . . you didn't really go into depth. Mr. Dornv: We really haven't done much because of what the Department of Transportation is doing so no lender will lend to us with the outstanding issues that we have with them. So we have been trying to resolve the amounts and the monies that we would receive for the value of the land. And so we had to wait for them to give us an appraisal which they finally did and they were a year late and so now we are negotiating with them, and we are getting out own appraisal and then we will settle on that and then we can move forward with financing. We would like to move forward with this as quickly as possible. Some of the conditions and things in here didn't snake sense to do when w� hadn't done this first, we felt like we would have had to redo them again had we done some of these items in here when it was two years away. Mr. Raco: So what are your future plans or do you have bench mark dates that you have in mind after you and the DOT appraise each other' s value and come to a negotiation, what is the next step after that? Mr. Dornv: Then we would get financing and we would submit plans and pull building permits and move forward as quickly as possible but the Department of Transportation is really Planning Commission Minutes February 14, 2012 4 taking a long time. Like I said they promised me they would get the appraisal done not this November, last November, and it never happened for a year. So this next status report, Mike, is November of this year? Mr. Dahilig: Based on the timing that is when it should be submitted. Mr. Raco : So by November status report of this year we should know if you have financing or not. Mr. Dorny: Correct. Mr. Raco : And if you don't have financing what would your plans be if you can't get financing and the project didn't go through? Mr, Dorny : We would just have to wait until we could get financing. Chair: Any more questions for the applicant? Seeing none . . . Mr. Raco : Does condition No. 5 , one year from the date of approval shall complete construction on the project development within five years. If the applicant goes after the five years, I know that the zoning permit goes with the land but does that condition cover that then? What happens with the permit? What would be the reason for that condition if the project doesn't go through, does the entitlement just stay with the property? Mr. Dahilig: It does give us cause to actually cgme in and reopen the permit 4nd look at either modification or revocation types of procedures to remove that entitlement from the property should that particular condition not be met. So even though it does run with the land, let' s say if you were to sell the land today 'and sell it to another perspective developer this would still attach but they would assume all rights and responsibilities as set forth in the original date. So if 2014 comes along and we feel that this condition has not been met either they need to come before the Commission seeking an extension of that condition or what we would have to do in that circumstance is do our due diligence and maybe recommend that the Commission issue an order to show cause and open a contested 'case hearing to either modify or revoke the permits. Mr. Raco : Do you understand that? Mr. Dorny : I do . Mr. Raco : One of the issues that we have had are entitlements have been running with the land and none of these projects get build out and then there is just a land lock on property. Mr. Dorny: There is no plan to sell it. Mr. Raco : I hope and pray that the project does go through. Mr. Texeira: Could I have a clarification bas?�d on what was just stated. You mentioned that the building permit, I mean everything doesn't start until the final building permits are approved, right? Staff. The commencement of substantial construction has to occur within one year of building permit and other permit approvals but the five year timeline is actually contingent upon the zoning permits. So they have five years from, they have until 2014 to complete full construction however they have one year front building ermit approval to complete substantial construction. Mr. Texeira: So they are on the clock right now. Staff: They are on the clock for full construction. Planning Commission Minutes February 14, 2012 5 Mr. Texeira: But the applicant has already stated that it is unlikely that you could finish this project by 201. 4 because of the various reasons that you mention, am I not correct? Mr. Dolly: Yes and we didn't really plan on now doing all 220 units we were going to phase three phases and maybe do eighty (80) and eighty (80). Chair: I have a question. This may be for the planner. Is the permit ready; their building permit ready for them but they just haven't picked it up yet? Staff: No the building permit hasn't even been submitted. Chair: Like Coco Palms, their permit is ready they just haven't picked it up. Staff: The building permit hasn't been submitted at all, at least not to the Planning Department. Mr. Dorny: It has not. The mass grading permit is ready, we have that already to go with Peter Taylor Engineering and we could pull that tomorrow. But to proceed further we would have to submit the actual plans 'of the condominiums and we have not done that yet. Chair: So can I have acceptance for this status report? Mr. Texeira: So moved. Ms. Matsumoto : Second. Chair: All in favor say aye, motion carried. On motion made by Herman Texeira and sec6nded by Camilla Matsumoto, to accept annual status report, motion carried unanimously by voice vote. COMMUNICATION (NONE) NEW PUBLIC HEARING The recodifZcation and amendment of administrative rules pertaining to the Rules of Practice and Procedure of the Kauai Planning Commission: A. Recodification of previous amendments to the Commission rules; B . Amendments to accommodate the implementation of Kauai County Ordinance 919 , and C. Technical amendments related to contested case hearing procedures . County o Kauai. Director' s Resort pertaining to this matter. Mr. Dahill : I am handling this one Mr. Chair. Good morning Commissioners, this is item F.2 .a foi your review and entertainment and let me just give you some background regarding the proposed action before you this morning. Essentially this Commission operates under a set of rules of Practice and Procedure and it also guides some of the day to day operations that our department does in house to support Commission actions. Recently the Mayor signed off on ordinance 919 and ordinance 919 is what we commonly refer to in house as the civil fines ordinance. And what this ordinance has done is given: the Department of Planning the authority to fine up to ten thousand dollars a day for violations of the Comprehensive Zoning Ordinance. In order to do that though under State law people that are fined need to be given the opportunity for due process and that due process is required under Chapter 91 of the Hawai' i Revised Statutes. Planning Commission Minutes February 14, 2012 6 When we looked at the Rules of Practice and Procedure we realized that we needed to amend the rules to implement the actual ordinance, ordinance 919, to provide for these type's of contested case hearings in the event that somebody wants to contest the fine that my department levy' s for violations of the CZO . However as we started to look at amending it we decided that the packet of rules and I am sure all of you at some point or another have seen the rules, it was time to try and recodify all the amendments as well as make some technical adjustments. So before go any further I would just like to thank Shanlee from our office for actually going through and retyping the whole set of rules in digital form. And thank Ian Jung for reviewing it as well as thanking Mauna Kea Trask and Kaaina Hull for taking the packet of rules to the Small Business Regulatory Review Board in Honolulu for their blessing. And you see that on page 4 of the agenda item that the Small Business Regulatory Review Board as required under State law did review the set of rules and gave its consent for moving forward with the public hearing. I just want to break down what exactly it looks like because if we were to try to do the rule amendments in Ramseyer it would be a mess because of all amendments that have happened over the past few years. And so what we are asking actually a whole repeal and adoption of the new set. Besides the ordinance 919 implementation there is also what we term as technical amendments and these are five areas that we did some tweaking to try to assist with Commission business as well as bring our department and the Commission in line with the digital age. And so you will see the first technical amendment that we did include is now a requirement that all filing of documents before the Commission has to be submitted in pdf format. We think this will aid in our County wide attempt to start moving towards E plan review and in terms 'of also cataloging and filing away digital files versus keeping the loads of paper. And I am sure you guys see from today ' s agenda what we have to store from every meeting that now that we have something in pdf form that will greatly ease on our storage space. At the attorney' s suggestion we are also making a distinction between what is a public hearing and what is an agency hearing. And if you look at the definition section the definition section actually delineates between these two phrases now. So if these amendments do receive your consent Commissioners you will see us make an adjustment towards terming public hearings versus agency hearings and the main difference is that a public hearing is a prgcedural hearing that is required as a consequence of a quasi legislative matter. For instance today' s action under Chapter 91 , the adoption of rules would be a quasi legislative type of action versus an agency hearing which would be more of a contested case type of scenario . And those are bulk of what the Commission does handle as there permit applications do come before the panel. We have also made a change in regards to the order of business and this is a bit of an adjustment and what we are doing is we are aligning the order of business similar to what the Council has done in its attempt to try to streamline its operations. If you take a look at I believe it is page 14 of the actual rules, this is section 1 -2-21 I believe Commissioner. You will notice that the public testimony is pushed to the beginning of the agenda. Now it doesn't preclude testimony from also being accepted throughout the agenda but what this is meant to do is allow the Commission to implement a consent calendar for its operations so that if public testimony does come in regarding a consent calendar it does allow the Commission to move an agenda. item to New Business for further discussion. If there is no discussion based on the public testimony that is required and the Commission feels like it should just receive its consent then the item would not be moved from the consent calendar over to new business and just be approved at the adjournment of the meeting. So again it does look a little different in this format but what it is meant to do is get a temperature of the public regarding all the agenda item matters that if there is something that needs further review by the Commission you can yank an item from the consent calendar over into New Business and I guess time out the agendas more efficiently that way. And again just to emphasize also that public testimony can also still be received at the discretion of the Chair during any of the other matters so it doesn't necessarily preclude it but it is meant to provide that matter of efficiency there. Planning Commission Minutes February 14, 2012 7 Another one we are adding and I know right now all of you have been handling Chapter 205 Special Permits and I am sure a lot of people in the audience are quite aware regarding the 210 day decision timeline. And so what we are allowing now by this amendment is the option for a mutual consent to extend the timeline from 210 days on to a longer time period: Right now we are subject to this 210 timeline based on the Commission' s rules and so that is why we are trying to give the Commission a little more breathing room as we move forward on other Chapter 205 Special Permit matters, that there is a longer time that can be negotiated for action. And then finally we are looking at it from standing, the standing laws have changed since the 1980s when the last time these rules were adopted. So we have been working with the Attorney' s office to align standing requirements with what is the present case law concerning who can intervene, who can come forward and actually be part of a contested case hearing. So that is where we have made those adjustments just to align it with that case law. So my recommendation Commissioners is that you open the public hearing, receive any testimony and then if there are any questions I will be happy to take it at that time. Mr. Raco : What was that one portion you just talked about briefly on the time, the 210? Mr. Dahilig: It would be in Chapter 13 Commissioner. Mr. Raco : So do you have a record of what it reads now? Mr. Jung: The Director stated it, because these rules were amended continuously since 1987 to do a full Ramseyer would have been a huge task and rather than Ramseyer it out we decided to do a full recodification meaning it repealed the current set to implement this set. So when we did the changes, if you look on page 43 . . . Mr. Dahilig: It would be right at the margin between 42 and 43 , we are adding the language, it says "The Commission shall take a vote of petition for a Special Permit within 60 days after the close of agency hearing but later than 210 days after acceptance of the application", and the we add the language, "or within a longer period as may be agreed by the applicant." That phrase was not in there originally so it was a fixed timeline that we wee stuck with the 210 days sb we are trying to loosen up the rules to allow for that mutual agreement that you can move beyond the 210 days for action. Mr. Jun&: And then what it previously said was "as required by law". And the distinction that we found is there is the availability of a waiver of timelines by an applicant so that is why we wrote this language in here where the applicant agrees to waive the imposition of the timeline restrictions within Chapter 91 HRS, then we could agree to that waiver too if there is more information or documentation needed for you guys to take action on the petmit. Mr. Raco : My only reason to question that would be on the flip side of the application trying to get an application approved or even accepted with the department originally to get on the agenda or as a Class IV there was no timeline of where that is. How long does that take and sometimes with the overwhelming applications before you or before the application is coming there is a lag so they wouldn't be able to accept any applications until then. Previous experience has been that applications were not accepted until they are ready so the applicant just trying to get in to get on the agenda was always just in limbo. Mr. Dahilig: Usually by the time they actually accept the application and I do agree Commissioner that part of the exercise that we go through as part of the pre-consultation process with the applicants is to ensure that their applications are complete and that they have resolved all issues with the peripheral or external agencies to the department. And I see by not hating the drop dead date that it may put some applicants in limbo but what we think is a compromise in this scenario is that both parties have to agree. So if the department wants to extend and the applicant does not want to extend then action has to be taken within 210 days . Chair: Any more questions for Mike? Seeing none, I will now open up the public hearing, anybody out want to speak on this agenda item? Planning Commission Minutes February 14, 2012 8 Ms. Caren Diamond: Good morning Commissioners, Caren Diamond. I am speaking today for Protect Our Neighborhood ` Ohana. Thank you for allowing me to comment on the rules. On. page 10 your Director did clarify our first comment which was for 1 -2-21 and the question is and that is a change to the public testimony being up front, the Director did just say that the testimony would be accepted at the agenda items as well but maybe you could just clarify that in the rules. And then for 1 -2-21 , we have a recommendation and that is to add a new order of business item, one that would include a report on actions by the Director and this date then would lay the .foundation for any appeals to the Director' s decisions. As an example if an SMA Minor permit was issued there would be no way to know about it at all. It would eventually get published in the OEQC bulletin but it it was already approved by then it would be too late to know and so if you just added it to your consent calendar that might work easily for you. On page 12, the general requirements and proceedings before the Planning Commission, because the internet now is such an easy way to email testimony you might add a provision that allows the public to email testimony or fax it in. It is often difficult for people to get here. On page 14, the intervention proceedings before the Planning Commission, 1 -4,- 1 , and who may intervene, on No. 1 there is a typo on the first line so it says, "All persons who have hold interest", maybe you meant to say have property interest or something. And No. 2, the questions is the public or persons are not affected by the application but people are affected by the application for the project. So the way it is written now you have it just "people affected by the application" . And No . 3 , why in the existing rules was (b) deleted, (b) said, "All other persons may apply in writing to the Commission for leave to intervene as parties". So basically you have diminished the public' s ability to participate in the process . Why was that removed? 1 -4-3 , the method of filing and the timing, how will the public know about an application for a project? If a project is listed as an agenda item the deadline for filing a petition to intervene has already passed so we are in this circular way of the public not knowing what projects are before the Commission. Shall I finish or come back? Chair: How much more? Ms. Diamond : I just have a few. How does the public .know if projects are not listed and you have to already file for intervention before then? Page 20, agency hearing procedures, the order of agency hearing procedure, I wonder if this conflicts with 1 -221 and that is the order of business. 1 -6114 order of agency hearing procedures, I wonder if this shouldn' t say close public hearing testimony because as it is written now it .just says close testimony. On page 31 , appeals from actions of the Planning Director, 1 -9- I , and the last sentence of applicability, 1 -9-2, submission of appeals, the questions are, a person can no longer appeal, only an applicant can appeal. So again you have diminished the ability of the pubic to do an appeal. And No . 2, how could the public even know when to intervene or appeal a decision of the Planning Director when none of the Director' s decisions are posted or listed on the agenda or made public? And No. 3 , it is also unlikely that the public could file an appeal to appeal the decision of the Director without the specified timeframe if they didn't know a decision had been made. Please, add some transparency to this process. 1 -9- 1 , the submission of appeals, it has the submission of appeals to the Director and the clerk, decision to the clerk. So if you have to appeal something you appeal it to the clerk who was the person who made that decision. It is really hard to get somebody to overturn their own decisions. Wage 37 and page 39, revocation and modification of permits, and again is this a conflict of interest when the Planning Director issues the permit and then also decides if his decision should be corrected, remedied, or rectified? 1 - 12-8, the decision on petition, and 1 - 12- 9, modification or deletion of conditions, does I - 12-8 conflict with I - 12-9? If the permit was approved via a hearing through this Planning Commission process then shouldn't ariy modifications to that permit be made also through this Planning Commission? The way you have it now you make decisions and then the Planning Department its self can modify them without even letting you know. Planning Commission Minutes February 14, 2012 9 Page 41 , special permits, 1 - 13 -5 , agency hearings, is the department following this rule and sending written notice to the Land Use Commission? And 1 - 134, there is a typo in section number where you forgot the 1 and there is a typo in the second sentence, forgot the 13 that was part of the existing rules so it changes the statute number. And then page 48 on the small business impact statement, item (h), we disagree with this statement, "The general public could experience a less cumbersome process through the Commission by making clear intervention standards". Some of these proposed new rules actually take out any ability for the public to intervene or appeal so your purppse is at cross. And then I just have a few general comments. A Ramseyer version would have been a lot easier to figure out what the changes were to your existing rules and I am sure not only for the public and me but for you guys as well. What is being taken out? What is being added? And without . . . usually your are given that document to show so that you know instead of having to really comb through and see what was added, what was taken out. There is no table of contents so I suggest you add that and then the page numbers also would be very helpful to have. Chair_ Excuse me Caren; can we wrap it up please? Ms. Diamond: I have one more sentence. And then there are some inconsistencies within the document between the words "clerk" and "Director" and thank you very much for allowing me testify. Chair: Thank you, any questions? Anybody else want to speak on this agenda item? Seeing none . . . Mr. Raco : Chair, do we have a timeline? Could we get a Ramseyer? Before she came up I was going to suggest that we do that. Mr. Dahilig: I. guess if we do give you a Ramseyer version which we certainly can do the difficulty is that through the recodification process the bulk of this language will be Ramseyer and it will be underlined and bracketed out. And so I think that was the dilemma that faced the department with this recodification approach is that if we try to create one set of uniforni rules we have to treat recodification the same as an amendment. You are going to see underlines through a lot of the document because we are placing things here or adjusting words there, brackets because we are deleting things here. And we certainly can go through the exercise if the Commission wants but we thought by going that route it would actually be in some sense more confusing because of the recodification element of it. But if the Commission wants us to go through that we can certainly go through that approach. Mr. Blake: It has been Ramseyer already prior to this and we have one public witness that has expressed a desire to see the Ramseyer format. So rather than take hours to put it together for presentation here why not have theirs look at the file? Mr. Dahill : The Ramseyer file? Mr. Blake: Yes, in the interest of time and resources. Mr. Jun : There is actually no Ramseyer file because when it was done in 1987, the first amendments, those after were just tacked on to the back of the curtain rules. Mr. Blake: Mr. Trask and Kaaina did take something to prepare the final product, right? Mr. Jun&. Mr. Trask and Kaaina just took it `up to the Small Business Review Board because Mike and I were both in a conference. But I looked at it when I was coordinating between the existing amendments and then putting them into a full repeal and then recodification we went back, it literally took me hours to go page by page by page by page and making some small technical amendments. Were you going to go through some of those? Planning Commission Minutes February 14; 2012 10 Mr. Dahllig: Yes. Our intent here was- not to make large policy adjustments in terms of what exactly is the current practice of the Commission and that is where when you look at the five items that we presented a lot of the item that Ms. Diamond is raising have always been concerns regarding how the Commission operates. For example the seven day requirement for intervention, as with anything before the Commission all these items have to be put in the news paper for public notice at least 20 days out if not 30 days out, that is a statutory requirement. So that is how we gauge from an intervention standpoint whether somebody is going to be conning in because the public notice has gone out well in advance of the six day posting requirement that is required under Chapter 92 for the agendas. So there is notice out there. And rightfully so as a public advocate Ms. Diamond is trying to expand the rules to provide more avenues for last minute intervention and we didn't make adjustment to t't. We think that the statutory requirement should be acknowledged that there is a 20 day requirement in public news papers as well as anybody that is adjacent to the landowner has to be notified directly and that if seven days, we think seven days is still an operational and valid approach. And in terms of the Director, as a department head, what you see before the Commission is pretty much five percent of the permits in my estimation that I actually have to issue. And is if the Commission would like to have actions that I make reported what it would mean is pretty much an agenda that would be four, five, six times the size because we issue Class I, Class II and Class III permits regularly. And there is a reason why a lot of those permits are meant as ministerial permits and I believe through the SMA rules and through the adoption by the Commission a little while back that we did come to a fair compromise with Ms. Diamond and we actually did discuss with her about SMA Minor permits, that all those actions that I take are not put online. So any time I issue a minor permit it is put by the Commission' s rules on our website so that there is enough information out there. And so we really wanted to stay away from making large policy adjustments as Ms. Diamond is suggesting to the Commission rules and rather this was meant as a cleanup and certain adjustments regarding terminology and implementation of ordinance 919 . A lot of what has been stated are not new issues. Certainly if the Commission would like us to open up those issues based on Ms. Diamond's suggestions we can certainly do that but that was not really the intent of the legislation at this point, the rules at this point. What I would suggest is maybe Mr. Jung could give some clarity regarding this notion of intervention because I know there was some concern that Ms. Diamond had raised regarding this issue of standing. And again just to clarify the standing adjustments as conveyed to us were meant to align ourselves with what is the current State law regarding who is entitled to a contested case hearing. Mr. Jun : So with regard to the intervention proceedings under Chapter 4, what we did is we did eliminate from the standing that anybody from the public can come in because there has to be that standing hurdle that has to be met. The standing hurdle in case law is injuty in fact acid we thought in Chapter 4 in the applicability section if Ms. Diamond could show an interest that is clearly distinguishable from the public such as her unincorporated association such as 'ONO, then they can come in and make their pitch to show that they can be distinguished from members of the public. And it is for you guys to decide on whether or not there could be an injury to what they see as their injury in fact. Mr. Blake : That has always been the way it is. Mr. Jung: Right. So it still exists now, there is a 'right for them to petition and show that their interest is clearly distinguishable from anybody that lives four or five miles away. So if they have an organization the rules for the case law is fairly liberal in terms of granting organizations and environmental groups standing to appeal decision so there is always that option for them to go under. But with regard to appeals of the Planning Director' s decision it is not necessarily an appropriate venue for people to come in and try and get involved with an issue that has to be worked out between the applicant and the Director. Because normally the Director' s decisions are ministerial and it is checking the box, did they meet this or that? There is a little bit of a difference between SMA Minors and I think that is why Mike discussed the concession of putting it up on the website first so if people did want to challenge Planning Commission Minutes February 14, 2012 11 that specific action they can look at it and file within the timeframe that is allocated in the rules. But for ordinary permits for houses, rock walls, fences and whatnot if someone wants to challenge an interpretation of an ordinance or a specific rule then that should be between the Director and the applicant versus having a third party come in and get involved in the interpretation. Mr. Blake: So with respect to transparency the ministerial functions that the department undertakes are available online for anybody who wants to look at it. Mr. Dahilip,: Not everything is online. What is online is, will be, it is actually , . . as soon we have implemented those rules and the Commission adopted it last year we still have not received an SMA Minor, we haven't made a decision on an SMA Minor permit just yet but when we do it will be online, certain TVR information is online. Things like Class I and Class II permits, those we do not put just because of the volume that we get, some days as some of you know we process ten, fifteen, twenty of these things a day. And so those are not put out in any kind of public fashion but they are made available for public comment in case anybody . . . they. are made available for public review in case somebody wants to come in and request the file and we make those available under State law. Chair: Any more questions? Mr. Raco : Motion to accept? Chair: Anybody in the public want to speak on this agenda item, seeing none can I have a motion please? Mr. Texeira: Motion to close the public hearing. Ms . Matsumoto : So moved. Chair: All in favor say aye, opposed, seeing none motion carried. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by voice vote. Mr. Jung: Before you guys actually take action on the rules I would like to get a copy of Caren' s comments and take a look at the three typo ' s you said? Mr. Dahilig: Our staff has the copy and we will distribute it. Mr. Jung: So if I could just get a second crack at cleaning that up based on Caren' s items then I will do that so I am asking for a deferral. Mr... Raco : Staff you can do that it is just typo 's, so we don't have to hear it again. Mr. Dahilig: Commissioner maybe what would be appropriate is just delegating authority to us to, if you did want to take action today, delegating authority for us to refine just those three items and just double check it and if there is an adjustment from a technical matter to do that. Mr. Raco : I am okay with that. Mr. Texeira: So how do we do that, we need a motion to . . . Mr. Dahilig: What I would sugg�A.st a motion to approve subject to County Attorney review regardib.g the three items that Ms. Diamond raised and if there are adjustments that the Attorney' s office would suggest, technical changes, in accordance with her testimony. Mr. Texeira: So moved. Planning Commission Minutes February 14, 2012 12 Mr. Blake: So the decisi€�n lays with the County Attorney then, the final decision. Mr. Jung : I don't know if I like that. I would actually prefer if you could limit it just to the issues of typos. Mr. Dahilia: Iles, just the issue of typos as laid out in her testimony. Chair: So you made a motion, seconded? Ms. Matsumoto : Second. Chair: All in favor say aye, anybody opposed, seeing none so moved. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve and delegate authority to Office of the County Attorney to make typo and technical changes in accordance with public testimony. Class IV Zoning Permit Z4V-2012. 13 , Use Permit U-2012- 1 I and Special Permit SP- 2012-36 to allow establishment of a group child care home facility on a 12arcel located in Waiakalua, Kauai, along the eastern side of Wailapa Road, situated at the Kuhi ` o Highway Wailapa Rbad intersection, further, identified as Tax Map Key 5 - 1 -005 :0052, and. affecting a portion of approx. 8 .402 acres = Deanna Kanehe/M #owing Place. [Director' s Report received 1 /24/12'1 Staff Planner Dale Cua read Director' s report {on filn). Chair: Any questions for the planner? Seeing none is the applicant here? Ms. Deanna Kanehe: Good morning, I am Deanna Kanehe, Mr. Kevin Kanehe: I am Kevin Kanehe. Ms. Patricia Padea: And I am Patricia Padea. Chair: Do you have any comments on the staff report? Ms. Kanehe : I don't have any comments. Chair: Any questions for the applicant? Mr. Blake: What is the ratio of adults to children? Ms. Kanehe: The ratio for adults to children with a family home child care is six children to one adult. That is what we currently have. And then it depends on the ages of the clildren, what we are proposing to have is a group home which would allow for up to. a maximum of twelve children at a time. The ages would then be two years old and up and the ratio is . . . Ms. Padea: It is twelve to one for 2.9 years and up, twelve children to one adult and if you are two years to 2. 9 years it is eight children to one adult. Mr. Blake: And when you say group home you are talking about more than just daycare. Ms. Padea: The way that licensing has it in their handbook is that the group care is equivalent to center care which right now running as a family child care we are meeting and exceeding center standards as we are now, just the number of children is less. Group care is equivalent to center care which is yes; it is a higher level . . . Ms. Kanehe : I have looked at their definition and a group home is an extended or modified family child care home. It is what licensing terms for anything more than six children Planning Commission Minutes February 14, 2012 13 so up to twelve children. Then there is another center that would be probably for more than twelve children. Ms. Padea: We already are running at center or group home standards as we are now; we are just licensed for a day care. So yes we will be moving higher and have been moving than a family child care license as far as the quality of care and the education and the environment and the way it is set up. Mr. Blake : So you are licensed for daycare now and that is what you are doing. Ms. Kanehe: Right. Mr. Blake : Now do you plan to do a home where they are there all day, every clay, 24/7? Ms. Kanehe: Typically what you find, we are licensed for a family home care and post of the time you find one caregiver in their private residence watching up to six children. Our motto for our Growing Place, it is called My Growing Place, is beyond daycare, a place grow and blossom. So we have created an environment that is outside of my physical residence that the entire space is really dedicated just for children. And so we have been open from eight to six every day and not all children are there all day long, we have allowed a lot of flexibility because we have really found that in the community that is what families have asked for and that is what they have needed. Ms. Padea: Is your confusion with the name "group care"? I know we get a lot from parents saying you are applying for a group care license and a lot of people kind of refer to that as like a boys group home. So no, we are not caring for children 24/7, it is a childcare and it just has licensing, the Department of Human Services, just called it group care, home group care for whatever their reasons are. Mr. Blake : Thank you. Mr. Texeira: So tell me in terms of your current operation and what you have planned going forward, can you discuss some of your plans going forward in terms of expansion. Ms. Deanna: Are you asking currently what we do now and what we would like to see ourselves doing? Mr. Blake: Exactly. Ms. Deanna: We are very close friends and we have young children and we have created a space so that it is not just babysitting, so that kids can come in and have their developmental educational needs met as well. And we have different areas sectioned off for arts and crafts, for free play, we have a library with extensive books, we do music, we do circle time, we have an outside play area so that they can. . . So we have been doing these kinds of things just because it is our passion for early childhood, that age. And what we would like to see, we were driven to grow really by the children and by the parents and the families in our community and number one, we have a waiting list and we have had one for quite some time of people wanting the kind of care for their children that we have been providing. And we would also like to see more adults than just the one to six even though that is licensing ' s requirements we have always felt that there is a much higher quality when you have two adults to six or two to eight. Currently we even have some children that are under two years old so we are doing diapering, we are doing potty training, we have some that are potty trained so at this stage of development we really feel like having at least two caregivers there at a time can just increase the quality dramatically for a number of reasons. Ms. Padea: So the change would be mainly that we would be allowed more children at one time therefore we could hire an assistant so that there could be two people there at all times even with eight children or ten children. And in addition to that we want to really support the Planning Commission Minutes February 14, 2012 14 needs of the children that have been with us that have grown and they are ready for more preschool skill, I mean more kindergarten skills, more developmental academic skills. So we want to be able to separate the children by developmental needs and by age and we can't really do that in the situation we are in now because we only allow six children there at one time so given just the 6 children it is hard financially to hire an assistant. That is mainly the reasons, the changes that will come with this use permit. Mr. Texeira: Going forward when you are looking at the expansion, possible expansion of your operation, are your facilities constrained, physical constraints or do you have any physical plans for expansion at some point? Ms. Kanehe: Actually the space that exists now is more than enough space $o accomrodate up to twelve children; it probably could even accommodate more. It is about 1 ,000 square feet, there are two large rooms and then the outside space is a forty by forty area: So it is quite spacious now, we don't plan on doing any sort of physical changes whatsoever. The place as is can easily carry the twelve children. Our plan also like she said is to split them up into age groups, that is huge, where we would the two year olds separate and three, four, five separate and we can intermingle them and intermix them as projects and activities would allow. But we can also separate them so when it is outside play it doesn't mean that all twelve childrep will go outside at the same time, we can kind of use the partitions. So to answer your question there is no need for us to make any changes to the existing structure. We don't anticipate needing to grow that way, there is ample space for them. Ms. Padea: Our licensing lady at the Department of Human Services already confirmed for us our square footage would allow us, licensing requirements, we exceed the licensing requirements for twelve children so there would be no need for more space indoors or outdoors. Mr. Texeira: I have some more questions but I defer to anybody else. So you are providing obviously a need for the community and so what are you serving? What is your target market for the North Shore? What is your area, where are you drawing from for these children coming to your place? Ms. Kanehe: Do you mean families or children by ages? Mr. Texeira: Whatever group you are working with, what is your target market? Ms. Padea: Any family that needs childcare on the North Shore. Our licensing would allow us ages two to five or two and up but our target would be children ages two to five. Our current wait list that we have had since we opened has children anywhere from ten months that have gotten on early all the way to five years old. So we mainly will serve the needs of families on the North Shore. We have in the past served needs for families all the way down to the east side. So our target is the community, the children, anybody that needs high quality childcare. Ms. Kanehe : Currently and I believe as we move forward we have families, I think one of the things that makes us so special is we have a large mix of families with different needs. Some of them are single parents, some of them are . . . many of them are working parents that need childcare because they are at work. Some of them are home but they realize that their young children ,need something more, they are ready for socialization, they are ready to start learning those skills and they look to us. I think what we have really become is a wonderful transition place for young kids being at home before they go into pre-school or kindergarten and to acquire and start practicing a lot of their skills of development, potty training and all those kinds of things. And so it really helps them to transition into 1,,Vhen they do go into kindergarten. Mr. Texeira: Do you have a need for an approved kitchen? How do you provide food? Ms. Kanehe: That is a good question. Our children currently and we have the continued plan for them to bring their own lunches. It is just easiest especially at that age, some of them are very particular and use to their own things and their special diet so they bring their own lunch box and they bring snacks for however long they are going to be there. We do snacks , . . we have Planning Commission Minutes February 14, 2012 15 a snack schedule every couple of hours, two in the morning and two in the afternoon and it has worked out great. We provide water if they need it but juice, milk, whatever the parents want them to have that is what has worked best and they just bring it. Ms. Padea: So anything that the children consume aside from water is brought from home. Mr. Texeira: This seems to be a rather unique operation on the island. Is there. anything similar to what you are doing on the North Shore? Ms. Kanehe: Not that we are aware of. Ms . Padea: No, there are family childcares, I believe three in Kilauea if I am remembering correctly and they are all out of the home, out of the private home so these are children that are just coming to a private residence and being watched in the home. So yes we ate very unique because we as I said before run more under center or pre-school standards even though we are a family childcare center and our space is completely separate, nobody lives in the space where the children are. So the kids that come to us we are their school, they call us school for them. And we are very unique, there is no from what I understand and froin what I have heard in the community and other parents who have come to us after looking around for childcare, it seems to be that we are the only one running under a family childcare license but exceeding or meeting center standards. So essentially we are a mini pre-school already as we stand and we continue as we grow and build on that as we can allow more children to come in. Mr. Texeira: Is this affordable or is this an upper end type of operation? Ms. Padea: It has been in my personal opinion and it seems like the compared with other places we have for the last year been on the higher end because of how we run but our goal has been if we can grow and allow more children our cost will come down. For a child that is there Monday through Friday 8 to 1 right now could pay up to . . . we kind of bill on a day basis so it runs like 635 to 700 dollars a month. And that is to: drop at least 100 dollars a month atld in addition they will get another hour added on so that is five more hours in a week and 100 dollars less. Our goal is really to work hard to help these families that need childcare and still have it be really high quality with great ratios and in a place that has a gentle structure that meets all the developmental needs at not such a high cost. Ms . Kanehe: The other thing that I know our families were excited about is the potential to . . . our program would be, the children wouldn't all be there from eight to six of tours, belt we would have a program for example from eight to two and then we would have an extended cwre option which a lot our families need especially many of our working families who have a really difficult time picking up at two o ' clock. I think we got it down to like five dollars an hour, really inexpensive for high quality care so that they can stay until three or until four or until five or six if they needed to. So we have a lot of families that are really hoping for that too. I know we have mentioned it several times in our report but I think the flexibility that we have allowed, I find that one of the things that makes us different is it is not just a daycare Monday through Friday, every day, all. day. If some parents are only working a few days a week or there are so many especially in the industries we have, a lot of them in the hotel industry or restaurants with different hours, some of those afternoon hours work really well for those families. Our flexible option to only come one day a week or two days a week or three or four or Monday, Tuesday, Friday has just really been one of the things that people have called us about and said they were so excited to hear because most places don't offer that, it is either all or not at all. We are constantly trying to really meet the needs of the families and that is actually why we are here before you and hoping that we can grow because it is really based on what families have needed and what they, are asking for. Really what this would do for us in nutshell is to give what we feel would be even a higher quality care program than what we already are doing. It would be more flexible, it would be more supervision, we would be able to meet more of the demand and take some of those PIanning Commission Minutes February 14, 2012 16 people off our waiting list and crossing their fingers and hoping that they can get in to something this special. AIZd at the same time it would be lowering the cost for everybody, everyone ' s cost would decrease a little bit. So that is our plan. Mr. Texeira: Thank you. Chair: Question for Mike, I' m sorry, anybody else? Mr. Blake : Do you have a scholarship program for children whose parents can't afford the full? Ms. Padea: We do not have a scholarship program but we do accept ARBOF, which is a childcare connection and we have since we have been open which is basically a program in Hawaii where parents can apply for financial assistance and we are set up to accept it directly. So they can receive assistance however we do not have a scholarship program. That is a good idea though. Mr. Blake : Is there a parental component to your program where parents have to come in and assist? Ms. Kanehe : We have always had an open door policy as fear as parents that for whatever reason want to drop in or want to spend a little bit mote time before they say goodbye for the day. But we don't have any requirements for parents to be there and so far what we find is that most ppretts are really looking for. . . there are some parents that are just going to be doing their errands, some parents are dropping because they need to go to work. It hasn't been something that parents have really asked for but we have an open door, parents are welcome to come and r observe and to view and see what we are doing anytime. Mr. Blake: Are you familiar with the program in Kapa` a? Ms. Kanehe : Which one? Chair: The Kid' s School? Mr. Blake : The one that Ms. Kunimura, yes. Ms. Padea: I have heard of it and I actually have one of the books that she wrote but I have not been there to visit and I have not had contact with them. Mr. Blake : I haven 't had any children in there and I haven't visited either but I hear good things about it, very good things about it and so it might help if you checked it out. Ms. Padea: Okay, thank you. Chair: Anybody else, I have a question. It is a twelve kid maximum, right, can they register say twenty kids but have twelve kids there at any given time? So it doesn't have to be that same twelve kids to accommodate more people. Their schedule is pretty flexible from what I am hearing. Is it possible to register say twenty kids but only twelve kids there at any given time? Staff: That is what it sounds like. Ms. Padea: Yes. From what we understand from licensing is at any given time we are allowed twelve children however we can establish a program where it is a Monday, Wednesday, Friday is one group of children and Tuesday/Thursday is another group children but only twelve children at one time. Chair: Dp we have all agency comments in? Planning Commission Minutes February 14, 2012 17 Staff. I think I am waiting for two more so the intent was hopefully to close the hearing and then be ready to take action at the next Planning Commission meeting. Chair: So the comments that we are waiting for . . . Staff: From what I see and I have in my file here I am waiting for comments from DOT and Public Works, Department of Engineering. Mr. Dahiliz We have the catch all in there, right? Staff: Yes we do. Mr. Dahilig: So you could take action and we could try to . . . Chair: Put some kind of condition in there . . . Mr. Dahilia: Based on the catch all. Chair: Any more questions for the applicant? Mr. Raco : Couple questions for the planner. Really what we are trying to approve is the Use permit and do spot zoning for this particular project and in this Ag. area, correct? Staff: Not necessarily dealing with zoning per say, just the use. Mr. Raco : Just the Use permit but the Use permit would run with the property and she could potentially grow the facility within that . . . Staff This permit is limited to what is being represented right now so any future growth would require an amendment or a new permit depending on what is being proposed. Mr: Raco : I see the receipts sent out my mail for public testimony and we never received any as far as the surrounding owners. Staff: There is actually a supplement that was passed around to you and it is actually a packet in support of the program. Chair: Anv more questions, thank you, anybody in the public want to speak on this agenda item? Seeing none what does this . . . Mr. Blake : Move to close the public hearing. Mr. Texeira: Second. Chair: All those in favor say aye, motion carried. On motion made by Hartwell Blake and seconded by Herman Texeira, to close the public hearing, motion carried unanimously by voice vote. Chair: What does this Commission want to do? Staff. There is no recommendation at this time. We were looping to prepare a recommendation report at the next meeting on the 28th. Mr. Raco : No conditions in the report. Chair: Okay, moving on. Planning Commission Minutes February 14, 2012 18 Special Permit SP-2012-25 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County Ordinance No . 904 in Kalihikai Kauai approx. 600 ft, south of the ` Anini Beach Park mauka of ` Anini Road further identified as Tax Map Key 5-3 -4 : 18, comprised of 11 ,451 sq. ft. = Richard Adkins. Director' s Report pertaining to this matter. Item removed from agendas due to noncompliance. SPECIAL ORDER OF THE DAY Special Permit SP-2012-22 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by Count of Kauai Ordinance No . 904, in Kilauea &4. Subdivision Kauai east of the northern terminus of Waiakalua Street farther identified as Tax Map Key 5 - 1 -5 : 50 (Unit A, 3 . 925 acres), with a parcel size of 10 . 180 acres Te& e Haakonsen. Hearin ' s Officer Special Meeting Pubic Hearing held 1 /6/12 Motion to approve not carried due to 3/2 vote, no action 1 /24/12.1 Supplement to the Written Statement: Compliance with Requirements for SLUC Special Permit submitted by Stephen Long by transmittal dated 2/6/12. Staff Mike Laureta: You have the supplement and then the applicant' s representative just gave me a better godgle map that I will pass cut. There are no other changes to the supplemental report No. 1 . Vice Chair Hartwell Blake: Do you have anything to add? Staff: Staff does not. Vice Chair: Is the applicant here? Before the applicant starts are there any questions for the planner relative to the supplemental? Mr. Texeira: Mike can you describe the storage unit A? Is that the worker, in your report do you. . . or can I just ask the applicant about the storage unit? Staff: You can ask the applicant, Vice Chair: Mr. Long, please identify yourself Mr. Stephen Lo=. Good morning Chairman Blake and honorable members of the Planning Commission. Thank you for this opportunity to present and clarify my TVR Special Use application for the applicant Terje Haakonsen. My original application followed the Planning Department' s published guidelines for a Special Use permit not the SLUC format. My twenty page supplement to the written statement has been prepared by reorganizing the information to conform to the SLUC format including the five points, in my written statement (i) through (m), that you requested at our previous meeting. I have also included a new exhibit (k) with color photographs with descriptions and a clear aerial map showing the CPR unit property lines from an aerial view that illustrates the severe slope restrictions on the site. Additionally I have included new agricultural exhibit (g) for the safety and comfort of you and your neighbors. The supplement to the written statement Haakonsen TVNC 4262; In my written report, section 8-c.6, compliance with requirements for SLUC Special Permit, I represent the applicant Terje Haakonsen who hereby submits the applicant' s supplemental report and statement pursuant to and addressing the requirements of Chapter 13 of the Rules of Practice and Procedure of the Planning Commission governing Special Permit* and HRS 205 -6. A) Use desired including nature and details of operation. Applicant owns a single family farm dwelling unit situated on a CPR unit parcel of land totally 3 . 925 acres in size located on land designated Agricultural. It is TMK 4-5- 1 -5 : 501 CPR unit A, in Kilauea, Kauai. The dwelling unit was being used as a Planning Commission Minutes February 14, 2012 19 vacation rental on an ongoing basis prior to March 7, 2008 . The applicant desires to use the dwelling as a vacation rental. Property and infrastructure information; there is a twelve foot wide concrete private driveway servicing the property. Access to the subject property is at the end of north Waiakalua cul-de-sac which is a paved County road. Parking for the guests is provided for on-site with two additional uncovered paved parking stalls. The total number of guest cars is limited to two, no parking occurs within the north Waiakalua right-of-way. Parking for the farm workers on all of the three CPR units owned by the applicant occurs on four paved parking areas located on unit' s B and C. The applicant maintains the concrete driveway monthly or as needed. All three CPR units compromising the farm are tended to by a fulltime farmer employee. The yard is professionally maintained every two weeks. Water is supplied by a private well on CPR unit C . There are no permit violations on this property. Although the size and physical characteristics of CPR unit A do not allow for an agricultural dedication and inhibit intensive agricultural activities they do grow on CPR unit A forty eight coconut trees,. citrus, mango, noni, star fruit, many papayas, lungon, kekau, avocado, passion fruit, numerous mature java plum trees, county herb garden and numerous plumeria and other flowering trees. The applicant values the agricultural character of the area and maintains the previously listed trees to enhance that character. Moreover, the applicant is continually planting new fruit trees and will provide the County Planning Department with a revised landscaping site plan showing additional landscaping prior to renewal of the permit in one year. And increase the plantings of fruit, palm, and flowering trees as may be agreed upon with the Commission. Vice Chair: Excuse me Mr. Long you said that you have reorganized this submission to better reflect the matter in which the TVR is addressed by the department. Is this the same application? Mr. Lona: This is the same application. Vice Chair: So is there anything in the application that you want to highlight to the Commission rather than going through it line by line? Mr. Long: At our previous meeting we went through the SLUC requirements and you found that the information that I had provided in that specific section was incomplete. The information to respond to that format was contained in my twenty five page written statement and other sections that followed the Planning Department' s guidelines for submittilig a Special Use permit. What I did was I reorganized my application to respond to your request that the SLUC format be followed. I can get to the specific five points later in this written statement, supplemental written statement. I have in addition included the color photographs so that you could clearly see the conditions on the site with a new aerial photograph that shows the restrictive slope conditions and the limited area for agriculture.. There is no real additional new information here but it has been compiled to support your request. Vice Chair: Would the Commissioners like Mr. Long to continue through this from beginning to end or hit the highlights? Or do you have any highlights? Mr. Raco : I would like to just have him hit the highlights per my understanding of the five points but if he has nothing to add then it is the same as the previous one. Vice Chair: Anybody else;? Ms. Matsumoto : Do you have something to say? Mr. Long: I do have something to say and that is substantially different from the original written statement and that is that I am an architect and not an attorney. And in this supplemental written statement there are many pages df case law that support the application that were provided by a local attorney colleague. So in addition to my written statement there are perhaps seven or eight pages of supporting case law addressing the concerns of ordinance 904 to make Planning Commission Minutes February 14; 2012 20 this application more legally proper. If you want to we can go directly to page 12 and (i) through (m) which are the five points of the SLUC requirements. Each of those sections starts with case law and then at the end I included the information that was in my original written statement. One other point I would like to highlight is that this client and all of my clients including this applicant either have . . . they all strictly adhere to the requirements of ordinance 904 and they either have an agricultural dedication, are pursuing an agricultural dedication or are working with Craig Duff, the landscape architect at Kauai Nursery, to develbp a specific phased agricultural plan that will be implemented. And all of my clients including' Mr. Haakonsen are currently in Phase II of a four phase agricultural development and implemental plan. And all of these clients will be submitting a schedule F with their federal tax returns, 1040, supporting their agricultural activities. In addition many of these clients, not Mr. Haakonsen but my next client/applicant the Beisserts, are already selling products through intermediaries in farmer' s markets around the island or are contracting with for instance Banana Joe' s, a roadside fruit stance in Kilauea to sell their agricultural products commercially that they currently have undergoing in Phase II of their agricultural Ilan that we are implementing. I think that as a highlight, as I said this application adheres strictly to the legal requirements and conditions of ordinance 904. But more importantly it responds to the real concern I think that we all have which is to promote agriculture on this island. This applicant and all of my applicants are maximizing the agricultural commercial activities on their property regardless of the size. You can take a look at the aerial photograph that I just gave to you, there is another aerial photograph that was in the report but I didn't feel that it was clear enough. So have drawn the property lines of the CPR, for instance on Haakonsen submittal you can see that most of the land is over the pali or is the driveway. The permitted 'improvements, the house, the driveway, the septic system, thef e, is very little land to hardly even walk oil but yet Mr. Haakonsen is actively engaged in planting real agriculture that can be solely commercially and distributed and feed the population of Kauai which is the spirit of an agricultural subdivision. That is really all I have to add other than since I wrote the original written statement additional trees have been planted, additional agriculture has been established on the property. I aril done, if you have any questions please ask me. I am just trying to be thorough. Vice Chair: Mr. Laureta, you have been provided the information that was represented by Mr, Long? Staff: Yes. Vice Chair: Are there any questions of Mr. Long? Does the Commission have any questions of Mr. Long? Mr. Texeira: I originally asked the question of Mr. Laureta and now I can pose the question to you and that is the storage unit. Mr. Long: Storage unit? Mr. Texeira: You don't have a storage unit on this property you have a 2 car garage? Mr. 1on& This is a three car garage and in that garage on CPR unit A which is the request for the TVR there is a three car garage and within that garage is a permitted and photographed and documented inspected toilet room and si4,. No other kitchen residential facilities. This is for the farm workers to use and there is a fulltime farm worker employee on this property because this particular applicant, not for CPR unit A which we are requesting the TVR, but they have a full working farm. And what is important in this instance is that they put in a 200 thousand dollar private water well, storage tanks and pump house so that reduces the amount of water, the potable water from the County � o be used for agriculture which is a savings to the County. Vice Chair: Mr. Long, one thipg I do appreciate is the fact that you used color photos rather than Xeroxed copies of photos because the colored photos, there is no comparison as far as Planning Commission Minutes February 14, 2012 21 the picture being worth a thousand words and I thank you very much for that, any other questions? Mr. Texeira: So a lot of the parcel we are talking about is on a slope, right? Mr. Long: Of the CPR unit, ten percent is a driveway, a 1 ,200 foot long driveway and of the remaining portion that is not a house or garage and the garage is used for storage of farm equipment as well as a car. I would say that eight five percent of the property 1s over the pall. One additional thing is that I designed this house in 95 , it was a requirement of the Planning Department that we retain the ironwood trees and that we plant additional coconut trees to soften the environmental view impact of the home. You cannot see this houso from Pila Beach because they hav '. planted fifty additional coconut trees. In 95 the Planning Department required me to plant six additional coconut trees. I believe the applicant has gone way beyond in their desire to soften the architectural view from the public beaches and the ocean of this property. Vice Chair: Further questions, thank you Mr. Long. Mr. Long: Thank you for your time. Vice Chair: Are there any members of the public who wish to comment on this application? Ms. Diamond: Aloha Chair and Commissioners, Caren Diamond for Protect Our Neighborhood ` Ohana. On January 6th this was before the hearing' s officer and I am not sure if you have a copy of the minutes for that public hearing, I haven' t seen a copy of the minutes for it and I guess my question is hopefully you have been apprised of the testimony that was given at that hearing. Mr. Dahilig: Just to clarify, the Commission was provided a transcript that was provided by the court reporter that has all the . . . everything that was received during those hearings. Ms. Diamond : Thank you. Last week before the legislature there was a bill on agriculture and it was senate bill 2341 . Basically I ant going to quote a little bit from the testimony of Russell Cocobon who is the chairperson of the Board of Agriculture and he says, "The Qepartn ent of Agriculture opposes this measure that amends section 205 -2 which allows unspecified activities and uses for short term rentals of less than thirty days duration as permissible within the Ag. district. And if passed this measure would cause the proliferation of vacation rentals and related uses and activities that are presently not permissible in toe Ag. district. Jessie Souki who is the Director of the Office of Planning and the Director of DBEDT also put testimony opposed to this measure and what he says is, "Senate bill 2341 is inconsistent with State policy to promote agricultural uses in the Agriculture District and to protect agricultural lands as set forth in Article 11 , section 3 of the Hawaii Constitution, HRS 205, the State Land Use law and HRS Chapter 226, the Hawaii State Plan. HRS Chapter 205 specifically limits the permissible uses in the Ag. district to discourage the use of agricultural land by higher value non-agricultural land uses. The only dwellings defined as permissible uses in the Ag. District are farm dwellings that are located on and used in connection with the farm or a dwelling occupied by persons or families deriving income from agriculture as defined in 205 4. 5 . Allowing short term or vacation rental a permissible use in the State Agriculture District would increase land values in the Agriculture District and make land less affordable for farmers. This would contribute significantly to the loss of agriculture lands to higher value non-farm uses and could adversely affect the viability of diversified agriculture in Hawaii as well as food and energy security for Hawaii ' people. " So my question to you is if it is illegal to approve a 'rental of less than thirty days in the Ag. district what are you guys doing? Can County diminish State law? Vice Chair: Is that a rhetorical question? Planning Commission Minutes February 14, 2012 22 Ms. Diamond: I am just wondering if the :County is diminishing State law. I don't think: the County is allowed to and I am not sure under what laws this is even before you. Mr. Jun a: There is a senate bill going through the legislature right now which would make transient vacation rentals a permissible on Ag., an outright permissible use on agricultural lands. The distinction here is and none of the testimony that I have seen did it refer to the Special Permit process. And I think the A.G. opinion that was submitted and circulated during ordinance 904 addressed the issue where it comes to the Counties to deal with, if it is 15 acres or less, deal with whether or not it is an unusual and reasonable use within SLUD Ag. lands. So the question of whether or not it is illegal, yes, it is illegal unless you get a Special Permit and that is what the Special Permit process is in play here. In 205 4 .5 it says every other use is prohibited unless permitted under Chapter 205 -5 and 2054 , or 205-6 and 205-8, 205-6 is the Special Permit process, 205-8 recognized the nonconforming uses. So what Mr. Cocobon and Mr. Souki were discussing is that it is not outright permitted within the twelve criteria under 205-2(d) and the eighteen criteria under 205 -4.5 . So the Special Permit process is still open for the Counties, Maui has used the Special Permit process, the Big Island doesn't recognize transient vacation. . . or they don't regulate transient vacation rentals as of yet and Oahu is looking at if they should right now. Kauai was the last County of deal with it so we are trying to deal with it as best we can working within the framework of not just County laws but also State laws. Mr. Dahill : Commissioners just for your information I did spend actually all day on Thursday at the Capital working with our senator on this particular measure and there is also another measure that I know Caren and her folks are tracking which is senate bill 2350. That relates to ` Ohara dwelling unit's. The County is opposed to the bill, officially opposed to the bill and we do understand and we are hearing and we do accept that this type of use is not from a public policy matter something that we want to have permitted outright throughout the State. There should be a senate draft that will be coming out of that committee at 1 : 15 this afternoon and so that is being heard as we have our meeting today. But I do want to distinguish that the Director of the Office of Planning as well as the Director of Agriculture are certainly entitled to their opinion. In talking with the introducer of this legislature is referring to the purpose of the bill is to actually clarify this ambiguity that is there in State law. That is what everybody is struggling with here is this ambiguity because it is not on the list but farm dwellings are, what is a farm dwelling, it is a dwelling that is allowed with a farm. Can you rent the farm dwelling shorter than thirty clays, hard to say, that was the purpose of the legislation. There are going to be some amendments as a consequence of clarifying what the intent was by the senator that introduced it. But I am glad she brought it up in the sense that it shows that there is still a lot of bait left on this issue regarding what this ambiguity is. Then what the County through ordinance 904 is trying to at least from a safeguard standpoint have the Special Permit be a mechanism to at least confirm compliance with the State law so there is no doubt that this is a permitted use based on the approval of a Special Permit. I would love for there to be a clear definition as to State law distinguishing between a short term and a long term rental and I think the legislation that is coming before the legislature is indicative of the leg'islature ' s awareness that there is ambiguity concerning farm dwellings and short term vacation rentals. And the intent was to clarify that through the amendment to Chapter 205, so just some background information. As written right the County is opposed to the legislation because we do not want it outright permitted within the County. Vice Chair: Does anyone have questions for Ms. Diamond? Thank you. Mr. Raco : If she could repeat the language that she said about the increase of property and if you could give that to staff and if you could just read it and then hand it over to staff. Ms. Diamond: It says, "Allowing short term or vacation rentals a permissible use in the State Agricultural District would increase land values in the Agricultural District and make land PIanning Commission Minutes February 14, 2012 23 less affordable for farmers. This would contribute significantly to the loss of agricultural lands to higher value non-farm uses and could adversely impact the viability of diversified agriculture in Hawaii as well as food and energy security for Hawaii ' s people." Mr. Raco : The only reason why I bring that up Chair is because like all applications that we read and this application in particular they say it will not increase the property. Chair: Obviously. I don't understand that. Ms. Diamond: If you have a 1 ,700 . . . a vacation rental that rents for 1 ,750 dollars a night of course it is going to increase the value of your land. Mr. Dahilig: Just to add Commissioner it is something that the Chair has been discussing with Mr. Laureta and myself about, I did discuss with him this morning about a response back that we did get from the tax office concerning how this is going to be valued. And at this moment they cannot place a firm figure on what is the affect of the actual increase of value there is but let' s say if you have 250 thousand dollars in revenue a year and you have a 500 thousand dollar house does the tax office necessarily tax it at 750 thousand dollars a year. That isn't the case but they do acknowledge that there will be some type of increase in value as a consequence of the additional entitlement on the property. And so how that works out, what I think we are going to do is schedule a meeting with the Chair as well as Mr. Hunt, Mike and myself to kind of go over some of the information that is being provided to us and try to see if there is an actual quantifiable figure that we can say this is what the value of your house increases by. So we are working on that based on the request of the Chair. Mr. Jung: Just to add on that, coming in 2013 the County Council will set a tax rate for vacation rentals so specifically vacation ientals that are registered and either permitted will be taxed at most likely a higher rate. Vice Chair: So with the statement that was made that it is not going to raise the value of surrounding properties that means that it is going to be an entity unto its self. So if your little farm is surrounded on all four sides by vacation rentals the fact that these are high end rentals is not going to affect your tax rate if you are just a fanner. Mr. Dahilig: I can 't speak for how the tax office goes about its methodology but from what we do get Vice Chair, from the tax office is ari indication that they look at it on an entitlement by entitlement basis. So beyond just the zoning that is allowed for an area that if there are entitlements that allow a higher amount of use and because of our attorney' s opinion that these entitlements run with the land, it would seem and again I can't confirm it but it would seem that the additional entitlement would only be limited to that one parcel versus bleeding over to other parcels. But what I can't comment on is the actual 'impact let' s say on the free market whether there is some bleed over affect, I don't have that base of knowledge to say whether in reality a realtor would want to bump up the house adjacent to the TVR based on what that TVR was actually sold for. There is no way for me to try to give you that information because I am not specialized in that area but it is something that we can definitely pose to the tax office. Mr. Raco : In that discussion the TVR bill has already passed so I don't see a realtor saying to bump up their property, the law has passed: And if the Ag. person that she is selling that property for doesn't have the TVR entitlement then the value is definitely a lot less than the one that does have the value. Mr. Dahilig: On paper it would be. I guess the scenario that I would be . . . and not to say that realtors are dishonest people, I don't want to make that assumption but let' s say in a circumstance where a TVR on Ag. is sold at a million dollars and somebody wants to come in and buy a house adjacent to it and doesn't understand the TVR program. If that realtor next door to that parcel says oh, that one went for a million dollars, here is a comparable price and not be up front about the TVR information. That could be an affect and that is why I don't want to make a presumption about what the impact of that would be on the free market because on paper Planning Commission Minutes February 14, 2012 24 from the tax office there is clear line there but how money is moved and how people purchase things is another question that I really can't from a sociological standpoint make a comment on. Vice Chair: It is a provisional million dollars because every year they have to renew, right, so it could be a million dollars this year and substantially less next year. Mr. Dahilix That is true. Staff_ Let me add a little bit more color to the discussion because I had the discussion with Steve it Real Property. Mr. Raco : I am okay. Mr. Texeira: I would like to hear that comment if you don't mind. Staff. The generalized statement that Caren read is incorrect, generally. Correct generally but incorrect because there 'are forces at play at Real Property that 1 never knew and it is going to based on does the value, TVR value, impact the Ag. guy next door. It all depends if first you live on the property, second if you have dedicated land, and third what caps Real Property can give you. There is a certain level of. . . there are a whole bunch of considerations in determining their taxing ability and their application. So it' s not clear cut but if you are going to buy the property you are going to be a resident, you are going to do Ag. and you are going to dedicate land for Ag. , no it won't impact you because there are certain caps for residents. And age, age has a cap too . So for us to fully appreciate the complexity of that value impact I think it is good for the Commission to know and to have further discussions with Steve and the Commission would be pretty good. Vice Chair: Thank you. So it isn't all that simple. Staff No. Vice Chair: Anybody else have anything to offer on this application, if not Chair will entertain a motion to close the public hearing. Mr. Dahill : It is already closed Commissioner. What is on the table because this is a special order of the day is there is still a motion to approve on the table that needs to be re-voted on because of the split vote. And so that is the current action that is on the table so no motion is necessary at this point other than discussion and another revote. Vice Chair: Do you want to revote now? Mr. Dahilig: It is your prerogative. Mr. Raco : I have one question for the applicant if he can come up. Mr. Long, what were your findings as far as the traffic circulation, how did you derive to this conclusion in the application? Mr. Long: In fact in 2007, before March 7, 2008, this house was rented for a total of 29 days primarily to friends and family, friends of friends .. There is two bedroom, two and a half bath home. The rental agent limits the use of rental cars to the guests to two and they have a three car garage. So there really is no additional traffic with the TVR. Mr. Raco : So there was no traffic study made or there are no hard facts other than just your occupancy rate. Mr. Long: No sir we did not hire a traffic engineer to conduct a traffic study. Mr. Raco : And my next question is would the applicant be in agreement if lie sells the property that the application or the entitlement does not run with the land? Planning Commission Minutes February 14, 2012 25 Mr. Lonp,: That does not comply with ordinance 904 and I don't believe the applicant would agree to that. In response to the previous hearing it was brought up that this house was being advertised and I checked with the rental agent Ronnie Marley and the' house wasn't being advertised during the cease and desist period. And I actually called Mr. Diamond to ask her where I could locate the information on the web page that she brought to the previous meeting. I didn't receive a return phone call but I did spend some time looking on the web for the advertising and I could not find that. Vice Chair: So could you state the motion that is before the Commission right now? Mr. Dahilig: Commissi a oners the motion on the floor per the split vote at the last meeting was to approve Special Permit 2012-22 with conditions. Vice Chair: The motion is still . . . Mr. Dahilig: That is the motion that is still on the floor. Vice Chair: And it has been seconded. Mr. Dahilig: It has been seconded. Vice Chair: Any further discussion or any discussion at all? Staff: Mike, can I make an inquiry? The last discussion we had there was an addition of condition 24. Is that included in the motion? Mr. Dahilig: That is my understanding based on the action. Vice Chair: What condition is that? Staff "Applicant shall not make any representation that they have a private beach access." Vice Chair: Any discussion? Ms. Matsumoto: Mike, where is that in the . . . what page are you on? Staff. Page 11 . That was a new condition offered by the Commission. Ms. Matsumoto : Number 24. Staff: 24, yes. Ms. Matsumoto : I don't have that. Staff That is a write in. Vice Chair: So we are voting on this application including the additional condition 24 about beach access. Mr. Dahilig: That is correct. Vice Chair: Call for the question. Mr. Raco : If I may before we call for the question, Chair, regarding the traffic circulation could we ask the applicant to do a traffic study in order to show cause other than occupancy or is that acceptable to the department already? Planning Commission Minutes February 14, 2012 26 Mr. Dahilig: We are in a bit of a time predicament here because action is required by, I believe, Mike, March 13 , 2012. To do a professional traffic study by an engineer would require at least a couple months of field surveying including counting and observing the traffic flow, etcetera. So whether we could even get a professional traffic report done within that amount of time I would say would be highly unlikely. But that is something that if you would like the applicant to try to produce before the 210 day timeline is up then certainly it can be asCed. But I just want to point it out that we can ask for it to be done but whether we are going to get it before the clock runs may be a bit of an issue because those reports can't just be generated that quickly because of the observation that is required. Mr. Raco : For future applicants are there anything that the department. . . how does the department looks at that or certify that information that it is valid provided by the applicant. Mr. Dahilig: Whether a TIAR is necessary or not usually we dovetail off of the recommendations from the Department of Public Works Engineering Division. And so if they recommend that they need more information in order to formulate a comment to our department concerning a pending application it is at that point that we also jump on board and say okay, you need to do a TIAR before we move this forward. Staff. Could I explain how the department considers traffic or just does the initial analysis? Vice Chair: Sure. Staff. Based on the information submitted during the provisional permit, hQw many days the structure was rented as compared to a residential use the assumption is that 365 days a year, a long term rental is used, 365 days a year. Assuming two cars per house, mom and dad, let' s say two kids; it is either two cars or four cars, two times 365 days that is a very rough, raw, annual raw trip. Transient vacation rentals, none that have submitted requests, have been rented for 365 days. On the contrary as you heard from this one and plus several others that we did a rough analysis, if they are rented 180 days out of 365 days the impact to traffic is less than a long term rental. That is the initial take on how many car trips are being generated by these. But if Public Works doesn't ask for it we don't look into that it is just how many car trips, how many times were these things rented out. We even see where these people, they have been approved already, and they have rented it out four times because they live there and when they are gone to go to the mainland to take care of their parents they rent it out four times a year, four times, say two .cars max, eight trips let' s say in that one year. That is not an impact as compared to a long term rental. So we have looked at it, I mean just to verify if there is a potential for traffic. We wanted to do that concept on Kauapea Road but the numbers weren't there. But it is still; if we have the time we can ask. I mean if you have the personal knowledge of the area I think that goes farther than doing a rough numerical count but I like the idea. For this one we have until March 13 . Now for anybody else how much time do we have or if you want to condition it prior to the renewal of this permit, applicant shall submit a TIAR, there it is. Vice Chair: Any further comments, discussion, roll call vote. Ms. Matsumoto : I have a question. On page, actually I don't know what page this is, in the traffic circulation portion of the applicant' s supplemental report he mentioned something about the maximum of six persons can occupy the dwelling at any given time but usually there are two to two persons. And I believe he said something about a limit of two cars . Mr. Low Yes and that is in the report under the traffic section or in the front page description of public access on page 1 . Ms. Matsumoto : Would it be appropriate to add a condition stating what is said here? Vice Chair: Incorporating his representations? Planning Commission Minutes February 14, 2012 27 Ms. Matsumoto : To limit it to two cars. Vice Chair: I don't see any problem with it. Mr. Long: The applicant already does that in their booking with their agent and would have no problem making that a condition. And also just as a matter of comment, on the final condition, item No. 24, the comment about access to private beach, I talked to the rental agent and they have never advertised that amenity. And what Caren Diamond presented last time was an advertisement on the web page by someone we don't know and couldn't locate and couldn't contact. That was never advertised by the rental agent Ronnie Marley. Staff: I understand what you. are saying Steve. The issue might not be now with your applicant but we are starting to see some of these TVRs being listed for sale. So it may not be the owner now but the next owner in should be well aware that there are concerns and caps. So in that sense this would be a fair request. It is not so much for you, it could be for the next owner in. Mr. Long: Absolutely and the applicant has read and agrees with condition No . 24 and would also agree to your recommendation to limit the amount of TVR cars to two as an additional condition. Staff. So 25 would be something like this, "As represented no more than six people or two cars shall be permitted on site". Mr. Long: I thought we were just taking about the two cars, limit it to two cars. We were talking about vehicular traffic, limit it to 2 cars. What if somebody has newborn child? That is a person, six people. I thought we were just talking about the . . ' I am trying to be honest and strict in the application of that. It can sleep two people but what if one of them has a newborn child that sleeps with them then that would be a violation. Staff That isn't so much an issue if you have a child but if you have ten or twelve people. Mr. Long: I understand that. The applicant would have no problem restricting it to two vehicles. Staff. Where did you see the six people? Ms. Matsumoto : In the traffic circulation segment of this it says, "A maximum of six persons can occupy the dwelling". Mr. Long : If that is what I said then we would agree to that. And you can make that a condition. Staff. Six people or two cars. Mr. Long: Yes. Mr. Jung: So Mike, what would happen Commissioners is there would have to be a motion to amend the motion to approve to include this 25t" condition. Staff. Yes, that is 25 . Ms. Matsumoto : I move to include . . . Mr. Jung. Let' s get the language for you and then you can read it in as part of your motion. Planning Commission Minutes February 14, 2012 28 Staff: "As represented, no more than six people or two cars shall be permitted on site at any one time", vehicles. Ms. Matsumoto : I move to add that condition No . 25 to the motion to approve. Vice Chair: Any other discussion? Mr. Texeira: Just a point of information Mr. Chair, in terms of the motion, the right motion to make, the motion is to approve and then you amend. What is the process? Mr. Jung: There is currently on the floor a motion to approve with the amendment 24 that was done at the last meeting. To get another condition on there which would be condition 5 there would have to be a motiop to amend the motion to approve to allow this 25th amendment. But are you going to clarify whether it is six people or six adults? Ms. Matsumoto : I am comfortable with six people. Vice Chair: So you have stated your motion? Ms. Matsumoto : Yes. Vice Chair: Is there a second? Mr. Texeira: Second. Vice Chair: Any further discussion? Mr. 11m& Do you want to reread it Mike before the vote? Staff "As represented no more than six people or two cars shall be permitted on site at any one time. " Mr. 11m& I think you would want to add for transient vacation rental purposes because they have three parking stalls for farm workers. Mr. Raco : I think you are stepping over the line Attorney. Mr. Jung: Just for clarification, Mr. Raco : Inaudible. Call for the question Chair. Vice Chair: So has the issue of parking and cars and people been settled with this motion to the Commission' s satisfaction? Call for the question. Mr. Dahilia: Mike, just to clarify, it is an "or" or an "and"? Ms. Matsumoto : "And". Staff. Six people and two cars. Mr. Dahilig: Commissioners, the motion on the floor is to amend the motion to approve to add a 25th condition to require that there only be six people and cars at any givon time. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to amend the main motion to approve to add condition No. 25, motion carried by the following roll call vote. Ayes : Matsumoto, Texeira, Raco, Kimura, Slake -5 Noes: None -0 Planning Commission Minutes February 14, 2012 29 Absent: Katayama - 1 Not Voting: Vacant - 1 Mr. Ddhilipz: The motion on the floor is to approve Special Permit SP-242-22 with twenty five conditions. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to approve SP-2012-22 with twenty five conditions, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Texeira, Raco, Kimura, Blake -5 Noes: None -0 Absent: K.atayatna 4 Not Voting: Vacant - 1 UNFINISHED BUSINESS Special Permit SP-2012-24 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No . 904, in Kilauea Ag. Subdivision, Kilauea, Kauai, !gpprox. 3 ,000 ft northeast of the Waiakalua Street and Kuhi` o Highway intersection, further id entified Tax Map Key 5- 1 -5 :47 (Unit 1 , comprised of 2 . 88 acr' es), with an overall parcel siz6 of 10 . 902 acres = .Tames Fowler. Hearing's Office Special Meeting Public Hearing held 1 /6/12.1 SlIpplemental D 'irector' s Report No . 1 pertaining to this matter. Staff Planner Mike Laureta: Supplementary report No . 1 is provided. This application was head by the hearing' s officer January 24th. Staff would like to correct the applicant' s name up on top, it is James Fowler and not Greg but it is listed in the agenda correctly. This is a three unit CPR, unit 1 is owned by the applicant and has received authorization from the owners of unit' s 2 and 3 . The owner of unit 3 has already received Planning Commission approval for a TVR Special Permit for a nonconforming transidnt vacation rental use. The unit is 2. 88 acres in size, the parcel is 10. 902 acres. Applicant is declaring that sub item 3 applies in this instance which is size, shape, topography. Agricultural activity on the property exists which is exhibit 3 . There was internet advertising. The discussion that followed reflected the public hearing of January 6 th Now when this matter was brought to the hearing ' s officer there was discussion by the applicant regarding the staff report, specifically the existing beach access. On page 11 , condition 20; I would like to acknowledge that the applicant was correct the language in condition 20 states the existing public beach access path. It is not a public beach access path. So I would like to propose removing public and just. say the existing beach access path shall be made available for public use in which you shall discuss and resolve this. But what the applicant told the hearing' s officer was there is a better beach access path that exists approximately 350 feet from this area and why would you require another one. And there is technical issue regarding getting authorization from two other unit holders to create one continuous vehicular path to lead to that beach access path. So there are some issues. Avery will expand on that. If there are any other questions related to the report . . this concludes staff' s report. Mr. Blake: 1 have a question. We are on E. 1 , right? Staff E. I .a. Mr. Blake: Who represents Mr. Fowler? Staff: Avery. Planning Commission Minutes February 14, 2012 30 Mr. Blake: I just saw this letter from these Illinois attorneys and I didn't see any association. Staff: This application went through first the owner who sold and their that guy brought this attorney in and then Avery was brought in to be more local who understood the process and the requirements. Mr. Blake: Because he spealcs the language. Chair: Anymore questions for the planner? Mr. Raco : Mike, this letter right here is the application? Staff: Which letter? Mt. Raco : This is all just. . . Staff. If it is entitled TVR application TVNC 4201 . Mr. Raco : 4201 , yes. Staff: That would be part of. . . Mr. Raco : You know how we have the application template, boiler plate application as far as providing those five reasons. Does this application have it? Staff. The minimum information? Mr. Raco : No, the five . . . Mr. Dahilig: The Chapter 205, section 6. Mr. Raco : Yes, so I can base my decision on it, show evidence that they have complied. Staff: Actually the previous owner had in his application. . . Mr. Raco : So is this the previous owner' s application or the new owner' s application? Staff: It is a consolidated application. So what you see from the attorney, what you see from Avery, I am not sure if you have the soils report, another attorney' s information. Mr. Raco: You know what I am driving at, those five points, are they in here? Staff Not one complete document as you would expect. It is a compilation. Mr. Blake : So we don't have your dashb©ard report then. Staff Pardon? Mr. Blake : We don't have your dashboard report, standard, specific and so forth? Staff The D 'irector's report compiled all the information that was submitted although it Was a little bit disjointed. So I am not quite clear if you have KMT, Kauai Soils Material 1. Testing Report, soil and topography, and actually the applicant did do in his second, like pages 4, and 5 and there are pictures, special permit' s checklist. Ms. Matsumoto : I do see the KMT report. Planning Commission Minutes February 14, 2012 31 Staff: So you do have it. Actually that is why Avery was brought in to make heads or tails of the first two . Chair: Mike is this a seven bedroom house, am I looking at this correctly? You have two upstairs . . . Staff: Yes, I believe so . Mr. Texeira: Five bedrooms. Chair: Five bedrooms. Mr. Raco : So Mike, if we could . . . you know on the five points, with pages 7 and 8 , this is a regurgitation of what the HRS is, right, the boiler plate. But can the applicant provide us if this moves on more description of these five and how they comply for the use? Staff: If you would like him to reorganize what you are looking at that is . . . Mr. Raco : Do you know what I am getting at? Staff: Yes. Mr. Dahilig: Again we can only work off of the material that is provided us and the Commission has been used to seeing that applications outlining the five point test that 205 outlines in section 6 of requirements for a special permit. And in this particular case the department still had to go through the analysis on its own but in terms of what applicant is representing it is not entirely clear from the application where Exactly that analysis has gone forth. So Commissioner what may be helpful is to have the applicant' s agent come forward and maybe discuss that and Mike, what is the deadline for action on this? Staff: March 13 `x'. Mr. Dahilig: So we do have another meeting should the Commissioners want to have the applicant clearly delineate and justify their reasoning concerning why this is in conformance with the five paint test if they can provide that. But it may be helpful to have the applicant come up and discuss that. Mr. Raco : All I am saying is like on page 7 on test point (g), the reason for granting a special permit, it is just regurgitating what HRS 205 is to us and what we should do as a Planning Commission. He is just telling us that is the Chapter you go to and this is what your job is. Mr. Dahilia: I understand the need for more critical analysis and representation. Mr. Raco : It is just telling me what I have to do, what HRS is, but it doesn't tell me what information they are providing for me, that test point that . . .just that one point. Staff: I would like to say in Avery' s defense he didn' t do this, this was the applicant' s effort to address staff' s request for that kind of format and this is what he came up with. Mr. Raco , That is what my comment is Chair. Chair: Is the applicant here? Mr. Avery Youn: Good morning Commissioners, my name is Avery Youn. I am the authorized agent for the applicant. On a brighter note, today is Valentine' s Day and I want to wish all of you a Happy Valentine' s Day and after you get through listening to all these TVR applications, Hopefully it doesn't take you all day long, that you will be able to go home and enjoy the rest of the day with your loved ones and have a nice dinner or drink or whatever you Planning Commission Minutes February 14, 2012 32 want to do . And with that I will begin my testimony. I wasn't prepared to come here and talk about the five points but I will if I have to relative to the test for a special permit. Firstly, I did review the staff report and there are a couple of things I would like to add more clarity to. I know I did testify before the hearing' s office on January 6`h and there were some items that were mentioned in this staff report and there v*ere a couple of them that were missing that I would like to reiterate to this Commission. Specifically page 3 of the staff report, additional findings relating to beach access, the report states that internet advertising of the beach access will be removed and I would just like to clarify saying that it has been removed. Also I need to clarify that relative to the statement there is no common element easement to get to the beach access easement. Access to a private beach access easement is through a common element lot situated between the public roadway and the beach access easement. And both are owned by all three owners of the unit 7 condominium. There is no easement through the common element that connects to the beach access that is under the control of this applicant that he can grant to the County for public access. Also, there is another beach access path and parking within several hundred feet of this property. To be more specific it is 350 feet from this property. It is forty feet wide, it is shorter and it is safer and it has parking and a wider access. I believe I put a picture in there, in the application. There are two additional points that were presented before the hearing' s officer that was not in this staff report, one. is that the beach easement traverses through another private parcel situated between this property and the shoreline. And the approval of the other CPR owners will be necessary if we are to grant this easement to the County. Also there is a flock of Albatross that once nested on the lot immediately west of the property directly on the other side of the beach access. Right now a large dwelling is now under construction in that area so the birds have moved onto this site and is nesting immediately adjacent to the private access that is being considered or requested to be made a public access which I don't think would be compatible if it was made public. On page 11 , condition No. 20, requiring the private beach access to be made available to the public; although as worded this condition need not be resolved at this time but prior to renewal . However I must state for the record now, rather than wait for next year when we come in for a renewal that there are some factors that may prevent the applicant from meeting this condition and that in all likelihood it would not be possible to accomplish. And if the reasons I provide here are acceptable then maybe it can be removed later because there is no easement through the common element to connect to the beach access easement to a public street. The additional owners involved in the common element and in the adjoining parcel which the beach access easement runs through to get to the shoreline, approval would be needed from these additional owners but they are not applicants . I would be very difficult to obtain their approval especially if the condition requires that the entry gate be unlocked. We raised the issue of security earlier. This condition can also be considered as being imposed on properties that are offsite and not part of this application. And from past experience imposing such a condition goes beyond the authority or the prevue of this application and this Commission. Also ordinance number 777 amends the subdivision ordinance and grants the Commission the authority through the subdivision process to require public access ways to public lands or recreational areas not less than 300 feet or greater than 1 ,500 feet. In this case this is not a subdivision and the foregoing should not apply. And because there is an existing forty foot wide public access way adjacent to the adjoining lot to the east that is better, wider, and has parking, we are well within the range specified by the subdivision ordinance. And lastly I would like to address condition No . 22, this condition also is to be resolved at time of renewal, regarding the establishment of an agricultural easement to the County of Kauai. Although this is an honorable attempt to force agriculture to occur on a property I think that it is being assigned to the wrong entity which is the County of Kauai. And my reason is the county has had seventy five acres at the base of crater hill known as the Sea Cliff Plantation Planning Commission Minutes February 14, 2022 33 Subdivision and they have had this for over twenty five years and still no agricultural activity has taken place. At this time the condition is still very vggue, no one knows how it will work. There is no mechanism or agency within the County that can effectively implement or manage that responsibility. And more importantly the Planning Department and this Commission is already over burdened with responsibility and that the implementation, management, and enforcement of this condition should not be your responsibility. You will already be overburdened by the renewal of all these applications within the year. And now with this condition you will also have to determine who has attained satisfactory agricultural effort and who has not. So how this has become the role of this Commission I am not sure but I strongly feel that you have much more important planning issues to deal with. And maybe when all these TVR reviews have been completed it may be prudent that you requests of the County Attorney' s office, I am not picking on you by any means, to revisit the TVR ordinance on your behalf so that this process can be less burdensome a year from now. Mahalo and thank you for giving me the opportunity to present my concerns, and what I meant by a less burdensome process, you already have Class I, II, II, IV permits, a lot of it is handled administratively. Some of these I believe need not come through this Commission and could be handled administratively too if you have the right criteria. That is what I mean by revisiting the ordinance to make your job easier and more manageable so that it doesn't have to go through this fiasco that you have been going through for the last several months. Relative to the test for special permit, rather than go through each one I know and I am aware that when this application or when this TVR first started several years ago of course it did not meet the test for special permit. However since that time the TVR ordinance has changed and the Council slid grant permission or authority to these applicants to qualify to apply for a transient vacation rental if you existed prior to the adoption of the ordinance. And it gave these people that are before you now the opportunity to come here and be reviewed through a special permit. Quotes from the General Plan, in the stiff report it does recognize transient vacation rentals as an alternate visitor accommodation and that it can be addressed through the special permit process. Like t say, this applicant did not meet those requirements but because we were given that change to come in apply now they did go and plant bananas, papayas, and coconut trees in order to make an attempt to make it comply with the test for special permit. A lot of the lands over the cliff are marginal and not conducive to agricultural production. And within the period once his crops that were planted grow there will be additional tasks that the applicant will have to pursue when he comes in for his renewal such as getting and Ag. dedication and such as working towards marketing this produce once it starts to bear fruit. And hopefully within a year when we come in for a renewal the concerns relative to the test for special permit will all be addressed much better than it is right now. Are there any questions? Chair: Any questions for the applicant? Who owns the abutting property heading down to the ocean? Mr. Youn: Mr. Sevengus. Also with me today, I forgot to mention earlier, is Lisa Moss who is the former owner of the property and also the property manager and she can provide you with more information on ownership. As far as I know I think it is William Sevengus. It is an L shaped lot that starts from the turn of Waiakalua Road and it includes the Kapinau Heiau site and it wraps around the frontage of all of these beach front properties. Chair: And does the previous owner have permission from the owner of that property to go through their property to go down to the beach? Mr. Youn: It wasn't the owner today it was at the time of subdivision Hawanana Subdivision Company I believe which is C. ;Brewer. A subsidiary of C. Brewer subdivided all these lands, granted easements to not only this lot but I believe there are six of them and there are three access easements and it looks like two per lot that were granted to the shoreline property Planning Commission Minutes February 14, 2012 34 for beach access. But not public, it was all private. The public access is the one that I gave you the picture of which is one lot away from this one on the Kapa` a side of this parcel. Chair: Question for either the planner or Mike, at the end of their property line does DLNR have anything to say where the access to the beach from their property will directly affect DLNR? Mr. Dahilig: Mike, have you gotten any comments from DLNR concerning , . . Chair: Their private beach access. Staff. No. Chair: There is a public access right next door, right? Staff: Right. Chair: So why can't they just use that instead of using a private beach access? I am just curious. Staff: That is the part that we are taking into consideration but now that Avery mentioned that there is a possibility of six trails, let' s say this is a conservation piece, did OCCL grant authorization for that many trails, private trails down? Mr. Yours : This subdivision was created in the late 70 ' s and that easement, I don't have that document with me, was granted in the early 80 ' s I believe. Staff: No, the public access trail was okay but then the six private trails . . . Mr. Youn: Three. Staff: Three private trails, did those go through any OCCL review? Mr. Youn: Not that I know o£ It was granted through an access easement from the then owner of that property to the lots. Staff: Yes the granting of the easement is fine. Mr. Youn: One entity to the developer of the lots that we are talking about now not to each individual owner. Chair: So going back to the trail, Mike, is there any way we can put in a condition saying that they can use the public access instead of. I J mean they said birds are nesting in there so it might be disturbing the birds using that trail versus using the public trail. Mr. Dahilig : And the County loves birds. Staff: Yes, this condition can be eliminated, it can be eliminated, 20 . Chair: It is right next door where we have a public access. Staff: And Avery also brought up the mention that there are more birds coming so it' s like okay now this doesn't work. Chair: So can we just eliminate all private trails completely? Staff: Yes. I have no objection. Chair: Avery? Planning Commission Minutes February 14, 2012 35 Mr. Yount Thank you very much. Chair: No, I am asking if there is any comment on what we are talking about right now. Mr. Youn: When we first looked at the birds there were eight if them, four pairs, and now there is eleven. I think one of them doesn't have a mate yet. Mr. Dahilig: Right now the current condition addresses two issues, one is the path, the public and the beach trails, but the other one is regarding parking when you' look at condition 20. So if the intent is to strike from: what I understand are we also striking the issue concerning parking as well? Chair: That is where we are going? Staff: Because the existing beach access, Avery showed me pictures of it, it is wide open; there is ample room for parking. It is better than this place could ever be. Mr. Dahilig: I hear the trail thing I just wanted to clarify that we are also striking the parking requirement. Chair: Yes. Mr. Dahilig: In that case the department would recommend orally along with its recommendation that 20 be stricken if the Commission were to move forward with the application and then renumber it appropriately. Chair: So where are we now? Ms. Matsumoto : I was looking at all the papers here, I see there are four bedrooms, five, okay, I see in here four. Chair: Two upstairs, three downstairs. Ms. Matsumoto : And then you have a maximum of in some places 10 and in some places ten to fourteen people atone time. One just said maximum ten and then others said ten to fourteen. Ms. Lisa Moss : Generally it is two per bedroom but sometimes the families bring children and there are sleeper sofas downstairs that can sleep the children. Chair: Have we required some kind of minimum in vacation rentals as far as amount of persons staying per bedroom? Mr. Texeita: We did with the other. Chair: That is what I thought. So how do we go about doing this one? Mr. Dahilig: It is two times five, maximum of ten and in terms of vehicles. Chair: That is it for now, thank you, anybody in the public want to speak on this agenda item? Caren we are going to keep it to three minutes and three minutes only. Ms. Caren Diamond: Aloha Commissioners, Caren Dianiond for Protect Our Neighborhood ` Ohana. I want to address a couple issues here. First, the advertisements for this, the vacation rental is called Hale Mang and if you look at the ads it says it sleeps twenty. And I want to know how that complies with the Comprehensive Zoning Ordinance that allows oixly a single family residence which does have limits. And I want to ask you if you think that comports with the law" And I want to address the twenty people also as having impact to any of the beach Planning Commission Minutes February 14, 2012 36 accesses that can be used because if there are birds, whether there are birds or not having a beach access that twenty vacation people use is really problematic. But I want to spend my time on unusual and reasonable uses. For the County to be granting that the very first criteria are that you can only grant it when the use would promote the effectiveness and objectives of HRS Chapter 205 . So I hope you are going to make a finding as to how your approval of this and every other application in Ag. land is actually going to do that. I think that I would ask you to really review the accumulated impacts to Kilauea neighborhood and area and really are these unusual and special uses or should these have been the subject of a Land Use Commission boundary amendment? And if these parcels can't be used as agriculture or shouldn't be then that was really more appropriate than having each of them come before you and apply for this special and unreasonable use. Another point I want to make, when you read the law for special and reasonable uses it has to have an end time on it. And I see that you are making people come in for this yearly renewal but when people are saying no they won't agree to an end time on it, you can't grant a special and unusual use permit unless it does have an end time on it. And so I don't know that this really does go with the land forever and ever and so I am kind of asking just for your counsel to give you an interpretation on that. I am also asking for clarification, are you grandfathering these in and if you are then that relates to having a previously legal use. And a special use permit was available through the State and anybody to have been legally running would have had that permit before your giving them of this right now. Thank you, our community is really hurting, our agriculture land is diminishing every minute. Chair_ Any more questions? Does anybody else in the public want to speak on this agenda item? Seeing none, can I have a motion to close public testimony? Mr. Texeira: So moved. Mr. Blake : Second. Chair: All in favor say aye, motion carried. On motion made by Herman Texeira and 'seconded by Hartwell Blake, to close the public hearing, motion carried unanimously by voice vote. Chair: What does the Commission want to do? Sorry, we are up for discussion. Can I have a motion for discussion purposes? Ms. Matsumoto : Move to accept this application, approve this application. Mr. Blake: Second. Chair: This application is open for discussion. Mr. Raco : Mr. Chair, I stated in the past, hitting those five points. I don't find any significant or reasoning or facts on those points and I cannot make a decision. Chair: So noted. Mr. Texeira: I have a question in 'regards to that. Mr. Noun indicated that he wof.ld be able to address the five points if we deemed it necessary. Is he able to do that at this point? Chair: Can you come up Avery, please? Mr. Dahilig: So Avery, the five point test again is one, the use shall not be contrary to the objectives sought to be accomplished by Chapter' s 205 and 205A, HRS . I am reading off of what our analysis was on page 6 and 7 and 8 of our report. The second is, the desired use would not affect the surrounding property, the third one is the use would not unreasonably burden Planning Commission Minutes February 14, 2012 37 public agencies to provide roads and streets, sewers, water, drainage, and school improvements, and Police and Fire protection. The fourth one is unusual conditions, trends and needs have arisen since the district boundaries and rules were established in 1961 and the fifth one is the land upon which the proposed use is sought is unsuited for the use permitted within the district. So that is what I think they are looking for at this point. Mr. Youn: So you want me to address that right now? Chair: Please. Mr. Youn: The first one, use shall not be contrary to the objectives sought to be accomplished by Chapter 205 and 205A, HRS, and the rules of the Land Use Commission. My only comment to, that is that the transient vacation rentals are recognized by the General Plan as alternate visitor accommodations. Also the General Plan ordinance does recognize or does direct or allow transient vacation rental uses on agricultural lands. And it also sp(,11s out a process through the special permit process that you can have such occur on agricultural lands through the special permit process. So I think because it reflected in the General Plan and our General Plan technically is supposed to be in accordance with Chapter 205 and 205A that indirectly this application would conform to the first test. And like I said earlier in my testimony I didn't come here totally prepared to address all five points so I can jp8t address it generally at this point. Number 2, the desired use will not adversely affect surrounding property. The surrounding property, there is already one vacation rental approved on this same property. There is another huge residence being constructed on the property on the Kapa` a end or the east and there is also another not huge but large residence being constructed on the west side of the property towards Kilauea. Relative to just physically this house is also huge, five bedrooms, so relative to physical or esthetic impacts I don't think there is any because all of the houses in this vicinity are similar in size. I am not sure what is going to the happen to the house next door that is twice the size of this one, who knows, it might be a vacation rental although it is the aAg. district and I know they can't really apply for one. Or it just might be sitting there empty. I know when I first came up and testified before you I mentioned a lot of these TVR applications or TVR residences started up as gentlemen estates not in conformance with Chapter 205 . But because we are now coming before vacation rentals, the reading that I am picking up is that if you want your vacation rental you have to farm it. You can't have both or you can't just do it and not farm you have to comply with Chapter 205A which is what we are trying to do and that is why we instructed the applicant to go ahead and if he is not doing agriculture now he better start doing it immediately so all of these things have been planted. We also instructed him to get a general excise tax license which I believe he did and also to look at dedication towards Ag. lands for his portion of the property that he did put into agriculture. And like I said we didn't do it yet but we will be doing it prior to the renewal period. Mr. Raco : I have a question for the Director. With the tax being that the new owner is buying that property, right, how do yott link the tax if there was establishment prior to this application being approved now to the new applicant? Because obviously the history was with the old applicant which wasn't approved at the time but he sold the property and now it being sold now he all of a sudden has to hurry up and get the GET and do all of that. How do we link. . . there is no linkage there. Mr. Dahilix I guess part of. .. well there are two things at play and part of it is the 904 requirement for the provisional certicate as well as the . . .that then gets you to this point where you can come and apply for the special permit. Our understanding. . . Mr. Raco : But in this case he is selling the property already. Mr. Dahilig : It has been sold. Mr. Raco : The property has been sold already and now this new owner assumes that he has the same right as the previdus owner. Planning Commission Minutes February 14, 2012 38 Mr. Dahilig: Here is the thing. Part of the grandfathering element of this is establishing that there was TAT, GET and other types of indicators that have to be proven as part of the provisional certificate review process. As far as we. understand at this point the use has still been continuing regardless of the transfer because of the provisional certificate. And so what is unique in this circumstance is that the person actually sold the property to the new owner and is still the property manager of the property. All those records were still provided to the department as part of the review and at that point we cleared it to get a provisional certificate because all of the receipts were provided before March 7, 2008 . And then at that point they went ahead and went through the special permit process. That land transfer does not change the fact that there was a grandfatherable type of use that was occurring before March 7 , 200$ . It is just the transfer of land. Mr. Raco : That is a link that is as a Director you are just taking that link and It is okay? Mr. Dahilig: Which link? Mr. Raco : Because to me I see a big link that the old owner had the so called grandfathered in prerequisite to apply for this permit, right? Mr. Dahilia: Correct. Mr. Raco : And if he sold the property already prior to getting this permit, because we haven't approved it, he hasn't gotten a stone or a rock permit that he can do this, that this new applicant. . . and this is the old applicant, I mean this is the new applicant that is applying for it using the old owner' s application. Mr. Dahilig: I understand. Mr. Raco : So that is the link that I am saying that link to me is broken. Mr. Dahilig: It is well established in case law and in terms of the doctrine of running with the land. Chair: But the land is not, he didn't have the approval of the permit yet. How can he sell the permit without getting the permit? Mr. Dahilig: What has been going on is the grandfathering that is associated with the provisional certificate. That in and of its self is a provisional entitlement that does run at this point until otherwise determined through the special permit process. Mr. Raco : Who gave the provisional permit? Mr. Dahilig: We did because they met the requirements under 904, all the documentation to prove that they were in compliance regardless of who the owner is. They came in and showed their TAT, their GET, all their tax materials before March 7, 2008 and so at that point it doesn' t make a distinction between who owns it, it was whether there were elements of a grandfatherable use that were occurring before March 7, 208 . Land ownership does not change . . . in as milch as we would like to do things that say once you transfer the land out the entitlement goes away, it is the same rationale. Mr. Raco : So if I may, it would be the same scenario if you hired a management company but it wasn't for the land it was for, it was the management company that had the grandfather clause. Does that diff6r? Mr. Dahilig: What happened is the right to apply got transferred as a consequence of the land transfer by ownership. That right to apply runs with the land. Planning Commission Minutes February 14, 2012 39 Mr. Jung : Think of it as simpler context where you have a house, a house was built on a piece of property. The use of that dwelling unit as a house is what attaches to the property not the property owner because the land is freely transferrable. We cannot regulate how and why it is transferred. So you regulate only the use of the land versus who owns the land because you guys look completely at context of land use versus land ownership. The rationale behind it is you focus on the use of the land versus who the applicant is to avoid element of discrimination. Mr. Blake: So if the use was unregulated previously and now the unregulated user transfers the property to someone else and they say we want to be unregulated like him too. So we want to acquire his unregulated rights; his rights to non-regulation? Mr. Jung : And that is exactly what it was, the rights were unregulated, 904 established a process to regulate; and to allow the applicants to come in to apply for a special permit by establishing what they thought was their unregulated prior use. So it is the prior use of the specific property not the landowner, specific property can show that there is TAT taxes paid, there is GE taxes paid and their log books and what not to show that the use was pre-established then they were entitled to the right to apply for this special permit. If they didn't meet the criteria then they wouldn't be able to apply. Mr. Blake: So basically we are saying we don't care who owns it. Is that the upshot of what we are saying? Mr. Jung: I know a lot of people have a hard time grasping this concept but it is case law where planning bodies regulate the use of land and not who owns the land. Mr. Blake: Are we precluded from accepting the fact that this is the case law in 49 states and 500 counties but in our county it is different? Mr: Jung: It is common law accepted in all jurisdictions and it goes back to early Roman times. Mr. Blake : Nothing prevents us from changing that an4 say in our little Garden of Eden we are not going to allow that to happen in spite of Honolulu, Maui and Big Island. Mr. Jung: I know this is the law west of Honolulu but . . . Mr. Blake: I just want to know can we do that. Mr. Junes I would advise against it because it is generally prescribed case law. E Mr. Blake: I am not saying we should do that today or right now without going through a process but we can or the Council could say that is good for them but not for us so we are going to have public hearings and all this other stuff-. Mr. Jung: As you know ordinances can easily be struck down either as unconstitutional or unlawful and have been ordinances which tried to regulate property being transferred rather than just simply run with the land that have been stricken down as conditions and provisions within ordinances and that is (inaudible). If you guys want me to brief it for you I certainly can because I have done it before to this body. Mr. Dahilig: I just want to add in as well that when we look at this issue of amortization or trying to not have these uses continue anymore, the County has derived their authority for zoning directly from the State. So we are directly implementing what is State authority and the State law is very clear that we cannot amortize an existing use that is either unregulated or was previously permitted and if somebody has that entitlement. If the State law were to change that we could allow amortization then certainly we can go forward and do some type of phasing out but that is not within the County' s authority to do. Planning Commission Minutes February 14, 2012 40 Mr. Blake: The long and the short of it is as long as the State doesn't care about this witches brew continuing to exist we are stuck with it. Mr. Dahilig: Unfortunately yes and we are all in the same canoe. Chair: Question real quick, the old owners had all the taxes and all their ducks in a row. Mr. Dahilig: Yes. Chair: That is why you gave them the provisional am I correct? Mr. Dahiliiz: That is correct. Chair: Now they sold the property before they got their permit. How can that be transferred to the new owner? I mean they didn't get their permit yet, they got a provisional for the old owner, right? Mr. Dahilig: Right. Chair: How can that be transferred to the new one and they can come to us and ask us for a permit after the fact? Mr. Dahilig: Because the right to apply is also one of those elements that runs with the land. Chair: But it was given to the old owner with their. . . Mr. Jung? I-t was given to the property. Mr. Dahilig: The property not the owner. Mr. Junes I know it is a difficult concept to comprehend but it is what it is. Chair: But it was with the previous owner' s tax, GE, with the rental of the house. Mr. Junw. Yes and as Mike explained that is . . . Chair. But how can they transt'er that over to the new owners of the property and the' y come in for the application? Mr. !Lr1& Because it is establishing the prior use prior to March 7, 2008 . Chair: I could see if they already had their permit and then sold their permit with the property or sell their property and they already had their permit, I can understand that. But they have something that is not legal, it is not documented that they have a use permit and they sell the property with it. Mr. Jungo Think of it in this simple context. If you buy a piece of property and start to build a house and pull you building permit and get your contractors going in and you are starting to do the house. And then you sell the property midstream with the rights to the plans and the building permit. It doesn't mean you go and tear down the house and start from fresh you just step into the shoes of the developer and continue forward with the project. Mr. Raco : I have one more question, can the department or the Commission ask for an Ag. plan for their renewal when they come in? Mr. Dahilig: We can certainly add that as a condition if you want. Mr. Raco : And the TIAR. Planning Commission Minutes Pgbruary 14, 2012 41 Mr. Dahilig: If you would like a TIAR done we could definitely have a TIAR done. Mike, I don't know, what were the comments from Public Works again on the matter? Mr. Raco : Well obviously the impact regards to Public Works. Chair: Do we have any more questions for Avery? Avery, thank you, did you have any questions for Avery? Mr. Texeira: He was going through his list of 1 through 5 . Mr. Raco : Chair, I would rather have it deferred and put in writing unless the Director is okay in a verbal . . . Mr. Dahilig: Again as mentioned we have no control over the substance or quality of applications and whether they meet the requirements to a degree of satisfaction that we can discern the kind of critical analysis that you are looking for. We have gone and done our independent analysis on that. You are looking for something that is directly from the applicant with respect to what they are representing as meeting the 5 point test that is certainly something that if the Commission wants it for their deliberations then that is something that should be a§ked for. We have until March 13th to do action on the matter so if you are looking at a deferral we do have one more Commission meeting before March 13 1h 1 do want to again caution the Commission that the February 28th meeting we have 8 on deck, I believe. Staff. 8 . Mr. Dahilig: We have 8 on deck and that would be the meeting for at least these applications before you today if they are deferred would have to have action on that particular day. So I think our analysis is complete on our end but if there are representations that you would like the applicant to make before the Commission in writing then there is certainly the room to do so . But I don't think as part of our analysis on the five point test it would change substantively. Mr. Raco : That is not what I was asking. I was asking that on the same equalization of other applicants that are here again today I did ask for a deferral. But he Chair has suspended the rules and these is a motion on the floor and that is why I stated my reason that I would not be able to vote because of those five points are not conveyed in the application. But I would ask the Chair if he could ask the applicant if he could get a written. . .I guess now there is time. Chair: Do you have a problem with putting a statement in writing? Mr. Youn: No I wouldn't have a problem with that but I do have some clarification that I would need. Are you saying that the analysis done by the staff is inadequate? Mr. Raco : No I am not saying that. I am saying from an applicant standpoint that the reasoning from the applicant' s point be justified from the applicant' s point of view. Other previous applications that we had last week or at our last meeting did not meet my personal criteria and that is why I couldn't vote. Chair: So it' s not the staff s report it is the applicant' s. Mr. Raco : Right. Mr. Avery: Another question I have, you said March 13th was the absolute deadline? Could we give an extension if it is not resolved by that time? Mr. Dahilig: Not at this point because the new rules that would go into effect that were approved by the Commission today still have to go through Mayoral ;approval as well as a ten day posting with the County Clerk' s office before they go into force end effect of law. And so I Planning Commission Minutes February 14, 2012 42 would suspect that given the amount of time that the Mayor' s office is going to have to review the matter and then post it with the County Clerk' s office that an extension is still now an allowable mechanism at this point before March 13th Mr. Youn: The reason I am bringing that up is because I am going to be out of town on that date if it goes to that meeting. Mr. Dahilig: February 2 8th,? Mr. Youn: February 28th I will be here but March 13 `h I won't Chair: It is going to come up February 28th, am I correct? Mr. Dahilijz: Yes. Mr. Youn: And then just for additional clarity, you mentioned that this is a non-regulated use. I thought that with the passing of the TVR ordinance that it converted it to a nonconforming use which is not an illegal use. Is that correct? Mr. Jung: Non-regulated meaning it was previously unregulated outside the visitor destination area. Mr. Youn: Correct but with this ordinance being adopted doesn't it make it a nonconforming use instead? Mr. Jung: The use is nonconforming because it is outside the visitor destination area. Mr. Youn: And a nonconforming use is not an illegal use is that right? Mr. Jung: Correct but you still need the second prong which is the special permit to make it a legal use within SLUD, Ag. Mr. Youn: Thank you very much I understand that part. Chair: We can pull back that motion if we want to defer but it still up for discussion. Mr. Raco : Chair, I don't want to throw in a monkey wrench, I am just saying my own information I cannot make a decision. I know there is a motion on the flooi. Chair: That is. what I was making clear with the rest of the Commissioners. Mr. Raco : I am not askifig the motion maker to take back the motion I am just discussing on the floor. Chair: Any more discussion on this? Mr. Texeira: So are you considering to make a motion to defer? Mr. Raco.: Well there is a motion on the floor Chair, I don't want to . . . if the motion gets . . . I just want to be on a level playing field as the other applicants, other applicants are here on their second (inaudible) given them a chance to . : . Chair: We can go with your motion or we can. . . Ms. Matsumoto : Chair, I retract my motion. Mr. Texeira: I retract my second. Before you introduce your motion I just wanted to know if we were going to be expecting similar five points from the other applicants because if Planning Cbmmission Minutes February 14, 2012 43 we don't have satisfactory five pointers in the other ones then it is just going to set us back quite a bit. You have no idea? It is always a case by case basis.. Mr. Dahilia: A case by case basis. Mr. Raco : On the first application that came back, it is going to be read again, right? Chair: So withdrawn. Mr. Raco: Motion to defer to February 28th Ms. Matsumoto: Second. Chair: Seconded, all in favor say aye, any opposed, seeing none motion carried. Can motion made by Caven Raco and seconded by Camilla Matsumoto, to defer action on SR 2012-24 to 2/28/12, motion carried unanimously by voice vote. Commissioner recessed for lunch at 12 :27 p.m. Meeting called back to order at 1 : 10 p.m. Special Permit SP-2012-23 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted b County ty o£ Kauai Ordinance No. 904 in Kilauea, Kauai, approx. 2.400tft. north east of the Pili Road and Kolo Road intersection, makai of the Kilauea Twin Roads subdivision, further identified as Tax Map Key 5-2- 12 : 1 (Unit 2, 3 . 03 acres), with a parcel size of 33 .717 acres = Neal & Barbara Beissert. rHearina ' s Officer Special Meeting Public Hearing held 1 /6/ 12, deferred 1 /24/ 12.1 Sgplalement to the Written Statement: Compliance with Requirements for SLUG Special Permit submitted by Stephen Long by transmittal dated 2/6/ 12 . Staff Planner Mike Laureta: This matter was last heard before the Commission January 24tH; it was deferred for supplemental information to be submitted. The applicant' s representative is Stephen Long. You do have that supplement, E.2 .a. Chair: January 24th, is that the one you are looking at? Staff. No, E.2.s, February 14th is the supplement for today. That is the additional information he submitted. Staff has nothing else to add to the supplementary report 1 , date January 24tH, so as requested by the Commission the applicant submitted supplemental information for the requirements of the State Land Use permit. That is also designated E.2.a, February 14th. And Stephen Long is the applicant' s representative. Chair: Any questions for the planner? Seeing none is the applicant here? Mr. Stephen Long. Good morning Chairman Kimura and honorable members of the Commission. I will keep this short and to the point. Thank you for this opportunity to supplement and clarify my original TVR special use application to adhere to the SLUC five point format. The new information in this packaging includes eight pages of case law, exhibit (g) for the safety and comfort of you and your neighbors, exhibit (k) with ten color photographs, plus an aerial view showing the CPR property lines that document the extensive lot area over the psli that inhibits large scale agriculture. Exhibit (t), a letter from Tualau Malafu which I will read quickly, "To Whom it May Concern: Twice yearly I trim and harvest the coconut trees as the Beissert house, twenty to twenty five trees. The coconuts themselves, some 2,000 plus are shared by our community of twenty Tongan families in Kapa` a for both food and sai at local farmers markets. The proceeds are donated to our church. We also gather the cut palm fronds for the children who have been taught to make sweeper brooms from them, these are used in our homes and very much appreciated, Sincerely, Tualau Malafu." Planning Commission Minutes February 14, ?412 44 The fact that Phase II of the agricultural plan has been implemented to establish a Kauai cantaloupe farm, the applicant will be submitting a schedule F with their Federal 1040 forms. They are opening starting this cantaloupe farm because of information they have received from Banana Joe' s Fruit Stand, exhibit (u), new exhibit reads, "We the undersigned would potentially be interested in selling organic cantaloupe from the Beissert property, Banana Joe' s Fruit Stand", with Joe' s signature and phone number. The applicant lives in the home and occasionally rents the residence. When they purchase the property sixteen years ago it was already an existing TVR and in those sixteen years there have been no complaints by CPR neighbors or the public, thank you, if you have any questions . . . please. Chair: Thank you, Caven are you satisfied with those points? Mr. Raco : Yes. Chair: Any questions for the applicant? Seeing none, thankk you, anybody in the public want to speak on this agenda item? Seeing none, what does the Commission want to do? This is one of those that came back from the last meeting. Can I have a motion? Mr. Raco : What is the significance that they have to go back, what it is the year, is it 2008? Chair: March, 2009. Mr. Dahilig: It is 08 . Mr. Raco : So if they show they were a 'I'VR since 2008 . Mr. Dahi- lig: Prior to 2008 . That is the only way they can get the provisional certificate and then apply for the special permit. Mr. Blake: Can I move to approve? Chair: Yes you can. Mr. Blake: I so move. Mr. Texeira: Second. Chair: Is there any discussion, all in favor say aye, any opposed, seeing none motion carried. On motion made by Hartwell. Blake and seconded by Herman Texeira, to approve SR•2012-23, motion carried unanimously by voice vote. Special Permit SP-2012-26 .to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County ofKa Kauai Ordinance No. 904, in Kalihiwai Rid>re, Kauai, approx. 2,000 ft. southwest of the Kaliliholo Road and Kirhi` o Highway intersection, further identified as Tax Map Key 5-247 :24 (Unit B), with a unit size of 4. 896 acres of a 25 .951 acre parcel = Howard Samuels. Hearin ' s Officer Special Meetin Public Hearing held 11 /29/11 , deferred 1/24/12.1 Supplement to Apulication: Exhibits K- 1 to K- 10 submitted b Harvey Cohen dated 2/6/ 12. Staff Planner Mike Laureta: This application was also deferred from January 24"' for supplemental information which is item E.3 .a, dated February 141 ' in your agenda. This matter was deferred and the applicant has submitted the supplemental information requested. The applicant' s representative is Harvey Cohen. Planning Commission Minutes February 14, 2012 45 Chair: Any questions for the planner? Seeing none, the applicant is here. Mr. Harvey Cohen: Good afternoon Commissioners, Harvey Cohen on behalf of the applicant Howard Samuels. Since last time I have submitted a supplemental application, specifically I was asked by Commissioner Raco to address the State Land Use Commission five point test and that information is set forth in the written supplement to the application. And in addition to that I believe Commissioner Blake requested that we submit color photos and to those ends we submitted a booklet which contains photographs depicting the agricultural activity on the property. Which actually I have to thank Commissioner Blake because I think the color pictures really pop and describe what is going on there. With that I have no further comments, we are totally on board with the staff' s recommendations and invite any questions from the Commissioners, thank you. Chair: Any questions for the applicant? Seeing none, I do . At the last meeting I couldn't really see the pictures of your is that a guest house? Mr. Cohen: No, there is an office; like a storage/office area. Chair: Has it ever been rented out as guest home? Mr. Cohen: No. Chair: Positive? Mr. Cohen: Positive, Chair: I used to know the land manager there that is why I am asking. I am sorry you said it is storage and what? Mr. Cohen: An office area, the break room if you will. Chair: That is the one with the swimming pool? Mr. Cohen: There is a swimming pool next to it, yes. Chair: So there are two swimming pools on the property? Mr. Cohen: Not that I am aware o£ I am only aware of the one. Chair: I guess the break room or whatever you call it or is that the fishpond right in front of it? Mr. Cohen: Yes, fishpond. Chair: Any questions for the applicant? Seeing none, thank you, is there any public testimony on this agenda item? Seeing none, what dons the Commission want to do? Mr. Texeira: Motion to approve. Mr. Blake : Second. Chair: Open up for discussion on this application? Mr. Blake: (Inaudible). Staff: Yes, in relation to the Chairman' s comment regarding the guest cottage/workshop/storage, this was where we were first advised of the issues of advertising on a website not belonging to the owner. But condition 23 is clear that whatever you are going to ball Planning Commission Minutes February 14, 2012 46 that structure, guest cottage, workshop, storage structure, shall not be advertised for transient vacation residential purposes at any time. And prior to renewal the Planning Department shall do an inspection of the structures. So we are going to ensure that that separate accessory structure isn't habitable space. Chair_ Is that going to be inspected before they start operating? Staff: We already did the inspection. Chair: Oh, you did the inspection. Staff. Yes, the inspection. . . Chair: Because the last time I was there, I mean this was years ago with the previous owner, they were like, it was kind of like a studio. Staff: Yes and prior to inspection everybody was advised that these things, you better have a use that was approved in that structure so when Bambi inspected the structure it was not contrary to the permit that was issued. So there was no habitable space in there and this was December, I think. Mr. Blake: Call for the question. Ms. Matsumoto : So condition No. 20 also has been taken care of about the website because it is asking that they provide documentation to the Planning Department. Staff. Yes. I think the last time , Harvey came up they ' ve expended efforts to have that website eliminated from the nether world so he is trying but there is more than one. Chair: What does this Commission want to do? We already have a motion and seconded already, right, let' s do a roll call on this one. Mr. Dahilig: Commissioners, the motion on the floor is to approve Special Permit application 2012-26, TMK: 5-2-017 :24 for Howard Samuels, with conditions. On motion laude by Herman Texeira and seconded by Hartwell Slake, to approve SP-2012-24 with conditions, motion carried by the following roil call vote: Ayes : Matsumoto, Texeira, Raco, Blake, Kimura -5 Noes . None -0 Absent: Katayama - 1 Not Voting: Vacant - 1 Special Permit SP-2012-21 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No . 904 in Wailapa Agricultural Subdivision, Kilauea, Kauai, Approx. 2,700 ft. north of the Kuhi ` 6 Highway and Waila a Street intersection; further identified as Tax Map Key 5- 1 -5 : 15 (Unit 5 and containing an area of 1 .445 acres), with the overall parcel size of 22 . 10 acres = Bruce& Cynthia Fehring: Mearing' s Office Special Meeting Public Hearing held 1 /6/12, deferred 1/24/12. Supplement to Special Permit Application No. 2012-21 submitted by Hale dated 2/7/12. Staff Planner Mike Laureta: This application also came from the January 241h agenda in order to address the five point special permit. The applicant' s representative submitted the supplement dated February 14, 2012, E.4 .a. The applicant' s representative is Glen Hale. Chair: Any questions for the planner? Seeing none is the applicant here? Planning Commission Minutes February 14, 2012 47 Mr. Glen Hale: Good afternoon Commissioners, my name is Glen Hale and I represent the owners of the property, Bruce and Cynthia Fehring. Cynthia Fehring is with me today. And we appreciate this opportunity to respozid to your earlier questions from the January 24`h hearing. We would like to respond to Commissioner Raco ' s request on the five point issue and also Commissioner Matsumoto asked us to kind of describe and tell the story of this property. So with your permission Ms. Fehring has a statement she would like to read. Mike, could we hand that to you so you can hand that out to the Commissioners? Mr. Raco : Chair, I am okay with the five points. Chair: Thank you. Ms. Cynthia Fehring: With this written statement how do you feel about just reading it to yourselves or do you want the applicant to read it? Mr. Raco : Chair, I am okay, I have read the application. I think this is a new application and it seems a more thorough application than you did the first time. Mr. Hale: It doesn't replace, it is a supplement but . . . Mr. Raco : It is a better supplement than your first application that you submitted. You can tell by the pictures that you submitted. Mr. Hale : I was going to ask and make sure, Mike, that they got the color photograph§ and so forth. Mr. Raco : No color photographs but Chair I am okay. Staff: Yes. Mr. Hale: I am prepared to address the five points if you need me to. Mr. Raco : I have read it. Chair: Did everyone have time to read this? Ms. Matsumoto : I would like to read it. Chair: Did you have time to read it? Do you haile any comments? Mr. Blake : I have a question. How many gallons of milk do you get per cow every day? Ms. Fehriniz: We haven't bred diem yet, they are still too young to breed, they are about ten and eleven months old. Mr. Blake : You expect to get ten or eleven when they are producing. Ms. Fehriniz: No, they are only ten or eleven months old so they are not ready to be bred. Probably in the fall we will breed them and then it takes nine months. Mr. Blake: What do you expect? Ms. Fehring: I am told that they will give two to four gallons a day from other people who have that breed. Mr. Blake: Did you choose Jerseys because of the high butter fat? Ms. Fehriniz: Yes. Planning Commission Minutes February 14, 2012 48 Mr. Blake: Do you plan to churn butter also? Ms. Fehrina: I think it would be nice to make some local cheese maybe. We will see. Mr. Blake: How big are they when they are full grown? Ms. Fehring: I think they range anywhere. from thirty eight to forty eight inches tall; maybe 600 pounds. They are about 400 pounds now. They are a quite smaller breed than a normal Jersey cow. Ms. Blake : So you are going to breed it to another Jersey bull? Ms. Fehrina: No, you have to get miniature Jersey bull. You have to do artificial insemination with a miniature Jersey bull. Mr. Hale: We submitted about six or seven copies of the color photos so we thought that would cover the Commissioners. Chair: Moving on, where are we at now, any more questions for the applicant? Seeing none, thank you, anybody want to speak on this agenda item? Seeing none what does this Commission want to do? Mr. Blake : I have the same question of the planner; the conditions have been reviewed by the applicant? Staff Yes. Mr. Blake: Any changes? Staff None. Mr. Blake: Move to approve. Mr. Texeira: Second. Chair: Discussion or comments? Staff. Wait, at the last meeting there was discussion about the wording of condition 23 which is what the applicant' s representative had suggested because there were so many other structures on the property. And he had submitted a letter and condition 23 was going to be refined to read, "The other agriculture related structures on the property that are owned by the applicant shall not be used or advertised as accessory rooms for the transient vacation rental use of the unit five farm dwelling or unauthorized residential use unless approved by the Planning Commission. Such structures cannot be used or advertised for TVR use independently of the unit five farm dwelling." Mr. Raco : Is that our normal condition for all applicants or just this one? Staff That was better wording for condition 23 . This still provides the awareness that any other structure on that unit or on the appl'icant' s land will not be used for residential purpose's or beyond what was authorized by the Planning Department. Mr. Raco : So there cannot be other TVRs. Staff No. You can't convert sheds or any other structure on the property to a use beyond what was approved which is a shed, a storage shed, a. . . Mr. Raco : So this is a new condition that you are crafting. Planning Commission Minutes February 14, 2012 49 Staff No it is a better recognition of the present condition 23 that limits it to the applicant' s land because he is not responsible for everybody else' s unit. Chair: Any more questions or concerns? Ms. Matsumoto: I think last time too was it condition No . 22 that had some kind of issue? I have it in my notes. Staff: I have a note here that says he is on record to reserve the right to Mr. Juna: That is for the agricultural easement. Staff: He is just trying to preserve his right for the future but we are not changing the condition, the condition is as is. Chair: Any more comments or discussion? I have one. I will be voting against this application and my reason for this is I have an issue with the credibility of the applicant' s representations that the grandfatherable TVR use was actually occurring in legally permitted dwellings. To consider even a single family use in these dwellings is unlawful and therefore I believe that also applies to the proposed. TVR use. Therefore, I am unwilling to permit something that I do not believe meets the standard of proof that residential use and TRV use for that matter was occurring in this permissible structure. Mr. Texeira: I know what you read but I didn't quite understand it. Chair: There have been a lot of. . . Mr. Raco : Should be go into executive session to have this discussion just for the Chair' s protection? Chair: We can. Mr. Jung: What is the purpose for the executive session? Chair: To go over legal ramifications. Mr. Jung: On what issues? Mr. Raco : Because of what Herman wants to hear, right Herman? Mr. Texeira: I just wanted to , Mr. Dahilia: I guess what I am hearing is that there is a concern that the Chair has regarding whether the evidence that has been presented before the Commission truly reflects TVR use in permitted structures. As you know this application was; this is the second submittal for this application and there were concerns regarding TVR use actually occurring in structures that received proper zoning and building permits. So I think that is what I am hearing. Chair: Yes. Mr. Texeira: So why is this coming before us if that was a concern of the department? Mr. Dahilia: I think as he mentioned it is an issue of credibility at this point. Mr. Texeira: I think what he is asking is why is the applicant coming before us again? Mr. Dahilig: I can't answer that question but we did a second due diligence on it, the inspection turned out clean and we did all the appropriate research as required for the Planning Commission Minutes February 14, 2012 50 application. I think as each Commissioner is entitled as a fact finder to make determinations on their own and so I think that is just his impression. But ultimately when we did the review of the application we found it came out clean and what they are representing matched what was being said. I am sure that reasonable minds can differ on this. Mr. Texeira: Mr. Kimura lives in the area so he is more familiar with that area than I am so I cannot have the same level of expertise that he is bringing to the table. Chair: Basically it' s their. . , how can I say it without putting my foot in my mouth. Mr. Texeira: No need to respond. Chair: I would rather not. So, that was my concern, roll call. Mr. Dahilia: The motion on the floor ig to approve Special Permit No, 2012-21 for Bruce and Cynthia Fehring with conditions. On motion made by Hartwell Blake and seconded. by Herman Texeira, to approve SP-2012-21 with conditions, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Texeira, Raco, Blake 4 Noes: No - 1 Absent: Katayama - 1 Not Voting: Vacant - 1 Special Permit SP-2012-35 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Kalihiwai, Kauai, approx. 3,200 ft. southeast of the `Anini Road and Old Kuhi` 6 Highway intersection, further identified as Tax MahKey 573 -3 : 7, and containing an area of .283 acres = Patricia Druzba. Wearing ' s Officer Special Meeting Public Hearing, held on 1 /6/ 12. 1 Supplemental Director' s Report No . l pertaining to this matter. Staff Planner Mike Laureta read supplemental No. 1 (on file). Chair: Any questions for the planner? Seeing none . . . Ms. Laurel Loa : Thank you Mr. Chair and Planning Commission members, Laurel Loo for Pat Druzba, here to answer any questions. I do have a couple of comments if I might. Ms. Druzba actually hired me at the very last minute because she has been undergoing medical treatment on the mainland. So she hasn't been able to attend any of the public hearings or any of the Commission meetings so she sends her apologies but I told her, her main this is just to get better. As you can see from the supplementary application that I submitted it is a very small parcel with room for very little, There are actually more trees there on ground now because this aerial photo is a few years old. You will see the back of the house toward the rear is actually a terraced area where there now is a vegetable and flower garden and the front yard is really also a leech field but a turnaround area for cars. So the applicant has not problem in increasing her Ag. use it is just not enough room to obviously plant acres and acres of trees. Just one concern overall I had for all of the standard language on the recommended conditions of approval. I have now had two clients who have, told me that the standard requirement in this application at No. 17 requiring the applicants to put their TVNC registration number and their address on the internet has already led to fraudulent booking of the homes . One client because the email is on the internet booking has had her email kiacked and has been contacted by persons asking where to send the money and it was not her. So my only suggestion and I have talked to the department about it, their concern in having that information is so that when they check the internet advertising they can see that it is an approved TVR. Planning Commission Minutes February 14, 2012 51 So one suggestion would be instead of also listing their address is to list just the TVNC number. You can still get the address from public sites but it takes a little bit of homework to do that, it is not as easy for the hackers to get that. We obviously would prefer no identifying informatioh but that is a concern raised by the companies who have placed for one client the ads with this requirement that they have seen it. And in fact it was the subject of a 60 Minute or 20/20 investigation a few months ago where people on the mainland, not here yet, well here now with my clients have rented houses they get access to on the internet, send us your deposit to Vehe2uela or wherever and they show up at these people ' s homes with no real reservation. That is just something to be aware of with condition 17. Chair: With all due respect that really is not concern of this Commission' s. I feel that it is the applicant' s responsibility to, this is just my personal opinion, it is the applicant' s responsibility to take care of their end of the business as far as collecting money, rentals and all that stuff. But as far as the department showing the use hermit and their address, I think it is a necessity, it makes it easier for the department. But with that being said if you can work it out with the department so be it. Ms. Loo : I am hoping to work it out with the department, the TVNC number so they have something they can just refer to a list. They have been so easy to work with I am sure it would be easy to accomplish. Chair: Mike do you have any comments on that? Staff: Yes. The problem is we are going down this path trying to get TVRs registered and legal. Until we get through this agriculture special permit issue then and only then can we now sweep the internet for those illegal people are advertising. We have heard that areas of Kauai are rampant with these TVR uses that didn't apply and they are still operating and the only way we are going to be able to get to them is once we complete the Ag. district, the Urban district is already done and being renewed, we have -volunteers that will sweep the net. And once they sweep the net and they don't see TVR number and address up pops a red flag and they go onto a list, they go to the inspector now that the department had fining capabilities now we get to do something, we get to take a swing. Only then are we going to be able to get a handle bn how many illegal TVRs are out there. This concern that Laurel brings up was a subject of what was occurring in Honolulu but Kauai was well under way with this process requiring TVR number and address. Right now we can't do the hinny penny move, what if, to me, no, we have to get to the end so that we can start the inspections. Chair: Laurel, one more question, does the owner own all three? Ms . Loo : No, just that one house. They look really close. Chair: And 'it' s not CPR' d? Ms. Loa : No . It is a single lot. Chair: Any questions? Mr. Junw. Are those Kuleana lots? Ms. Loo : I think so. You can see, Chair, the line around, that is the approximate boundary. Chair: Any questions for the applicant? Mr. Texeira: Going back to exhibit A, the color pictures, what is the TVR in exhibit A, just that? Planning Commission Minutes February 14, 2012 52 Chair: Yes, that is the only property this applicant owns. That is the question I just asked Laurel. Mr. Texeira: I thought you meant the units on the side. Chair: I was asking about all this, if she owned all that but the applicant only awns just the TVR she is applying for. Mr. Raco : Mike, you know Larry Dill ' s comments regarding the propane tanks, do you have a condition that the applicant needs to apply or resolve those conditions? Staff: Yes. The conditions of . . Mr. Raco : Because apparently your inspector went out and took a picture of that and it is on the ground. Staff: Public works is most concerned with these TVR applications in the flood zone. That is why they took the extra effort to do what they did. Our inspector is not looking for compliance with flood because that is Public Works requirement. Mr. Raco : So why is this picture in here? Staff: It is what he saw and it is what Public Works is commenting, their inspection commented on it. Mr. Raco : So what condition do we have that the applicant must comply? Staff: Condition No . 5 , to understand this condition, we are giving applicants one year to resolve agency comments and they have to resolve it in writing. So at the time that they come back for renewal if they haven' t resolved the condition we are not going to be recommending approval in fact we are going to be recommending cancellation of the TVR permit. Mr. Raco : I' m good, that is all I wanted to know is where the condition was. Chair: Mike, is this the `Anini side of Kalihiwai? Staff: This is the opposite side of the river mouth. Mr. Raco : The other side. Staff The other side where the bridge used to go across. Chair: ` Anini side. Staff Yes, ` Anini side. Chair: This is up high? Staff: No, low. Mr. Raco : Why isn't that condition, what he just said about if the applicant has not complied that the application would be denied? Mr. Dahilig: We want to leave the window open for when the renewal does come and we need to go through the appropriate due process concerning whether, let' s say they have made a good faith effort but it hasn't been done because of the departments, another agency' s issue and they just haven' t responded. So we wanted the ability to actually go and evaluate at that point whether there has been d'il'igent effort to meet these other conditions that are meant to be resolved and if it really is more of a matter of the governmental agencies dragging their feet then we Planning Commission Minutes February 14, 2012 53 obviously don't want to be in a position of holding them responsible for what they have no control over. Chair: Any more questions? What does this Commission want to do? Anybody want to speak on this agenda item? Seeing none what does the Commission want to do? Mr. Blake: Move to approve. Mr. Texeira: Second. Chair_ Any discussion, seeing none, all in favor say aye, opposed, seeing none motion carried. On motion made by Hartwell Blake and seconded by Herman Texeira, to approve SP-2012-35, motion carried unanimously by voice vote. Mr. Raco : On the next agenda item I have to recuse myself. Commission recessed at 2 :00 p.m. Meeting celled back to order at 2: 15 p.m. Special Permit SP-2012- 16 to permit use of an existing single family residence for Transient Vacation Rental purposes as aermitted by County of .Kaua` i Ordinance No . 904, in Ka ihiwai, Kauai, approx. 2,350 ft. east ofKalihiwai Road and Kuhi ` a Hi&wgy intersection, further identified as Tax Map Key 5-240 :29 (Unit C. comprised of 21.623 acres), with an overall parcel size of 16. 332 acres = Linda Saunders Trust. [Hearings Officer Special Meeting Public Hearing held 116112.1 Supplemental Director' s Report No. 1 pertaining to this matter. Staff: This application came before the hearing' s officer on January 6th. This is a four unit CPR, authorization has been provided by the other CPR unit holders. It is in Kalihiwai, tax map key 5-2- 10 :29 . Unit C is comprised of 2. 623 acres out of a total of 16 .332 acres. Agricultural activity, yes, applicant has numerous fruit and flowering trees and plants and that is reflected on exhibit 3 . Property inspection by the department and conducted an inspection on the property December 12th and confirmed that no use or zoning violations exist. There was intemet advertising at the time staff did the search. Now does the Planning Commission have a communication from the attorney Charlie Foster regarding condition 24? Mr. Texeira: Yes. Staff: The new attorney for the applicant is withdrawing that letter. So that letter is being withdrawn. I go to the additional findings portion of what happened on January 6th, no adverse testimony from the surrounding neighborhood however PONO and KNA did submit testimony, general testimony and that would conclude staff s presentation. Mr. Texeira: Can you explain this a little better for me, they are withdrawing the two bedroom . . . Staff. No . The internet advertising which another one that doesn' t belong to the applicant advertised the fact that a structure that has several different names, artist studio, pool house structure, or guest cottage was or can be used for habitable space. The as-built plans that were submitted with this application even reflected a kitchen. The internet advertising for this property which is not the applicants advertised multiple beds. In the department's eyes that structure is not supposed to be habitable floor space, habitable being you can' t have a bedroom and you sure shouldn't have a kitchen. At the time the inspection was done there were not beds and there was no kitchen. Planning Commission Minutes February 14, 2012 54 So at the time the inspection was done everything was clean. Condition 24 is to ensure that the Oresent owner and any future owners know that that structure whatever it is called, it is not a guest house, legally. It is a pool house possibly, it could be an artist studio possibly, it cannot be considered habitable floor space or habitable use meaning you can't have a bedroom, beds. And you shouldn't have a kitchen. You can use it for accessory use, storage, games, ping pong, massage, artist studio, but it shouldn't have a bed or kitchen. That is the intent of condition 24 however Laurel does have a simpler sentence to address that matter. Chair: Any more questions for the planner? Seeing none is the applicant here? Ms. Laurel Loo : Thank you Mr. Chair and Commissioners, Laurel Loo for Linda Saunders. Just a couple of preliminary things, condition 24, when my client Linda Saunders bought the property in 2000 it was sold to her with that pool house depicted as an additional legal bedroom. The CPR documents refer to it that way, the CPR map refers to it as a bed and she has been paying on the tax assessments every year for that additional bedroom. But as soon as we learned there was an issue it ceased that use and she has never rented it separately it is only for overflow, pool use, TV watching, that kind of thing. But because there are five separate documents that we have that are official documents either recorded or government generated documents referring to it as a bedroom we believe there may be a possibility that there is a permit that at some time in the past somebody had come in for permitting that as depicted in the documents. So if we do find that permit because there have been several previous owners we would like to come in and amend this as a bedroom. But until such time my revision would be simpler than Mike' s so 24 would read, "The detached studio shall not be used for habitable purposes." Chair: Mike, any comment on that? Staff: Yes. Just because we are going to be walking a thin line here I am not sure using the term "the detached studio" would be acceptable because the documents that we have seen, the research that we have done doesn't show it but it is under three different names including in the CPR document so "the detached structure". Ms. Loo : Okay. Do you want to put in parentheses pool house? Staff Okay. "The detached structure (pool house) shall not be used for habitable purposes." Habitable purposes meaning there shouldn't be a bed and there shouldn't be a kitchen. Ms. Loo : Otherwise we have no objections to the proposed conditions with the exception of just my general objection to the Ag. easement and in this case by my count there are 34 mature fruit bearing trees on the property already in addition to more than a dozen or so other mature trees. But the applicant will increase use of the Ag. use as is required in the standard conditions of the department. Azad again our concern about the security issues of the internet advertising was just a general concern. Other than that we appreciate Mike Laureta' s assistance and Mr. Dahilig' s help in this matter. The department has been very accommodating. Chair: Laurel, you guys don't have a farm plan do you? Ms. Loo : Not yet but we will when we come back for any amendment or for the renewal. We don't have an official farm plan. Chair, You said you have thirty four fruit bearing trees? Ms. Loo : Yes. And by way of introduction my client and her family spend between five and eight months a year here every year since they bought the property in 2000 and her daughter is enrolled in public school here. Chair: Where is this located, it says Kalihiwai. Planning Commission Minutes February 14, 2012 55 Staff: It is as you, it is on the Kilauea side of Kalihiwai River so when you are going down like you are going to go surf and before you hit the hairpin turn it is on the . . . Chair: By (inaudible) old house; that area there? Ms. Loo : Yes. Staff: Yes. It is on the upside. Chair: Thank you, anybody in the public wants to speak on this agenda item? Seeing none what does the Commission want to do? Mr. Texeira: Motion to approve. Mr. Blake: Second. Chair: Any discussion, seeing none, all in favor say aye, opposed, motion carried. On motion made by Herman Texeira and seconded by Hartwell Blake, to approve SP-241246, motion carried unanimously by voice vote. Mr. Blake: I have a general question; procedurally say you buy a 6,000 square foot lot that is in Ag. zoned land, that is zoned agriculture, when you buy that lot you are entitled to build a home on it. If you avail yourself of that home you know you are not going to farm to any great extent, you will plant some fruit trees and flowers and so forth but generally speaking you don't expect to secure any large percentage of your income off that remaining 2,000 squa:`re feet or so. You still have use of the property, i .e. you can build your home on it, a home on it or your home on it. Does that mean that the other uses that have been permitted on Ag. property like churches, TVRs, and so forth, rise to the same status as farming? You automatically . . . because it is not machine tillable and it is not big enough for Ag. dedication and you cannot intensively as the legislature defines it farm you automatically can have TVR use on it? Mr. Jung : There is three parts to your question, one is the lot size, post June 4, 1976 all lots had to be at minimum one acre so if it is a 6,000 square foot lot then it is likely is was created well before the regulation of agriculture and our County CZO so probably some kind of Kuleana lot or some subdivision that was done before our codes were in place: So that is the first element to it is it has to be, today' s standards, it has to be at least one acre based on the sliding scale of our Ag: standards when you ate talking about lot sizes. For that one acre standard I think that is why the State legislature in 205 did riot restrict how much income you need for farming or how much land area you need to farm because every case is going to be a case by case basis. So you need to evaluate how much area can theoretically be farrr}ed versus how much area can be set aside for the house site or the farm dwelling site. So the farm dwelling requirement only kicks in on lots created after June 4, 1976. So a lat of these lots and a lot that you guys have seen in these particular applications, in the previous applications, were lots that were created before June 4, 1976 so that farm dwelling requirement wasn't there. But it is the use element is what was in question and whether or not TVR use was allowable and it was the department and County' s decision that they are not outright permissible on SLUD Ag. lands based on the provisions of 205-2 and 205-4.5 which identifies specific uses. Because there is availability of a special permit under 205-6 they could apply for the special permit and we gave them an opportunity to apply for the special permit because they had already been previously in use. And it is the same thing with churches, they are not outright permitted on agricultural land, they have to come in for a special permit. Same thing with schools, not outright permitted, they have to come in for a special permit and then that is when you guys weigh into the five point test of the special permit where you look at how there are impacts on neighboring parcels, you look at what type of property it is, whether or not there or soil constraints, whether or not there are slope constraints, all the things that Mike Laureta and the department have been going Planning Commission Minutes February 14, 2012 56 over. So that is how you evaluate each of those points to determine whether or not it meets those standards on a case by case basis. Mr. Blake : And like I said, well you know when you bought it what the strictures, what militates against agriculture, of any type of commercial venture. So that doesn't automatically flop you over into TVR use does it? Mr. Juna. No. Chair: We are going to consolidate the next two together. Special Permit SP-20124 to permit use of an existing single family residence # 1 (aka "Longhouse") for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalaheo Homesteads. Kauai, approx. 700 ft. southeast of the intersection of Puulima Road and Puuwai Road, further identified as Tax Map Key 24-3 :26, and comprised of 11 .423 acres = Bruna Stude & garter Carey AM Pala Mala LLC "Logehouse '. [Hearing' s Officer Special Meeting Public Hearing held 11 /29/11 .1 Supplemental Director' s Report No. 1 pertaining to this matter. Special Permit SP-2012-5 to hermit use of an existing, single family residence #2 aka "Barn") for Transient Vacation Rental purposes as permitted by Count. off Kauai Ordinance No. 904, in Kalaheo Homesteads, Kauai, approx. 700 ft. southeast of the intersection of Puulima Road and Puuwai Road, further identified as Tax Mn Key 24-3 :26, and comprised. of 11 .423 acres = Bruna Stud e & Carter Carey dba Palu Mala LL.0 "Barn ': Hearin 's Officer Special Meeting Public Hearing held on 11 /29/ 11 .1 Supplemental Director' s Report No . 1 pertaining to this matter. Mr. Dahilig: Commissioners, pursuant to our reports for items E.7 and E. 8 on our agenda given our recommendation on page 9 of the Director' s report we would request that permit number SP-20124 be consolidated with permit SP-2012-5 at motion by the Commission. Mr. Texeira: So moved that we consolidate 2012-4 and 2012-5 . Ms. Matsumoto: Second. Chair: Is the applicant here? Please step forward, do you have any comments on combining the two together? Mr. Chun: No. Chair: Do we have any discussion, seeing none all in favor say aye, any opposed, motion carried. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to consolidate SP-2012-4 and SP-2012-0, motion carried unanimously by voice vote. Staff Planner Mike Laureta: These . two special permits are for a primary single family residence and a secondary primary residence. One is known as the Longhouse, the second is known as the Barn. This matter went before a hearings officer on November 29th. This is located in Kalaheo Homesteads. The property is 11 .423 acres in size, it is not a CPR. Special permit requirements, in 2005 the applicant was granted a ten year agricultural dedication for pasture purposes by the County of Kauai. So ordinance standard No . 1 is applicable, the do have Ag. dedication for pasture purposes. The property was inspected by the department July 13 , 2011 and verified the extent of Ag. use on the property and verified that no zoning violations exist. Internet advertising, yes, it is known as Ka Hale O Luina. At the public hearing of November 29th no adverse testimony from the surrounding neighborhood was submitted or received. The applicant reiterated the information contained in their application. Under Planning Commission Minutes February 14, 2012 57 Planning Commission concerns this follows from previous Planning Commission action regarding the consolidation of permits, that is on page three, and that will conclude staff s comments. Mr. Texeira: Mike do you have a picture of the two units in conjunction with the property line, how far they are, etc. ? Staff: That would be in the applicant' s application. Mr. Texeira: There are two though, which one? Staff: It would be pretty much the same; the plot plan would be used. I am looking at the plot plan and the same plot plan was used for both applications and it only shows . . . Mr. Texeira: How about exhibit H? Staff: Exhibit E and exhibit H. Mr. Texeira: They are fairly close to each other then. You guys have my question, right? I wanted to know if they had a photo of the two house together, exhibit H shows that, the first one. Chair: Any more questions for the planner? Seeing none is the applicant here? Mr. Jonathan Chun: Good afternoon, Jonathan Chun on behalf of the applicant. Also the applicant Bruna Stude is sitting behind ine to my left, your right, she is the applicant. Chair: You can come up too if you want to . Mr. Chun: In answer to your first question in terms of the location, the distance between the two buildings, according to Ms. Stude they are roughly two hundred feet. There are two site plans, sorry we were not able to consolidate but if you look at exhibit E there are two separate site plans, one for the Barn and the other one is for the Longhouse. 'And when you compare that you can kind of see the relative distance and location of the two different structures. One is of course located above Kalaheo Stream on the site plan on exhibit E and if you look toward the end of exhibit E there is a second site plan for the second dwelling and that is located below Kalaheo Stream. But according to Ms. Stude they are roughly about two hundred feet distance between the two structures. If the Commission has any further questions regarding the property we would be happy to answer them. We do have a few comments regarding the report but I will wait until the Commission has any other questions. Mr. Texeira: I am looking for cows. Mr. Chun: I think the plane was going by too fast but the property has traditionally been used for pasture in that area, it has almost always been a pasture for cows or sheep but I think basically it was cows. When Ms. Stude bought the property they continued the same arrangement, I think the original owner was actually pasturing his cattle there and I think they did more fences, worked within to put additional fences up . Chair: How many head of cattle are you running in there right now? Ms. Stude : The Vidinha family runs the pasture and the cows and they have several pastures so they rotate the cows, they move them from property to the other. I actually just spoke with his son; there are seven cows right now because they did certain rotations. But at times there is a lot when the babies are around. Chair: To be considered Ag. they have to be on the property all the time, right? Planning Commission Minutes February 14, 2012 58 Mr. Jung: All that is required under agricultural activity does include animal husbandry but I think . . . Chair: That is the only type of Ag. they have. Staff: Because the land was dedicated, Ag. dedication. Mr. Juns?: Right, they have Ag. dedication on this but when it comes to, from what I learned through the IAL process it takes three acres for one head of cattle. So in terms of rotation I guess it needs a pretty large area to rotate. Mr. Chun: And if I may, Mr. Vidinha owns or leases other parcels in the immediate area and that is one reason why when he sold this I believe he was talking with Ms. Stude and he really wanted to be able to continue to use the pastures in his area for his cattle. So he is not only rotating . . . he is rotating within the area. It does take roughly about three acres per head so that is one reason why th6y keep on needing to move the cattle from one area once they start eating enough grass over there. Chair: I was just wondering, we are just talking about this particular parcel, the eleven acres, and not to have cattle on there at any given time, 24/7, is that considered Ag. dedication? Mr. Chun: We believe the cattle are there all the time it is just that it is not the same mouth that they are feeding. Ms. Stude: You ask me a question how many cows there are on the property and I told you they rotate the pastures so right this moment there are seven, at times there are many more and there is never less than . . . I don't count them on a daily basis but I have never seen the pasture without cows. Chair: I understand that but my question was at any given time, 24/7, 365 days a year, is cattle on the property? Ms. Stude: Yes. Chair: That was my question, so any other questions for the applicant? Seeing none thank you very much. Mr. Chun: I do have a few comments on some of the conditions and just from maybe consistency sake. If you look at condition 16 it talks about the sale or transfer but the last sentence saying, "The secondary unit would be converted to a long term rental in the event of any sale or transfer or CPR." But that seems to conflict with the desires of the Commission or the department in condition No. 24 which basically says the applicant shall choose which one. So I can see a potential conflict that the applicant based upon item 24 actually chooses because that is what you want the applicant to do and yet after he chooses one if the applicant eventually sells or transfers that choice is no longer made. So Jhere seems to be an internal conflict in terms of how you are going to handle that. Staff: There is no conflict it should have been deleted. Mr. Chun: The last sentence should be deleted in 16. Staff: Because of the conflict of consolidation this conflicts with the choice so when I did the cut and paste this should have come out. Mr. Chun: 16? Staff: 16, the last sentence. Mr. Jung: I don't think we need 16 at all anymore. Planning Commission Minutes February 14, 2012 59 Staff: We do. Mr. Texeira: We have for the other places. Mr. Jung: It is a choice now, fight Mike? Mr. Dahilig. Just for (inaudible) requirement. Mr. Raco : There are two of them; right Mike? Staff: And you could CPR it. But you are going to choose one. Mr. Chun: But again if I may note, Mike, on the 10h, it is not only the last sentence that has the secondary dwelling will convert to long term it is the last phrase on the second to the last paragraph which says "The TVR will only attach to the primary dwelling unit." Because again we are not . . . you are choosing on 24 and yet on 16 yotz are saying no that is the one that you are going to . . . Staff. Wh4t condition are you talking about? Mr. Chun: 16. Mr. Dahilig: But because of the issue regarding how CPRs are constructed and technically there is no division of property other than interests we just want to be very clear that if you decide to CPR both of these units aside from each other that one of them, and only one of them, is going to have the rights to this TVR. So we are just being very clear on it. Mr. Chun: I understand that it is just that in 24 you are giving them the choice to choose which one and then 16 you are saying we are not giving you a choice:. Mr. Dahilig: I understand it is the choice issue but this is just to in the 'situation in case she decides to split them that we are being very clear that the interest and only the interest goes with the one that has the primary dwelling unit in terms of the house she decides to carve out of that CPR. As you know the State law you carve out things very creatively and we just want to be very clear on this that it only attaches to one. Mr. Chun: I would then suggest that the language be amended slightly to say attach only to the unit designated by the applicant under condition 24. Mf . Dahilig: I guess we wouldn't have any objection to that. Chair: Mike, do you have objections to that? Staff. No. Mr. Texeira: So how would it read? Mr. Dahilil?: That it would attach to the designated TVR unit, 16, the second to the last sentence assuming that we strike the last sentence but that sentence that is remaining, the last sentence should say "attach only to the designated TVR unit". Mr. Chun: And then other comments that the applicant has, on condition 21 and again that there is already an Ag. dedication on that property. I kind of know what the intent of it is but I need to raise a question on that, there is already a ten year Ag. dedication on the property and we have to renew it every year. So that means every year we run a chance of the department wanting to create an additional Ag. easement that might conflict with the Ag. dedication. That is what technically we were concerned about that because once we dedicate the land for Ag. aay kind of change needs to be also submitted and approved by the Department of Finance. So if we Planning Commission Minutes February 14, 2012 60 have an overlay or additional Ag. easement it raises complications for our Ag. dedication because then if the Department of Finance doesn't agree with that. . . Staff: But what if ydu sell the property and the owner in the meantime . . . what if, so if you are talking about what if we can come back with a what if, that is what it is going to cover. Mr. Jun I think also if the Ag. dedication program is done way with and there i a . s no longer the Ag. dedication program then we can supplement it to promote the effectiveness of 245 . It is just a secondary protocol if you are not following the Ag. requirement. Staff: Especially if there was a new owner. Mr. Chun: Again we are not objecting to the fact that if you are going to have a new owner it is just that this owner is in here for the long run. This owner actually lives on the property and the owner has not CPR' d it and if he wants to live and retire over here then knowing we have a ten year we don't want to make things harder for somebody who has a legitimate Ag. dedication than is necessary. I just wanted to raise that as a point in the event that it comes up under renewal because renewal does come up every year. I just wanted to raise our concern now so in the event that something happens next year we did have our say on it. Mr. Dahilig : And it does pose a conflicting jurisdictional issue but I think from an enforcement standpoint on TVR end we have certain expectations apart from what is required under the Ag. dedication program. And even if there may be conflicting provisions we still think that. . . I guess it is the Teddy Roosevelt approach here where we are just carrying a big stick and hopefully Ag. persists without us having to intervene at any point. Mr. Chun: Sometimes Teddy Roosevelt theory doesn't work well but we understand the theory. The last point we would like to make is we would like to raise and again like all other applicants today just raise a formal objection for the record, item 24 regarding choosing. Yes there is a truth that we have two TVRs, it is on a single lot of record that is not a contested fact it is true. But we also want to raise the fact that there have been many, many TVRs already approved, multiple TVRs on single lots of record have been approved by the department and the Commission. Anq unless there is something specific in the record in this case we want to preserve our right to object to that. Chair: You have a right. Mr. Chun: That is all we are saying. Chair: I just want to make a comment with that, the people of Kauai and I am talking the majority of the residents here had their way there would be no TVR on Ag. land or no TVRs period. And with that being said a lot of these TVR owners should appreciate what they have. And like I said if the people of Kauai had their way none of this would be happening at all. It is the law and anyway, moving on, any questions for the applicant? Mr. Chun: We would be happy to answer any questions that the Commission might have or staff. Chair: Seeing none, thank you, anybody in the public wishes to speak on this agenda item? Seeing none, what does this Commission want to do? Mr. Texeira: Motion to approve. Ms. Matsumoto : Second. Chair: Any discussion? Planning Commission Minutes February 14, 2012 61 Mr. Dahilig: Commissioners, just to clarify it is with the clarification of our suggested changes to item No. 16 regarding striking the last line and then changing the word primary to designated TVR unit. Just for point of clarification that that would be part of the motion. Chair: Any more discussion on this agenda item? Seeing none can we have a roll call. Mr. Dahilig_ Commissioners the motion on the floor is to approve Special Permit SP- 2012-4 as consolidated with SP-2012-5 with 24 conditions over objection of the applicant. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve SP-20124 as consolidated with SP-2012-5 with 24 conditions over objection bf the applicant, motion carried unanimously by the following roll call vote: Ayes : Matsumoto, Texeira, Raco, Blake, Kimura -5 Noes : None -0 Absent: Katayama - 1 Not Voting: Vacant - 1 Special Permit SP-2012-9 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalihiwai, Kauai, gpprox. 206 ft. east of the Old Kuhi `o Highway and ` Anirfi Road intersectiori,, further identified as Tax Ma Key 5-3 -3 :43 with a arcel size of 5 .6 acres = Lar & Joan Gehrke. [Hearinpz' s Office Special Meeting; Public Hearing held 11 /29/11 .1 Supplemental Director' s Report No. 1 pertaining to this matter. Supplement to Application, Exhibit K submitted by Harvey Cohen dated 2/6/ 12. Staff Planner Mike Laureta: Special permit for a primary single family trangient vacation rental, a secondary dwelling unit also exists on the property and is part of this application. The applicant did not apply for a separate permit for the secondary dwelling unit as it is currently operated as an accessory to the main dwelling unit meaning it is not advertised or operated independent of the primary dwelling unit. The Director' s report went to the hearings officer on November 29, 2011 . It is in Kalihiwai, the property is 5 .0 acres in size. It does have severe slope constraints on the property. Agriculture, limited Ag. effort due to the topography of the property however this should not preclude the applicant from increasing or supplementing the ag. use of the property. Property inspection done on November 16, 2011 , no violations exist. At the public hearing on November 291h there was no adverse public testimony from the surrounding neighborhood.. Planhing Commission concerns, this even though there was only ohe application for two houses this would be considered a double so the department applied the double considerations, the double standards and considerations. This application involves both the main dwelling pit and an additional unit under one special permit. The ADU was used as an accessory to the main dwelling unit and not independent of it. This will conclude staff s comments. The applicant also submitted a supplement E. 9 .b, dated February 14, 20129 Chair: Any questions for the planner? Mr. Texeira: Mike, I don't have all the information in front of me. I seem to be missing something but going back to the two units, they have one TVR unit, right, then they have a secondary dwelling unit that exists on the prope..rty 8 part of the application. Staff: Yes. Mr. Texeira: So are they considered, the two units are rented as one unit? Staff: That is what is described by the applicant. It is an accessory to the main house but because it is a dwelling unit, a full dwelling unit it is an additional dwelling unit and then the main dwelling unit. Planning Commission Minutes February 14, 2012 62 Mr Texeira: But it is treated as one. Staff. One application. So our consideration would follow consistency sake that two houses, choose one. Mr: Texeira: Can the two be considered as < . . could you rent the entire thing as one? Staff You could but you could also do independents but the applicant says they don't do it. Chair: Is the applicant here? Mr. Harvey Cohen: Good afternoon Commissioners, Harvey Cohen on behalf of the owAer' s Larry and Joan Gehrke. Commissioner Texeira, I think your question is a good one; historically the property has always operated as a single unit, basically a single house with two wings. It has never been rented independently. In other words if someone came and wanted to rent just the main part of the house the other part would remain unused and visa versa. I think from having been here at some earlier hearings with doubles I think this was the direction you guys were hoping to go. Now it seems like at least with respect to the condition where the applicant has to choose it may be a little bit of overkill in this particular one but my client Is certainly willing to abide by that condition. Having been here at the last hearing where this application was not in front in front of you I still took to heart Commissioner Raco ' s and Blake' s concerns and presented a supplemental report kind of beefing up the five points for the special use permit as well as Commissioner Blake' s request for color pictures. In this case the property is State Ag. , County open and I believe the open designation was largely driven by the slope constraints oil the property, the extremely steep topography which the pictures depict. The owners acquired the property and have been operating it as a TVR since 2001 . They actually spend quite a bit of time here during the year, when they are here they don't . . . if they are occupying the main house they don't rent the ADU. So it really does operate like a single house with two wings if you will. With respect to the conditions we are fine. I guess if you are inclined to impose what I have come to characterize as the Sophie ' s choice condition where you choose one or the other I would ask you to modify the same provision that you modified in Jonathan' s one just to clean up the language in item 16 that if they property were ever CPR' d or divided that the TVR designation would attach to the unit that was designated as the TVR rather than the secondary residence because in this case the owner will designate the primary residence as the TVR assuming you grant his application. With that I am available to answer any questions. Chair: Any questions for the applicant? I have one. Over here you have a guest house, whole estate, main house. Is that three different. . . ? Mr. Cohen: That was just early on in the process when we were applying for the provisional that was the log that showed, in other words whether they rented just the main house, whether they just rented the ADU, or whethei.* they rented the entire property to one party. Chair: So it could have been rented separately then. Mr. Cohen: Yes but it wasn't. Chair: So what Commissioner Texeira mentioned was keeping it either or because it is almost like a separate dwelling isn't it? Almost like. Mr. Cohen: Yes and again my client is willing to abide by that condition. The pick and choose is probably a more ai-tfal way of describing it. Chair: Any more questions for the applicant? Planning Commission Minutes February 14, 2012 63 Mr. Texeira: So condition No. 24 is going to stay the same then. Chair: Yes, we have no changes. Staff: No but we amended No. 16 to be similar to Jonathan' s concerns. Chair: We amended No. 16. Staff. Yes, the special permit would attach only to the designated TVR dwelling unit. Mr. Dahilig: Orally that would be our recommendation based on the conditions. Mr. Texeira: Mr. Chair, call for the question. Chair: Anybody in the public want to speak on this agenda item? Seeing none what does the Commission want to do? Mr. Texeira: Mr. Chair, motion to approve. Mr. Blake: Second. Chair: Any discussion, all in favor say aye, opposed, seeing none motion carried. On motion made by Herman Texeira and seconded by Hartwell Blake, to approve SP-2012-9, motion carried unanimously by voice vote. Special Permit SP-2012- 10 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by of Kauai Ordinance No. 904, in Kilauea, Kauai, within 50 ft. of the western terminus of Kauapea Road, on the makai side further identified as Tax MaR Key 5-2-5 : 34 with a parcel size of 5 .06 acres = Peter Giovale. Hearin ' s Office Special Meeting Public Hearing held 11 /29/11 . Supplemental Director' s Re port No. 1 pertaining to this matter. Special Permit SP-2012= 11 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No . 904, in Kilauea, Kauai, within 50 ft. of the western terminus of .Kauapea Road, on the makai side, further identified as Tax Map Key 5-2-5 : 34, with a parcel size of 5 . 06 acres = Peter Giovale. [Hearing' s Offioer Special Meeting Public Hearin; held 11 /29111 .1 Supplemental Director' s Report No. 1 pertaining to this matter. Chair: We are going to combine the two together, can you step up please. Do you have any objection to combining the two together? Mr. Peter Giovale: I have no objection to combining. I just would ask. . . Chair: Wait, i just needed permission or acceptance of it and then I will call you back up. Mr. Giovale : Thank you, i have no objection. Mr. Dahiiia: Commissioners we would recommend consolidation of Special Permit SP- 2012- 10 and SP-2012- 11 due to the related nature of both applications. Mr. Texeira: Mr. Chair, I move to consoli4ate those two applications as read by the Planning Director. Ms. Matsumoto : Second. PIanning Commission Minutes February 14, 2012 64 Chair: All in favor say aye, sorry, do we have any discussion on it? Seeing none all in favor say aye, motion carried. On motion made by flerrhan Texeira and seconded by Camilla Matsumoto, to consolidate SP-201.240 and SP-2012-11 , motion carried unanimously by voice vote. Staff Planner Mike Laureta: This is a parcel of record not a CPR containing two farm dwelling units both owned by the applicant, two applications submitted, two provisional permits issued. This matter went before the hearings officer on November 29, 2011 . It is in the Pali Namhana Subdivision in Kilauea, the property is 5 . 006 acres in size. The applicant continues to file Federal 1040 schedule F filings commencing from 2008 which was the year the applicant commenced with the implementation of his Ag. and vacation rental master plan, ordinance standard No. 2 applies. And agricultural dedication for 3 .530 acres of the 5 .006 acte parcel was approved by the Department of Finance in December, 2009 . Ag. activity, yes, the applicant has an existing orchard in full operation which includes the following and that list is pretty comprehensive. The applicant spent a lot of time hand clearing the properties in preparation for their Ag. master plan. Property inspection, May 9, 2011 , all structures and uses exist via permit, no violations exist. Internet advertising, yes, und6r Jungle Bee, no adverse testimony or requests for intervention received by the department and the Planning Commission' s concerns starting on page 3 is related to what we call the doubles, two applications on one parcel. So those would apply. Given the amendments to the previous doubles we would need the same revisions to condition 16 also, proposed condition 16 . Mr. Raco : Proposed so you would need a motion to get condition 16? Staff: That is correct. Chair: Any questions for the plannet? Mr. Texeira: Mike, I am a little bit confused as I have been all day, the two applicants we combined, right? Staff: Right. Mr. Texeira: The two applicants and you have two units per application, is that four units? Staff: No, two total. So when you are looking at the two separate applications one is 2012- 10 ano one is 2012- 11 so the first application, 10, is E. 10 .a, that is supplement 1 , and the old application for the second house was called A. LP. 1 . So those are the two we are going to combine. Mr. Texeira: So 10 is combined into 11 then. Staff: 11 is combined with 10, same thing. Chair: Is the applicant here? Mr. Peter Giovale : Thank you Chairman Kimura, Commissioners, thanks for taking the time to hear me this morning or this afternoon. I would just like to take a couple minutes to give you an overview of Jungle Bee farm and just tell you what is going on there. My name is Pete Giovale as you heard. I am the general manager of Jungle Bee, LLC. In 2007 my wife Hillary and I purchased this property with the intent of expanding our existing eighteen acre operation which is on the property, it actually touches two sides of this five acre parcel. Our vision of our farm is around sustainable agriculture, education, and just sustainability in general . In 2007 I met James Peretti who is sitting here next to me who shares my passion and vision for sustainability, sustainable Ag. , and together we started working on Ag. planning to commercially Planning Commission Minutes February 14, 2012 65 grout cacao which is the precursor for chocolate. So it is actually a great day to be talking about chocolate since it is Valentine' s Day and I hope everyone has their chocolate. But at any rate we got together and came up with a plan. When this five acre j roperty came on the market things all fell into place because this property had a TVR and it had this extra land that we needed for the cacao farm. And so my wife and I at that point decided to take the plunge and really fund our agriculture operation. What that means in terms of where we are today in terms of our A.ge operation, we have three fulltime farmers with full benefits, we have five part-time employees that we bring in on a case by case basis plus numerous contractors. We try to keep our farmers doing the farming, primarily planting, irrigation, some limited clearing, and a lot of the other stuff like mowing and weeding and things like that that we can fapm out we try to use contractors to do that. So it really is an o eration focused on farming. With that I would like to introduce you to James Peretti who is my farm manager, he is going to just speak briefly about the Age operation. Mr. James Peretti : Good afternoon Commissioners, my name is James Peretti and I am a fulltime farmer. I have lived in Kilauea for sixteen years and have been managing Jungle Bee farm for the last five years. I have been following this TVR process for the last couple of years and I understand that the main concept here is protecting Kaua` i' s agricultural lands. I have watched the majority of these hearings online and have seen testimony from plenty of lawyers, a few landowners, and very few farmers. I understand the frustration of the Commission on this process and sympathize with many of the issues being brought up in opposition of TVRs on Age land. I feel like many of these TVRs are claiming to have agricultural activities in order to justify their vacation rental businesses but there is an exception to every rule and I feel like Jungle Bee is that exception. The reason I can say that is because we are a real farm which happens to have a vacation rental on the property, not a vacation rental business which happens to have some fruit trees growing in the yard. At Jungle Bee currently we have around 750 cacao trees that are starting to bear fruit and we are planting more every day. We plan on planting 5 ,000 cacao trees in the next five years and possibly creating a processing facility for chocolate on Kauai. We have fulltimOl farm staff as Pete said dedicated to agricultural activities, not weed whacking and mowing. We are also growing papaya, banana, kalo, citrus, and bamboo on a fairly large scale and many other species on a smaller scale. I was originally inspired to grow chocolate by Tony Lydgate and a lot of Big Island farmers and I started working with a lot of the CTAR extension agents on the Big Island and sharing information about the growing cacao industry in the State of Hawaii. And we really want to be a big participant in that and help Kauai, the cacao growth on Kauai and help share with children and people and really help this new industry blossom. I am not sure if there are any farmers in the room right now but if there are you already know how hard it is to make money in commercial agriculture these days. The cost of labor, water, fertilizer and equipment are off the charts and rising every year. Crops are typically sold at wholesale to a distributor who makes higher profits than the farmer and most crops are vulnerable to weather patterns and competition from imported goods and the time it takes to sell them before they spoil. All these conditions make it challenging to be successful in Age today and the inclusion of a TVR into our business plan we feel gives us a chance to bring in some revenue to help supplement the huge expense that it is taking to create this commercial Ag. business We just ask that you guys support our honest effort to keep true agriculture alive on Kauai by approving our application with the conditions we feel are necessary for us to run our operation. We agree with the majority of conditions presented in the staff report but there are a couple that we feel that would prevent our operation from being successful. One of those is to have to choose one of the structures. I want to be clear on what we would like to do 'with our two structures, we would only ever want to rent to one party but because the home, the main house on this property, is only a three bedroom. We wish to have our second cottage which is a one bedroom as an accessory building and being able to rent both of them to one party is all we ever intended to do. Planning Commission Minutes February 14, 2412 66 So we are basically asking you guys to allow us to have the second structure as an accessory building to one rental party. Because we have a small amount of bedrooms we thought that would be fair especially because there is a house two properties down that was approved with a permit for seven bedrooms and no restrictions on how many guests. So we are here to just ask you guys to please consider allowing us to use both of these structures for TVR use considering the fact that there is only these four bedrooms. We thank you for allowing this time to speak and we would also like to invite you guys to come and check out the farm and let us show you that we are doing true Ag. and we are probably one of the only ones that are TVR applicants that are doing it the way we are doing it, thank you. Mr. Giovale: Can I just ask one more quick point, on condition 23 1 would just like to request respectfully that we add that those limitations on cars and people be specific to the TVR use on the property. We can have upwards of ten people, farm workers, on that property at any time and I am concerned that with that limitation that we wouldn't be able to actually operate the farm at the same time as operating the TVR. We are farm first of all and if we can't run the farm I think that would obviously be a good thing for us. So that would be my request for that so thank you. So really the two issues we have are condition 23 and 24, 23 requests that we limit that to TVR use and 24 basically permit us as a four bedroom house on that property even though it is actually in two structures. Thank you for your time. Chair: Any questions for the applicant? Mr. Raco : I applaud you for actually doing agriculture on your property. I can see the reason why you would want the TVR. In the spirit of give and take would you be able to give up the TVR application and process if you sell the property if you get the allowance for two of the houses as a TVR? Mr. Giovale: I think in exchange for that, yes I would be willing to take that condition.. Mr. Raco : Okay, so as represented. That is a good give and take. I think if you are in for the long run and I can see that you are in for the long run that if you are willing to give up the TVR application if you sell the property by any means that you are willing to give up the TVR. Mr. Giovale: That is absolutely correct. The issue for us is really around cash flow and funding the operation not so much land banking. Mr. Raco : Thank you. That is a good gesture and I applaud you for that and we want to be able to provide that opportunity and I think agriculture is a hard business and a hard occupation (inaudible). Thank you for suggesting that and I can support giving you the second unit if you are willing too. Mr. Blake: What is rolinia? Mr. Peretti : It is also called custard apple in some places. It is in the moya family, it is a creamy kind of thing. Mr. Texeira: When we look at the totality of your operation you have five acres and within that 5 . 06 acres is your two units and then you farm outside of the five acres, you have . . . Mr. Giovale: Eighteen acres. Mr. Texeira: Plus five. Mr. Giovale: Twenty three correct. Mr. Texeira: So your primary farm is the eighteen acres then or just a combination of both? Planning Commission Minutes February 14; 2012 67 1. Mr. Giovale: They are operated by a single unit and so for example the equipment storage is on the other property, the green waste processing is on the adjacent property, the nursery and shade house are on the adj scent property. And so the five acres, it is really mostly trees. There is a little bit of storage, we have a small barn you can see from the site plan that has our compost tea brewer in there which we use for fertilizer and also some storage. So a lot of the infrastructure is next door. But in terms of the cacao and trees, that is on the five acres. Mr. Texeira: How do you treat your water issues? Mr. Giovale: We use County water, we are on Ag, rate. We have two meters, one that supplies the eighteen acres. Because of the topography and the stream running through this property this is one of the reasons that it made sense for us to purchase this is because you can't really access the lower portion of the five acre parcel without going through that eighteen acre parcel. So we are actually using the meter for the eighteen acres to get the water down to the lower part of the five acres and then we use the meter that feeds the houses and also on the top. So we are using commercial water unfortunately. Mr. Texeira: That is really expensive. Mr. Giovale: It is extremely expensive. I would love an alternative to that but I don't have one. We do have the Ag. rate. Mr. Texeira: You don' t have any catchment system in place? Mr. Giovale: I am actually working on that, we do not have one in place at this point, no . Mr. Texeira: My last question is . . . Mr. Giovale : Actually can I take that back? Mr. Raco : You know the catchment basin, they can come in and do that, yes? Mr. Giovale: We actually do collect all the water off the roof and that goes directly into a planting zone which is the (inaudible). So from the house perspective we do capture all that water and reuse it. Mr. Texeira: My last question is how do you integrate your farming operation with your TVR operation so the visitors that come there . . . do they walk around your. . . how do you integrate that whole thing? Mr. Giovale : We absolutely do and the vision of education is really key for us because we really want to share that. We think it is special what we are doing, it is organic, it is in a very sustainable way . . . I mean I could go on for hours but I don't think you want that. We really love sharing that so when guests come we have chickens on the property, we provide the guests eggs, we offer them tours and walk through and show them all the stuff we are doing. And it really opens a lot of eyes and that is to me what is so exciting about it and that is why I think they are very compatible in our case. The way it is designed, we designed what we call a zone system where we have like for example citrus gees that are close to the house so those are relatively low maintenance where as the cacao tends to be at least fifty feet away from the house which is a more intensive Ag. so we have set it up so it is compatible. Does that answer your question? Mr. Texeira: Very well. Chair: Anybody else? Mr. Blake : I don't know if I missed this but do you irrigate off the stream? Mr. Giovale: No we don 't. Planning Commission Minutes February 14, 2012 68 Mr. Blake: Why not? Mr. Giovale : I have thought about it. I don't quite understand the legality of that. We have a spring on the property that flows in the stream down to Secret Beach. I am not sure of the legal issues around palling water out of the stream and that is why I haven't really pursued it at this point. Chair: It is an underground spring, right? Mr. Giovale : Correct. There is another ditch that flows under the property and those join together but it is more perennial, it doesn't run all the time. Mr. Texeira: Would you be willing to share your suslainability operation with residents on the island that would probably like to learn? Mr. Giovale: Absolutely, we would welcome it. It is core to our mission so I would love that and we do that anyway. Chair: Any more questions? I have one, whit do you farm? Mr. Giovale: What do we farm? Chair: Yes. Mr. Giovale : I am going to let Jimmy talk about that. Chair: I hear all this farmifig but I didn't hear what you farm. Mr. Peretti : We farm cacao is the main crop, chocolate pods. And we also grow papaya, coconut, banana, kalo, bamboo, we have goats, chickens. We farm a lot on a small scale but our commercial operation is based around cacao trees and we have 750 now, we are planning on planting like 5 ,000 cacao trees. So we really want to go for it. Mr.. Raco : You are not affiliated by any means with the other chocolate company that is out there in Kilauea are you? Chair: Not Kilauea, it is Princeville. Mr. Giovale: I originally kind of got the idea from Tony Lydgate who is the proponent for this on Kauai and then I went to the Big Island and met . . . on the Big Island it is a lot fizrther along, chocolate farming, and there are guys doing it with Dole and all these big companies, they are making chocolate over there. So I kind of learned a lot from them. We ndt affiliated with the chocolate company on Kauai but we did get some plants from them originally. Chair: My next question, you are related to this guy Mark, is that your brother? Mr. Giovale: Yes, Mark is my brother, my younger brother. Chair: Is that part of the eighteen acres? Mr. Giovale: No it is not. Ho has ten acres, he is growing commercial coconuts and making coconut oil is his deal. Chair: So he is actually doing something with the coconuts themselves? Mr. Giovale: Yes he is. He is (inaudible) processing. Chair: That is a first. Planning Commission Minutes February 14, 2012 69 Mr. Giovale : We will see if he can make it. I have my questions. Chair: I commend him, he is doing it himself not just planting the trees and saying that is my farm. Mr. Blake: Is it feasible if you could do it to irrigate off the stream? Mr. Giovale: Yes. Mr. Blake: So the location. . . Mr. Giovale : Yes absolutely. Well in terms of gravity it could irrigate a portion of the property. I think with some sirhple pumps, a catchment and some pumps I could get it to the whole property. Mr. Blake: It would seem to me that if you could take some water out of the stream without depleting the stream that is less burden on the County water system because that water just flows into the ocean anyway. So that was my thought. Chair: Well just to even mess with the water you have to call Army Core of Engineers to build some kind of dam to have some kind of catch basin to put their pump in. Mr. Giovale: It is a complicated subject. I have been scared of that issue. It is something I will continue to look into because it is one of our largest expenses. Chair: Thank you, anybody in the audience want to speak on this application? Seeing none . . . Mr. Raco : Chair, I motion to approve. Mr. Blake : Second, Chair: Open up for discussion. Mr. Raco : Prior to calling for the Vote I would recommend, Mike Laureta. . . Mr. Dahilig: Commissioners we are trying to draft up a, based on representations by the applicant we are trying to . . . Chair: With that being said we are going to take a five minute break. Commission recessed at 4 : 04 p.m. Meeting called back to order at 4 : 11 p.m. Chair: Mike Laureta, have you written something up? Staff. Given the discussion between the applicant and the Commission if we are to consider two the first thing we should consider amending is the recommendation, first paragraph. Mr. Raco : What condition? Staff. No, this will be the first paragraph, recommended action by the Commission on page 9. So you have to visualize this, based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2012- 10 to Peter Giovale dba Jungle Bee LLC, one, one remains, be consolidate with Special Permit 201 ?- 11 with the former being designated as the master permit and two, the approval of the TVR use, and here is where it goes off, will be available as the ADU being accessory to the main unit with the limitation that it cannot be rented independently of the main unit subject to the following conditions. Which means you get to use Planning Commission Minutes February 14, 2012 70 the two but as one and you cannot rent number two out independent of number one so it has to be . . . that is what he said? Chair: Applicant can you step forward please? Mr. Giovale : Could you read that Mr. Laureta, please? Staff: Page 9, one is we are going to consolidate the special permits, two of them and go to 10 being the master permit and two, the approval of the TVR use will be available as the ADU being accessory to the main unit with the limitation that it cannot be rented independent of the main unit which means the two are joined at the hip and you cannot have two separate functioning TVR units. So now you have four bedrooms, that is what you wanted. Mr. Giovale: Yes. Staff: That is for the first. . . Mr. Giovale: I am sorry to interrupt but technically it is not an ADU. I don' t know if that matters for the wording. Staff: We can put second unit, secondary unit. Then followirig that line of thought there are two points to consider and the easiest one, we are looking at condition No. 16. The Ieast amount of words will say the intent of what the Commission and the applicant have concurred to, something to the effect that, as represented and agreed to by the applicant should the property be sold the TVR use shall be forfeited. Mr. Giovale: That is fine. Staff Okay after saying that then, . . Mr. Blake : Or voluntarily terminated. Mr. Raco : Forfeited. Mr. Jung: Just for the Commissioner' s edification the permit doesn't automatically just disappear, there has to revocation proceedings to get rid of the permit. Mr. Blake : Cancel then. It is not like we are taking it away from him he is not forfeiting it he is agreeing to it. Mr. Jung: That would be the Chapter 12 revocation. Mr. Blake: So if he is going to sell it and he has decided that he will not have that condition run with the land anymore he will surrender that. Mr. Jung: Right so if he tries to fight on the issue of whether or not he allowed to continue on the use then it would revert back to the permit where we would be saying there is an order to show cause to revoke the permit because it has been sold. Staff: Or based bn the agreement you had or understanding with the Planning Commission. Mr. lm& Right but just as a reminder. and I am only doing this to say what my job is here to do that permits do run with the land they have to be not applicant specific. Mr. Blake: Right but if you hold that right you can surrender the right any time you want. Mr. Jung : You can surrender it if you come in and ask for the permit to be withdrawn. Planning Commission Minutes February 14, 2012 71 Staff Or cancelled. Ms. Matsumoto : So could that be explained as part of the condition? Mr. Raco : That is what he is going to read. So re-read it again so the applicant is clear and we are clear. Staff: 16 is going to be deleted in its entirety and reworded, "As represented and agreed to by the applicant should the property be sold the TVR use shall be forfeited." Mr. Giovale : That is acceptable. Mr. Raco: Can I motion Chair? Staff: Wait, we still have some more. So in addition to 16, we have just reworded 16, then we are going to go to condition 23 , "The maximum number of people on the property using the TVR structures shall not exceed eight, two per bedroom, four bedrooms at any one time. The number of vehicles on the property with the TVR use should not exceed three vehicles." Mr. Giovale: Yes I am fine with that. Mr. Dahili r: There are a total of four bedrooms between the two structures? Mr. Giovale : That is correct. Staff: Three and one, three max vehicles, so that is 23 . Mr. Raco : And the vehicles, the three vehicles are only for the TVR, right? Staff: Right. Mr. Raco : And that is okay? Mr. Giovale : Yes, there will be farm vehicles but the TVR vehicles will be limited to three. Mr. Raco : The TVR vehicles are only the three vehicles and not for the workers. Staff. And finally condition 24 would be stricken in its entirety. Mr. Giovale: Yes that is fine. Staff: So in theory that would address the understanding between the Commission and the applicant for the use of two structures as one. Mr. Raco : Is that it? Ms. Matsumoto : Could yo tu read number 16 again? Staff "As represented and agreed to the by the applicant should the property be sold the TVR use shall be forfeited." Now you can use another word other than forfeited but that is . . . Mr. Blake : My only concern with forfeited is it is like we are taking it away. Ms. Matsumoto : Yes. What came to mind was . . . Mr. Blake: It doesn't carry to me the same feeling as an agreement, a gentlemen' s agreement. So if it is sold they will . . . Placining Commission Minutes February 14, 2012 72 Staff: Terminate, surrender. Mr. Dahilig : Lapse. Ms. Matsumoto : Lapse; that is a good, one. I had also voluntarily lapsed or voluntarily. Mr. Blake: Voluntarily cease because lapse gives you the feeling that you can come back and renew it. Mr. Jung : One of the issues you guys, the whole intent here is you guys see a true Ag. plan and I think you guys all appreciate the Ag. plan. If it is your intent to continue that Ag. plan then you could use the language renew, shall not be renewed because every year they have to be renewed. But if it is sold and then the new owner tries to say no I am entitled to the right to operate it then we have to go through revocation procedures. So I think if you use the word renew, shall not be subject to renewal, then within that one year period of time depending on whenever it is sold within that annual period of time then it will have to cease operations and the department will catch it because they are subject to 'notification. And the department won't renew it and then if there is a battle after that then we can hash out the battle that way. So I think the word renewed is probably the best word. Staff Shall not be renewed: Chair: Any more comments from our planner? Seeing none, thank you, we already have a motion on the floor, right? Mr. Raco : I was going to make a motion do the floor if you can just read it one more final time if there is no discussion, Chair? Mr. Dahilig: And just to be clear, this is the department' s recommendation. Staff Yes. Chair: So does he have to read it again? Mr. Dahilig: Just for clarity sake so you don't have to go through the process of amendments. Staff: The first paragraph under the recommendation, "Based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2012- 10 to Peter Giovale dba Jungle Bee LLC, 1 ) Be consolidated under Special Permit SP-2012- 11 with the former being designated as the master permit, and 2) The approval of the TVR use will be available as the secondary unit being accessory to the main unit with the limitation that it cannot be rented independently of the main unit. Subject to the following conditions, so 1 through 15 remain as existing and then condition 16 be deleted in its entirety to be replaced with, "As represented and agreed to by the applicant should the property be sold the TVR use shall not be renewed." Condition 17, 18, 19, 20, 21 , 22, are as they exist, 23 will be amended to read, "The maximum number of people on the property using the TVR structures shall not exceed eight at any one time. The number of vehicles on the property with toe TVR use shall exceed three vehicles at any one time." And then condition 24 is deleted in its entirety. Mr. Dahilig: And that would be our department' s recommendation. Chair: Can I have a motion? Mr. Raco : I already made a motion on the floor, Chair, to approve, and he seconded so it is the department' s recommendation there is not motion to amend, right? Mr. Dahilig: Yes. Planning Commission Minutes February 14, 2012 73 Chair: All those in favor say aye, opposed, seeing none motion carried. On motion made by Caven Raco and seconded by Hartwell Blake, to approve $P- 201240 consolidated with SP-24242, motion carried unanimously by voice vote. Special Permit SP-2012-30 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Moloa` a, Kauai, approx. 800 ft. east of the Moloa' a Road and Kuono Ikoad intersection, further identified as Tax Map Key 4-9- 14 : 7, with an overall 12arcel size of . 82 acres = William I Campbell dba 6610 Kuono Road LLC. Mearing ' s Office Special Meeting Public Hearing held 1/6/ 12 . SUhlemental_ Director' s Report No. 1 pertaining to this matter. Special Permit SP-2012-31 to permit use of an existing single family residence #2 for Transient Vacation Rental 12LiMoses as permitted by County of Kauai Ordinance No. 904 in Moloa'a, Kauai= approx. 800 ft. east of the Moloa'a Road and Kuono Road 'intersection further identified as Tax Mip Key 4-9- 14: 7 with an overall parcel size of . 82 acres . William J. Campbell dba 6610 Kuono Road LLC. LHearing' s Officer Special Meeting Public Hearing held 1 /6/ 12:_ Supplemental Director' s Report No. pertaining to this matter. Letter 1 /27/ 12) Jonathan Chun, Esq. , demanding ra�contested case hearing _before the Planning Commission under HRS Section 91 - 14 regarding the Department' s consideration of the Aphlicant' s request r a State Special Permit. Mr. Dahilig: Commissioners, again on page 9 of our report we would recommenct that the Commission place a motion on the floor for entertainment concerning the consolidation of permit No. 2012-30 and permit 2012-31 due to the similarity in issues and nature in both applications. Mt, Texeira: So moved. Mr. Blake: Second. Chair: Before I take action on it is the applicant here? Do you have any objection to consolidation? All we need is an answer, yes or no. Mr. Jonathan Chun: Yes. Chair: Objection? Mr. Chun: Yes. I would explain but I was told yes or no. Chair: Go ahead. Mr. Chun: The long answer is we have also made a request at this point in time for a contested cases hearing and if we were to consider both of them at the same time I think it would expedite those questions and issues because as part of the contested case procedure it does allow for a stipulation and agreement on procedures such as consolidation. So I think we would be open to doing that as part of a contested case situation. Without that I don't believe on my own I can agree to that. Mr. Dahilig: Commissioners just for your information the department would officially oppose the request for a contested case hearing. There are a couple reasons why, one, given the structure of our rules we believe in our interpretation that a contested case hearing demand needs to be made at the time of agency hearing, that was not done. We also believe that it is within the option of the applicant that should he want a contested case hearing he can withdraw the Planning Commission Minutes February 14, 2012 74 application but we know that does put him in a predicament because we do not accept these applications anymore. So we Would I guess for the record oppose any type of action by the Commission relating to the granting of a contested case hearing at this point. Mr. Jung : As Mike stated the hearing was opened and closed by the hearing' s officer in this case and at that point there was no request. Mr. Dahilig : And we believe, Commissioners, there is still ample opportunity for the applicant to provide any type of documentation or evidence in the deliberative portion of the Commission' s business in terms of what he wants to present. And that will be included as part of any record should this matter be appealed to the circuit court for review. Chair: We still can proceed with the combination' of both, right, consolidation? Mr. Dahilig: If you were to move forward with the consolidation it would be over objection. Chair: So noted. Mr. Texeira: So I move for the consolidation. Mr. Blake: Second. Chair: Discussion, seeing none all in favor say aye, opposed, motion carried. On motion made by Herman Texeira and seconded by Hartwell Blake, to consolidation SR-w2012=30 and SPm 2012-31 , motion carried unanimously by voice vote. Mr. Dahilig: Commissioners, given the department' s objection I would request that the Commission entertain a motion to deny or receive is the more appropriate term, receive the communication or versus a denial, maybe that is for the attorney. Chair: Can I have a motion to receive communication? Mr. Dahilig: Maybe the Deputy County Attorney would want to weigh in on the appropriate motion regarding disposing of the request under 13 .b. Mr. Jung: There could be a motion to receive the item, there is no need for action but you should give the applicant an opportunity to at least present his case as to why he wants a contested case. Chair: Mr. Chun? Mr. Chun: Good afternoon, Jonathan Chug for the applicant. I brought my piece of paper and a book this time: 4 Thank you for hearing our request for a contested case hearing. I want to point out that I have heard the statements by the Planning Director and the Deputy County Attorney but I want to point out to the Commission and to the staff that there is no rule in the Planning Commission putting any deadline on the filing of a contested case request. The only rule that there is right now is a deadline for the filing of an intervention but intervention is for people who are not part of the proceeding to come and ask to participate. But there is no such rule either in the City and County of Kauai or the State law which limits the time in which a contested case hearing is requested. In fact I would suggest and even state for the record that Hawaii Revised Statutes Chapter 91 requires a contested case hearing, it does not give an option to an agency to say well I will give you a contested case or I won't give you a contested case. The statute seems to require a contested case hearing whenever a contested case is held by an agency. I will give you a flavor of what the statute says very clearly, under Chapter 91 , a contested case is and this is straight from the statue, "A proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for an agency hearing." So what is an agency hearing? The statute also goes and says, "Air Planning Commission Minutes February 14, 2012 75 agency hearing refers only to such hearings held by an agency immediately prior to a judicial review of a contested case as provided in section 9144." So the next question the Commission needs to ask it' s self is, is this req-}est for a State Special Permit an agency hearing? And the answer to that is a very simple yes. If you look at the Commission' s own rules in Chapter 13 that specifically states that any decision by the Commission that is opposed or disagreed to by the party is immediately reviewable by the circuit court under Chapter 91 - 14. So by your own rules you are saying this is the last hearing before the Commission before you can go to court. If that is the case Chapter 91 specially says that is a contested case because it is an agency hearing. If it is a contested case and an agency hearing you must, not may, not decide, I will think about it, but you must provide certain procedural rights and obligations and opportunities to all the parties, not to just the parties that you want to provide but to all the parties. And that forms the base of my request. You cannot say I am not an agency hearing because you are, under your own rules you are saying you have the right to appeal straight to the circuit court. And you can't say well I don't want to give you a contested case because I don't want to do it, I am just a public hearing, you can testify on your own. But that goes contrary to the whole idea of Chapter 91 hearings which says parties have a specific right. And I want to emphasize this to you because under Chapter 91 - 14, a party to a contested case is entitled to notification. And it says in 91 -9. 5 , "Unless otherwise provided by law", and I point out you have no other to say contrary, "�11 parties shall be given written notice pf hearing by registered or certified mail with return receipt requested at least 15 days before the hearing." That was not done. So the minimum my client was required to certified notice by certified or return receipt requbsted at least 15 days before the hearing. This is a hearing, you can make a decision, but we weren't given 15 days notice. But we can go on and as I stated before and that is when you asked the first question, are you willing to stipulate to certain items for example the consolidation. I said I am willing to do that under the guise or the rules and procedures of a contested case because the rules and procedures of a contested case allow me to work with the department to go into stipulations. Now I am willing to do that but in the absence of sorry you are not having a contested case, you don't have a right to stipulate, then 91 -9. 5 comes into. play and in that case we weren't given proper notice. Also in 91 . 5 specifically states that if you are going to give a notice you have to, have the date, time, place and nature of the hearing, you have to have the legal authority in whieh the hearing is to be held, you have cite particular sections of the statues and rules involved. And you have to have an explicit statement in plain language of the issues involved and the facts alleged by the agency in support therJ eof. That was not done. We have no citation of the facts specific by the agency in a formal notice 15 days before the hearing. But again, that is something we are willing to work with the department in terms of stipulating to certain things in terms of what those notices need to be required. And, and this is important, the fact that any party may retain counsel if the party so desires. Again, that is a very specific part . . . Chair: Jonathan, can you wrap it up please? Mr. Chun: I can read a little bit faster. Going on, the other rights of a party in a contested case is all parties to present evidence and arguments on all issues involved and the agency which includes the right to cross examine any witnesses or. . . brought up by any of the parties. Again, my client was not given that opportunity to do that. More importantly it gives us the right to find out exactly what is part of the record in this case which we don't have. That is one reason why my client insists that a contested case be held because we have no right to find out what the record of the case, we have no right to call in any witnesses, we have no right to cross-examine any of the witnesses or determine the facts of anything that is supposedly in front of the Commission, which we don' t know. And to this day there are conditions that are in the proposed, the last proposed report by the department which we have no idea why they came up or any facts to support them. Anq that is an important part of a contested case to find out what facts are being presented to the Commission that we don't know about. So on those basis we believe that a request for a contested case is supported strongly by the law in this case and we would also submit that in the event that it is denied and the Planning Commission Minutes February 14, 2012 76 Commission does issue any decision, that the decision is tainted by the failure to follow Chapter 91 and can and will be set aside by the circuit court. And as part of that we are going to state very clearly the reasons why. And I would suggest that it would not make sense to deny it because if the circuit court reverses on a procedural process like that you are not gaining anything. It would be a lot better for everybody concerned including the department and including my client if we could have the contested case, make your decision on the record, and go on from there as opposed to make us and that is your action today, to make us go through a procedural a peal which in all likelihood I believe we have a very good chance of winning because I don't think the State law will allow you to say you can ignore Chapter 91 and the rights of a party to Chapter 91 hearings. Mr. Jun I will respond briefly. I think Mr. Chun did site the law correctly but what he fails to understand or neglects to take into account is this is a contested case hearing. What happened was they submitted an application, they submitted their reasons for why they think they 'should get this permit, it went before a hearing' s officer in a publicly noticed hearing which went to the applicant and the surrounding neighbor' s. The report that was prepared for the public hearing was received by the hearing' s officer; at no time did Mr. Chun or his client request the contested case hearing there. The process we are going through now is the agency hearing. You guys are looking at what the permit is and if he wants to call his own witnesses to come up and testify as to what he feels should be on the record he is certainly entitled to do that now at this opportunity. Whether or not the department needs to do that it is not necessary because what is going on here is, well in an agency hearing it is specific to the department, interveners and parties where each can hash out all the issues. But here it is just the department and the applicant. The department made its findings in the supplemental report, the applicant has his chance to contest or either agree with those findings. So it is Mr. Chun' s opportunity now to contest those findings if he has objections to it. So he has that opportunity now if he would Pike. Mr. Chun: I need to respond to that because I totally disagree with that. Chair: Hold on, there is no need to respond. Mr. Chun: I will need to respond and again for the record, Jonathan Chun. For the record we need to respond. Chair: Hold on, go ahead Jonathan. Mr. Chun: Without being rude the reason why I said I need to respond is because again, going back to what the Deputy County Attorney said, if this is now the contested case then the party c{oes have a right to respond in a contested case. And that is why I am hearing two different things and that is why I feel I need to respond. I am hearing two different things, one I am hearing that the department or the Commission denies our request for a contested case and now I am hearing from the Deputy County Attorney no this is the contested case, we are not denying it, you can have it. And that is one thing I am a bit confused about and that is why I need clarification. But the second thing I wanted to bring u , if in fact the contested case happened in front of the hearing' s officer, I think it was January 6t or whatever day that was, Chapter 91 is very specific if that is the position of the department that the hearing's officer is the one to hold the contested case. And I am not saying that is not correct, maybe that was true, but if that was the case Chapter 91 is very specific then the hearing' s officer needs to come out with proposed findings of fact and conclusions of law. And those proposed findings of fact and conclusions of law need to be circulated to the other parties in which the parties then have an opportunity to respond to them. That was never done. If you look at your record unless there is something that I don't have the record should have proposed findings of fact and conclusions of law. We never got it and I don't think you even have proposed findings of fact. You have a report but you don't have proposed findings of fact and conclusions of law. And again if you are saying that was done when the Bearing ' s officer. . . Chapter 9144 does not say that. It says that you need to have findings of fact and conclusions of law. Planning Commission Minutes February 14, 2012 77 Specifically 91 - 11 says whenever a contested the officials of the agencies (inaudible) have not heard and examined all the evidence and that is why you had the hearing ' s officer. The decision if adverse to the party to the proceedings other than the agency its self, that is us, shall not be made until a proposal for a decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon all the parties. That has not been done. And that is why we are making a request now. If you are saying that happened back on January 6th, we don't have that report. And if you say it is happening today we don't have that report and that is why I want to say let' s sit down and if you are saying to have a contested case even though you denied it then there are certain rights that my client is entitled to under State law to avail themselves upon. And I am not doing this because I want to delay it and I said before if you are granting the request for contested case which I kind of hear yes and no, then I am willing to sit down and talk with the Deputy; County Attorney or the staff and say okay, we know we did this before, can we enter into a stipulation that this is good enough under Chapter 91 . I am willing to do that. I have said that from the very beginning. But if we are going to go down this road saying no I am not going to give you these rights and you are going to have to just take what you get then I am going to have to say that I have to protect my cl'ient' s rights under Chapter 91 and oppose everything and take it up to the circuit court. And if I am correct and the circuit court reverses you on the procedure then we are going to have to repeat everything again. I don't like that situation. I don't want that situation but if that is the desire of the department and the Commission that is where we are going to go . All I am saying is there was a request for a contested case, I have heard the Commission deny it, I have heard the County Attorney say no, you have it night now; then I don' t know which one is which. And if we have one right now then let' s sit down and see if we can agree to the state of facts to make sure that my clients under 91 are preserved. Like I say I am not trying to do this to delay it but I have to preserve my client' s rights. If I don't do that I am going to have to bring this to the attention of the circuit court. I would prefer not to because I don't want to waste anybody' s time in doing just a procedural issue. That is all I have to say. Mr. Juil : The distinction here is the contested case verses the contested case hearing. If he wanted to reopen the public hearing then he certainly could do that which daould open up .his permit to being subject to intervention to start a whole new contested case hearing. But here he is just requesting a straight contested case hearing versus we are in the middle and at the actual close of the contested case hearing pursuant to Chapter 6. Mr. Dahilil7: And Commissioners, I just want to point out a couple ,of things. The rules are very clear in terms of what a contested case is and we don't take the opposition to his request lightly. And part of it is because we believe at least from ar operational standpoint that there is procedural issues that need to be abided by and that everybody should be on the same playing field. When we look at the language in our rules that is lifted directly out of the Chapter 91 description of what a contested case hearing is, it says "Contested case means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for an agency hearing." That opportunity came and if as a consequence of the winds blowing that something isn't looking the way that the applicant wants it to look then it would behoove the department to defend against shifting course in the middle of what is procedural. And normally in this circumstance what we would is ask is that okay, withdraw the application and submit again but we do understand in this particular circumstance that you can no longer submit this application anymore. That would be our standard line, if you want to come in and have a contested case hearing and conduct your permit in that manner without an intervener, again, without an intervener, that is the key distinction here, that we would in that particular case say reapply. Mr. Chun' s client is a necessary party that has the rights and privileges and duties that need to be determined but that is a given. Contested case hearings and in terms of the notice issue I just want to bring this up that under Chapter 13 of tl7e rules' we actually have to give the notice of public hearing to the applicant to then distribute twenty days before the actual hearing to all the neighbors. And that is in our rules. So he already had Planning Commission Minutes February 14, 2012 78 received the notice of public hearing to actually distribute twenty days prior which was within the fifteen days. I understand the issue. I think it is important enough that as a department to recommend. . . to try to hold the line on shifting course on a contested case hearing in the middle of a procedure especially when something has already been closed and the rights have been determined as a consequence of the agency hearing. I don' t take that recommendation lightly and it is in no offense to Mr. Chun or anybody that is involved in this but I am greatly concerned about the box that it opens by allowing applicants to come midstream and then change their mind and say we want a contested case hearing now because of what is going on without an intervener or a third party that is coming to the table. That is our recommendation based on principle as well. Mr. Chun: One final comment less than thirty seconds. The first comment on the Planning Director' s comments, I can see where he is coming from, I don't argue on that but a right is a right is a right under 91 . But the second comment on that is you have to remember and I want the Commission to be very clear on that and the Director to be very clear is that no request was made at the hearing' s officer because if you look at tl e report that was filed in front of the hearing' s officer it didn't contain a lot of the conditions that we find today. Only on Friday did we officially receive notice that the conditions that the department is recommending to approve in front cif the hearing' s officer changed on Friday afternoon. So if you are arguing that the applicant shouldn't be able to waive hot and cold and change his mind in the middle of the stream the same needs to be applied to the departmerit because those are some of the questions that we need to find out. What happened from January 6'h to last week Friday? We had no hearing, we had no facts but yet we have a change. And so on one had you are criticizing the applicant why are you waiting so long and why are you changing your mind and yet the change was precipitated by the department changing their mind. And they are saying we can 't change our mind. So that is the only comment I have to make and hopefully that is not three minutes, thank you. Chair: I am going to take a three minute recess. Commission recessed at 4:04 p.m. Meeting called back to order at 4: 11 p .m. Mr. Raco : Chair, if I may I would like to motion. . . _Mr. Dahilig: Commissioners if I could just recommend at this point a deferral on this matter as well as part of the motion to authorize the County Attorney' s office in consultation with the department to engage in a settlement negotiation with the applicant concerning the potential for an agency appeal and regarding his request for a contested case hearing. Mr. Raco : So moved. Mr. Jung: Just clarify that the settlement would only be dealing with the sole issue of whether or not to hold a contested case hearing, not on the permit its self. Mr. Dahilig: Again the motion would be to defer and to authorize the County Attorney' s office in consultation with the department to engage in settlement negotiations with Mr. Chun concerning his request for a contested case hearing and the potential for an agency appeal given the denial of his request. Chair: Motion was made can I get a second? Mr. Texeira: Second. Planning Commission Minutes February 14, 2012 79 Chair_ We are open for discussion, seeing none all in favor say aye, opposed, seeing none motion carried. On motion made by Caven Raco and seconded by Herman Texeira, to defer action and authorize County Attorney's Office to consult with Planning Department to engage in settlement negotiations with applicant regarding request for contested case hearing, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 4 : 13 p.m. Respectfully Submitted. Commission Supt Clerk Lani Agoot Planning Commission Minutes February 14, 2012 80