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HomeMy WebLinkAboutpc2-28-12minutes KAUAI PLANNING COMMISSION REGULAR MEETING February 28, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura, at 9:15 a.m., at the Linu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Ms. Camilla Matsumoto Mr. Herman Texeira Mr. Hartwell Blake Mr, Caven Raco Mr. Wayne Katayama Mr. Jan Kimura Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA On motion made by Caven Raco and seconded by Herman Texeira, to approve the agenda, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motion made by Caven Raco and seconded by Herman Texeira, to receive items for the record, motion carried unanimously by voice vote. MINUTES On motion made by Ferman Texeira and seconded by Camilla Matsumoto, to approve regular meeting minutes of the Planning Commission for 1/24/12, motion carried unanimously by voice vote. GENEREAL BUSINESS Plannin2 Director's request for reconsideration of the Januga 10 2012 Minutes to correct the references to SP-2012-8 and SP-2012-12. Mr.114n& After going through the minutes of January 10, 2012 there was a misidentification of the Special Permit number and just to clarify the record gyve wanted to properly identify the specific Special Permit numbers that were being discussed and addressed. So if there could be a motion to reconsider to just clarify these two permit numbers. Mr. Katayama. So moved. Mr. Texeira: Second. Chair: Discussion, seeing none all in favor say aye, motion carried. On motion made by Wayne Katayama and seconded by Herman Texeira, to reconsider approval of meeting minutes of 1/10/12 for clarification, motion carried unanimously by voice vote. Mr. Jung: Now you need another motion to approve the minutes as clarified in the Planning Director's request. Planning Commission Minutes February 28,2012 1 MAR 2 7 2012 Mh Raco: So moved. Mr. Texeira: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Caven Raco and seconded by Herman Texeira, to approve meeting minutes of 1/10/12 as clarified in Director's request, motion carried unanimously by voice vote. Letter (12/2/11).from Larry Dill, County Engineer, for an amendment to Special Management Area Use Permit SMA(U)-2008-1 and Shoreline Setback Variance SSV-2008-1 to permit the construction and operation of a multi-use path from Lydgate Park to Lihi Park at the Waikaea Canal,Tax Map Key 4-6-014:026. 4-5-002:023, Kapa`a, Kauai = CounU ofKaua`i, Department o f Public Works. i Director's Report pertaining to this matter. Staff Planner Ka`aina Hull read Director's report (on file). Chair: Any questions for the planner? Mr. Texeira: Ka`aina, the shoreline has changed over the years, is that the reason for the change in the setback? Staff: Correct. To go through an official shoreline certification process it requires a State surveyor to come in. Since the approval in 2007 the shoreline was renewed and it was found that the shoreline has actually moved mauka, more towards the shared use path. And any movement of that certified shoreline requires Planning Commission approval. Mr. Texeira: So there has been some gain and some loss in the shoreline then based on your report. Staff. Correct. Mr. Texeira: And the Anahola side of that shoreline,that is where you have had some accretion? Staff. Correct. Chair: Any more questions for the planner? Mr. Raco: What does"will not adversely affect beach processes", what does that mean? Mr. Jung: That is kind of like the generalized term of how the beach process moves when lateral sand movement or sand moves up and down the beach. So the beach process is how the sand fluctuates via tides, ocean surf current and storm events. Mr. Raco: This is by Baby's Beach? Mr. Jung: Right. And there is a revetment that the State built (inaudible). Mr. Raco: So there is not going to be no parking signs over there, right? Mr. Jung: You might want to direct that question to public Works. Doug is here. Chair: Any more questions for the planner? Seeing none is the applicant here? Mr. Doug Haig_ Good morning Planning Commissioners, Doug Haig, Departfent of Public Works Building Division. Planning Commission Minutes February 28,2012 2 Chair: Do you have any comments? Mr. Haig: No, I feel the report was adequate but I am here to answer any questions that you may have. Chair: Any questions for the applicant? Mr. Raco: So Doug is there going to be any no parking signs between the road and the shoreline? Mr. Haig: This project, our development is on the mauka side of the road so we are not making any changes to the makai side of the road so we would not be affecting the current conditions on the makai side of the road. Chair: Any more questions? Seeing none... Mr. Texeira: The question about the shoreline setback and the.changing shoreline, the University is doing a study, right, I assume, on all the major public beaches on Kauai that is not complete yet to determine the rate of change whether it is more or less on Kauai, right? i Mr.jig& My understanding is that study was completed several years ago and we do look at that for new projects. We look at what is the expected change at the beach. Mr. Texeira: It seems as though the County roadway has been impacted by the change in the shoreline, there has been some erosion along that County roadway. Mr.Ed& We have had failure of the existing seawall and in fact Public Works is working in a project to repair that. Soon there will be...that project will be before you, we have submitted an application for that for a shoreline setback and an SMA permit. Mr. Texeira: I guess what I am trying to lead to is the fact that you would like to maintain that County roadway over the years and you want to protect that County roadway;; correct? Mr. Haig: That is correct and that is why we have this project under way which is a separate project. Mr. Texeira: You don't have any plans going forward to change that roadway to make it like a one-way? Mr.Ed& Actually part of the bike pedestrian path project we are converting the road to a one-way. And so we will have a shared use path on the mauka side and that was to allow, minimizing changes to the existing use and going back to the earlier question, by doing that we were able to allow the existing parking and.use that is there pretty much to stay. Chair: Anymore questions for the applicant? Seeing none, thank you Doug, what does this Commission want to do? Sorry, can I have public testimony? Seeing none what does this Commission want to do? Mr. Raco: As far as the parking, I just don't want the parking to be affected either way. Do you think there is a need for a condition? Mr. Dahilia: I don't think at this time. Mr. Raco: Just for clarification at this time because I know we approved the bike path already and that there might be a conflict when that bike path is put in even though the applicant has testified on the record. I just want to make sure that conflict doesn't... Mr. Dahilig: What may be helpful is that if as part of the recommendation that should any actions by the Department of Public Works be taken to institute no parking along the makai Planning Commission.Minutes February 28,2012 3 side of the road that the Planning Commission be, informed of the matter so that way we are kept in the loop. It sounds like right now they have no plans to do that but in case something like that were to come about and it actually would take a Council action to institute no parking signs along that side of the road. Mr. Raco: Okay, I didn't know that. In that case no need for a condition. Chair: What does this Commission want to do? Mr. Texeira: Mr. Chair, motion to approve the request for the Planning Commission for the Moanakai Road and Lihi Road Park areas in regards to Special Management Area Use Permit SMA(U)-2008-1 and Shoreline Setback Variance SSV-2008-1. Mr. Raco: Second. Chair: Any discussion? Staff: If I might interject and this might be a question more for the County Attorney, it is both listed on the agenda as a letter from Public Works concerning the amendment as well as an acceptance for the new shoreline setback certification under New Business. So I don't know if you should take action simultaneously on both or wait to take action. I guess at the Commission's discretion if they wanted to move the... Chair: Can I have a motion to join both of them together? Ms. Matsumoto: So moved. Mr. Jung: That would be item 3.a. Mr. Texeira: Cduld you read that motion for me that I can make if we are going to conjoin it? Mr. Dahilig: Commissioner what I would say is motion to approve item A.2 and accept item F.3.a. Mr. Texeira: Motion to approve as read by the Planning Director. Mr. Raco: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Herman Texeira and seconded by Caven Raco, to approve item A.2 and accept item F.3.a, motion carried unanimdusly voice vote. Commission recessed at 9:30 a.m. Meeting called back to order 9:37 a.m. Adoption of the number of Transient Accommodation Unit Certificates available in Allocation Cycle#1 January 1, 2012—December 31, 2016) of the Transient Accommodation Unit Certificate Allocation Program TAUCAP). Director's Report pertaining to this matter. Staff Planner Marie Williams: Thank you Chair and Commission. If you recall a month ago we presented you an overview of this subject so you would know what to expect today and hopefully that is still fresh in your minds and I will begin by summarizing the findings of the Director's Report. Ordinance Np. 912 came into effect on November 21, 2011 establishing an allocation program for transient accommodation unit certificates or TAUCs. All applicable zoning permits, use permits, variances, and subdivision approvals are iiow required to obtain TAUCs in order to develop TAUs. The first allocation cycle which is a five year period and Planning Commission Minutes February 28,2012 4 which we are in now began January 1"and will end December 31,2016, and this Commission must adopt the number of TAUCs that are available for issuance before March I"of this year. Upon adoption applications for TAUCs will be accepted on the first business day which would be tomorrow should you adopt the number on a first come first serve basis. Section 8-28.3 of ordinance No. 912 describes the allocation formula. The first step is to calculate 5.1% of the TAU inventory in the base year which was last year. So in 2011 we had 9,872 visitor units, 5.1%of this dumber is 50;x. Then the next step is to determine if we exceeded what is called the TAU target iri the base year as well. This number is simply 1.5% annual growth from the 2008 TAU inventory so in 2011 this target number was 9,623. So when compared to our actual inventory of 9,872 we clearly exceeded the target. On page 2 of the Director's report is a graph showing the target versus actual inventory growthh. Since we exceeded the target the 5.1%of the inventory must be decreased by 50%so 504 times .5 is 252. Therefore 252 TAUCs will be available for issuance during this allocation cycle should you adopt that number. And very quickly moving on to the process to obtain TAUCs,applications will be accepted on a first come first serve basis starting the first business day following the adoption of this number again which would be tomorrow. And then they must also be submitted with a complete application for an applicable permit pursuant to the requirements in ordinance 912. And then once allocated a TAUC will not be issued until the related permit has received final approval. Upon issuance the TAUC will expire in four years unless this Commission grants a yearlong extension which is available for up to three years. Do you have any questions before we move on to the recommendation? Chair: Any questions for the planner? Mr. Texeira: Yes,could we discuss the selection process a little bit in terms of as you said it is a first come first serve basis. So if the first applicant comes in with a request for 252 units that is it? Ms. Williams: That is correct. Mr. Texeira: So what if the second permit-tee has maybe a better project it is not factored in at all then? _Ms. Williams: No,we didn't add any qualifying criteria into the TAUC application and primarily because we knew we would be dealing with such a small pool of certificates. But it is possible that during our next General Plan update we could examine this process again. Mr. Dahilig: Just to clarify from the standpoint of chronological order all these applications for TAUCs have to be accompanied by one of the four permits, use, zoning, variance or subdivision approval. And let's say gomebody comes in for 252 on the first shot and they are number one in line,if somebody comes after them we will not accept their application for processing until the first one has been resolved because it accompanies that permit. We cannot approve one of those four permits until there is allocation available. So that is procedurally how we would operate it if somebody already came in and wiped out all 252 in the first shot let's say tomorrow and then somebody comes in on Friday and files another application,that one we would inform them that we cannot accept their application until the disposition of the accompanying permit or approval with the TAUC application. So that is how that would work. Mr. Texeira: So that permit that comes in has got to be ready based on the criteria that you mentioned,they have to be ready to go. Mr. Dahilig: Everything has to be ready to go including 343 and all those other types of things that they need to meet beforehand. Chair: Basically that has to be a complete application. Mr. Dahilia: Correct. Planning Commission Minutes February 28,2012 5 Mr. Blake: If an applicant comes in for all 252 and we take six months of however long it takes to process the application and then we reject it because his permits aren't in order,well let's say it takes a year to do that and at the end of the year it is rejected. What happens to that 252? Mr. Dahilig: It then goes to the second person. If somebody else had filed and they are waiting in line then it would go to them. Mr. Blake: So if this happens on the last day of the year does that 252 get added into next year's 1.5? Mr.Dahilig: No. And part of the accompanying or what keeps the process moving is that because our permit processes already have some type of mandatory action deadlines on them that this process will move along at some reasonable pace. Mr. Katayama: Mike, if the cap over this first five year cycle is 10,367 units why don't we work towards that number? It seems that if you take the 252 plus the 9,872 units that have been approved it doesn't get to the 10,367 units, you are under that. Mr. Dahilig: Part of what the legislation that was passed by the Council did was they created this self-correcting mechanism. And the concern was that if the target was that growth between the 9,203 to the 10,267, that if there is in the base year an indication that there is a ramp up because there are other types of factors that cone into consideration in the TAU targets for instance single-family transient vacation rentals that are within the VDA. There Are also projects that are not approved just yet, sorry,That are approved but have not been built and are on line. And the data that we use from the Department of Business and Economic Development and Tourism regarding this number looks at whatever is online at the time not what is prospectively built. Mr. Katayama: I understand that but as sort of a planning tool wouldn't the mechanism ensure that we at least have the ability to issue the number of TAUs to meet the,cap requirements? Because there is going to be a timing lag of when these units are put on line whenever these periods expire so I imagine there is going to be this calculation that will done every five years. But to the extent that the discounting doesn't even get yo14 to the cap,I don't think that is what we want to do albeit it is a very small number. I still think at the end of the day you should be able to issue the total number of TAUCs that matches the 10,367 or whatever that number is. Mr. Dahilig: I think at this point we are really in a situation where this becomes more of a perfunctory type of action based on the legislation. Mr. Katavama: So it is even more onerous than the 1.5% growth cap. Mr. Dahilig: Yes. It is a matter of calculating the numbers and having it certified by the Commission that this is what it is. Mr. Blake: I was of the same mind as Wayne because it seems that the people say we want 1.5%, if we do it the way that it is proposed then it could go over 1.5%, right? And so wbfy not resolve these in favor of 1.5%? Mr. Dahilig: I think part of the difficulty was that we had this number from DBEDT that through a census is an accurate count of what is actually operating and creating transient accommodation unit type impacts. We have this bucket of applicants or developers that were kind of caught in this no man's land because they have move forward with some of the construction and I think Kukui`ula is a great example of it. But at the same time they have not actually constructed their units and they won't be counted as part of this survey. And so what the 1.5%growth is, is really a growth of what is online operable units that are creating the actual impacts. And so as these units come online they are reflected as part of the DBEDT study and the policy call was made that 1.5 is the target of online units but because of the bucket that has not been built out yet they are either going to start coming online very quickly or very slowly. Planning Commission Minutes February 28,2012 6 So let's say for instance that this number, this base number had actually been below the target, if it was below the target then actually this would have doubled from what I understand, right Marie? Ms. Williams: Yes. Mr. Dahili2: And so the amount of units available would have actually gone yip in order to somehow try to self-correct and accommodate for what is less than target growth. So it is really kind of trying to take the mean of what is essentially a oscillating type of inventory every year and try to target that that way. Mr. Katayama: So is this a rolling five year calculation or is it just once every five years? Mr. Dahilig: The initial legislation that came out of this department was actually a rolling annual and so every year there was a recertification and then every year there was actually the opportunity for banking and borrowing to try to create this pool of certificates that could feasibly construct a project that was large in scale. The Council then decided to go with a five year and then take the aggregate of that five year offer it from your one rather than doing it at a yearly certification. Mr. Katayama: So this 252 is the allocation for this year only? Mr. Dahilig: For five years. So if you take 1.5% of nine thousand something in year one it really only leaves, Marie,with like...? Ms. Williams: Yes. Mr. Katayama: I understand the mechanics it's that I don't understand how we get to the cap at the end of the five year computation. Right now based on the mechanics we are going to be at 10,124 or something like that. Ms. Williams: That number is simply our TAU target, it is the 1.5% growth compounded every single year since 2008 and it was determined that since that represents a 1.5% growth,that dotted line in the graph is simply what our goal is. Again as the Planning Director said that we have a bucket, a really large pool of potential projects. I believe it was close to 4,000 or it exceeded 4,000 that could potentially come on line at any time and should they come on line say tomorrow which is unlikely, but it would drastically put us above the so called target. And so therefore we wanted to have a mechanism built into our TAU certificate allocation program to adjust our allocation down should that occur. So I think it will be really critical come our second allocation cycle in figuring out if it worked or not. Mr. Dahilig: And just for the Commission's information as well is that the way the Charter amendment read does provide for a reopening of this issue should it be addressed in a perspective General Plan update. And so when we are looking at planning growth ranges what we are looking at right now is having that as part of our General Plan scope that is going out for contract pretty soon for the technical studies. So that could be addressed and theoretically this could be the one and only time that you would see this as a function. Mr. Jung: I just wanted to let you guys know that kind of an important function of ordinance 912 is that should the Commission use up the 252 there is still the availability for the applicant to apply to Council for more units so it is not a complete shutout whereas the Charter amendment it§ self was an authority shift between removing the power from the Commission to the Council. So if the 252 is used up then there can be an application to the Council 4nd it would be the Council taking action on it versus this body. Chair: Any more questions for the planner? Mr. Texeira: Just to mention the fact that at the end of 2016 if that 252 allocation is not utilized it is gone, right, it doesn't carry over beyond that. Mr. Dahilig: That is correct. Planning Commission Minutes February 28,2012 7 Mr. Blake: So it is 252 from now until 2016. Mr. Dahilia: That is correct. Mr. Blake: And if 100 get built next year it is still, it doesn't increase the 252, right? Mr. Dahilig: No. Chair: I have a question, if the applicant comes in and asks for an extension does the date of the allocation cycle change from December, 2016? Ms. Williams: No the allocation cycle remains the same five year period so it just means that if somebody did come in and request, they used up their extensions, then all it=e ns is that their project wouldn't be added to our TAU inventory and it wouldn't be counted in the next allocation cycle because DBEDT wouldn't have been able to include it in their census. Chair: So with the extension, if they come in for an extension, say they ask for three years, would the next applicant have to wait for that three years to apply? Ms. Williams: No. Chair: So on December, 2016, they get to apply. Ms. Williams: In 2017 when allocation cycle two starts it is sort of a clean slate. Chair: When the new applicant comes in or the second applicant comes in if the exemptions that are allowable will that take effect on the amount of units? Ms. Williams: We are currently in our exemption window for projects that would like to be exempt from the requirement for a TAU certificate can now come in and apply to the Planning Director. And there are several projects that are pending that have submitted applications to be exempt but in a few months that window is closed and we won't have to deal with exemptions anymore. Chair: Any more questions for the planner? Seeing none does anyone in the audience want to speak on this agenda item? Mr. Karl Imperato: Aloha Planning Commissioners, Director Dahilig and County Attorney Jung,my name is Karl Imperato and today I am speaking on behalf of the Kauai Group of the Sierra Club. There are two points that I want to make but first to put them into context as you are aware ordinance 912 implements the 2008 Charter amendment that requires County government to comply with the General Plan when approving new tourist accommodations. The Kauai Group of the Sierra Club strongly supported that Charter amendment because the group was concerned about the many impacts on road's, resources, parks, beaches, affordable housing, and Kaua`i's rural character that would result frczm the expansion of the tourist industry at a rate that was four to six times what was envisioned in the General Plan. So ordinance 912 consistent with the General Plan seeks to pace the growth at a nx ore manageable 1.5%annual growth rate. But as you are aware from this discussion because so much development was approved before the Charter amendment was passed there is a backlog of 3,000 to 4,000 units already approved that have not yet been constructed. So when you consider that there are all those approvals that are out there those 3,000 units which if the economy turned around could come online in the next few years we would be far, far above the target growth curve. And for that reason ordinance 912 has the mechanism that you have discussed to limit the approval of new tourist development to no more than half a percent annually if those certain conditions are met during the period while the backlog is being worked off. So today you are asked to formally adopt 252 as the maximum number of new tourist accommodations that can be approved by the Planning Commission over the next five years. Now clearly that is a far cry from the 4,500 units or so that were approved between 2000 and Planning Commission Minutes February 28,2012 8 2008 and brings me to my first point, it is very important to keep in mind lest anybody coritend that this new limit is draconian or have a drastic impact on jobs or the economy that there is more than a twenty year supply of new tourist accommodations,that is that 3,000 to 4,000 units in the backlog, there is a twenty year supply that could be built whenever the developers who hold those permits for those units see ft to proceed. So we are not talking about anything draconian here because that stuff is out there and when the economy changes much or all of that can be built. So that is the first point that I really wanted to make. And the second point is that, in concluding, is that three years ago the people of Kauai voted for a balance to sustainable development,the voted for responsible government and for meaningful and enforceable General Plan. Today what the Kauai Group of the Sierra Club would like to do is commend the Planning Department for faithfully implementing the Charter amendment and ordinance 912 and also assuming that you adopt the Planning Department's recommendations we would like to commend the Planning Commission for also faithfully implementing the Charter amendment and ordinance 912,thank you. Chair: Thank you, any questions? Mr. Avery Youn: Good morning Commissioners,my name is Avery Youn. I didn't clearly understand the explanation primarily about the exemptions and I wanted to clarify for example I know in Poi`pu alone there is about maybe five or,six hundred units that are fot built that were approved and did not go forward because of lack of funding or financing. On the exemptions are these exempt, can they still keep their numbers even though it is not built yet? And then when you approve a project is there a timeline before they have to perform or to get financing because development occurs in economic cycles usually every five years before the demand for development will occur. So I am not sure if the first guy gets to keep his for five years and nobody else gets to apply. Carl you explain the exemptions again? Ms. Williams: In regards to an exempt project once they have been granted the status of being exempt they are exempt, there is no timeline in connection to the transient accommodation certificate allocation program except for whatever deadlines might be in their Class IV zoning permit for example. And you are correct many projects within the Poi`pu arda,these are the one_ s that are coming in and applying for an exemption to the Planning Director. But an exemption, once it is granted they are completely exempt. Mr. Youn: And the second question refers to once you approve the first project what is his timeline before the next guy is allowed to come in with theik application? Because if I understand it is for five years isn't it? Ms. Williams: Our allocation for cycle is five years but that only applies to new development needing a certificate but there is no cycle for exemptions it is simply the one year window that began November 21"of last year and will close in November of this year. And as many projects who want to come in to apply can should they desire. Mr. Youn: But they can't get approval because the frsi one is already approved,they have to wait for the five year period, is that how it works? Mr. Dahilig: Let me just clarify this. What the exemption provides is the developer that has already moved forward on their project but may still need let's say outlying subdivision approvals or let's say minor Class I, Class II types of approvals,that they do not have to go to the Council for those types of approvals. That is what the heart of an exemption is. It does not in a sense create an additional layer of vesting beyond what the existing approvals that are out there have. And so what it says is the Commission can still issue these things because of these certain criteria that the Council has laid forth and if there is any type of timeline issues that are apcompanying then it becomes incumbent on the developer to meet those timelines. �ut this does not impose any additional time lines or any less timelines beyond what the original approvals already have. And so this stuff does not come out of the allocation. It is separate and apart from what is already determined from let's say if the Commission adopts the 252 number. Mr. Youn: Thank you for explaining that but the second part of the question was if you approve the first project within the next five year period what is its performance criteria? What Planning Commission Minutes February 28,2012 9 if he doesn't build it in five years, how does it get to the next person? What does he have to fail to do before you can transfer his density to the next applicant? Mr. Dahili�z: There are a number of answers I could give you Avery, at this point, and a lot of it is incumbent on what happens through the regular permitting process. As you know the TAU application has to be coupled with one of the four types of approvals that either this Commission or the department does. And then whatever conditions those accompany so hinges also the TAU certificate. Mr. Youn: To make it clear, once you approve the first guy it is useless for the next person to apply then because the density is already used up? Mr. Oahilia: Well if the application gets rejected or if it gets denied and they are not second in line and somebody else is second in line then they will miss out on that change too, those are the rules of engagement. Mr. Youn: Thank you. Mr. Blake: So Mr. Director, once you get your approval you can take however long yob want? Mrs_• No, they have to get to a point of substantial construction within that seven year window. So for instance if, it is actually the initial four year window with assuming the Commission extends another three years. So once they issued the permit the TAUC is issued at the same time and then what happens is they have four years to get to substantial construction at that point. And the reason why the extensions are there is to provide the Commission a check that if they are making progress to Wards substantial construction then you can say we are not going to extend you anymore. Mr. Blake: We are not going to extend you anymore so that presupposes that we have already extended them one or more times. Mr. Dahilig: Or we are not going to extend you. Chair: Why do we have to extend them in the first place? Mr. Dahilig: It is an ability the Conunission can use as part of the law. We canhot make judgments at this point because this is an X factor and there may be situations where they are waiting on one agency approval to go vertical. So it is hard for us to say at this point what would warrant and what would not warrant an extension because we haven't been presented with a factual case yet upon which to create some type of opinion. It is there as a mechanism in case a developer is in a situation where they have gotten the TAU certificate and the approval, they are trying to move forward with vertical construction but there is one department that is having difficulty let's say is relating to some type of infrastructure allocation or that type of thing. If nothing has been resolved yet it may warrant the Commission to say okay, we will give you another year to resolve it just like we do with regular subdivision approvals and those types of things. Chair: I had to ask. Mr. Blake: But we are going to underscore with the developers that we expect them to get going. I mean when they come in with their project plans and permits it seems to me that they are ready to go. Mr. Dahilig: Well Commissioner I guess I would caution against predisposing yourself regarding how these applications will be handled because again the TAU certificate accompanies an actual Commission type of approval or permit so it is a case by case basis type of circumstance: And certainly I understand where you are coming from but again it comes to a case by case type of situation. Planning Commission Minutes February 28,2012 10 Mr. Blake: I appreciate that but we have just had to deal with Poi`pu and all of those 1972 permits that went on and on and on. I mean you could have been born in 1972 and then worked on the project now. Chair: I think we are kind of getting off base here. What we are trying to do is get acceptance for that 252 units, am I correct? Mr. Dahilig: That is by ordinance what we are asking the Commission to do. Chair: The rules and conditions have already been set in place so what we are here for is, it's my bad for not seeing it earlier,is a number of units we are allowing. Any more questions about the amount of units? Mr..Texeira: I just wanted to agree with Hartwell that once the permit is allocated they have X amount of timeframe to get their project approved formally when they submit everything. And to me it is an important point that it has to be a reasonable amount of time in which they can complete the process. I mean it shouldn't' be open ended. Chair: Correct me if I am wrong but we can't make any more changes on the conditions can we? Mr. Jun& For this particular action there are no conditions you are just setting the number but in terms of prior issued permits unless there is a petition for revocation to modify the permit then you could do it that way but there has to be a violation to do that first. There has been a lot of talk about how to impose time restrictions on permits to get projects moving but we can't go backwards unless there is a violation. Just a little bit of history there was a bill that got floated up to Council, a five year use it or lose it but Council didn't pass that. Mr. texeira: I am not suggesting that we go back I am just talking about the 252 units that we may approve today. Mr. Jung: And that was the reason for putting the five year time or four year plus the three one year grants of potential extensions is to say look, if you are going to come in for this permit try and be serious. But as the Director said things change, times change, it is hard to look at it in one perspective; you have to look at it on a case by case basis. Mr. Texeira: So the Director has the opportunity or the discretion in which to determine if the project is moving along at a rate that is acceptable? Mr. Jung: Per the ordinance they have four years and then they can come in for three one year extensions, no more than three one year extensions. So this body will actually be the one looking at whether or not to grant the extension. Chair: With that being said any more questions? What does the Commission want to do? Sorry, do you want to read the recommendation? Ms. Williams: The Planning Department's recommendation is based on the foregoing the Planning Department recommends that the Planning Commission adopt 252 as the number of transient accommodation unit certificates that will be available for issuance to all perspective applicants during allocation cycle one from January 1, 2012 to December 31, 2016. Chair: So moved. Mr. Katayama: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Ferman Texeira and seconded by Wayne Katayama, to approve department recommendation, motion carried unanimously by voice vote. Planning Commission Minutes February 28,2012 11 Charles AAppeal of. Foster Esq-Revocation or Special Perini SP 2012-3Nonconforming ermit use Certificate existing/l ,�from single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Seacliff Plantation Kilauea Kauai, adjacent to and south of the eastern terminus of Palimoana Road,further identified as Tax Map_Key 5-2-4:98 (Unit 1,comprised of ap rop x. 5.0 acres), with an overall parcel size of 12.407 acres =Rene Campos Jr. Memorandum dated 2/22/12 from Michael A. Dahilig, Director of Planning and Secretary,Kauai Planning Commission to Jan Kimura, Chair and Members of the kaua`i Planning Commission relating to recommended action.concerning Appeal of Revocation of Provisional Non-Conforming Use Certificate Appointment of a Hearing's Officer. Mr. Dahilig: Again Commissioners good morning,just referring you to our memorandum as item number A.4.a in the packet. As you look at item A.4, Mr. Rene Campos has filed an appeal with the Commission pursuant to its Rules of Practice and Procedure through that person's attorney, Charlie Foster,regarding the revocation of the provisional non-conforming use certificate. What I am recommending is that the Commission grant the petition f9r a hearing and that it appoint Richard Nakamura who is our retained hearing's officer for TVR matters to handle the contested case hearing and provide a recommendation as proposed decision and order to the Planning Commission for entertainment. And just to give some background on the partibular contested case hearing request this stemmed out of our department's inspection of the property and through records researched determined that the proposed structure was not permitted as a single family dwelling unit acid it was actually a guest house and did not have the permits for conversion. That is our assertion and so we have decided to revoke the provisional certificate because this house was not approved in our determinations as a single family dwelfing unit from the get go. Mr. Raco: You revoked or we revoked? Mr. Dahilig: I did because if they didn't have it all and because it is provisional at that point they don't meet the test pursuant to the ordinance and therefore we said the pfovisional certificate cannot come in because your special permit application cannot be filed for. So given that we are...they would like to contest that determination by the department and we are recommending that he be given that opportunity in front of the hearing's officer to make a case. Mr. Raco: What is there to contest if we have evidence that the permit wasn't...I mean it is pretty plain and simple in my eyes. Mr. Dahilik: I guess Commissioner I would caution against making any statement on the record at this point regarding making determinations. I am just providing background on the application because this will either way most likely end up in court concerning the determination. So we want to give them due process and because the Commission is the final body that will make a disposition of the matter that it probably be prudent to have the discussion happen after the hearing's officer has provided his recommendation and decision and order. Chair: Any more questions for the Director? Seeing none is the applicant here? Mr. Charles Foster: Good morning Commissioners, good to see you all again. We have no objections to the Director's recommendation or motion. Chair: Any questions for the applicant? Seeing none, thank you, what does the Commission want to do? Mr. Katayama: I make a motion to grant the petition for a hearing and also to delegate a hearing's officer to hear the case. Ms. Matsumoto: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. Planning Commission Minutes February 28,2012 12 On motion made by Wayne Katayama and seconded by Camilla Matsumoto, to approve Director's recommendation, motion carried unanimously by void vote. COMMUNICATION (NONE) SUBDIVISION Mr. Texeira: Mr. Chair, the subdivision committee reports the following recommendations for the items listed below. We had no other business except new business and we had three items for consideration for tentative subdivision action. The first item was 5-2012- 06, and this was approved 3-0,the second items was S-2012-07, and this was for Kukui'ula Development Company and this was approved 3-0, and the third item was S-2012-09 and this was in Hanapepe and this was approved 3-0. There was a tentative subdivision extension request in Kapa`a, S-99-49 and this was deferred. Chair: I have a question, where is this"Place, Kauai"? Mr. Texeira: There was a correction. Chair: So that is where? Mr. Texeira: That was a typo, Hanapepe. Chair: Thank you. Mr. Texeira: I need a motion. Mr. Blake: Move to approve. Ms. Matsumoto: Second. Chair: Any discussion, seeing none 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 vote. UNFINISHED BUSINESS Class IV Zoning;Permit Z-IV-2012-13, Use Permit U-2012-11 and Special Permit SP- 2012-36 to allow establishment of a grqup child care home facility on a parcel located in Waiakaltza, Kauai, along the eastern side of Wailapa Road, situated at the Kuhi`o Highway/Wailapa Road intersection, further identified a Tax MV Key 5-1-005:052, and affecting a portion of anprox.. 8.402 acres =Deanna Kanehgm Growing Place. f Director's Report received 1/24/12, hearing closed 2/14/12.1 Supplemental Director's Report No. 1 pertaining to this matter. Mr. Dahilig: Dale, maybe because we have the report already provided last meeting maybe you could just give a brief primer on what the application is about again and then go into the recommendation. Staff Planner Dale Cua read supplemental Director's Report No. 1 and recommendation (on file). Chair: Any questions for the planner? Seeing none is the applicant here? Ms. Deanna Kanehe: Good morning. Chair: Do you have any objections to the recommendation? Ms. Kanehe: No, I don't have any objections. Planning Commission Minutes February 28,2012 13 Chair: Any questions for the applicant? Mr. Blake: You are Ms. Kanehe? Ms. Kanehe: Yes I am Deanna Kanehe. Chair: Any more questions for the applicant? Seeing none, thank you, can I have public testimony please, anybody? Seeing none... Mr. Raco: Chair, motion to approve Class IV Zoning Permit SP-2012-13 and Use Permit SP-2012-11, TMK 5-1-005:052. Ms. Matsumoto: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. Qn motion made by Caven Raco and seconded by Camilla Matsumoto, to approve staff recommendation, motion carried unanimously by voice vote. Special Permit SP-2012-24 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kaua`i3O,rdinance No. 904 in Kilauea Ag.'Subdivision, Kilauea, Kauai, approx.. 3,000 ft. northeast of the Waiakalua Street and Kuhi`o Highway intersection, further identified as Tax Map Key 5-1-:47 (Unit 1 comprised of 2.88 acres), with an overall parcel size of 10.902 acres =James Fowler. [Hearin 'ssOOf_fi_cer Special Meeting Public Hearing held 1/6/12, deferred 2/14/12.1 Supplemental D'irector's Report No. 2 pertaining to this matter. Supplemental Information Tests for Special Permit 2012-24 (2/22/12)submitted by Avery Youn, authorized agent for applicant. Staff Planner Ka`aina Hull: Good morning Chair, members of the Commission. The application is for a TVR unit on a property approximately 2.88 acres in size that was originally scheduled for hearing and the hearing commenced on January 6, 2011. At the public hearing no objective testimony was received from surrounding neighborhoods or surrounding properties however standard testimony from the Neighborhood Association as well as PONO was submitted. The primary area of concern revolved around a private beach path access that the property had and it was originally recommended by the department to condition the applicant to make said beach path public access. However given the fact that the applicant presented that an existing public access was located approximately 350 feet away from the property as well as the discovery of certain endangered species habitating on the property the department has removed the recommended condition and replaced it with the final condition of approval, recommended condition of approval which states, "Any private beach access shall not be advertised." I will take any questions at this time. Chair: Any questions for the planner? Seeing none is the applicant here? Mr. Avery Youn: Good morning Commissioners my name is Avery Youn, I am the authorized agent. At the last Commission meeting I was asked to provide additional information relative to the tests for special permit so I have provided you in your packet a summary of the tests for special permit. The first one would be what was in the original application,the second one was the Planning Department evaluation and the third one was the additional information that we provided to supplement the answers for tests for special permit. So rather than read that I will just try to summarize what I thought was the more important points relative to the tests for special permit. As you know the land use laws were passed in 1961 and when the land use districts were first established the majority of the agricultural lands were in sugarcane and pineapple production and they were owned and managed by large corporate entities such as C. Brewer, AMFAC, Alexander and Baldwin, Gay and Robinson,pineapple companies were managed by Dole and Stokleys here on Kauai. And it made it easy for the Land Use Commission at that Planning Commission Minutes February 2$,2012 14 time to designate the large areas and tracks of land into the Ag. district. Today these crops are no longer here and fragmentation has occurred since that time through subdivisions and CPRs of the large tracks of land creating smaller parcels and diversified ownership. And when such lands are placed in the Ag. district it did not distinguish which portions were marginal,too steep,had poor soils,factors that are not conducive to Ag.ptoduction. And now we are fifty years later with the disappearance of the corporate agriculture on Kauai and the North Shore. These large tracks of land have been subdivided by the fotmer sugar plantation companies into smaller lots and subsequent bwners have CPR'd it into even smaller lots. And the creation of these Ag. lots.and CPR units to me is the initial cause of the higher Ag. land prices creating diversified ownership and changing the types of uses now occurring within such lands such as vacation rentals,larger estates,bed and breakfast facilities, eco-tourism such as zip;-lining,ATV rides,horseback rides, also alternate farming activities not requiring prime agricultural lands such as aquaculture,hydroponics, green houses,wind farms, ranching, green waste composting. Even though the land uses and ownership in the Ag. district have changed over the last fifty years the North Shore is still very green and open in character and is still a very desirable place to visit. It still attracts wealthier non-resident buyers not only from the States but also worldwide who purchase and/or build large second homes or vacation homes. It is just that the beauty of Kauai and the North Shore and the many outdoor recreational activities that this island has to offer is what draws these people here and those who stay in these vacation rentals. Also the increasing tensions and danger in other places around the world once visited by tourists has put Hawaii and Kauai in more demand as a safe and desirable place to bring their families here to vacation. And should these worldwide tensions continue or increase the demand to come here to visit is inevitable and will grow even more. Thus applications such as this which provide a desirable optional visitor accommodations will continue to come before you. And in conclusion, we do live on a beautiful island. It is safe here and many people and their families will still want to come and visit. That is basically what the additional information I provided and these five tests for special permit other than that the land is being put back to some agricultural use other than meeting the requirements of Chaptet 205,205A. Are there any questions? Mr. Texeira: How big is this unit? This is a five bedroom single family unit? Mr. Youn: Yes it has five bedrooms. Mr. Texeira: How many baths and how big is this lot? What is the footprint of this? Mr. Youn: The CPR lot is 2.88 acres. Mr. Texeira: What is the footprint of the uhit? Mr. Youn: I think it is about 8,000 square feet. Mr. Texeira: That big. Was it every cut up and used as more than one TVR? Mr. Youn: No,the way it is designed it can't really do that. Chair: Any more questions for Avery? That beach access,will the guests be using that access,that private access down to the beach? Mr. Youn: They could but it is longer than going to the regular public access that is adjacent to the next adjoining lot. Chair: Is,there any way possible that not even the guests would be able to use it? Mr. Youn: They could use it. Planning Commission Minutes February 28,2012 1S Chair: Are you willing to put that as one of the conditions that the guests don't even use that access because you have a beach access right next door. Mr. Youn: Next to the adjoining lot,that is correct. Chair: I think if I remember correctly at the last meeting there were some issues about the birds nesting there along that path going down to the beach. Mr. Youn: Yes they are right next to that six foot wide trail that goes to the beach. Chair: So can we put a condition in there that not even the guests would be able to use that private access to the beach, it would have to be closed down completely? Mr. Youn: Can I check with the property manager? I guess you could put a condition like that but there is also two other parties on the same lot that has that access rights also. I am not sure how you would restrict them. Chair: Well can we put it down for just TVR guests? I mean they are guests and they are not educated as the people who live here about bifds and nesting and the habitat of the birds so can we just say that if you are resident there then I guess you could use it but as a guest of the TVR that it is prohibited. Mi. Youn: The last condition on the application states that it shall not be advertised for beach access purposes which was added on since the last meeting so would that be adequate or do you want it a lot stricter than that? Chair: Preferably I would rather just no access;period. Ms. Lisa Moss: My name is Lisa Moss and I am the property manager. I believe that access runs with the land and it will always run with the land. Chair: I understand that but what I am asking is if you are willing to put that as one of the conditions. Ms. Moss: Why? Mr. Dahilig; Commissioners, given the Chair's discussion on this matter it would seem prudent for the department to also acknowledge the concerns that were initially raised by actually the applicant concerning nesting and birds and bndangered specie§. The more people that are going through that area that are not familiar with the atea concerning birds it may be prudent to as a condition of rental that those that are renting the facility should not be using that type of access because they are not familiar with the fauna in the area and they may be trouncing on nesting holes and these types of things. Given the Chair's concerns I guess I would incorporate into our report and our suggested conditions that some type of condition relating to prohibiting guests from using the private access be included for the preservation of endangered species and birds. That would be my recommendation. Ms. Matsumoto: Could we atso add something about signage in the area? Mr. Dahilig: And we would require signage informing the guests are not allowed to walk down that path. Ms. Matsumoto: And the reason why. Mr. Dahilig: And the reasons why. Commissioners that is just my recommendation, it can be adopted or not adopted but it maybe prudent to have the applicant state whether he or she objects or does not object to the condition. Chair: I have a question. That property ends at the edge of the high water mark? Planning Commission Minutes February 28,2012 16 Mr. Youn: The property between here and the shoreline, this property ends at the top of the bluff. Chair: So that property that goes down is owned by DLNR? Mr. Youn: No, it is owned by, it is a private ownership by a night or. Chair: Thqt goes down to the ocean. Mr. Youn: Yes. Chair: So DLNR has no say on the path its self? Mr. Youn: No, it is already recorded. Can I add something? I understand the reason for the condition that you are requesting,please understand that there are a couple other owners that will still be able to use it for beach access. Chair: That is why we say TVR guests only. Mr. Youn: You said shall prohibit, can we say shall discourage? Mr. Dahilig: What has happened in the point of discussion is our department initially recommended full access for the public and that was our initial recommendation. Then it was brought to our attention concerning this issue of birds and about protection of birds and that we should encourage the public access be moved further south. And so it becomes a circumstance of it is one or the other. If really the purpose of not having the public easement there is the protection of birds then there should really be no objection to having guests that are unfamiliar with the area also not trounce on these nesting areas and use the other public access. It is not to prohibit the landowners and those that are familiar with the area from using the beach access but really from what I got out of the last discussion was the request for removing the proposed condition regarding public access as a result of trying to protect endangered species. And that is hence why I believe such a condition to also prohibit TVR rental people from using the access should also fall in accordance with that because they are unfamiliar with the area. Chair: Correct me if I am wrong, did that come from the applicant? Mr. Dahiliz I believe the request regarding the bird thing did come as a consequence of the applicant's representations at the last meeting. Chair: So they wanted to change the access for the south because of the birds and now the representatives are saying that it is okay for the guests to go down. Mr. Dahilig: I don't want to put words in their mouth but our position is we as a department fell along with the recommendation because we understand the need to protect our endangered species. But at the same time we did that with the understanding that we are giving up our recommendation saying that we want public access for everybody in lieu of that. So it is really a matter of the applicant and how they want to approach this but that would be our recommendation in accordance with the removal of the previous condition of recommending full beach access for the public. Mr. Youn: Okay we will agree to the condition that the applicant shall prohibit transient vacation rental users from utilizing the private beach access. Is that how it is going to be worded? Mr. Dahilig: I believe our planner has drawn up a condition. Staff: Condition No. 23 would be amended to read, "In order the ensure the protection of the site's habiting endangered species registered guests of the subject TVR shall be prohibited from accessing the beach from the subject property. Signage shall be erected on the property to this affect." Planning Commission Minutes February 28,2012 17 Chair: I have a question for Mike. If they continue to and I am not saying they will, but if the guests continue to use that trail what is going to happen? Mr. Dahilig: It could be grounds for revocation or modification of the permit., Or because it is a Chapter 8 permit that does flow from it that also violations of the permits pass under Chapter could also accompany civil fines. So therefore there are a number of enforcement mechanisms that we could employ should this condition not be complied with as with any other condition that we have issued with all the TVR certificates. Mr. Youn: For clarification, I know we have to come again one yeat from now and this condition will probably be reevaluated. And I know it is going to be difficult to monitor it to find out if these people that are using the access are actually from this vacation rental because there are a couple of other owners that use it. However I just have to state at this time that we agree to the condition and for clarity purposes this was not the only reason we used to remove the condition a couple weeks ago, the primary reason is There already existed one, one lot away. The birds just happen to be there or move over from the adjoining lot. And for your information there are three nesting sites there and they just had goslings Chair: Anymore questions for the applicant? Seeing none,thank you, whit does this Commission want to do? Mr. Jung. Mike,just for clarification that has been adopted into your report? Mr. Dahilig: That has been adopted as our recommendation in our written report. Chair: So we are going to have to have the planner read the recommendation, the amended recommendation and then make a motion on that. Staff: In recommending the drafted language actually the department would urge the Commission to in fact keep condition No. 23 intact in that it still would ensure that the private beach access not be advertised. And perhaps add an additional condition of approval, condition No. 24 which would read as I previously read and I can state that again. Mr. Dahilig: Commissioners, I will have Ka`aina read it again but our recommendation is for approval given now twenty four condition, twenty three which are written and one which will be read orally and if you can just restate that. Staff: Condition No. 24 would read, "In order to ensure the protection of the site's habiting endangered species registered guests of the subject TVR shall be prohibited from accessing the beach from the subject property. Signage shall be erected on the property to this affect." Chair: Can I have a motion to amend? No need? So what does the Commission want to do? Mr. Katayama: So moved. Ms. Matsumoto: Second. Chair: Any discussion? Ms. Matsumoto: Last time I have notes about the number of bedrooms and also parking. I don't see conditions toward that. Are Vice going to do that again? Mr. Dahilig: Commissioner we certainly can and I guess our method had been two per bedroom and I think it was for every five passengers in a car we were looking at that so is was two cars in this circumstance if it was five bedrooms, two cars, two vehicles. So what I would suggest is... Ms. Matsumoto: I think it was three cars. Planning Commission Minutes February 28,2012 18 Mr. Dahilig: Commissioners,what I would suggest is that and I don't have the exact language in front of me, that the addition of...if there is no objection I would incorporate into my report an additional condition, 25, requiring that no more than ten persons and two vehicles may utilize the transient accommodation unit. And we will normalize the language based on that. Ms. Matsumoto: I believe it is three cars. Mr. Dahilia: Three vehicles. Chair: That is pretty much standard what we are doing now, right? Ms. Matsumoto: We are trying to do it. Chair: Thank you Cammie. Mr. Dahilig: We would incorporate that into our report as well. Chair: So should we have Ka`aina read it first and then ask her if she has any comments? Mr. Jung: Just for procedure's standpoint given there is a motion to approve the staff report I think you should properly amend if you want to include that condition, amend it to include it. Ms. Matsumoto: I would like to move to amend and add condition No. 25 as read by the Planning Director. Well, as described, as represented by the Planning Director. Staff. Condition No. 25 could read, "No more than ten guests and three guest vehicles shall be permitted to utilize the subject TVR." Ms. Matsumoto: That sounds good. Chair: Do you have any comments? Ms. Moss: Yes I do. This isn't a standard two bedroom vacation rental like the last one that you talked about it is five bedrooms. Generally the people that come and visit this home are extended families so you have the grandparents, the children and the grandchildren and perhaps they bring a nanny along with them. So I would suggest having ten adult guests, overnight adult guests because they are going to have friends that come over and you may have cook that comes with them. And also on the cars it is three overnight cars because you have three gardeners that come now because the soil isn't that great so we have people coming and going. You have the County that comes and checks the utilities so there are other cars, property manager comes on property. Chair: We are just talking about the TVR renters not the maintenance workers. Ms. Moss: I am just saying the overnight. You are saying only three cars on the property the way it is worded. What I am suggesting is three overnight cars on the property and ten overnight guests or I would say fourteen due to the size of this home. It is five bedrooms. Chair: What was suggested was two persons per room, it is a five bedroom,that is ten people. Ms. Mass: Ten adults though because you do have children that come. Chair: I think that is what we did with past applications was two persons whether it be kids or adults it is two per room. Ms. Moss: But given the size of this home versus the others, it is a little larger home ao you do have children. Do you consider a baby...? So that is why I am just suggesting adults. Planning Commission Minutes February 28,2012 19 Chair: But what I am asking you is do you have any objections to what was read by the planner? Ms. Moss: Yes and I would like to add too that ten adult overnight guests and three overnight cars. It makes a little bit more sense. I mean law is law, right; it is how it is stated so I am just suggesting adding this to it. Mr. Dahilig: Commissioners we would decline to endorse and incorporate those added suggestions but it is up to the Commission what they choose to do in this circumstance. Chair: Any questions for the applicant, thank you. Mr. Texeira: So could we... Chair: Can you read it as suggested? Staff. With the suggested overnight language? Mr. Dahilig: Our department would not incorporate it. If you would like us to incorporate it we can for Commission purposes but our department would decline to incorporate that as part of our recommendation. Staff: As originally stated and actually left out the last portion but stated in its totality, "No more than ten guests and three guest vehicles shall be permitted to utilize the subject TVR during a specific visit." Mr. Raco: So there is a motion on the floor and I second it as read by the planner. Chair: Any discussion,roll call. Mr. Dahilix Commissioners the motion on the floor is to amend the primary motion on the floor to add a condition No. 25 relating to ten guests and three vehicles. That is the motion on the floor as moved by Commissioner Matsumoto and seconded by Commissioner Raco. On motion made by Camilla Matsumoto and seconded by Commissioner Raco, to amend primary motion to approve to add condition No. 25, motion carried by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake, Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Chair: Now on the main motion, roll call. Staff. Just to clarify; was the motion acted upon for condition number 24? Mr. Dahilig: It was incorporated as part of the previous motion. Commissioners the motion on the floor is to approve Special Permit S-2012-19 with twenty five conditions as amended over objection on condition No. 25. On motion made by Wayne Katayama and seconded by Camilla Matsumoto, to approve SP-2012-19, as amended,with twenty five (25) conditions, motion carried unanimously by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake, Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Special Permit SP-2012-17 to permit use of an existing ingle family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Planning Commission Minutes February 28,20I2 20 `Anini Vista,Kalihiwai,Kauai, Wrox.. 2,100 ft. north east of the `Anini Vista and Kuhi`o Highway intersection, further identified as Tax Map Key 5-3-9:6 (Unit B, comprised of.77 acres), with an overall parcel size of 19.331 acres= G.*egoa Greenwood Aa Penny Hill Properties LLC, Hearing's Officer Special Meeting Public Hearing held 1%6/12.1 i Supplemental Director's Report No 1 pertaining to this matter. Supplemental To Written Statement: Penny Hill Properties TVNC-4214 submitted by Penny Hill, Undated,Received 2/21/12. Staff Planner Ka`aina Hull: The subject application before you folks was heard on January 6,2012, at the public no surrounding properties or surrounding neighbors submitted testimony in opposition to the project however Kilauea Neighborhood Association and PONO did submit their standard letter with concerns. It was incorporated and addressed by both the department and the County Attorney at that time. The site is roughly three quarter acres in size and it has met under the department's recommendation the five criteria for special permit. The primary issue for contention revolved around the use of the master bedroom suite as a separate dwelling. Since that time the kitchen has been removed and it has been verified and in the conditions of approval recommeiided by the department, condition No. 23, site specific, states that,"The master bedroom within the main house shall not be used nor be advertised as a separate transient vacation unit or separate residential unit at any time. Prior to the annual renewal of this permit applicant shall arrange with the Planning Department for inspection of the structure." And this is essentially to ensure that it isn't converted after say if approval is granted. Chair: Any questions for the planner? Ms. Matsumoto: We are looking at photos here,what got removed? Staff. Essentially the kitchen items which are the stove and dishwasher. Ms. Matsumoto: But the counter and the sink and the area still looks like a kitchen without(inaudible)taken out. Staff. The area still remains,the sink is still there and that is a standard thing that the department goes through as far as the cat and mouse game with applicants. What defines a dwelling is essentially a kitchen. What defines a kitchen is area for food prep and storage, in particular the use of an oven and a refrigerator. Those have been removed. As such it does not constitute a kitchen. Whether or not he applicant or anybody that comes before the department with these removals is going to replace those back in, it depends on the applicant but evidence points the fact that there'is not kitchen and therefore there is no,density in there. I think the Commission also has insurances in that this is part of the condiiions of approval and as previously gone over by the Director in the last application any violation of the conditions of approval could result in either revocation or modification of the permits as well as civil f inm At this point we just have to take their word on it. Mr. Texeira: Not necessarily related to this application Mr. Chair,but overall I would like to see some kind of map, a larger map of the area that designates exactly where this project...to pinpoint and to show what other projects that have been approved are we looking at just to, in that area. We have Kilauea...it would be nice because as time moves on we are going to see more so it is good to get an idea or feel for how many projects and how close these projects are to each other,proximity. Going fokward I would just like to recommend to have a large map to show. Chair: Can you accommodate a picture? Mr. Dahilig. We will make every effort to. Ms. Matsumoto: I have another question. To the Planning Department, is it appropriate when you go out and do...when you talk about removal could you go further than just remove the microwave oven and the toaster oven to include removal of the... Mr. Dahilig: The cabinetry? Planning Commission Minutes February 28,2012 21 Ms. Matsumoto: Exactly, Mr. Dahilia: It becomes a tricky situation on that and I think it illustrates the difficulty that we have with people that try to go around the law by saying that these are utility cabinets or utility counters and these types of things. So it is hard for us not to allow things when they show up on plans as utility counters and these types of things because someone may want to do crafts or fold laundry on it or these types of things. It is difficult for us to say built in cabinetry is prohibited and we determine it as a kitchen what we look for are appliances. Our inspectors go out into the field and they can clearly see a stub out for gas or a cook top that has been removed that is covered with a temporary thing, that is the type of cat and mouse that we do play with people that clearly not abide by the law and try to squeeze out an extra unit from certain circumstances where they know clearly that they are not allowed to have it. Ms. Matsumoto: Do you require removal of utility lines like the gas line and a changing of the socket from 220 to the regular? Mr. Dahilijz: We haven't gone that far but it is worth revisiting especially given that if we are trying to make it difficult for reconnections or these types of things whether we also require that as an accompanying means of compliance with the law. Something maybe I can bring back to my staff in-house about but at this point we do not to answer your question Commissioner. Staff: I will also point out Commissioner that while the cabinetry would point to the fact that those types of things like stoves and dishwasher could be placed right back into the cabinetry the.inspectors did make the note that the actual stove hookups themselves had been removed from that room. Ms. Matsumoto: I can see from looking at these pictures here for example the ca6etry could be used for other purposes. Chair: Is there any way possible to have a professional from the gas company go in and look at the hookups to take out the pipes just to verify that even if they wanted to they couldn't prat it back in? Mr. Dahilia: Given Commissioner Matsumoto's suggestion and question and giver}what you are saying as well, Chair,what we can do is hui back with our inspectors. And I know that they do have a certain level of expertise and they are pretty proficient identifying these things but as it gets to this issue of deeper removal whether we should be consulting with the gas company or other licensed mechanical engineer and those types of things. Mr. Raco: Shouldn't they apply for a demo permit in order to remove drainage pipes and electrical lines? Because a normal stove is not a 110 outlet it would be 220 so that would require a demo permit to remove the 220 and have it inspected. Mf. Dahilia: I can see how we would have to require a demo permit. Let me circle back with my guys because I think we would want to comprehensively address situations like this from and enforcement standpoint and remediation standpoint and I guess I would like to get more educated on that issue of deeper demolition versus just withdrawal of the appliances. Chair: Gone is gone. Mr. Dahilig: I hear you guys. Chair: But that is for the future, not right now. Mr. Dahilig: I would need to get more educated on this at this point. Mr. Blake: Condition No. 23 says that the master bedroom in the main house shall not be used nor advertised as a separate transient vacation unit or separate residential unit at any time. I am trying to figure out where the master bedroom is and I am looking at exhibit A.1. Planning Commission Minutes February 28,2012 22 Chair: We can wait for the applicant to come up. Mr. Raco: The floor plan is kind of unclear on where the doors are. Chair: Are there any more questions for the planner? Mr. Blake: That was for the planner. Chair: Is that for the planner or the applicant? Mr. Blake: I was asking the planner. Chair: Do you have the answer for that? Mr. Blake: I see it now but when I look at this mansion it is Mr. Raco: Chair, if I may, I can see why the lockout because if I am reading the floor plan there is a slider to the outside and there is a door from the inside so that is a potential lockout, right? Staff: Correct. Mr. Raco: So if you could show the Commissioner or I will show him. Am I correct that the potential lockout is that the master bedroom has access to the outside and they could close the door to the main house and use that as a potential one unit, one bedroom lockout? Staff: Right, with the lockout and an exterior access the concern is that it be used as a separate TVR unit entirely in particular in conjunction with the kitchen facilities. The kitchen facilities have been removed and the lock its self on the door has been removed and it has been conditioned as such within the recommended conditions of approval. Mr. Blake: So that leaves how many bedrooms for rental? Staff Five. Mr. Blake: And with the master bedroom it is a six bedroom structure. Staff. No,total is five bedrooms. Mr. Blake: So if you can't use the master bedroom that is only four that is left. Staff: The condition reads"separately" so they can use the master bedroom in conjunction with the other four bedrooms bringing them to a total a five bedroom TVR. Mr. Katayama: Was a schedule F ever provided by the applicant? There is a letter to the applicant dated December 20, 2010 asking for additional support. I was wondering about the applicant's response to that. Staff. I can't tell you exactly right now whether or not the schedule F was provided. I believe... Mr. Katayama: It was? Staff. I cannot verify. I would have to look through the file right now but under the special permit's requirements they are coming in under condition No. 3 but we can ask the applicant when they come up. Chair: Any more questions for the planner? Is the applicant here? Mr. Stephen Long: Good morning Chairman Kimura and honorable members of the Planning Commission. I am Stephen Long. I am the authorized agent for Greg Greenwood, the Planning Commission Minutes February 28,2012 23 applicant. You have received by twenty page supplemental written statement addressing the five main poinis of the SLUC considerations per your past requirements. Included in th6 supplemental statement is ten pages of case law, color photos with descriptions, an aerial photo showing CPR property lines,the current agriculture, and permitted improvements as well as a current revised agricultural master plan. Since submitting the original application in August of last year Greg Greenwood has worked with a local landscape architect to further plan and implement a phased agricultural master plan. As a result one hundred twelve sugarloaf pineapple plants, eleven citrus trees, five papaya and ten banana trees have been planted in addition to the agriculture already on the property which is less than one acre in size. Virtually all the area not planted or occupied by permitted 'improvements is planted with real agriculture. As schedule F of the Federal tax 1040 form will be filed in the future. The family farm dwelling is rented on average of forty 1wo days per year. Other TVRs in the `Anini Vista subdivision have already been approved and there have been no complaints by the neighbors to dhte. In response to your previous concerns regarding the number of guests and cars the applicant would be willing to limit the number of guests to ten and three guest vehicles. And in response to you conversation about the unpermitted kitchen, when the applicant purchased the home he purchased it with the unpermitted kitchen appliances there, He never used them and was unaware that they were unpermitted. He was pleased to permanently remove these items by capping off the electricity, capping off the gas lines and removing the electrical junction boxes in the wall and finishing the wall so that those are permanently capped and removed. The Planning Department is welcome to come to the home at any time for an inspection. Do you have any questions? Chair: Any questions for the applicant? Mr. Raco: Was there a demo permit issued for that or applied for that for removal of those items? Mr. Lonl?: The work was performed by a licensed electrician and plumber. Mr. Raco: Did they pull permits? Mr. Lon: No they did not pull a permit. Chair: Does the Director have any comment on that? Mr. Dahilig: Regarding whether they pulled a permit on this or not? Chair: Yes. Mr. Raco: He said they didn't. Mr. Dahilig. I guess given the scope of removal it would he difficult right now for me to make some type of assessment whether this was an unpermitted type of demolition. But just for information sake for the Commission really the demolition process is more of a building permit and a building division type of approval and authority. What we look at from a Class I standpoint is more whether there is going to be demolition of things that are historically significant or things of that matter that we need to double check that if they are demolishing something that was required by a permit and those types of things have been checked. So the primary authority and I think the discussion concerning the Kekaha Mill is illustrative concerning the department's actual authority in demolitions. We do not require 4 Class I permit to be actually issued but we require them to go through a review process with us which we catalog as a Class I. So if it does warrant some type of review it is something that definitely we can refer to Doug Haig and the Building Division for further investigation that this was not an appropriate action without a permit. Chair: Any more questions for the applicant? Mr. Blake: Mr. Long, I am looking at page nineteen of your initial application and;you have number 6.c,the desired use will not adversely affect surrounding property and it will not Planning Commission Minutes February 28,2012 24 generate any significant adverse impacts. What impacts did you note to come to your final conclusion that there are no significant adverse impacts? Mr. Long. This is a five bedroom home; it is occupied by the applicant and his extended family a number of times during the year. This particular home is rented an average of forty two days a year so therefore it is actually occupied.less than other adjoining adjacent properties and therefore not significantly impacted. Mr. Blake: So are you saying there are no impacts or no significant impacts? Mr. Lona: There are no adverse impacts. Mr. Blake: And with regard to 6.d, when you say the use will not unreasonably burden public agencies,the TVR use, you are basing that on a one year period? Mr. Long: There is no additional impact to County infrastructure with having the house rented as a TVR for an average of forty two days a year as compared to the home being occupied full time by a large extended family. In addition... Mr. Blake: Do you see what I am getting at? I would like to see what they are so that we -can decide whether it is significant or unreasonable rather than just having a bald assertion that it isn't because I have no idea what you are talking about. Now that may be in some other submission that you have made to the department but personally I would rather make the decision about significance or unreasonably myself rather than just take it from the application. Mr. Long: Yes sir. Mr. Blake: No further questions. Mr. Raco: So he is not going to answer that? Mr. Blake: He did answer it. Mr. Raco: But can he provide... Mr. Blake: He answered number 6.c to my satisfaction but the forty two days that it was rented in the past year and for that same reason as I understand it there is no unreasonable burden on public agencies because it is less than having somebody in that house the whole year. But I would prefer not to have to plug in those things myself. I would rather the applicant put that in so I can decide. Mr. Long: I understand. Mr. Blake: Thank you. Chair: Mr. Long, this is your original and this is your supplement. In here it says nothing about your pineapples and orchards and whatever else you just planted. So you just planted these new plants when you submitted this new application? Mr. Long: Yes. Chair: Wasn't that supposed to be taken care of before even the application? Staff. To clarify Commissioner, the applicant came under subparagraph three concerning the fact that the property was too small and the topography did not allow for agriculture and. hence didn't submit the schedule F Commissioner Katayama was referring to. I think subsequent to submitted the application they have attempted to plant a few things on the property. Their primary contention is that their property is too small and the topography disallows agricultural activities to occur in conjunction with the TVR. Chair. Question, did your applicant buy the house or did he build the house? Planning Commission Minutes February 28,2012 25 Mr. Long: The applicant purchased the home. Chair: It was already built there? Mr. Lon& Yes. Mr. Raco: When did he purchase the house? Mr.jpD& I believe it was 2006. I am not absolutely certain. But I do know that the applicant purchased the built home. Chair: So only when he was forced to do some farm work on there I guess is if you want to call it is when he did it because he was forced to. ML Long: When we submitted the application in August I felt that it was important to put as much agriculture on all these properties as possible because they are zoned agriculture. I encouraged this client and all of my clients to maximize the agriculture on the property regardless of the size of the lot which this one is .77 acres which disallows intensive agricultural use. Yet I encouraged the applicant to plant out the remaining usable area on the tot with one hundred twelve pineapple plants and eleven citrus trees, five papaya trees, and additional banana trees so virtually all the area on this small lot of.77 acres that is not occupied by permitted improvetnents is in agriculture. Chair: How many square feet is this? Mr. Long: I believe it is approximate 4,500 square feet. Chair: That is as big as the lot itself. Another question, you have a permitted improvements and agriculture, lot area, over here you have .647, open area you have .130 acres. Can you separate the permitted improvements to agriculture? Mr. Long: I'm sorry could you rephrase that? Chair: You have it altogether, the permitted improvements and agriculture, it is .647 acres and the open area you have 130 acres. Can you have the separation between the improvements and the agriculture? Mr. Isom: The improvements would be the approximate 4,500 square foot house, a driveway, pool, and septic system with the remainder being in agriculture. Chair: So what would that be? Mr. Long: I would need a calculator. I could do that math. You could take .77 acres and take the combined amount and deduct from that the 4,500 square foot house, approximate 3,000 square foot pool, 1,200 square foot septic system, and 1,500 square foot driveway, end then if you deducted that that would leave you the amount of area that has been planted with agriculture. Chair: If it is okay with the Commission I will take a five minute break. When we get back can you give me the exact amount of agriculture that is planted? Mr. Long: Yes. Commission recessed at 11:20 a.m. Meeting called back to order 11:40 a.m. Mr. Lon : Your request to break out the permitted improvements and the remaining agriculture in addition to the items that I previously identified there is also a 1,000 square foot concrete exterior pool deck lanai. So taking .647 acres which is approximately 30,314 square feet minus the 11,700 square feet of permitted improvements leaves 18,614 square feet of agriculture. Planning Commission Minutes February 28,2012 26 Chair: I notice here you have down java plum, is that part of your so called farm plan? Mr. Long: The java plums are native trees that grow wild and were left remaining on the lot in part to shield the house from the neighbors and adjacent properties. Chair: But it is not part of your farm plan,right? Mr. Long: No, they are naturally growing and were let remaining and were not taken out with the development of the lot so they are not part of the farm plan. Those would be existing trees. The avocados, the sweet potatoes and all the other identified agricultural plantings would be part of the phased agriculture master plan. Chair: And you have planted that when? Mr. Long: I would say half the plantings or sixty percent of the plantings were there prior to applying for the special use permit application and upon applying for the perm it I encouraged the client to maximize the potential agriculture on the site. And clearly 112 sugarloaf pineapples are for more than personal consumption and will be sold as the local farmer's markets with the filing of a schedule F federal tax 1040 form in the future. Chair: The reason I am asking is you said sixty percent was already there but from what I am seeing Here most of these plants were just plants that were just planted recently. Mr. Long: That is not correct sir. I have been to the property and I'd say half of the...what we planted were the sugarloaf pineapples,the citrus trees up in the upper right hand corner some additional bananas and the rest of it was there, has been there and is mature, has been there for a couple years. Chair: What do you consider at citrus orchard? Mr. Long: An orchard is an area that is planted with fruit trees. Chair: How many trees are you thinking about? Mr. Long: As many as can possibly be put in that area per industry standard planting on center specifications. Chair: Is five or more considered an orchard? I am just curious. Mr. Long: That is the tivOrd I use. An orchard is a collection and an area that is planted out with fruit trees to the maximum allowable per industry standard plantings on center specifications. Chair: Any more questions for the applicant? Mr. Raco: Mr. Long, you indicated the owner bought this property with the houses on it. Mr. Long: I believe so. Mr. Raco: Because in your application you said that the lot was purchased by the owner who constructed a single family dwelling. Mr. Long: Then I am mistaken. I was told that they... Mr. Raco: Did you write the application? Mr. Long: I did write the application. Mr. Raco: So what has changed from when you wrote it to today? Planning Commission Minutes February 28,2012 27 Mr. Lonw: I made a mistake in my statement before you today. Mr. Raco: That is on page seven under section ten. Chair: Didn't you say earlier when I asked you and you said you know for sure? The comment you made was I know for sure they bought the house, they didn't build the house they bought the house. That was a comment that you made to me. Mr. Lon>7: I did. I remember the conversation that I had with the client with regards to taking oiit the kitchen appliances and they told me that the appliances were there when they purchased the home. I am wrong. I Was recalling a conversation that I had with the client and it the application says that he purchased the property and built a home we could check that with the building permit records. I made a mistake. Mr. Raco: Were you the original architect that drew the home? Mr. Long: No I was not. Chair: I mean you just sounded so convincing to me that you knew for sure. Mr. Long: Well that doesn't look very good for me does it particularly on TV in front of all of you. I apologize. I was recalling a conversation I had with the owner at the time we discovered...and by the way when I submitted my original application I drew in the kitchen and the appliances. The Planning Department did not come out and discover that those were there, they were in my original plans and I do know that for a fact to try to gain some credibility. You can look at my original floor plan drawings and you will see the kitchen and the range and the appliances drawn on there. So nothing was tried to be concealed. No work has been attempted to be concealed or misrepresented. Chair: When does this application have to be acted on? Mr. Dahilig: This meeting. Chair: This meeting. I do know that the applicant was surprised that the kitchen appliances and the lockout door were unpermitted and illegal. And as I said the Planning Department is welcome to come by for a surprise inspection at any time to see that those remain removed. Chair: With that being said we put that in as one of the conditions? Mr. Long: That would be fine. Chair: Surprise visit by an inspector at any time. Mr. Long: Yes. Staff: You might want to verify with the County Attorney. Mr. Jung: From a legal standpoint there has been case law that said you cannot have unannounced continuous requirements to go and inspect a house at any time, fourth amendment of the US Constitution. Chair: But if he recommended it. Staff: To interject, Ian would it be okay if say we put a specific cap on it say two unannounced inspections per year? Mr. Junk: It is just the unannounced. If you guys want to do a twenty four hour notice period you can do something like that. Mr. Long: Or even less. Planning Commission Minutes February 28,2012 28 Mr. Raco: The applicant is saying even less. Chair: Will ten minutes work? Mr. Long: Thirty minutes would be better so I could get there. Chair: And if they have guests there then it's another story. Mr. Jung. That is my advice to you guys. Mr. Raco: The applicant has suggested thirty minutes. Mr. Jung: And the reason I bring it up is because the Commission has a tendency to bring this up over and over and wanting do this. Chair: It doesn't hurt to ask. If they comply, they say yes, then more power to them. That is being honest applicants. Mr. Jung: That is my advice. Mr. Long: Well a very short period of time, shorter than one would need to permanently cap off in the wall the gas line and the electrical conjunction box. Chair: So where do we go from here? Staff: Ian, you were okay with twenty four hours? Mr. Jung: Yes if there was a twenty four hour notice. Chair: He just gave his opinion. Staff. If the Commission was okay with that I think twenty four hours is enough time to reasonably go in there and at the same time shouldn't afford them that much more time to lay drywall and removed stub outs. Mr. Raco: More important the applicant should check with public works, right, and County agencies for any demo permits or required building permits. And I think under State law any licensed contractor or any licensed subcontractor is required to pull permits to do their work. Mr. Jung: In this case did the department request that the items be removed? Mr. Dahilig: I don't know. Mr. Long: Yes. Mr. Raco: The department has requested it to be removed. Mr. Long: I am going to be really careful at my words here, at the site inspection the inspecting planner noted the unpermitted kitchen appliances and suggested that if I wanted to remove the appliances and permanently cap them off to comply with the letter of the law that I could do that dnd resubmit photographs showing that work had been done. The word required was not used. Mr. Blake: Since this is a vacation rental and the unannodnced inspection could happen at a very inopportune time for the guests I would suggest a twelve hour notice so that the guests are not unduly inconvenienced. Chair: Well I think our attorney and the planner suggested twenty four. Planning Commission Minutes February 28,2012 29 Mr. Blake: I know what they suggested. I am just trying to be reasonable. I think that would be generous,twenty four. I am trying to be reasonable at twelve. Chair: So noted, any more questions for the applicant? Ms. Matsumoto: It is more of a comment. It is interesting what people will live with. To me it would be very stressful to have a business and to, if I didn't take care of this kitchen area right now and be done with it I would feel very uncomfortable. So whatever happens if it is twelve hours or twenty four hours it puts out some kind of message to the tenants that thi-,re is a problem. If were staying in vacation rental and I got a twenty four hour notice that an,inspector is coming from the County I would take note of that, I would think, and I don't know if I would feel entirely comfortable because that would be telling me that I rented something that...that something might be wrong with that place. That is just a comment. Chair: So noted. Ms. Matsumoto: There dre different ways to do business and we hope that people do good business here. It is good for them too. Chair: Well I think the applicant is trying to do that with his suggestions. Ms. Matsumoto: It is just good for everybody involved on both sides. Chair: So where are we at? Mr. Long: I also have a comment and that is that these unpermitted improvements have been legitimately and agreeably removed and will not be put back in and I hope you can believe that. And also whatever requirements or conditions that you place on-site inspections would be fair to apply them to all TVRs and inspections. Chair: Thank you. So where are we at? Anybody in the public want to speak on this agenda item, seeing none what does the Commission want to do? Mr. Dahilig: Commission, given the suggestion we would also incorporate into our recommendation the addition of condition No. 24 that as represented by the applicant the department may inspect the unit upon twelve hour notice to the owner or his/her agent. We would incorporate that as one of the twenty four conditions both written and oral to accompany any potential motion for approval by the Commission. Mr. Blake: I have a comment. There is nothing that prevents the department from giving seventy two hour notice or more but you have the option of giving twelve if you want to. I know that is pretty tightly scheduled for the inspector but if the inspector but if the inspector wants to set up a series of inspections he can give more than twelve. Mr. Dahilig: That is correct. Mr. Katay,.ama: In the prior application we put in a condition for occupancy. I don't see this in here, cars and tenants. Staff. Just to interject the department can reiterate the previously established condition for this application. So essentially it would read virtually verbatim given that this has the same amount of bedrooms. Chair: This is a five bedroom and they are taking away the master bedroom, right? Staff. No, the master bedroom is included within the five bedrooms with condition 23 establishing you cannot use separately from the existing TVR. So including the master bedroom there are five bedrooms total. Chair: Was it the application before this that...it was this application;right,that they weren't going to include the master bedroom? Planning Commission Minutes February 28,2012 30 Staff: It is not that they weren't including the master bedroom it is that the master bedroom will not be used separately from the TVR. So there are four bedrooms and a fifth master bedroom used in conjunction all together, it equals a five bedroom TVR. Chair: I must have misread it then. Mr. Katayama: One more question for the Director in terms of form. Now we have an application for this permit and there seems to be some grey areas or some things that are not quite clearly stated. How does the department want to address those issues because it becomes a baseline for review during the next permit renewal process? Mr. Dahilig: Maybe if you could clarify the specific grey areas. Mr. Katayama: I think too'is the establishment that the Ag. activity and the TVR was in fact prior to the 2008 benchmark. I mean to me it is not quite clear as in other applications that has been established. I see through the review process it has been signed off on but there are discrepancies with the application its del£ I think on page 9, section 8, item A.3, agricultural use, I get the impression it was ongoing agricultural activity prior to the submission of the application. I think the Chair has sort of pointed that out. Mr. Dahilig: In this particular circumstance we don't require the condition for the Ag. easement because of the size of the lot, we are looking at what is a little over three quarters of an acre and usually only require those for larger parcels. And that is typically the mechanism that we use when we want to take a look at Ag. activity and to, I guess my explanation would be in those circumstances we don't look at it as a benchmark circumstance, we look at it as a prospective type of activity and whether they are following through with it. I would say in this particular application if we look at condition No. 19 regarding the Ag. plan they are required to submit something and I think that is what we would use as the baseline moving forward whether or not the Ag. plan is being fulfilled and whether(inaudible) with the Ag. plan. So I wouldn't say a baseline is, I would say that a baseline probably would not be necessary in this particular application but I think it is helpful for (inaudible)purposes and intent purposes whether there is actual Ag. that is going on right now and whether that bodes in the Commission's favor. Mr. Kata. aura: The basis of the application is not on a lot size issue thougli. Mr. Dahilig: Correct. It is not on the lot size issue but when we look at the enforcement mechanism that we recommend we certainly could put the Ag. easement condition in there as a further means of enforcement of Ag. on this particular but we have shied away from it given the size. But it is a mechanism that could be bundled in. Chair: I wanted to make a comment on that. That is the reason why I asked it the applicant bought the house or built the house.Now they are claiming that the property was too small to farm being that the house is so big but they built the house. It is not like they bought the house preexisting. Mr. Dahilig: Right. Chair: So now they are saying that we can't farm because we have no more land. Is it our problem that they built a huge house, a mansion on their property? And now because of that they don't have enough land to farm? Mr. Dahilig: Well they certainly built the house albeit from certain other improvements that they had to remove they followed all lot coverage, setback, those types of laws that require the form and nature of the house. It is not that it what they built is illegal but they have made the choice and they are allowed... Chair: I understand but don't use the excuse that they don't have enough land. Mr. Dahilig: Well that is the choice they made and it is up to them how they wish to convey that. But what they have on the property is a legal house. Planning Commission Minutes February 28,2012 31 Chair: I understand that. Mr. Dahili&: So whether or not they have done the tradeoff for more farm land versus more lot coverage that is their decision and they made it within the legal confines of the law. Mr. Kataama: But isn't that the whole premise of supporting a special use application in an agricultural area that it is indeed to help support and maintain and preserve agriculture? Mr. Dahili&: You are correct. Mr. Katayama: And so if the action does not support that premise how does that become conforming to the special use permit? Mr. Dahili&: It is a legitimate comment and something that has come up throughout the different applications that we have seen. The notion of agriculture on the property and whether it is supplementing it or not really bears upon the 904 considerations concerning size, shape, topography, location or other circumstances. Whether it is heavier supplement or not it is unclear whether it needs to 90/10, 10/90, 50150,those types of things,it is a good question. But it is what looking at from a standard that is set forth by the 904 considerations.regarding size, shape and topography. And because of the shape of the topography hence our weighing factor on Ag. is a little less than more in this circumstance when we reviewed the application. Staff: If I could just interject too, Commissioner Katayama,in reference to special permits, special permits are actually specifically designed for non-agricultural uses. So in reviewing those particular proposals we are actually not looking at them in the notion that they promote agriculture but in the light of they do not contradict the objectives of section 205 and they do not necessarily displace agriculture. But I wanted to be clear in reviewing special permits, special permits are not for the promotion of agricultural activities they are specifically for projects in the agricultural district that do not in fact have agricultural components within them. Mr. Jun&: And just to add on top of that what the special permit 205-6 does say is promote thy:effectiveness of 205,not 205-2 or 205-4.5 so it is general in terms of all land use categories,not necessarily just agriculture its self. So it is looking at the general land use law throughout the State of Hawaii: Mr. Dahili&: The Ag. considerations concerning size, shape,topography and intensive Ag. and those types of considerations are more of a County function that is overlaid on top of the special permit process for us to review. Mr. Blake: I like what was articulated by Commissioner Wayne and throughout these applications they seem to all quote the fact or state their fact that this is giving the vacationer the opportunity to reside and vacation in a rural agrarian atmosphere and t1is is a necessary component to the vacation experience in Hawaii or Kauai. So it seems to me that that being said you should do the best that you can to promote that not just build your house and mow the grass and have them experience your neighbor's agriculture. Mr. Dahili&: And so in this circumstance what is done is done. Mr. Blake: I understand that and hopefully next year they will realize that there is more to it than just that balled assertion,they being the applicants. Chair: Did we ever find out about the market value on the house being well I guess going up being that they have a transient vacation rental on it? Remember we talked about it in the past and never got a straight answer for that so I was just wondering if you ever talked to... Mr. Dahiii&: I remember passing along an email to you that Steve Hunt wrote us concerning his determination that yes they can up the property but it won't have a bleed over effect on surrounding properties. But whether that is from a taxing standpoint that is the case he can't confirm nor deny the bleed over effect on neighboring parcels on the open market place. Planning Commission Minutes February 28,2012 32 So that is the email that I shared previously from Steve just confirming that they look at it from (inaudible)bit it just for that lot only for tax purposes. Chair: I just have to make a comment. You always tell me that the permit runs with the land, Ian, so if the property value doesn't go up why should the permit run with the land? I am just speaking out loud as frustrating as it is with all this. If it doesn't increase the value of the land why would the permit run with the land? Mr. Jung: Because the use of what you guys are looking at concerns the land not necessarily the person so you want to look at what kind of impacts the use has on the lafd and not who the applicant is before you. Taxation is inherently different from land use although land use does... Chair: But it says here the fair market value of the real property. It says will not significantly increase the value of the subject property because of this TVR.but you ask any realtor and they will tell you, oh yes. Mr. Jung: And that is the applicant's opinion. Chair: Well every applicant that came before us this is what was said, every applicant that has come before us with a TVR. Mr. Jung: And you have the right to disagree with that opinion. Mr. Blake: I wondered about that too because of course a TVR property is going to be worth more than just a residence. So when they are tacking about the subject property, the way it is stated it is like when I sell this property the TVR use does not go with it. Now I can see that applying to surrounding properties, it is not going to raise the taxes for surrounding properties because they are not fortunate enough to have an income earning property on it. But it defies logic to me to say it does not increase the value of that TVR parcel. So I take issue with every single applicant that says that. Chair: I guess it is every one, Mr. Blake: Every single one. Chair: That is the reason why I always ask; it's like the property goes up but if it didn't then why does the permit have to go with the property if it doesn't increase the value of the home? Mr. Jung: Well the two aren't inherently tied. The value is different from the use. We were at the HCP4 seminar and we heard from certain representatives that it could increase the property up to forty percent. So that is just a contrary opinion to what that is but you guys are the decision makers and concern yourselves with the use of the land versus the value of the land. Mr. Blake: But you can't separate those when you sell it. Mr. Jung: These special permits are good for one year subject to renewal so it is only tied to the land as long as it gets renewed. So you guys did impose that annual renewal requirement where if they are not in compliance with any of those conditions it could be subject to nonrenewal and revocation. Mr. Raco: So that condition does exist. Mr. Jung: Yes. And that is the different perspective of looking at it if you don't want the permit to run with the land you impose a time constraint on when the permit is set to expire. But you still need to go through due process to revoke the permit even if there is an expiration date on it to show the violation of the actual permit was that it expired without a renewal. It is one of the standard conditions. Chair: So basically we just don't have a case if we wanted to impose that. Planning Commission Minutes February 28,2012 33 Mr. Jung: That is a condition. Ka`aina do you know what condition that is, the annual renewal? Mr. Dahilig: Condition No. 8. Ms. Matsumoto: I have a question about dates, about inspection dates and letter of authorization date, things like that. So on the Planning Department's report the inspection took place on December 12, 2011 and then above it says October 6, 2010 they applied.for the TVR, right? So my question is in the appl'icant's packet it is called a memo letter of authorized agent, it is dated October 1, 2010 and at the bottom it describes the property. It calls it a 7,200 square foot home, a 90,000 dollar gallon salt water swimming pool and then it says five baths and a gourmet kitchen. So this description doesn't include that kitchen in the bedroom or is that the gourmet kitchen? Mr. Dahilig. I am going to need some time to take a look at that. Ms. Matsumoto: Just wondering, are people supposed to provide this authorized agent; is that required? Mr. Dahilig: Usually when they do come in they have to designate an authorized agent. Chair. Where did you read the 7,000 square foot home? Ms. Matsumoto: It is called exhibit C in the application packet. There is no page, it comes after this...so what happens in the process is that they present this memo and then an inspection takes place? Mr. Dahilig: I don't have that intimate a knowledge in terms of what exactly went on. I can try and call Mike if you want an answer. Ms. Matsumoto; I guess the point I am trying to make is we have already pretty much taken care of it for this application but it has sort of brought to light dates and other things, descriptions of properties for the future is all I am saying. Chair: Ka`aina, on this page she is talking about it says 7,800 square foot home but the applicant verified it was 4,500 square foot home. Staff. The 4,500, I am not sure what you are referring to. Mr. Raco: His Ag. dedication minus... Chair: After he minused it he said it was a 4,500 square feet of living area. Over here it says 7,800 square foot home, five bedroom, five bath, gourmet kitchen, full control of the audio and video from the (inaudible) control panel throughout the 7,800 square foot home. We are talking... Staff You are talking roughly 3,000 square feet but the concern of that is...I would present that question to the applicant. Mr. Raco: (Inaudible) building footprint. Chair: Yes but when you ask somebody what size house you have it would be the full thing. Mr. Raco: I think the applicant was saying the building footprint and the second floor is the total square footage. Chair: I see what you mean. Moving on, where are we, do we have any conditions we wanted to add? Planning Commission Mimites February 28,2012 34 Mr. Dahilig: We have already stated our recommended 'incorporation of the oral condition along with the twenty three conditions including the condition that limits occupancy and vehicular parking to ten and three. Mr. Texeira: So how many conditions do we have? Mr. DahiliQ: Twenty four. Staff: Director, twenty five. Chair: Mr. Long can you step up please? Do you have any objections to condition twenty four? Mrs No sir. Chair: Thank you very much, twenty five, sorry. Mr. Dahilia: Yes, twenty four should be the visit and twenty five should be the occupancy. Chair: Occupancy and cars. Mr. Long: That would be no problem. Chair: Thank you, what does this Commission want to...you have to read it first, right? Mr. Dahilig: We can read it again for the Commission. Staff: So condition twenty four would state, "As agree to by the applicant the department may inspect the subject TVR unit within i welve hours' notice to the property owner or the authorized agent." Condition twenty five would read, "No more than ten guests and three guest vehicles shall be permitted to utilize the subject TVR during a specific visit." Mr. Raco: If there is discussion, Chair... Chair: Somebody has to make a motion first. Mr. Raco: Because the application shows six maximum persons but the amendment now shows twelve. Is there a reason why it Went from six to twelve? Mr. Dahilijz: Ten. Mr. Raco: But in the application he just said six. Chair: So why are we increasing it is what:you are asking? Mr. Raco: Just a reason why the applicant asked... and we doubled it. Mr. Dahilig: Two per bedroom. Mr. Raco: Page twenty two. Chair: That is something the Director would have to...or the planner. Mr. Raco: Or the applicant,he turned in the supplement. Chair: Do you want to bring him back up? Mr. Raco: No. Chair: So where are we at? Planning Commission Minutes February 28,2012 35 Mr. Jung: So now a main motion. I think the Director had incorporated the two additional conditions into his report so it doesn't need action to amend by you guys unless you guys want to amend any other conditions. Chair: We need a main motion. Mr. Texeira: Mr. Chair, motion to approve. Mr. Blake: Second. Chair: Any discussion? Mr. Texeira: So we don't need to discuss the amendments at all it is already in there because 't was done...how does that work? Mr. Jung: That is part of the Director's recommendation to you but you are still entitled to aTnend conditions if you would like. Mr. Texeira: In addition to what he mentioned. Mr. Jung: Right. Mr. Texeira: So in my main motion it should state motion to approve and then to... Mr. Jung: You do the main motion first and then if you want to do amendments to the main motion then you do those second before there is action on the rhain motion. Mr. Texeira: Correct but you mentioned that his recommendation is already incorporated into the main motion, twenty four and twenty five are already incorporated because he brought it UP... Mr. Dahilig: If you move to approve my report I incorporated the additional conditions as a function to try to administratively not have to go through future amendments. Mr. Texeira: I will take back my motion to approve and just say I rn.ove to approve the report presented by the Planning Director. Mr. Raco: That was the main motion. Mr. Texeira: I am just stating that a motion to approve, instead of saying that I am just saying as recommended by the Planning Director. Chair: Any discussion, roll call please. On motion made by Herman Texeira and seconded by Hartwell Blake, to approve SP-2012-17 with twenty five (25) conditions with the concurrence of the applicant, motion carried unanimously by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake, Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Special Permit SP-2012-18 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, approx.. 2,400 ft. 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 6, comprised of 1.00 acres), with an overall parcel size of 33.717 acres=Scott Johnson dba Kilauea Investments LLC. (Hearing's Officer Special Meeting Public Hearing_held 1/6/12.1 Planning Commission Minutes February 28,2012 36 Supplemental Director's Report No. 1 pertaining to this matter. Supplement to Written Statement. Johnson TVNC-4213 submitted by Scott Johnson dba Kilauea Investments LLC. Undated, Received 2/21/12. De ut Director Dee Crowell: This is a vacation rental on a one acre CPR property. The public hearing was on January 6`h. This is on the eastern end of Kolo Road in Kilauea. This is a three bedroom, two bath house approximately 2,200 square feet of living area and about another 900 feet of deck. Mr. Texeira: Mr. Chair, I just want a description of this property, exactly where is this property in Kilauea? Is this before the Kilauea Stream? Deputy Director Dee Crowell: This is on the eastern end of Kolo Road. Mr. Texeira: Where is Kolo Road? Mr. Crowell: Kolo Road is the old Kuhi`o Highway. Chair: Do you know where the Taniguchi's used to live? Mr. Texeira: Yes. Chair: It is that same subdivision that we had questions on before at the end of Kolo Road to the left, the private drive. Mr. Crowell: This is one of six CPR units on the property, sixteen acre parcel. Should I go to the recommendation Chair? Chair: Has everyone read it? Go ahead. Mr. Crowell: Based on the evaluation and conclusion it is recommended that Special Permit SP-2012-18 to Scott Johnson dba Kilauea Investments, LLC, be approved subject to the following conditions. And again Mike has laid out standard conditions, basically twenty two of them with one specific to this application as condition twenty one, "Applicant shall develop and implement an agricultural plan to increase/supplement the agricultural use of the property. Such additional use shall be reflected on a revised plot plan when the special permit is next reviewed." And with that that concludes staff's recommendation. Mr. Texeira: Mr. Chair, do we included twenty four and twenty five? Chair: We definitely will. Dale, do you know how many bedrooms this thing is? Mr. Crowell: Three bedrooms, two bath. Mr. Dahilig: Commissioners, you may want to ask the applicant for concurrence on thb inspection issue but also on the bedroom issue it stould be six guests and two cars, vehicles. Mr. Texeira: You know in the other application we never said guests we said persons, why are we changing the language, same thing? Mr. Dahilig: I can put guest/persons. Mr. Texeira: I just want to be consistent with everything that we do. Chair: So you are adding all that in? Mr. Dahilig: Yes. Chair: Any more questions for Dee? Seeing none is the applicant here? Planning Commission Minutes February 28,2012 37 Mr.lqn& Before you call up the applicant I would just put the same advice out there on the issue of right to privacy and condition number twenty four. Chair: Thank you for your advice, is the applicant here? Mr. Stephen Long, Good morning Chair Kimura and honorable members of the Commission. Thank you for allowing us an opportunity to be before you. I am Stephen Long the authorized agent for the applicant Scott Johnson. You have received my twenty page supplemental written statement. In addition to the written statement I have also included a new exhibit U which shows are receipt from (inaudible)Kauai Fruit for fruit that was purchased from the applicant and sold at the North Shore farmer's market. As a result of working with a local landscape architect an additional phase two on the agricultural master plan, five additional citrus trees and additional banana trees have beerl planted in addition to the existing sixteen mature citrus trees and twenty one coconut trees already on the property which is only one acre in size. The schedule F Federal tax 1040 form will be filed in the future and one can see from exhibit U that the mature citrus trees are already producing fruit. And I believe that selling them at farmer's markets although it is a small quantity it is a step in the right direction and is something that I am encouraging the applicant to expand upon. Mr. Texeira: Mr. Long,the other CPR units on this 16.95 acre parcel, what is on those units? Mr. Long: There are I believe in my original application I included a lot znap with all six CPR units on it showing the approXimate location and configuration of the homes and agriculture on all six lots. I{relieve that five of the lots have existing homes on them with some agriculture, very minimal, and fenced in pasture for horses probably for private use, and I believe that one of the CPR units is vacant. Mr. Texeira: So this is the only CPR activity on this parcel then? I'm sorry; this is the only TVR unit on this parcel? Mr. Lony: There is an additional TVR unit, CPR unit two which has already been approved by you. Mr. Texeira: Thank you. Chair: Any more questions for the applicant? Seeing none, thank you, anybody in public like to speak on this agenda item? Seeing none, what would the Commission like to do? One more question,Mr. Long can you step back up please? Do you have any objections to the amendments to the conditions that were added? Mr. Long: No. There are three bedrooms and per your previous application the number of guests I assume would be limited to six and the vehicles to two. Mr. Dahilig: And also the search condition that we would be able to search upon twelve hour notice. Mr. Long: Absolutely, that would be fine. Ms. Matsumoto: I have a question. Looking at the inspection could you explain what happened from 2009 to 2011? Mr. Dahilig: Under 864 they were denied because of the Ag. element and then when 904 passed they were able to come in for a second set of applications. Chair: Anybody else? Do you have to read the comments again? Mr. Dahili,: Commissioners our recommendation would be to approve Special Permit 2012-18 with twenty five conditions both stated in the report and orally added and incorporated by the department as part of its recommendation. Planning Commission Minutes February 28,2012 38 Mr. Texeira: So moved. Ms. Matsumoto: Second. Chair: Any discussion? Seeing none, roll call. Mr. Dahilig: Again Commissioners the motion on the floor is to approve Special Permit SP-2012-18 with twenty five conditions with concurrence of the applicant. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve SP-2012-18 with twenty five (25) conditions, motion carried unanimously by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake, Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Commission recessed for lunch at 12:40 p.m. Meeting called back to order at 1:30 p.m. Special Permit SP-2012-19 to permit use of an existing single family dwelling for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Seacliff Plantation at Kilauea, Kauai, approx.. 1,600 ft. east of Kilauea Lighthouse Road and Iwalani Lane intersection, further identified as Tax Map Key 5-2-4:80 (Unit 1, comprised of 3.004 acres). with an overall parcel size of 16.953 acres = Thomas Entice. f Hearing's Officer Special Meeting Public Hearing held 1/6/12.1 Supplemental Director's Report No. 1 pertaining to this matter. Supplemental to Written Statement: Enstice TVNC-4195 submitted by Thomas Enstice, Undated Received 2/21/12. Deputy Director Dee Crowell: Thank you Mr. Chair. Again this is TVR Special Permit application for Thomas Enstice. This TVR is located in the Crater Hill subdivision, it is an interior lot. It is a three acre CPR unit on a 16.953 acre lot that includes five CPR units. The present house is about 3,500 square feet with about 800 square feet of deck. It is a three bedroom, two and a half bath house in Crater Hill subdivision. Should I go on to the recommendation? Chair: Yes please. Mr. Crowell: Based on the evaluation and conclusion it i�recommended that Special Permit SP-2012-19 to E. Thomas Enstice be approved subject to the following conditions and all the conditions are standard, twerity three of them with the exception of condition twenty one, "Applicant shall develop and implement an agricultural plan to increase/supplement the agricultural use of the property. Such additional use shall be reflected on a revised plot plan when the special permit is next reviewed." That concludes staff's report. Chair: Is there any questions for staff'? Mr. Dahilig: Commissioners, as an addition to our written report I would like to incorporate orally two more conditions (inaudible) as agreed to by the applicant and we can confirm whether he is still concurs, "The TVR operation shall be made available for the Planning Department inspection upon twelve hour notice to the owner. The inspection shall be for the purpose of verifying that all provisions of the CZO and conditions of approval of this special permit." Then we added a twenty fifth condition that no more than six guests and two'guest vehicles are permitted to utilize the subject TVR during a specific visit." And we would incorporate those by reference and recommend them as part of the approval. Planning Comm'ission Minutes February 28,2012 39 Mr. Katayama: One more question for the Director. In looking at CPR's lots the department's view of that is that the lot, the CPR lot is looked at in the entirety of the parcel, is that correct? Mr. Dahilig: Yes. Mr. Katayama: So in these applications any reference to the acreage being too small to be agriculturally significant, how does that impact the department's view? Mr. Dahilig: When we look at it from the whole CPR parcel and the lot of record we only take into account the limited common element when the CPR application does come forward. The reason why is because it is limited,their authority over the property is limited only to that portion of the acreage that makes up the whole parcel. So when we go through and do things like violations or density or these types of things then we take the whole parcel into account. But in this particular case when we are looking at it from a use standpoint we limit it just to the limited common element. Mr. Katayama: To the extent that the CPR is detrimental to the overall land use designation whose responsibility is it to look at that aspect that you are now creating subdivisions or parcels of record that are too small to be classified under the department's definition of intensive Ag.? And therefore is exempt or excluded under the provisions that we are looking at. Mr. Dahili'k: It is a fair question, when we look at it we look at it in the circumstance of use and going back to how from a special permit standpoint it would fall under the jurisdiction of either the Land Use Commission or our department. We have been interpreting it the way the LUC interprets it in terms of those bounds of use. And ultimately when these applicants do come through with us and they do put forward their application they still do need to; the seventy five percent consent requirement upon which all the landowners need to be on notice that this is going to be going on, on their property, or in the reverse they have already conceded that they can do whatever. I don't know if I am on point answering your question concerning how the other landowners can be held responsible or are held responsible for this type of use. But I think that is to the extent I can probably explain it, Commissioner. Mr. Katayama: I guess I am trying to differentiate in my mind that the special use permits that were on parcels of record that were very small historically and were in an Ag. zone. I can understand that being too small or ill-advised of uneconomical to have an agripultural footing and therefore we process the permits. But here in this case we have small lots that were created especially for, knowing it is Ag. zoned, to make them small parcels that fall into our definition of being available to certain exemptions. Mr. Dahilig: I guess doing a post-mortem on it I wish that didn't happen but... Mr. Katayama: I understand that but we have the hand that we are dealt but as we are looking at each of these applications, I think Commissioner Blake posed it early in today's session is that we are relying on the representation of the applicant to properly portray the situations so we can make a judgment as to the impacts or the (inaudible) relative to the five conditions that we were given and so aptly schooled on. The historic ones in Moloa'a were, again,properties of record; that is one thing. Here you have CPRs created recently, in recent history, that although knowingly they are Ag. lands created parcels of record that were pretty modest relative to the total parcel size so I was just wondering how that sort of reconciles in this whole process. Mr. Dahilig: It is a good question. Mr. Blake: Because when you purposefully take action that is going to exclude you from the normal Ag. use and then you from the...it seems like a backdoor attempt to allow you to conduct your TVR activity. Mr. Dahilig: Again a lot of these CPRs and I would say in this circumstance and Ave did catch one that was CPR's after the ordinance and so this is not, from my understanding of the Planning Commission Minutes February 28,2012 40 application,this is not something that was CPR'd after 904 came into effect. But we are dealing in circumstances where rim lots were carved out as part of the CPR process which is not again illegal but it doesn't facilitate the type of agriculture that is going to in light of what the Commissioners view is on agriculture. These smaller lots were created before there was even this notion of TVR use and Ag. and it is unfortunate but that is just how these things were parceled out. I don't think we are still going to be devi4ting from how we interpret the CPR issue in context with how we are the subdivision code but at the same time it is a unique and unusual circumstance concerning what is before you and how, I don't want to say by circumstance because it does seem deliberate that these things were small, but I would say by circumstance now because of the provisions in 904 that layer on top of the five criteria set forth in 205 that size, shape and topography are also considerations that are spelled out as the policy of the County. So that is why we look at it in such a manner. Mr. Blake: So you don't think it would be appropriate to say in any parcel that is CPR'd only one would be permitted, one TVR would be permitted except for the fact that it is not ever going to come up again. Mr. Dahilia: It does pose an interesting question for us but we have taken the notion that it is...I guess I would not want to put anything on the record concerning that Commissioner given the question. Mr. Katayama: It is helpful for me,thank you. Chair: Any other questions for the planner? Seeing none is the applicant here? Mr. Stephen Long_ Good afternoon Chairman Kimura and honorable members of the Planning Commission. My name is Stephen Long and I am the authorized agent for Scott Johnson,the applicant. This is my last... Chair: It's not Scott Johnson. Mr. Long: Tom Entice, the applicant. This is my last TVR application before you and I would like to sincerely thank each of you for taking time out of your busy lives to consider this controversial issue. You have my twenty page supplemental written statement. You will see attached is exhibit T, a letter from local landscape architect recommending a phased agricultural plan and implementation. As a note a couple of years ago the applicant planted a variety of fruit trees on the property most of which died due to the poor soil conditions and the harsh salt air coming up the valley at Crater Hill. As a result of that I engaged a local landscape architect to come up with a more specific planting plan and he recommended some varieties of dwarf citrus trees which have been planted, twenty three citrus trees planted as part of phase one and phase two of the agricultural master plan and twenty seven coconut trees as well. Phase three of the agricultural master plan that will take up the remainder of the open area on the forward lawn area that you see on the site plan will be planted with a variety of the fruit tree that survives after we can evaluate the success of the trees that we planted. One of the varieties that have been recommended is pomegranate so we are waiting for phase three to see how the existing trees fair. In addition there is seen in photo number seven there is nesting albatross in that area and we will want that endangered bird to take flight before we plant out the rest of the area in phase three of the agricultural master plan and certainly before renewal of the permit next year. Schedule F of the Federal tax 1040 form will be filed in the future. In 2007, the year before the March 7, 2008 deadline, this family farm dwelling was rented for fifty days. Other TVRs in the Seacliff Plantation subdivision have already been approved by you and there have been no complaints by the neighbors. Do you have any questions? Chair: Any questions for the applicant? Mr. Blake: I am trying to locate the site plan; this is the property that has an oleander hedge around it? Mr. Long: Yes. Planning Commission Minutes February 28,2012 41 Mr. Blake: Does the hedge go all around the property? Mr Long_ The hedge goes around three sides of the property, yes, but not the rear, the rear is planted out in banana trees. Mr. Blake: I wonder if your client is aware of the fact that oleander is considered one of the most poisonous plants in Hawaii? Mr. Long: I didn't know that but I have heard that oleander is a poisonous plant, yes. Mr. Blake: It kind of struck me last night so I looked up poisonous plants and it is not only stated on the title but the first...chapter one says on the island of Oahu at least the most frequent cause of fatal or dangerous poisoning is the be-still tree, the yellow oleander. Arid I remember and this is just for you to talk to your client about but the nickname for oleander is the maki man tree, you find them around grave yards because they don't need a lot of water and they are fast growing. And that was the name that was applied to oleander and plumeria. And from the time we were children we were always told never to use an oleander branch to cool hotdogs or marsh mellows or anything like that. And there were two deaths I think up to the time this book was printed on Oahu, both of children who had eaten the fruit so I would recommend that you talk to your client about that. Mr. Long: Yes I will and we will include that in the attachment for the safety and comfort of you and your neighbors to point out to the guests that the oleander is indeed a poisonous plant and to keep themselves away from it. Mr. Blake: You can't force them to do it. That is at the minimum but ideally if you are going to have children they ought to take them out and plant something else. Mr. Long: That is a consideration. I will discuss that with the applicant,thank you very much. That is a good point, really good point. Chair: Especially for the people that live in Kilauea. Mr. Blake: Yes. Chair: I am serious. Mr. Blake: The thing is it is all over the place but we grew up knowing that and people who are coming in it is just a pretty plant. And the nice thing is that they do have straight sticks. Chair: Any more questions for the applicant seeing none,thank you. Mr. Lon>7: I have a comment. This is a four bedroom home and I believe that condition twenty four or twenty five stipulated six guests and in keeping with your past evaluations I would like to request that the guest number be Limited to eight guests for the four bedrooms and two vehicles. Johnson had three bedrooms, this has four. Chair: The conditions are going to be read to you... Mr. Dahilig: So it would say no more than eight guests and two guest vehicles are permitted to utilize the subject TVR during a specific site visit. Mr. Long: Thank you. Chair: Can you read the rest of the conditions? Mr, Dahilig: Sure, and then twenty four would be, "As agreed to by the applicant the TVR operation shall be made available for the Planning Department inspection upon twelve hour notice to the owner. The inspection shall be for the purpose of verifying of all provisions of the CZO and conditions of approval for this special permit." Planning Commission Minutes February 28,2012 42 Mr. Long: I agree. Mr. Blake: I think we should add a condition about the plants. Chair: That is going to be kind of hard I think. We can't tell them what to plant. Mr. Blake: That is why I said at least warn your... Chair: Or put a sign out front. Mr. Blake: And warn your guests. They have that sheet that tells how to conduct yourselves. Chair: Not just the guests but a lot of people do a lot of walking and jogging up there, residents of Kilauea that they can only go in there during the day so I have been told. Mr. Blake. What would you recommend? Mr. Jung: In any given situation there are a whole host of dangers that would exist on a piece of property. If we take one out because it is a dangerous or poisonous plant, I don't think it is necessary to put in a condition especially after the applicant had already represented that he is willing to put it into his for the safety of you and yours sheet. So I don't think it is necessary to do a condition. Mr. Blake: I will take your word for it. Chair: I have a question for either the Director or the planner. Is it true that that particular subdivision that there is no entry into the property after dark? There is a path there that you can walk, ride your bike,jog, whatever it may be but once it gets dark no outside residents or guests of the residents are allowed on the property. Is that true? Mr. Dahilr : Maybe my Deputy would know. Mr. Crowell: I know that that subdivision has a gate because it was built in the 1980s but I am not aware of any restrictions. Chair: Can You come up please? Do you know anything about that? Mr. Long: I don't know about that particular rule. I do know that it is 4 gated community with a person, guard,there at the front and I have seen them whenever I have gone there they are there in their car. I also know that there is a space in the entry fence for a walking path but I don't know about the after dark rule. Chair: Well i was told that the security guard stopped quite a number of people walking in the evenings that they weren't allowed on the property. Mr. lzq= I don't know anything about thdt. Chair: I just thought maybe you would know something. Mr. Dahilia: We can find that out. Chair: Thank you. Anybody in the public want to speak on this agenda item? Ms. Caren Diamond: Aloha Commissioners, good afternoon, Caren Diamond for the record speaking for Protect Our Neighborhood Ohana. We have testified before on this application so I would like you to incorporate our testimony from January 6th and additionally any other time we have testified on this specif c application. PONO believes that the accumulated impact from so many vacation rentals on Ag. land on the North Shore must be evaluated. And I am not sure if you don't send those applications that are approved or that you are thinking about approving to the Land Use Commission, I am not sure how that would ever Planning Commission Minutes February 28,2012 43 happen. And so I am not sure if you have an answer for how many acres of land you are approving to be moved into resort rather than agricultural uses but I hope that maybe you do have an answer for that. And we want to put on record that we believe it is appropriate for these applications to go before the Land Use Commission for final approval,thank you. Chair: Thank you, anybody else in the public wants to speak on this agenda item? Seeing none what does the Commission want to do? Mr..Dahilig: Commissioners our departmental recommendation is for approval subject to twenty five conditions both stated orally and written and consented to by the applicant. Ms. Matsumoto: Move to approve the application. Mr. Texeira: Second. Chair: Any discussions, seeing none roll call. Mr. Dahilig: Again Commissioners the motion on the floor is to approve special permit application SP-2012-18 with twenty five conditions as consented to by the applicant. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to approve SP-2012-18 with twenty five (25) conditions with the consent of the applicant, motion carried by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake; Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Chair: For this next application I will be recusing myself. Mr. Texeira_ Just one question, when you read the motion you mentioned SP-2012-18 and you meant 19, right? Mr. Dahilig: Nineteen(19), 1 am sorry, nineteen, my apologies. Chair. Do we need to... Mr. Dahilig: If there are no objections that would be what I would restate. Chair: Are there any objections, seeing none. Special Permit SP-2012-28 to,permit use of an existing single family residence for Transient Vacation RQntal purposes as permitted by County of Kauai Ordinance No 904 in Kilauea, Kauai, approx. 400 ft. south of the entrance to Kilauea Lighthouse further identified as Tax Map Key 5-2-4:69, with an overall parcel size of 7.002 acres = Sandy.Saemann. Trustee. (Hearing's Officer Special Meeting Public Hearin;~held 1/6/12.1 Supplemental Director's Report No. 1 pertaining to this matter. Letter 2/13/12) from Lorna Nishimitsu, Esq., addressing the proposed conditions for the approval of above-referenced special permit. Staff Planner Ka`aina Rull: Good afternoon Chair, members of the Commission. The subject proposal before you folks today is a two bedroom transient vacation rental proposal on a seven acre parcel. The public hearing was held on January 6, 2012 at which time no surrounding property owners submitted testimony in opposition however testimony was received by the Kilauea Neighborhood Association as well as Protect Our Neighborhood Ohana and it was incorporated into the record and addressed by both the County Attorney and the department at the time. The parcel does have one acre specifically dedicated to agricultural use according to the Real Property Assessment Division and they have secured approval from the Land Use Department of Agriculture to ship products beginning in 2005 to the United States mainland. Planning Commission Minutes February 28,2012 44 The primary area of contention arose with the application being for three transient vacation rental units however upon inspection it was determined that two of the three were unpermitted structures or should I say unpermitted dwelling structures and the Director denied those two applications. It was appealed to the Commission and the Commission denied th,� appeal. Since that time those violations have been rectified in that one of the units was brought into conformance as a dwelling and the other was the kitchen units were essentially removed and remains as a barn. So the application that is before the Commission today is for just the main dwelling to be used as a transient vacation rental. It has met the standard criteria for special permit approval. I will entertain any questions the Commission has. Vice Chair Hartwell Blake: Any questions of the planner? Mr. Raco: There are no drawings with the application? Staff. There were with the original application. Vice Chair: Any more questions of the planner? Is the applicant present? Ms. Lorna Nishimitsu: Good afternoon,for the record Lorna Nishimitsu, attorney for Sandy Saeziaann in his capacity as trustee and owner and operator of the transient vacation rental. The summary of facts as provided to you by Ka`aina Hull is correct. The owner purchased the property in 1990 with the existing dwelling and a guest house. The guest house already had a kitchen so he had ho idea that it should not have had a kitchen and so he operated those as a TVR. But when he was notified by planning that the guest house should have been converted to a dwelling before March 7, 2008 in order to have qualified as a dwelling he recognizes that he is only going to be able to proceed with TVR application. The guest has since been converted but it cannot be used as part of the TVR operation. The ltarn/off ce that was constructed has been converted back to a barn/office. So everything is in order now and as Mr. Hull pointed out there is a tropical flower and palm nursery he operates under(inaudible)Tropical Nursery, files all his taxes, general excise taxes under that business. And after a lot of paperwork was able to get qualified by the United States Department of Agriculture to ship flowers out of Hawaii but what he has found is that with cheaper tropical flowers coming from Asia his business has kind of suffered. But he has to continue that Ag. operation because it is dedicated for that purpose and therefore he must continue it for dedication purposes. His most recent sale was of some palm trees oddly enough to the Big Island, a container full of palm trees so there is some agricultural income still being derived. I believe if you look at the application we address the five points of the 205 standards for issuance of a special permit. The use is not contrary to the objectives sought to be accomplished by Chapter 205 and the State Land Use Commission Rules. A single family dwelling is permitted on Ag. lands for use by the owners or occupants who are engaged in agricultural activity. The use of this dwelling periodically by short term or transient renters does not deviate from the objectives because the owners,Mr. Saemann,his wife and his children periodically return to Hawaii to occupy the premises so it is not purely used for transient purposes. The agricultural use continues and is occurring just as it would be occurring if the Saem�nn family were full time residents of the house. Number two,the desired use does not adversely impact surrounding properties. Not one of the neighbors in the Kilauea Garden subdivision or in any nearby subdivisions complained that his operation in this dwelling has caused noise,traffic, blight,or other problems. All of the guest vehicles are parked on-site and the lot is large enough to be buffered frbm all of the ether dwellings in the 'subdivision. It is a 7.002 acre parcel. Additionally,the number of vehicles for guests is the same as the number of vehicles that full time occupants would have on the property if it was full time occupied by the owners. The use will not unreasonably burden public agencies to provide roads, streets, sewers,water,drainage,and school improvements and police and fire protection. This is a preexisting house in an approved subdivision and the conditions that were imposed when the lands were first subdivided ensured that there would be roads, streets, wastewater,water and drainage facilities in place before final subdivision approval was given. Planning Commission Minutes February 28,2012 45 The homes occupied by short term visitors create the same burdens on police and fire protection as would be created if they were occupied by full time owners or full time renters, long term renters. There is no difference between guests from the mainland or elsewhere temporarily occupying the house than there is if Mr. Saemann and his family lived in the house on a full time basis. And there is no need for expansion of schools when short term visitors come to the island to visit. Number four,unusual conditions,trends and needs have arisen since the district boundaries and regulations were established. The land use district boundaries were established in about 1961 so it has been a good fifty years since that land was designated as agriculture so it has been a good fifty years since that land was designated as agriculture. The State has changed considerably since that time,many people have come here to live from the mainland,many others want to visit and visitors don't always want to stay in a hotel room in a resort area. And a lot of these visitors are contributing to the small businesses,the restaurants,the shops, and they help out in that sense so they don't only put money into the pockets of the TVR operators. And as you already mentioned in another hearing the cane operations and sugar cane operations have by in large closed down and folded up their operations so there were all these lands that used to provide jobs for the people of Kauai,they are no longer capable of doing that. There are many who feel that we should be more self-sustaining from an agricultural perspective but that means that those of us who have sent our kids off to college to do better than we have done have not followed that path or encouraging our kids to work the lands. And moreover to be fully sufficient as Joan Conroy noted in one of her blogs,ninety percent of the people who live on this island would have to be working full time on the land to do agriculture, growing and harvesting,processing and manufacturing crops or rendering animals into food td fulfill that dream of becoming a self-sustaining island. With a population where the age is increasing,more and more people are retired. We don't have enough people who can work the land to become self-sustaining and we have to keep creating jobs for the kids that don't want to leave this island.' Finally,the final element is that the land on which tide proposed use is sought is unsuited for the uses permitted in the agricultural district. We haven't claimed that Mr. Saemann's property is unsuited for it. This parcel has class B soils. It is suitable for agricultural use although the proximity to the ocean and.prevailing winds have not been kind to that agricultural use. But the applicant is continuing his agricultural operations even with those constraints and with the-waning market that caused sales to drop considerably between 2008 and 2011. Even with Ag. income declining the expenses to run the agricultural operations continue to go on and grow. We are hopeful that this Commission can acknowledge that the periodic use of a house on a property on which agricultural activity is operating that has generated no specific complaints from neighbors,has not caused an irretrievable loss of the property to agriculture. My letter to you dated February 13th which should be in your file;We set forth our objections to proposed conditions. We didn't get the formal set of conditions until I got it in the mail yesterday afternoon so I had to work off of a draft of proposed conditions. But since that letter is part of the record I don't want to take up your time by reading it into the record unless you want me to. Mr. Raco: No. Vice Chair: Any questions of the applicant? Mr. Texeira: Not of the applicant. There are a bunch of conditions,right,which concerns that applicant. How is this in relation to the other applications that we have prepared? Mr. Dahilia: Each applicant stands on his own and she has chosen on behalf of her client to object to conditions that we have required of other applicants as well and that is her prerogative. Vice Chair: Any member of the public wish to comment or testify on this application? Planning Commission Minus February 28,2012 46 Mr. Texeira: Before you call for the motion I have a question about the TVR,the unit that is to be used for the TVR. Specifically is it just a guest house that they are using for the TVR or does it depend if the owner comes back and they use another part of the... Ms. Nishimitsu: The Planning Department already determined that the guest house that was converted to a dwelling cannot be used for transient vacation rental purposes, it can be used by the owners or it can be used for long term.rental. Only the single family dwelling; the two bedrooms,two baths single family dwelling is the subject of the TVR application before you today. Mr. Texeira: And that is the largbst unit on the property, right? Ms. Nishimitsu: It is. Vice Chair: Chair will entertain a motion to... Mr. Dahilig: Actually Commissioners if I could just have Ka`aina go over the recommendation. Staff: Do you want to go over all twenty four recommendations or the amended or to be added recommendations? Mr. Dahilig: To be added. Staff. That would be considering both the notice to inspect as well as the limit on guests or one or the other? Mr. Dahilig: I guess both together and we need to bring their objections to the record also. Staff. I think the applicant's agent may want to discuss this further but as it was originally drafted it states "as agreed to by the applicant." Vice Chair: Ms. Nishimitsu can you come up again please? Mr. Dahilig: Counselor, as with the other applications we are considering incorporating two conditions and I will have the planner read them for you. Staff. Condition number twenty five would state, "As agreed to by the applicant the TVR operations shall be made available for the Planning Department inspection upon twelve hours notice to the owner or authorized agent. The inspection shall be for the purpose of verifying of all provisions of the CZO and conditions of approval of this special permit." Ms. Nishimitsu: My client could not be here because he had back surgery 4nd his doctor didn't want him flying because of the risk of blood clots during the flight from California. So rather than saying that I have acquiesced to a condition I would prefer that you just imposed whatever conditions you deem appropriate so that I don't acquiesce to something that I don't have authority to acquiesce to. Mr. Dahilig: And reserve the right to object? Ms. Nishimitsu: Well I am not objecting now but I am not agreeing either. I have seen what has happened in all the other applications that they get imposed and will get imposed regardless of whether I agree or not so I am fine with that. Mr. Dahilijz: And then I guess concerning the occupancy. Staff. Condition number twenty six would rea4, "No more than four guests and two guest vehicles are permitted to utilize the subject TVR during a specific visit." Planning Commission Minutes February 28,2012 47 Ms. Nishimitsu: Like I say I haven't consulted with the client on this but I just have a question. If you have a family with two adults and minor children does that mean that you are limiting it to—you are counting children as guests as opposed to just counting the adults? Because I can see where a family might want to bring their kids and as cousins do they often want to bunk down in the parlor on the floor. Because we used to go to beach houses, a hui of families would,we owned one actually in `Anini believe it or not and all these families would get together and all the kids would sleep in the parlor on the floor. And I would think that if the Building Division has an occupancy load that as long as there is a compliance with that occupancy load that as long as there is compliance with that occupancy load as opposed to telling people only one family, two adults, two children regardless of the age even if it is an infant, we are limiting you to that. It might make it hard for people to vacation in one dwelling. And this is not a large dwelling. Most homes have three bedrooms; this is a two bedroom home. Mr..Dahili : I do understand. I guess the department in light of the other recommendations we made we would probably still stick with incorporating that formula of two guests or two people per bedroom and two cars in this particular application. Ms. Nishimitsu: I think the cars would be easier to handle than telling;people they can't bring their kids and the cousins have to stay...I will just state that for the record. Mr. Dahilig: Commissioners, we would in that circumstance recommend approval of the subject application subject to twenty six conditions both stated in the report and added orally by the department. And then we would recognize that should the application be moved upon that it would be over objection of the applicant given their letter and their correspondence. Vice Chair: Chair will entertain a motion to approve the application with the additional conditions. Mr. Texeira: So you are deciding we should move to approve then. Vice Chair: Entertain a motion. You don't have to do it if you don't want to. Mr. Texeira: Motion to approve. Mr. Raco: Second. Vice Chair: Any discussion, roll call. Mr. Dahilig: Again Commissioners the motion on the floor is to approve special permit SP-2012-28 with twenty six conditions over objection of the applicant given their correspondence dated February 13, 2012. On motion made by Herman Texeira and seconded by Caven Raco, to apprvove SP- 2012-28 with twenty six conditions over objection of the applicant, motion carried unanimously by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake -5 Noes: None -0 Absent: None -0 Not Voting: Kimura -1 Special Permit SP-2012-27 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, approx.. 3,600 ft. west of Kauapea Road and Kilauea Lighthouse Road intersection, further identified as Tax Map Key 52-5:32 and containing an area of 5.325 acres = Justin Hughes & Michele Hughes, Co-Trustees. [Hearing's Officer Special Meeting Public Hearing held 1/6/12.1 Supplemental Director's Report No. 1 pektaining to this matter. Letter (2/21/12) from William W. L. Yuen, Esq., for Mr. & Mrs. William and Sandra Strong in opposition to Special Permit SP-2012-27 and SP-2011-9. Planning Commission Minutes February 28,2012 48 Letter(2/13/12)from Lorna Nishimitsu.Esq., addressing the proposed conditions for the approval of above-referenced special hermit. Staff Planner Dale Cua: Mr. Chair,what you have before you is a special permit for a TVR use, it involves a structure that is approximately 500 square feet. It is one bedroom, one bath unit on a parcel that is designated as State Land Use Agricultural District. The property is situated along Kauapea Road in Kilauea. It is approximately 3,600 feet west of the Kilauea Lighthouse/Kauapea intersection. As you previously mentioned it involves parcel identified as TMK 5-2-05:32. As noted in the staff report prior to March 7, 2008 approximately'l.5 acres of the overall parcel was dedicated for agricultural use. Presently there is approximately 2.7 acres that is dedicated for tropical flowers, fruit trees and(inaudible). The public hearing for this application occurred on January 6,2012. Also attached with this report is the supplemental report and two correspondences,the first correspondence is dated February 21,2012 from William Yuen and it is in opposition to the subject permit. And the second correspondence dated February 13,2012 from the applicant's authorized agent which addresses the proposed conditions of the permit. Chair: Any questions for the planner? Seeing none is the applicant here? Ms. Lorna Nishimitsu: Good afternoon Commissioners, Lorna Nishimitsu on behalf of Justin and Michele Hughes. Justin also has health problems so cannot fly here but Michele Hughes is present. This lot is a 5.325 acre lot and has a single family dwelling that contains 484 square feet. It was built in 1990,pint into rental in 1994,but is also periodically occupied by Justin and Michele. And this is when I was still with Walton Hong's office so this was back before 2006 but they originally dedicated 2.5 acres to agriculture and then another 1.147 acres was added for a total of 3.647 acres dedicated to agricultural use with the Real Property Division. They grow tropical flowers, fruit trees,palms;they have just started an organic vegetable garden for personal consumption and for consumption by the guests. They operate their nursery under Pua Lani Gardens,LLC. Pua Lani Gardens pulls the nursery's stock from this particular parcel, from another parcel that the Hughes own which is next door, and also from a larger parcel that is makai of it so all of the nursery operations are run through Pua Lani Gardens. Since 2008 the agricultural income has been diminishing. They used to b'e able to sell palms for the resort properties that were engaged in landscaping and tropical flowers for display but they have also been resorting to donating plant stock to Calvary Chapel, Kauai,because it wanted to start up its Ag.,to U-Turn for Christ which wqnted to start up its Ag. And one of their independent contractors, a lady named Faydra who does a lot of their tropical flower bouquets also donates some of the flowers to other non-profit organizations because the market right now just isn't there to keep selling crop that has to be cut and harvested. I will go through the SLU standards again for the record because I have to make each record specific to each application, I apologize. Standard one is that the use is not contrary to the objectives sought to be accomplished by Chapter 205 and the State Land Use Commission Rules. Single family dwellings are permitted on Ag. lands for use by the owners of occupants who are engaged in agricultural activity. The use of this dwelling periodically by short term or transient renters does not deviate from the objectives because the owners also occupy it periodically. The agricultural use is occurring and ongoing just as it would be occurring and ongoing if Justin and Michele lived in that tiny little house on a fulltime basis. The diminutive size of this dwelling in relation to other dwellings that have received permits from you which can never be expanded under the TVR ordinance,they are limited to that size,ensures that the perceived impacts of operating a TVR will not overshadow the agricultural activities. Number two, the desired use does not adversely impact surrounding properties. Not one of the neighbors has complained that the TVR operation in this dwelling have cause noise, traffic, blight or other problems. All of the guest vehicles are parked on site and the lots are large enough, in this case 5.325 acres, it is large enough to be buffering its use from all the othez dwellings in the subdivision. Additionally the number of vehicles for guests is the same as the number of vehicles that fulltime occupants would have on the property. We have two adults,two vehicles. One neighbor's complaint that you have received for the record and that neighbor is located at the Kapa`a end of the subdivision has to do with another parcel which is the makai property largely in the State Land Use Conservation district. That property has no dwellings, Planning Commission Minutes February 28,2012 49 doesn't have a TVR application before you aril that complaint should be discounted'ander the circumstances because it is not part of this application it is an unrelated manner. Number three,the use will not unreasonably burden public agencies to provide roads, streets, sewers,water,drainage, and school improvements and police and fire protection. These are preexisting homes in an approved subdivision. This is the Pali Narhahana subdivision. The conditions that were imposed on Pali Naznahana were that they had to provide roads, streets, wastewater,wWch in this case is basically a septic system, drainage facilities, all before they could get final subdivision approval and build. So this home which they call Hale Nanea creates the same kind of burdens on police and fire protection when it has visitors in it as would be created if Michele and Justin lived in it on a fulltime basis, two adults, whatever problems that would require police called or fire called are the same impacts that would happen if there were two adult visitors. The infrastructure is already in place for these subdivisions and they have no more people occupying the hottse than would fulltime residents. I think what you will find realistically on this island is that fulltime occupancy with extended families probably creates more impacts that these transient vacation rental uses. And there is no need for expansion to the schools on Kauai. Number four, the unusual conditions trends and needs have arisen since the district boundary and regulations were established. The State Land Use boundary district just like with Sandy Saemann's property was established in about 1961 and about fifty years have gone by and this island has seen a lot of changes in those fifty years. We have more people living on the island,the demographics have changed. What used to be Kauai is no longer Kauai and I think for us who were born and raised on this island that may be a bitter pill to swallow but it is a reality and it is happening not only here but everywhere else because the population keeps going. We have lost our plantations that used to employ many, many local people. And with that loss of jobs these TVR operations have filled a riche for people who want to work their own hours,they clean the homes,they maintain the grounds like Faydia.does, she runs the nursery,weeds,makes displays for sale and for donation so they are providing employment opportunities. Michele and Justin alone cannot employ as many people as Kilauea Plantation did but they are trying to create job opportunities. Again I said that if we want to go to one hundred percent self-sufficiency on an agricultural basis all of us would probably have to quit our jobs and try to raise crops, raise cattle,raise goats, slaughter our own food, and try to feed other people who are not capable of working their own land. And that is not a realistic expectation for an island where we have so much technology happening now. We have professionals who are practicing law, doing architecture, being planners,whatever,we do other things and contribute tax wise in that fashion. And finally the last element is that the proposed u§e is not suited for the agricultural district. This property like the Saemann property is still engaged in Ag. When Kilauea Plantation ran its cane operations on some of these tracks of land the lands that were largely , makai were not highly suited for the cane fields. So they didn't contribute as much to cane yield as did the rest of the properties. But Michele folks are doing something else,they aren't raising cane but they are raising tropical flowers,they are raising some food crops,they are raising palms and those Ag. operations are being fueled by the income of the transient vacation rental income. Without that income a lot of that Ag. would fail miserably. We are talking about and like I say I am going to have to repeat it again, it is a 484 square foot house, still being used for agriculture at a great cost to the owners. And just for the record we stated our objections to the proposed conditions, it is before you, it came in: at the same time as the Sandy Saemann objections and if you have any questions about the agricultural operations, of the operation its self, Michele Hughes is available to answer those questions. Chair: Any questions for the applicant? Mr. Texeira: This unit has been used as a TVR for how long? Ms.Nishimitsu: Since,they put it into rental in 1994 but it wasn't a fulltime operation because like I said this is one of their homes on Kauai,they have another property pext door. It is a separate lot of record not a condo and that other property has 500 square feet. They move Planning Commission Minutes February 28,2412 50 back and forth, as they rent one out they have to like gypsies move on to the next property when they are on island. So it is being used by them as a residence. Mr. Texeira: So it is interchangeable. Ms.Nishimitsu: It is interchangeable_ but unlike the rest of us most of us have more than 500 square feet to live in. Chair: Thank you, anybody in the public wants to testify on this agenda item? Mr. Dahilig: Mr. Chair, I only have one individual signed up for testimony and that is Mr. William Yuen. Mr. William Yuen: My name is William Yuen, I am the attorney for Mr. And Mrs. William Strong who,this is a map of the area,the Strongs live in this area,parcel thirty two that is in question is here. This is Kauapea Beach Road,parcel thirty three,the next application. The Strongs recently received a TVR permit for their parcel,their only concern with respect to the application is the use of an adjoining,this parcel thirty six in the conservation district,the use of the trail that the Hughes have put in to the conservation district without the benefit of securing either a conservation district permit or an SMA permit. They were cited by the Board of Land and Natural Resources for an improper use of the conservation district and they have presently submitted an after the fact perniit and I don't believe they have yet to receive an SMA permit for the trail which is in the SMA area. Our concern is that the trail is being marketed as an amenity to their TVR unit and we are respectfully requesting that if the application is granted it be granted on the condition that this transverse trail be removed within a reasonable period, say ninety days, from the date that the permit is granted. I will if I can distribute some of the marketing materials that I found on the internet in which the Hughes advertise manicured trails 150 yards to the beach on a private access from the unit. And it is our feeling that the Hughes should have received the proper permits if they are going to market this kind of amenity. Without the proper permits the Hughes should remove this trail if they are going to maintain their TVR rental. Chair: Do you have any more pictures you want to show us? Mr. Yuen: These are photos of the trail, you can see that they have im�roved this trail using wooden steps, steel rods, again wooden steps,they have removed trees in the area, and they have erected fencing along the trail. You can see the extensive cutting and grading they have done in the conservation district and this is all done without the benefit of obtaining permits. Chair: Thank you. Any questions,thank yoµ. I am sure the Director may have a few comments he wants to... Mr. Dahilig: Commissioners we will be presenting based on when the letter did come in we did take a look at the conditions and we do have a proposed condition to address this particular issue that we will present to you at the recommendation stage. Chair: Anybody else in the public want to speak on this agenda item? Mr. Richard Spacer: Good afternoon Nor. Chairman and Commissioners,thank you for allowing me to testify. My name is Richard Spacer and I also opposed to grant this permit. For a long time we have had problems with illegal work with the landscaper who is currently engaged by the Hughes. In fact in 1990 at this very same beach we had illegal work in the State conservation district. So it is not a valid argument that it is unknown,that conservation district use applications are required or SMA permits are required,the landscaper has known this since 1990. He has also done illegal work at Kealia Kai, Larson's Beach, and now we have this problem. So what I would like to have happen today is for the Commission to review this matter and say enough is enough. We have Iaws. We have land use regulations, let's enforce them. Why do we reward someone with a vacation rental who has an illegal trail? So that is really it, short and sweet,just please oppose this permit,thank you. Planning Commission Minutes February 28,2412 51 Mr. Bruce Layman: Good afternoon Commissioners,Bruce Layman for the record. I am assuming that Richard Spacer must be talking about me about all these other properties although I am not sure what he means about violations. I read this letter,I wasn't planning on testifying and believe me I am not here to testify on the merits on whether someone should get a TVR or not. I just want to give you some factual information that I think might help you make a determination. I was curious about Mr. Strong's testimony in this letter I read and the reason is when I read this letter to the Planning Commission it says here,"Mr. and Mrs. Strong are the owners of property...",this and this and Mr. and Mrs. Strong opposed granting of the similar permit to their neighbors which they have not for the reasons but due to the illegal and improper use of the Hughes have made an adjoining parcel over the years. It says here in 2008 the Hughes have blatantly cleared vegetation and constructed permanent trails traversing. Anc.then what I found the most interesting and pretty hypocritical is neither did the Hughes bother to consult their neighbors as to whether the trails would intrude upon their neighbor's privacy. And the reason I find that interesting, I have been involved with this property for almost thirty years,I Dave a cattle ranch herd, and I was responsible for all of the land there going from the highway. My clients had a warning from the state that they would be given a ten thousand dollar per day fine for all of the illegal camping on the property that the Hughes now own. We estimated over 150 people were living in there. There was a network of trails there for over thirty,maybe forty years,ninety percent of them which were there before the Hughes even got the property. In fact that is how we used to go chase everybody around through all those trails and a lot of the houses that weren't there. A-ut in my twenty five years probably the most egregious violations have come from the Strongs themselves. I went up there,the only reason we caught them is because we extended the trails out to them to find their workers cutting those big trees so they could have their views. They had their landscape lighting,they had electrical features in there,and they had water features and irrigation going out there. One of my workers found a tube that I am wondering if it is coming from their property to drain their ponds because I know they aren't going to drain it towards the road with all the mounds they built and the way the land so how are they draining their stuff. I find ironic that they perpetrated these things which the Hughes became responsible and that ip the past other property owners, When the Cains owned it,became responsible for the stairs that were built there over the years. And to suggest that they made all of these things,the majority of these trails were there,there was already wooden stuff there in fact it was so dangerous to traverse through there that we took down the ropes that people would use to grab the things and then put things there to make it safe to traverse. If they don't own the property and anybody else owns the property I suggest that trail shall maintain so that the owner of the property can make sure that people like the Strongs are not doing these things. And then the State even told me when I was there with the County Engineer and the inspector,you know even though they did it the landowners are going to be responsible for it. And how ironic you live a quarter mile away,no one can see you, you go on somebody else's property without permission and go knock down all the trees so you have this great view and then you want to go against these guys saying that they are doing these blatant things in this area when they are the very ones that perpetrated this. I just find it ironic. That is the reason I came to testify because I couldn't believe when I read this. Ms. Caren Diamond: Good afternoon, Caren Diamond for Protect Our Neighborhood Ohana. I am not sure if you know this but one of the common things that is happening with these applications are that they are all on the coast. So that even though they are in agriculture land applications like the one before you are also in the SMA, also part of the coastal zone management. And particularly what is being created here is a horizontal motel across our entire coastal area. And I know before I have told you that that is what has happened in Hanalei, Wainiha,Haena, and now you are carrying it on throughout Kilauea,Moloa'a. I think that the commercial use of these transient vacation rentals is a commercial use and it is different than the agricultural use or the use as approved in 205-4.5 that allowed these single family residents to be constructed in the first place as part of a farm and for the people who farm to live in. It wasn't supposed tb be a commercial use with resort guests paying a tremendous amount of money and then some agriculture happening on the land. Planning Commission Minutes February 28,2012 52 And I have heard in the last two 4ppllcations before you that the land use laws haven't changed in sixty years. But the ability to go before the Land Use Commission has always been there and is still there and anyone of these owners could have gone before you including the one before you now and ask for a Land Use Commission change and gotten the land changed from agriculture. But that didn't happen. Instead an illegal use of using what was supposed to be a farm turned into a resort occurred and now you are being asked to stamp it with an approval. So I am asking you to please recognize that for the sham that it is and not approve this one. In addition, last time I was here we talked about the legislature going 205A being asked to be amended to allow agriculture uses,I mean to allow transient vacation rentals in lands. And I am wondering how this Commission is approving these vacation rentals if it does not comply with 205A as it is written now. Not as it is proposed to be changed later but the way it is now. And question whether you should or shouldn't be giving these approvals,thank you. Ms. Michele Hughes: Good afternoon Commissioners, I am Michele Hughes. I guess being last is a dubious honor but I commend you for listening to all these testimonies over all these many months. I have been a thirty three year resident of Kaua`i and in that time, I have had many opportunities to farm the land and have tried very hard to be a good steward of the land. I believe that the property that you are addressing right now and the one that is next door i4 an excellent representation of what my husband Justin and I have tried to do here and what we have done over these past thirty three years. Many of you know the former projects such as Kealia and the point is that if thirty three years ago you would have told me that I was going to leave my high rise in San Francisco as a corporate executive and be a farmer in Kauai I would have told you that you were absolutely crazy. But now that I have done this I am absolutely and I have made this my focus and my love and I am also in love with Kauai and I think that has shown over these number of years. And because of those two guiding lights of my willingness to give up some other much more lucrative income and come here and be a part of the aina so to speak, I believe I have a huge responsibility. The other thing that makes me very happy on my lad is to see the number of people that have been there who have experienced the agricultural integrity of that land. And because of that they go away with the feeling of Kauai that is what we have been saying all along in all of our tourist information,that is what we want to have people feel when they are here that it is a rural and.remote island. And we try very hard to provide that experience for those guests. Furthermore the testimony before.me is very difficult to accept as Mr. Layman suggests. First of all it is a totally separate parcel. Lot thirty six is primarily conservation. It is the parcel that fronts the beach. The TVR parcels that we are applying are lot thirty two and lot thirty three. We have seven of ten acres in Ag. on those two properties,Ag. dedicated. We also have many more acres just growing things that are not dedicated but we just love the land. And so I want you to understand today that my goal is to continue to do what I have done for the past fifteen years with the TVR guests and to provide them that experience. I also live by four very important values and these guide me in everything that I do on that property. One is that I want to be impeccable with my word,two, I never want to make assumption,three,I never want to take anything personal despite some of the distractions or detractors I should say, and four, I want to always allow for forgiveness. When somebody does something I will certainly look for a compromise and a bridge to build. I also have to tell you that my joy in life in being here is going into that garden and picking those vegetables and picking the fruit and providing them to the guests as well as to myself quite frankly and being able to do that sustainability that everybody is kind of buzz word talking about. And this is real on this property. It is very topographically challenging terrain, it is above the beach,the cottages are set way back, they are not in the SMA. And by the way the trails that everybody is talking about on my website are the trails that cross from the cottage to Secret Beach; it is a direct line through the agricultural property. It is not on the conservation district trail that Mr. Strong is objecting to which is on lot thirty six. So I thank you very much for the opportunity to...and one more thing that I forgot to tell you, we have had a number of customers that you will recognize with our Plia Lani Gardens nursery, we formed that in 2008, and as Lorna said we have been very big about philanthropy, it is one of our guiding lights in our Planning Commission Minutes February 28,2012 53 life. And we have made an effort to give back a number of the plants to a couple of the churches that she mentioned and to the Catholic Church as well she didn't mention. In addition we have had customers such as Kukui'ula, Jeff Stone at Princeville,Neil Norman,Anakai Botanical Gardens, (inaudible),the Courtyard at Waipouli and several other individuals so there are about forty five customers. Unfortunately the past two years have been very tough on the nursery and so that is why we are trying to find alternatives because the maintenance costs don't go down but the plant sales have not increased. Hats off to the farmers on this island, I know how difficult this is and I know that it takes a lot of effort and a lot of costs to keep a nursery looking meticulous as we try to do. So thank you very much. Chair: Thank you, any questions? Mr. Dahilia: Commissioners,I will have Dale go over the recommendation but we are recommending approval on the particular application with conditions however we are proposing three more conditions that I will have Dale restate orally for the record. Staff: The first condition addressed concerns regarding the trails. The condition would read,"The applicant shall neither advertise nor provide access to any trail currently the subject of the current State conservation district use application. A special management area approval and CDUA are required for these trails and such trail access shall not be advertised or be used in conjunction with the transient vacation rental use until such approvals are attained". So that would be considered condition number twenty four. The next two conditions are conditions that are consistent with the previous discussions involving these TVR units. The next condition, condition number twenty five would read, "The TVR operation shall me made available for Planning Department inspection upon twelve hours notice to the owner. The inspection shall be for the purpose of verifying with all provisions of the CZO and conditions of approval of this special permit." And finally condition number twenty six would read,"No more than two guests and one guest vehicle are permitted to utilize the subject TVR during a specific site visit." And specifically. this condition this is to be Iconsistent with the discussions about having two guests per bedroom involving TVRs. Mr. Dahilix Commissioners, I would maybe suggest if you would invite the applicant's representative to come up and say either her concurrence or objections with those three read conditions on top of her letter that came. Chair: Do you object to any of the conditions that were read? Ms. Nishimitsu: We submitted the February 131h letter objecting to some proposed conditions. I would like to state again for the record Michele already indicated that the twelve hour notice that you have been imposing on everyone else is something that she can abide by because they property managers available on call. But again the issue is we have a small little dwelling where a couple with minor children might want to stay and if you limit it to two human beings as opposed to two adults with their children you prevent a family from using this particular pxoject. And they have had couples with infants in the past occupying the premises. The other thing is they have people where the husband might come down on business and the wife comes down to join him and she wants her own car because she wants to go holo awhile the husband is doing his business thing. And by limiting the couple or the two people to one vehicle you essentially make them hostage, well one of them hostage. They have no means of getting around especially on the North Shore. So we would ask that as respect to the vehicles that.each adult,two adults, be able to have one vehicle each. That doesn't happen all the time and also gives some flexibility on a couple with minor children. Ms. Hushes_ I don't have any problem with you number twenty six if you could change that to two adults as Lorna said. The one vehicle issue is that sometimes if you were to drive by there might two or three vehicles but only two people are staying. Sometimes they have a friend that is staying at the hotel come by or a chef will come to prepare a meal or whatever other service providers so it might be a little difficult tb demonstrate that the one vehicle that you are requiring is the one for the guests if you were just to ride by. If it we're made as an exception, ninety nine and nine tenths percent of the time there is one vehicle per unit. Now when Justin and I are here and staying in the cottage we are two vehicles and so if you could somehow Planning Commission Minutes February 28,2012 54 exempt the fact that when the owners are in residence that we do have our two vehicles. But other than that I have no problem because like I said it is very often the case. Chair: The vehicles are just for the TVR rentals, not for the maintenance workers, not for the chef, not for anybody else but the TVR. Ms. Hughes: So if the maintenance people are right by the cottage,parked... Chair: This is for overnight for the TVR rental. Ms. Hughes: Okay. So the only thing then I would ask is if we could have the exception of when the owners are in residence, we are not the TVR, we are not the renters, then that is fine. Mr. Texeira: 'What about the trail? Mr. Dahilig: Lorna, do you have any comment on the...Counselor. Chair: Do you have any comments on the trail? Mr. Dahilig: The trail condition? Ms. Nishimitsu: The trail is on a property that is not even before you for consideration. And the trail that Mr. Yuen has complained about is one that was reopened by the contractors for the owners when they noticed that some trees below the Strong property had been cut and had gone down the slope. The Hughes don't cut trees on the conservation lot because it doesn't enhance their views. The views are for the people along the bluff that are on the Kapa`a side of this parcel thirty two and parcel thirty three. Yes, they should not have cut or reopened that trail to go niele, they should have reported it to DLNR and they got caught and they had to pay a fine and they are now before the DLNR for an after the fact permit to retain that trail. The trails that the people use to go to the beach are fronting parcel thirty two and thirty three, it goes straight down to the beach. They go nowhere near the Strong property and largely because Michele doesn't tell them about it and tells them to stay away from that side of the property because of the hazards. There is erosion there, the trails are not manicured like they are going down to the beach and they don't want their guests falling and hurting themselves. Chair: I understand but the question was do you object to what was read by the Director? Ms. Nishimitsu: If it is limited to the trails that are the subject of the CDU application which is the lateral trail that Mr. Yuen and his clients don't want we don't have any problem with that. Chair: Thank you. Ms. Nishimitsu: Does that make it easier? Chair: Very much so. Mr. Dahilig: So Commissioners that is our departmental recommendation which would be twenty six conditions,twenty three as stated in the written report and three added and addressed by the applicant's representative. Chair: Can I get a motion? Mr. Katayama: So moved. Mr. Texeira: Second. Chair: Any discussion? Seeing none roll call please. Planning Commission Minutes February 28,2012 55 Mr. Dahilig: Again Commissioners the motion on the floor is to approve special permit SP-2012-27 with twenty six conditions over objection of the applicant as stated in their correspondence with the department. On motion made by Wayne Katayama and seconded by Herman Texeira, to approve SIB-2012-27 with twenty six conditions over objection of the applicant's representative, motion carried by the following roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raco, Blake, Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Special Permit SP-2011-9 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kilauea,Kauai, approx.. 3.800 ft. west of Kauapea Road and Kilauea Lighthouse Road intersection, further identified as Tax Map Key 5-2-5.33 and containing an area of 5.030 acres = Justin and Michele Hyghes, Co-Trustees. [Hearing's Officer S1ecial Meeting Public Hearing held 1/6/12.1 Supplemental Director's Report No. I pertaining to this matter. Letter (2/21/12) from William W. L. Yuen Esq. for Mr. & Mrs. William and Sandra Strong, in opposition to Special Permits SP-2012-27 and SP-2011-9. ,See above for copy of letter. Letter (2/13/12) from Lorna Nishimitsu, Esq- addressing the proposed conditions for the approval of the above-referenced special permit. Staff Planner Dale Cua: As you mentioned this is the neighboring parcel from the previous application. This property occurs on parcel thirty three, so TMK is 5-2-5:33. Again the public hearing for this application occurred on January 6, 2012. With regards to the conditions of the application it is pretty consistent with the previous application. There is a total of, in this case there is a total of twenty two for this one with the three additions that was proposed from the previous application. Chair: Any questions for the planner? Mr. Katayama: Is there a building plot plan other than this? Staff That is what we received from the applicant and I think as noted the approximate floor area of the structure is approximately 500 square feet. Chair: Any more questions for the planner? Mr. Katayama: In the previous application there was a main house that is not part of the TVR. Staff: Going back to your previous question I da have a plot plan in the file. Chair: Any more questions for the planner? Is the applicant here? Ms. Lorna Nishimitsu: Good afternoon Commissioners, Lorna Nishimitsu on behalf of Justin and Michele Hughes. Before I go with my canned speech which I have to do for the record I was looking at the inspection report that was filed with part of this application and I don't know if the inspector made a mistake but he talks about a single family residence consisting of five bedrooms, four bathrooms and one kitchen. That is not on this property. I don't know what property they were referring to. Mr. Katayama: I think that was the other one. Ms. Nishimitsu: No, that one doesn't have...the main dwellings on both of these parcels are, one is 484 square feet and one is 500 square feet. Planning Commission Minutes February 28,2012 56 Mr. Katam a: So the plot plans,this says existing main house, Ms.Nishimitsu: That was one that they got a permit for and were going to build but it was never built and I think that is why there is all this confusion. And the inspectors would have seen it when they went out to the properties what exists there. So this is a 5.03 acre parcel with a 500 square foot house. The Hughes original plans were we will build these tiny houses and maybe eventually when we can build a main dwelling we will go and convert these small buildings back to a guest house.. Well now they are going to bt;stuck with these small dwellings for TVR purposes although they do have sufficient land area for a future main house that can never be TVR, it is what it is. They acquired this property in 1996,built in 1998, it was put into rental in 1999 but again, like I explained,this house is occupied periodically... Chair: You can just give us a copy of your speech,just for the record, we can just put it into the record. We have heard it before,right? Ms.Nishimitsu: I don't have an extra one. Can I just incorporate that into the record? Chair: I am not trying to disrespect you in any way but we have heard that speech. Ms.Nishimitsu: Thank you. Chair: I am not trying to rush you but we have heard the whole speech and I am sure the Commissioners just want to accept it into the record. Ms.Nishimitsu: And the same argument Uith respect to whether parcel thirty six to which there is no structure or no permit application should even be factored in to your decision making at this time,thank you. Chair: Any questions for the applicant? Ms. Hughes: This property is the so called headquarters of our nursery: We are allowed by the County zoning two building sites on the 5.03 acres and we have never built any of the residences as Lorna just said. However we took one of the building sites and I brought a few pictures,I will just pass them around,but we took one of the building sites and we used that as our nursery, one because we don't have a lot of flat land and in order to get this nursery installed we had to have about two acres. And so you will see that we are growing a lot of different varieties of teas and some palms trees, Erika palms, foxtail palms, and all of them we planted in pots so we did a pot in pot so that we can sell them to the customers. We have a lot of ginger which I will show you and a lot of beautiful specimen orchids that we use in the cottages but we also have sold them to customers who have wanted them. So I just wanted to say that there is density for two homes however half of the density has been used for agricultural,thank you. Mr. Raco: I have a question for the applicant. Michele, in you last testimony you mentioned that you want to be pono with the land and you want to do the right thing with the aina. Would you be able to ''surrender the permits if you sell the property? Ms. Hughes: I think the way the ordinance reads it is supposed to be running with the land; that is what I thought. So I don't really think that I should be a judge of that because it is part of what was written in the ordinance. Ms.Nishimitsu: The short answer would be no. Basically because so long as there is compliance with the conditions of the permits that might be issued a successor ought to be able to continue it in that particular use. And you always have the right to revoke for violations. Mr.Raco: So if there is a violation we can revoke then. Mr. Dahilig: As with any issued permit. Chair: Thank you, anybody in the public... Planning Commission.Minutes February 28,2012 57 Mr. Dahilig: Mr. Chair,I have two signed up for testimony, again that is William Yuen and Richard Spacer. Mr. William Yuen: William Yuen on behalf of Mr. and Mrs. William.Strong who are neighbors. Again I want to just say ditto to the testimony I gave on the last application that Mr. and Mrs. Strong are not necessarily objecting to the granting of the TVR but the Strongs have an dbjection to the maintenance of the transverse trail that crosses parcel thirty six that is bordefing both parcel thirty two and the Strongs residence two miles down the road,thank you. Chair: Anybody else in the public want to speak on this agenda item? Mr. Richard Spacer: Again Commission, Richard Spacer for the record and I object to this permit as well as the preceding one,thank you. Mr. Bruce Layman: Bruce Layman. I will try to be calm this time and keep my comments short. What I didn't get to say and.I am sorry I overstated my time but the issue of these trails,being involved with therh for almost thirty years and if you folks know my mom is born and raised in Kilauea and I grew up in Kilaue4, actually graduated from Kilauea elementary school. But that is a very dangerous place and over the years the clients that I had there,the Cains, and then we were real happy that the Hughes bought it and continued the effort to work with the Fire Department,the rescue ambulance having access,DLNR,the police, because there are a lot of things that have happened down there. At certain times of the year the beaches are not accessible when we have high suxf and I feel strongly that those trails should be left in there if not for that purpose alone. People could die there without having access to come in there. And I know there is no helicopter retrieval because of the sanctuary of the birds and stuff. So over the years we have worked closely until this day with the rescue and if you are on third beach way down and there is twenty foot surf and someone happens to end up down there that is the only way they get out there. So I think the trials should be maintained. I don't see how someone should complain about stairs being fixed,the stairs have been there for thirty,forty years and they have just been replaced with new boards and safer boards. So I would think that if ever this is an issue in the fixture that the Commissioners would strongly urge continued maintenance and access especially for emergency use,thank you. Chair: Anybody else? Ms. Caren Diamond: Good afternoon Commission, Caren Diamond for Protect Our Neighborhood Ohana. You have been putting in a lot of conditions today and for all these permits but I am a little confused because when people signed up to get a permit to be able to put a house there they had to sign a farm dwelling agreement. And they signed their name to that, that it*ould be a farm dwelling used in conjunction with a farm occupied by the farmers. So I question how you can take that farm dwelling now and give it a resort permit. We have the lowest hotel occupancy rate. I think I saw it was fifty five percent and the reason is because the visitors are staying in agricultural land,they are staying in our communities. The County had the transient vacation rental supposed to be in visitor destination areas. And if people wanted to change and expand the visitor destination area and wanted to get Land out of the agricultural district it should have happened. It shouldn't happen by way of you giving this special permit. I am not sure how you can say this special permit comports with the intent of HRS 205. So it is really circular. You are not talking about giviing this permit for a year you are talking about giving it forever, forever these lands will be resort because somebody wanted to do it and they did it without permits. And now they are before you and you are going to say okay that is fine. It is not fine with us in the community. It is not fine with the farmers. This is a really backwards procedure. These lands are for sale. Look at Koa Properties website and see these properties for sale on the web. These weren't agriculture lands; this isn't eves going to be back to agriculture for a farmer because no farmer will ever be able to afford this with the resort use added to it. You have taken the lands out of the hands of the farmers with this resort use and that is antithetical to what the agriculture district is supposed to be. I am really sorry you guys have had to go through this but realize that the burden has fallen on the North Shore and we.have lost our agricultural lands, we have lost our coastal lands, and you are the ones saying yes. Planning Commission Minutes l+ebruary 28,2012 58 Chair: Anybody else want to speak on this agenda item? Seeing none... Mr. Dahilig: Again, Commissioners,our recommendation is for approval subject to twenty five conditions in this particular circumstance. We have read them before and they are the same conditions, one relating to the trails not being advertised or used,the ones that are subject to the CUA. It would be the same occupancy requirements as well as the issue concerning notice and maybe the applicant's representative would like to come up and state for the record whether she objects or does ndt have a position on those three conditions. Chair: Loma. Ms.Nishimitsu: The twelve hour notice prior to inspection is fine. The trails,the condition is fine as long as they are limited to no access on the trails that the Strongs object to and that are subject to the CDUP application. I believe it was two people regardless of the age and one car and Michele indicated with respect to the last application that that was something she could live with. Mr. Texeira: Clarify the issue on the trails again. Mr. Dahilig: The issue again is that they shall not advertise nor have guests utilize any trail that is subject of the currellt CDU application before the State Land Board. Mr. Texeira: Those trails are what, specifically? Mr. Dahilig. The thing is we are not a party to the CDUA at this point so that is why we want to just based on the testimony just clarify that we do not condone the usage of those trails that are unpermitted as part of this operation. Mr. Katayama: Who owns that parcel? Ms.Nishimitsu: Parcel thirty six which is an almost twenty four acre parcel is owned by Secret Beach Properties LLC,which is a LLC owned by Justin and Michele. And just for the record the Strongs have trails and steps on that property going down to a different beach because it was pursuant to a right of entry that was given by Cain Enterprises to all of the bluff owners. So with that the Strongs go over what is now owned by Secret Beach Properties down to the beach. So there is some kind of irony here. Ms. Hughes: I do have one comment that I just realized when you re-read that condition;. The CDUP includes about sixteen acres of conservation Iand. The rest of that twenty four acres is Ag. land. Most of the trails coming from the homes directly to the beach,the twq residences one of which has been approved,they are,ninety percent of that trail is on the Ag. land. When they get to fhe very bottom of the trail right above Secret Beach which is beach one where they enter,there is about twenty steps that are in conservation. I don't want to get too nitpicky but I don't want you to come back and say you didn't do this...I just want to be totally transparent that there are about twenty two steps that are at the bottom of the trail that would be a subject of the CDUP permit but that is all. Chair: Thank you, any questions? Mr. Texeira: So we are not saying anything then. I mean basically the guests can still utilize that trail. Mr. Dahilig: No. Mr. Texeira: You just said that it is under the State... Mr. Dahilig: As long as it is not part of the CDUP application. Ms. Hughes: The trails that are being controversial I guess you would say with Mr. Strong are along the pali,it is about a mile away. His property is about a mile from us but still our land fronts his property. So we have about two thirds of a mile of beach frontage on Secret Planning Commission Minutes February 28,2012 59 Beach. The part that I am referring to that I want to be sure to be transparent about, on the lot fronting lot thirty two which has already been approved but I just realized that those twenty stairs are in the CDU permit because they are part of the sixteen plus acres that we're getting after the fact permits for. So as long as you can live with that otherwise the guests could not get to the beach down that trail at the end. Chair: But they are not allowed to use that particular trail right now, right? Ms. Hughes: They don't go on any of the steep Pali, that is totally forbidden because we would have to have our head examined. Mr. Dahilig: The difficulty with this is that we are not involved in that particular application at this point. I just wanted to make it clear from an enforcement standpoint that the department does not condone anything that requires after the fact permitting and that whatever is a trail network that is subject to a CDUA requirement, that it shall not be in conjunction with this particular permit be used for transient vacation rental purposes. And that is why we are including that particular condition there just to make it clear that we are not cdndoning anything that still hay to be after the fact permitted. Chair: Does that answer your question? Mr. Texeira: It does but not to my satisfaction. Chair: Thank you Lorna. What does this Commission want to do? Mr. Dahilig: Commissioners the department's recommendation is to approve over objection, approve or deny, but our department's recommendation is to approve over objection the application subject to twenty five conditions. Mr. Katayama: So moved. Ms. Matsumoto: Second. Chair: Any discussion? Seeing none roll call please. Mr. Dahilig: Again, Commissioners,the motion on the floor is to approve Special Permit SP-2011-9 with twenty five conditions over objection of the applicant as stated in their correspondence. On motion made by Wayne Katayama and seconded by Camilla Matsumoto, to approve SP-2011-9 with twenty five (25) conditions, over objection by the applicank, motion carried by the foll©wing roll call vote: Ayes: Katayama, Matsumoto, Texeira, Raeo, Blake, Kimura -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 NEW PUBLIC HEARING Zoning Amendment ZA-2012-4 to amend Chapter 8 of the Kauai County Code, 1987 (as _ _ s ye zoning ordinance amended for recodif cation and organzzatzonal changes for the comt�rehensi,,,,,,,,,,,, = County of Kaua`i,Planning Department. Director's Report pertaining to this matter. Mr. Dahi4: Commissioners,just for information it is this big packet here and you are going to start seeing this roll out concerning what has kind of been the long term process of updating the comprehensive zoning ordinance and it is finally coming to fruition. What you see in front of you kind of outlining the process and essentially what you are seeing as part of the approval we have essentially divided up the process into two phases, one is recodification, Planning Commission Minutes February 28,2012 60 renumbering and the creation of a set of user friendly use tables for people to be able to reference. whatever they are using rather than relying on the definitions. And then the second phase if this does pass the Council would be essentially the substantive changes concerning let's say envelope heights and these types of things, set back changes,how we calculate things,new definition changes,etc. i And so this is the first step in that process and what we have included is the public testimony and what we did was rather than try to hold public hearings on this we did try to get out the word regarding an online website that was available for people to review all the documents and send email testimonies to a specific email address,it was CZOupdate@kauai.gov. We received four testimonies,they are part of the packet as well as we have a discussion draft and the actual bill which is at the very end. So I just wanted to make clear that it is not the...we proposing substantive changes at this point,again it is moodification of the old version of the CZO with the changes that have happened since them,then renumbering of it because we are trying to put it in a more logical flow order regarding how the CZO reads. And then we have also included the tables for reference. With that, Commissioners,it would be my recommendation along with just one,minor change that the bill should also include a proviso that before the final adoption and publication of this ordinance that the County Clerk shall be authorized to codify any ordinances relating to Chapter 8 of the code enacted prior to the adoption of this ordinance but not listed in section two of this legislation. That is just so that we can capture all the different ordinances. We do have bills that are pending at this point that are ahead of this particular measure,they have not been adopted by the Council yet but for readability sake because this will probably be codified as one document for future use that those also be codified by the County Clerk into the ordinance. So with that, Commissioners,I am available for any questions and I would just like to publicly thank before we get to that,Myles Hironaka has really kind of spear headed this effort and so he deserves &lot of credit for that. Peter has helped out since he has joined our office and it has also been helpful to have the attorneys assist us on the project as well so we are underway. Mr. Blake: Where is your report? Mr. Dahilig: My report is in this big document, it is the first four pages of the document. So Mr. Chair what I would suggest is because this is a zoning amendment that you wotild op9n public hearing,receive testimony, close public hearing and then determine whether action is appropriate at this time. Mr. Raco: And that action would be going to Council. Mr. Dahilig: Council,yes. Chair: Anybody in the public wants to speak on this agenda item, seeing none,motion to close the public hearing. Mr. Raco: So moved. Mr. Texeira: Second. Chair: Any discussion, seeing none all in favor say aye,motion carried. On motion made by Caven Raco and seconded by Herman Texeira,to close the public hearing,motion carried unanimously by voice vote. Mr. Dahilia: With that Mr. Chair,my recommendation would be that ZA-2012-4,a bill for an ordinance which seeks to repeal Chapter 8 in its entirety and enact a new Chapter 8, recommended for approval and refer to the County Council for its review. Ms. Matsumoto: So moved. Mr. Texeira: Second. Planning Commission Minutes February 28,2012 61 Chair: Any discussion? Mr. Katayama: Is Chapter 8 ready for submission? Mr. Dahilig: Yes, it should be this whole document. I believe it is 139 pages. Mr. Katayama: Well with deletions. Mr. Dahilig: The actual bill should be this part of the measure that is listed as a bill: Mr. Katayama: What page is that? Mr. Dahilig: it should be after the divider that says draft bill so it is I'd say about two thirds of the way in. Mr. Raco: This is the new updated CZO? Mr. Dahilia: This would the updated. So again this is the first step in a two-step process. Mr. Raco: The second step is going to be all the substantive changes concerning changed definitions, building heights and these types of things. We did try to incorporate it all together in one document but because of all the renumbering and all the recodification that it became a very confusing document. And so in consultation with Council Services we came up with the solution of trying to split it into a two-phase document. Partly it is also just to create clarity because a lot of people do get suspicious if you are trying to renumber and move things and then change the substance of it that there may be some public confusion so we are trying to be as open and transparent afid clean as possible about it. So we thought the renumbering, recodification, and the tables as a first step would be the most appropriate means of doing this. Mr. Raco: So the second report, will there be pictures and examples? Mr. Dahilig: Yes. Mr. Katama: So this is what will be submitted to Council for adoptipn. Mr. Dahilig: That is correct. Chair: Any more discussion, seeing none all in favor say aye, so moved. On motion made by Camilla Matsumoto and seconded by Herman Texeira, td approve ZA-2012-4 and refer to County Council for review, motion carried unanimously by voice vote. NEW BUSINESS For Acceptance into Record—D_irector's Report(s) for Proiect(s) Scheduled for Public Hearidg on 3/13/12. ONE For Acceptance and Finalization—Director's Report's for Shoreline Setback Activity Determination. Letter(12/2/11) from Larry Dill, County Engineer, for an amendment to Special Management Area Use Permit SMA(U)-2001-1 and Shoreline Setback Variance SSV-2008-1, io permit the construction and operation of a multi-use path from Lydizate Park to Lihi Park at the Waikaea Canal, Tax Map Key 4-6-014:026, 4-5-002: 023, KQa`a, Kauai = County ofKaua`i. Department o f Public Works. Director's Report pertaining�to this matter. On motion made by Hernan Texeira and seconded by Caven Raco, to approve department recommendation, motion carried unanimously by voice vote. Planning Commission Minutes February 28,2012 62 Shoreline Setback Commission Review SSCR-2012-01 for a shoreline setback determination, Tax iMap Key (4) 4-3-009:001, Kapa`a Kauai for acceptance by the Commission= Citibank NA (Donna Holevoet,Authorized Agent). Director's Report pertaining to this matter. ADJOURNMENT The Commission adjourned the meeting at 3:42 p.m. Respectfully Submitted. Lani Agoot Commission Support erk Planning Commission lvlinutes February 28,2012 63