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Home My WebLink Aboutpcminutes1-10-12 KAUAI PLANNING COMMISSION REGULAR MEETING January 10, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair pro term, Herman Texeira at 9:12 a.m. at the Lihu`e Civic Center, Mo`ikeh�L Building, in meeting room 2A-2B. The following Commissioners were present. Mr. Herman Texeira Mr. Jan Kimura Ms. Camilla Matsumoto 4 Mr. Hartwell Blake Mr. Caveh Raco Mr. Wayne Katayama Discussion of the meeting, in effect, ensued. APPROVAL OF THE AGENDA On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve the agenda, motion caxried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD On motiod made by Camilla Matsumoto and seconded by Hartwell Make, to receive items for the record, motion carried unanimously by voice vote. f Chair: One thing before I move forward as far as the order of the agenda, this is the order that we will be following. Mr. Dahilig: Yes Mr. Chair and I guess I would suggest that we do have a couple Commissioners that will be handling their confirmation hearings before the Council this morning so I guess the term roll with the punches may be appropriate in terms of ordering of -he agenda today. Chair: So just so that everybody knows we have two Commissioners will be going before the County Council for their appointments so we will be having less than normal membdrs in attendance today. GENERAL,BUSINESS MATTERS Annual Status Report(11/16/11) submitted by Richard Haviland for Class IV Zoning Permit Z-IV-2011-6, Special Permit SP-2011-3,Use Permit U-2011-5 for a commercial tour operation and construction of corresponding structures, including but not limited to zip lining facilities'on the subject properties, Tax Map Kevs 3-2-003:043 3-2-003:057 3--1-002:001 3-3- 001:001 3-3-018:002 and 3-3-018.005, Kipu,Nawiliwili, Kauai = Outfitters Kauai. Staff Report pertaining to this matter. Staff Planner Kaaina Hull: Good morning Chair, members of the Commission, The subject permits were approved by the Planning Commission on November 23, 2010 to allow a commercial tour operation and construction of corresponding structures including but not limited to zip lining facilities. Condition No. 10 of the conditions of approval essentially state that the applicant is required to provide the Commission with an annual status report, in particular to address comments from the Department of Land and Natural Resources. In accordance with condition No. 10 the applicant is providing this annual status report. It is our recommendation that the Commission accept this status report: FEB 2 8 2012 EEB 4 2012 In addition, being that no additional comments or concerns were raised from DLNR,the department is recommending that condition No. 10 be stricken and removed from the conditions of approval. It is also important to note that the approval was for November 23, 2010 and the applicant did provide the annual status report within a timely manner but given the large volume of the Commission's meetings over the past few months this is the soonest we could get it on the agenda. hair: Thank you, any Commissioners wishing to have any discussion with the planner? I have a question Kaaina, with regard to condition No. 10, can you kind of explain condition No. 10 in the sense that so does that mean that the applicant is no longer required, if we eliminate condition No. 10, to submit an annual status report? Staff: Condition No. 10 states that the applicant provide the Commission with a status report and in particular this condition was established because there was at the time of the hearing there was uncertainty whether or not DLNR SHPD as well as DLNR Division of Boating and Recreation had additional comments to provide for the application. And in-the event that they did you could come back a year later and either ensures that those comments had been addressed or further mandate additional requirements. Since that time of the approval last year there have been additional concerns or comments from either division within DLNR. Given.th4t, the department is recommending that...nor have we had any complaints or concerning the operation so at this time the department feels that to continue the annual status 'report before the Commission is no longer necessary. Chair: But if we chose to We could keep condition 10, right? Staff, If you chose you can keep condition 10 and the applicant would be required to come back next year to provide another annual status report. Mr. Blake: I have a question. If the department receives complaints then the intention is for the complaint to be handled within the department and riot before the Commission? Staff: Well technically any complaint that is received is handled by the department. If there is no annual status report it ilI be handled in house. In the event that the complaint or the operation is in violation of either the conditions.of approval or the Kauai County Code the department would try to attempt to have the applicant resolve those violations. In the event that they are not resolved or there are further impacts generated by the operation that impact abutting properties or the environment then the department may feel it prudent to bring it back to the Commission for your review either to modify the permits or revoke the permits. And that is a general standard of practice fdr all Class IV Zoning permits and Use permits. Mr. Blake: And if the status report is accepted today that means that—how Ding does the permit last? Staff. Permits run with the land so... Mr. Blake: So unless or until there is some formal action to remove it. Stiff. Formal action to remove it or withdraw it or the Commission revokes it. Mr. Kataama: Kaaina, is the department satisfied with the meeting of condition 5? Is that listed as in progress? There are several other conditions that refer to agency sign off but this says in progress such as 9 and 11. Staff. Currently the applicant has met...in particular when reviewing zoning permits and building permits the applicant has to ineet with other agencies to get the building permit signed off. The applicant has received approvals from the Department of Water, the Fire Department, Health Department, however it is still working with Public Works cone erring flood issues_ There may be some structures within the flood zone and given certain new updated standards to flood requirements the applicant is in the process of either moving those structures out or executing a flood study. It is a fairly lengthy process to go through when you are in the flood Planning Commission Minutes January 10,2012 2 zone. In so far as they meet the other standards we are okay with them. I think Rick can address that a bit further if you want to discuss that with him. Mr. Katayanla: Is the Director comfortable with that status and resolution in a timely manner? Mr. Dahilig: As far as I am aware, yes. Ultimately we are incumbent on relying on the other departments also to do what they need to do and we haven't gotten any other feedback from them. Chair: Anyone else? Seeing none, anyone from the public wishing to testify on this application please come forward. I'm sorry. I am a little bit out of line. I need for the applicant to come forward before I call for public input. Mr. Richard Haviland: Aloha Commissioners, I am Richard Haviland of Outfitters Kaua`i. Chair: Good morning, do you have any comments in regards to the staff report? Mr. Haviland: I don't have anything to add sir. Chair: Any of the Commissioners have any questions of the applicant? Seeing gone thank you Mr. Haviland, now I can call on the public, sorry for that inconvenience. Ms. Cheryl Lovell-Obbatake: For the xecord my name is Cheryl Lovell-Obatake. I did make comments on this application. That was 2010. 1 am concerned about the status report that you have that authority to keep that status report coming to you.. Many changes have happened and as a Hawaiian subject of Hulaia and Kip-ft there are many in fact several Kuleana that are in the area which I had indicated in 2010. The concern is that I have watched and communicated with SHPT? and I would like to say that they lack a lot of comments to many applications and this is where I am cautious about testifying about this right now. It is pretty defacto of the SHPD's office because of DLNR taking care of DOBOR and SHPD and the carrying capacity that is entering into this area. So I would hope that you would consider having status reports coming to you and not only to the department so that the public can be aware of it such as I, thank you. Chair: Anyone else wishing to testify on this application? Seeing none, do you have any final comments? What is your pleasure Commissioners? We have two things that we need to discuss to move on, one is to possibly receive or approve the report, status report, and secondly is to either to remove condition No. 10. So could we treat those items separately or do we want to lump them together? It is my recommendation from the County Attorney that we treat these items separately so that being the case we need a motion for or against. Ms. Matsumoto: So first we are moving to receive the report? Chair: Receive and accept the status report. Mr. Blake: Second. Chait: Any discussion on receiving and accepting the status report, seeing none all those in favor say aye, those opposed,motion carried. On motion made by aCamiIla Matsumoto and Seconded by Hartwell Make, to receive and accept the annual status report, motion carried unanimously by voice vote. Chair: The second item that we can discuss now is condition No. 10. Mr. Blake: Has construction of the zip lines been completed? Staff: These permits are actually after the fact permits. We were made aware that some of these structures were put up without building permits and zoning permits and we informed Planning Commission Minutes January 10,2012 3 them that they needed to obtain,these permits and that is what initially spurred the application. Construction was actually complete before the application came before this Commission last year. Mr. Blake: So there is no outstanding action to be undertaken by the permittee expect to run the business. Staff: Exactly. Chair: I have a question. For other applicants are we setting precedence if we continue to require annual status reports? Staff: It is really at the discretion of the Commission on whether or not... Chair: Case by case. Staff: Yes, case by case. Conceniing the other zip lines,to my recollection no of those have been required to do annual status reports but the department feels that one isn't necessary but as Ms. Obatake presented to keep it more out in the public and informed of what exactly is going on there through these annual status reports, that is one argument for it. But the department feels that given that SHPD has had over a year to provide comments concerning this application ample time has been provided and can be handled in house at this point. But it is really at the Commission's discretion. Chair: `hank you. Mr. Blake: Besides the river are there any other public lands involved? Staff: No. Everything else i§on private land, Grove Farm lands specifically. Ms. Matsumoto: If we keep the status report in tact then they will have to come back again next year and then we can revisit the possibility of either continuing it or... Chair: Or not. So that is the question then,we have the opportunity to remove it a year from now or two years from now. We could ask for another status report and then at that time we could determine whether or not to continue the status report,right? Ms. Matsumoto: I would actually like to support the continuing of the status report. Chair: So is that a motion? Ms. Matsumoto: Yes. Mr. Raco: Second. Chair: Any discussion? Mr. Katayaama: Condition 10 just relates to the other conditions as listed as part of the update process. I think what we are talking about is probably issues outside of the stated conditions. Now having the applicant appear and present the status report at that time is basically either a reception of the report or not or seeing the report or not I guess. So in terms of the other kinds of things that we are talking about I don't think this would be the proper vehicle for administering the terms and conditions listed into their Special Use Permit. One of the things that I guess we could talk about is that Special Use Permits for other businesses or operations like this have evolved since we have issued Special Use Permits,several others in this same genre. Now does this body have the ability to adjust the conditions to reflect the current standing of other zip Ime operations? Mr. Blake: There is that catchall condition that says at any time the department and/or the Commission may move to amend or add or suspend conditions. r Planning Commission Minutes January 10,2012 4 Mr. Dahilia: That is correct Commissioner but as the procedures state if you look specifically at condition No. 8,,that if the Commission chooses to revise, delete or modify any of these conditions without the consent of the applicant we have to proceed under a contested case hearing. Mr. Blg ke. Why can't we just do an order to show cause? Mr. Dahilig: That is exactly what it turns into, the order to show caiise turns into a contested case hearing. So it is something that on any permit that we issue it is a standard practice that every applicant is aware that any of these conditions can be brought before the Commission to be modified, changed, or deleted but we have to undergo a contested case hearing process. We suggest status reports in situations where there is enough grounds to move forward on an application but at the same time if there are outstanding issues that car}only be resolved as a result of the progression of the application through other departments then that is when we recommend the status report condition. The particular status repdrt Wndition that is before the Commission's entertainment at this point we believe has been resolved by the fact that SHPD has not given any further comment to us. And as a consequence,no comment about how SHPD is conducting its business,but at some point we cannot be held hostage to the department's failure to act or lack of action. And so that is why we are suggesting at this point deletion 'of the condition because it specifically referred to the comments from the t*o DLNR agencies that are there. Mr. Raco: Chair, could we call the applicant up and have him explain to us his reason because this is the applicant's request,right? Chair: We can do that. Staff: Let me correct that, the applicant actually is not requesting condition No. 10 be... Mr. Raco: Well in the Planping Director's report it says the appl'icant's request,on the second heading, it says, "In accordance with condition 10 the applicant is providing an annual status report for 2011". Staff. The status report is what the applicant has presented to the Commission. This is strictly a department recommendation. He can maybe address and I am pretty sure Mr. Haviland would be in favor of having condition No. 10 stricken but just to clarify that was nct a request of his status report. Chair: Would the applicant objective to having condition 10 continue for at least another year or so? Would that raise any great hardship for you? Mr. Haviland: I'm sorry I didn't catch that,would you mind coming again to me? Chair: We are considering denying condition 10. I mean the motion is not tb...to continue to keep condition 10 and what I am asking you is if we decided to keep condition 10 anc we ask you to provide an additional annual report would you have any concerns or problems with tha#going forward. W. Haviland: I am fine with being accountable and I think we are. I think we do a good job at taking care of the lands there and our record speaks for its self. We didn't request that the annual status report requirement be stricken but I think we are all busy and if there are no problems and there is nothing to repoft it kind of makes sense to just move on. There are plenty of ways for us to be accountable. I definitely did take note that our company is required to provide an annual itatus report. We were the first zip line operator to come in for these permits. We have tried to provide good leadership in that regard. I took note of the fact that subsequent applicants have not been required to provide the annual status report and I have wondered about how equitable that is. But as far as dur annual status report goes we had a good year,we had good, safe operations,we got to work, everybody get to work, everybody got paid,it's all good. Chair: Thank you very much. Planning Commission Minutes January 10,2012 5 Mr. Raco: If I may ask the last time we talked about deletion of 7, 8, and 9 zip lines, how has that impacted (:he business? Mr. Haviland: We had a plan to fold those zip lines into our operations that would have been good for us. It is a competitive business world and there are other companies that have come before this Commission that have gotten approval of their applications that we'll be competing within future. Those zip lines would help us to be more competitive but I took note of the fact that the Commissioners last time said build your 3 new ones and then you can come back and ask for 3 more. Because we have had hang-ups getting through our process with the Department of Public Works we haven't built the first 3 of the new ones yet. So I will probably be coming back at some point and ask to build some more but for now we are good. Chair: Thank you, we still have that motion, seconded, this is to deny. _Mr. Dahilig: Commissioners, I just want to make one more comment with respect to this particular condition and why our recommendation is in this manner. I understand the desire to want to have feedback from other agencies, at the same time there are jurisdictional lines between what is our, department's responsibility as well as what is tie Department of Land and Natural Resources responsibility. And as much as we would like to have the inaction of DLNR and supplant our efforts for what they are not doing it places an additional burden on this department to try to essentially guess and become the defacto Historic Preservation office and that really is not our Kuleana with respect to this type of condition. We have a Historic Preservation Commission, they review things on a separate level and in terms of whether there are concerns about historic preservation impacts and we do that rightfully so. But whell we look at what the Kuleana of DLNR is with respect to this application it is hard to lead a horse to water if they don't want to drink it. And it is difficult for us to have an outstanding condition and wait for a response from a department that is nonresponsive and leave the condition open like this and continue to have statils reports. And that is the nexus behind our recommendation to delete the condition because we think enough time has lapsed,they have been given their opportunity to speak and they haven't spoken. Mr. Blake: So we have never put a deadline or not put a deadline but informed DLNR that if we don't hear from you in 15 days we are going to just act. Mr. Dahilig: It comes as a consequence of the standard 360 that when we send our correspondence as part of our 360 process there is a deadline to comment. We follow up, as a consequence of that even after the fact. It has been 14 months at this point. And Have sympathy with that department because they have a lot on their plate. That particular division is very under staffed and they have difficulty finding qualified people to fill those positions and they coo the best they can. But the difficulty is that when our actions become hinged upon what they are doing then it backs up the whole process and that is why they have the responsive deadline that if you Oon't get a response back within so many days it is actually deemed approved. So they have provisions like that in their rules as well to compel action and it has been 14 months. Ms. Matsumoto:. So you are placing it in their hands then. Mr. Dahilig: As it should be their responsibility with respect to commenting on a historic preservation type of impact at the state level. Given the concerns about the stream and about the historic nature of that and especially because it involves waters of the state that rightfully so the appropriate agency to make comments on this would be SHPD. Ms. Matsumoto: So the applicant would have to accountable to the DLNR and SHPD. Mr. Dahilig: Correct and everybody is under the HRS6(E)requirement. Mr. Blake: I don't want to impose conditions on any applicant just because we can. Like he observed everybody is busy and if you have to take time out to do some performer thing that is really not necessary then you are just wasting time. But any complaints that the department receives are public record? Planning Commission Minutes January'n Commission 2012 6 Mr. Dahilia: That is correct absent the name of the complaintant and we make sure that information is kept confidential. But other than that we can verify or confirm the nature of complaints on properties and we constantly get asked about encumbrances on properties in the event that properties are being sold. So as part of due diligence we do have realtors that do ask us quite often whether there are encumbrances from a violation standpoint. Mr. Blake: As a member of the public I can call and ask if there are einy complaints whatsoever filed against this company and if there have been then I can come down and check the file and after looking at the file then it is np to me to...if the department hasn't taken any action then it is up to me to request action of the department and be informed as to why the department will or will not exceed to my request. I`s that correct? Mr. Dahilia: I guess if you put it that w4y Commissioner it is correct however I would add as part of the evaluation process when we verify whether violations or not are verified on the property, that as a standard course of action we do go through an evaluation of whether it is to the severity of warranting either ari OSC and recommending modification or revocation of a condition. And so the fact that no comments or complaints were received over the past 14 month period does not give us cause to be recommending at this point any type of contested case hearing or modification against the will of the applicant. Mr. Blake: My only concerti was that the public had an avenue to check if they were so inclined or anyone anti if that is available then I think the requirement that the applicant just xerox this and change the date is just more busy work. Ms. Matsumoto: So the new avenue you are suggesting is for your department to direct concerns to DLNR and SHPD. Mr. Dahilijz: If there are concerns regarding the actual...if there are observed historic preservation impacts what we would do is suggest that they contact SHPD acid make the complaint there upon which time since we have an open ended condition on this if there are violations that are found from a 6(E) standpoint then they can come to the department and say we are having a problem with this. And then at that point we can come in and bring it back to the Commission and say we may need a modification of the terms and conditions because S1JPD has noted that there are impacts based on a complaint that they have received. And if we receive the complaint directly then we would forward it over to them for their expertise and have them weigh in on whether it warrants some type of further control as part of the permit. Chair: Any ether comments? Mr. Raco: Chair, could there be a happy medium between what the applicant is saying he doesn't mind providing an annual status report and keeping the first sentence and striking the rest? Mr. Dahilia: Ultimately it is up to the Commission how you choose to stylize the condition. Mr. Raco: But with your intentions of deleting the whole entire condition would that take care of your concerns? Mr. Dahilig: Again it is not really a matter of concern,this is really a perfunctory type of recommendation that we are putting on the floor that when something either has been rout and satisfied or something is beyond time for resolution that from a housekeeping matter we would like to have these conditions stricken if they have already been met at that point. And so in this particular because it was relating to concerns about historic preservation issues along the waterway corridor we left that door open for further status to be provided to the Commission. There has been nothing up to this point. And so if there are other concerns that the Commission would like to see called as a consequence of the status report process then certainly that is within the Commission's Kuleana but our recommendations and our purpose behind recommending status reports is when there are open door issues that have not been resolved. Planning Commission IsEnutes January 14,2012 7 So my only suggestion Commissioners is if there was a status report still desired by the Commission at a future date that we would appreciate some guidance as to what the Commission would be looking for when we do come back a year from now and try to evaluate what exactly the status report was trying to ascertain as the consequence of this requirement. Chair: So we'are back to the main motion and I am going to be calling for the vote on the motion made. What do you want to do? Ms. Matsumoto: I am inclined to take back my motion because what I am hearing is that your involvement,the Planning Department involvement would not be over, that is one thing. Number two, we are actually creating, not creating but emphasizing an avenue for people who have concerns about this application and the area to go to DLNR and SHPD with their concerns so I am comfortable with that. Mr. Raco: Chair, I will withdraw my second. Chair: Okay fine, so we are back to making a motion again so what is the recommendation of this body? Mr. Katayama: I move that we accept the department's recommendation. Mr. Blake: Second. Chair: Any discussion on the motion, seeing none can we have roll call please. On motion made by Wayne Katayama and seconded by Hartwell Blake, to accept department's recommendation, motion carried by the following roll call vote: Aye: Matsumoto, Blake, Raco, Katayama, Texeira -5 Noes: None -0 Absent: Kimura -1 Not Voting: Vacant -1 Preuentation of 2012/13 - 2017/18 Six-Year Capital Improvements Program Report and review of its cohsisiency with the General Plan. Director's Report pertaining to this matter. Staff Planner Marie Williams: Good morning Planning Chair and Planning Comm. fission. You should have a copy of the final Six-Year Capital Improvements or CIP report,this document right here. I will start by summarizing the Director's report (on file). Would you like me to move onto the recommendation or did you have questions? Chair: Are you talking about the specific projects or just in gei#eral? Ms. Williams: I would say in geheral just because specific questions regarding the project would Probably be best directed towards the respective departments. Mr. Blake: So we are not going to see another one of these for 5 years? Ms. Williams: No, it is an annual report so it is a rolling compilation so we will be doing it for the next 6 years and next year as well. Mr. Katayama: Is there a summary by year by category on the expenditures? Sort of a high level snap shot. I know that you have these different categories lut just to soft of have a feel of what the overall capital spending would be annually over the next 6 year period. Ms. Williams: Not in this report and I apologize for that, it is something that is definitely lacking probably because this report isn't necessarily a budget, there are no financial constraints on this report it is more I would even call it a bit of a wish list. The departments are proposing the projects that they feel are necessary. Planning Commission Minutes January 10,2012 8 Mr.K:ataama: I thipk it is even more important to get sort of a timeline as well as sort of a dollar value. It could be rounded to millions as far as I am concerned but just to sort of give you a feel of what the overall packet looks like. Ms. Williams: That is something we can definitely include in next year's report. Chair: Anyone else? Marie, going back to the individual projects and I am not going to ask you I am going to ask the depairtment.we should be asking, the individual departments about their specific projects. What I am asking you is on the capital funding plan that has the fiscal years through fiscal 17/18, who set the priorities for the funding for that particular year? Was that the departments' wish to do that? Ms. Williams: Yes, all of that information was submitted by departments. In many cases it was just an estimate not necessarily a concrete financial plan. Chair: Is there some way we could summarize that at some point? Is that what you were asking? Mr. Katayama: Exactly. Chair: I would be in support of what Wayne is asking, some kind of a summarization, a high level of all of the...annually. Ms. Williams: We can do that and I am sorry it is missing from this report. Chair: No problem. I know this is a work in progress and we thank you for all of the work that you have done in addition to other things that you do. Ms. Williams: Thank vou. Mr. Katayama: When you listed the projects within the categories is that sort of a priority list or was that the way they fell in like 1 through 10 or 11 through 20? Ms. Williams: Just the way they fall in, We don't have a prioritization method embedded in this report yet. Chair: Anybody else? If not, thank you Marie,I am just going to call on the public if anyone is wishing to speak on this agenda item. Seeing none, you mentioned that the General Plan update will address the prioritization issue. Ms. Williams: We will explore different ways that we could fulfill that requirement. Chair: Other than the General Plan or through the General Plan? Ms. Williarras: I think it would be best through our General Plan,that that would provide the high level...we could somehow align prioritization with goals of the General Plan. Chair: My question is the General Plan is being done about every 10 years or so, so hove do we address the priority other than when the update is completed? Ms. Williams- The General Plan could probably be the framework for a system not necessarily saying creating a list, a priority list, and then what the system can do is be related to goals, very general goals of the General Plan. So it wouldn't necessarily be that specific. Mr. Dahilig: I think one other thing to take into account is a lot of the infrastructure that you see proposed it works in stages so it is an if/then type of evaluation. We haven't quite nailed down how from a prioritization standpoint that would be the case, for instance you would need water,then roads, then the park per say. But sometimes through the political process the park comes first before the water or the road and that is just the nature of the beast. So I think maybe what we would try to do as part of the prioritization process is take a look at that if/then relationship and say that these particular projects have to come through the pipeline before this Planning Commission Minutes January 10,2012 9 type of project would then be viable. I think that may be a framework for how we can proceed on prioritization. Chair: Marie,you don't mind if I ask you general questions? How does the proposed CIP interface with the 2020 vision? Ms. Williams: With the General Plan 2020 vision? Chair: Yes. Ms. Williams: I believe that in our General Plan that all of the policies and then subsequent implementing actions already are guided by the vision. That was the first component of the General Plan to be established. So it is inherent in the policy,the stated policy and implementing actions that we list on each project summary page. Chair: What is the tie in with the State and Federal in terms of matching grants and approprigtions for these projects? Ms. Williams: There are some departments such as Housing where they do receive a large proportion of...they get funded through Federal grants and it would just be acknowledging that funding is coming from a source outside of the County. Chair: But in your capital funding plan,your matrix that you developed,could that include something like that to show the'availability of Federal and State matching for that project? Ms. Williams: Yes, absolutely. Chair: Just a thought. As a Planning Commission we have got to be more involved in the process as opposed to the years that I have been involved with the Planning Commission which is mandated and I am happy that we are doing that, we are beginning to do that more. So my question is this is an effort by the Planning Commission and the Planning Department but actually it is being done by the Planning bepartment and we are just looking at it and just stamping our approval because that is all we can do considering how much work is involved in the process. And so my question is this is a report that is submitted to the Planning Conunission, and this is for Mike, are we required to send a letter from the Commission to the Mayor? What is the formal process in submitting this CIP,moving it forward to the Mayor? Mr. Dahing: Ultimately what the department is assisting the Commission in is meeting what is a Charter defined requirement under section 14.03, subsection(f). It has begin really an evolving process of interpretation ip terms of what exactly is the Commission}s KiAeana with respect to meeting that Charter condition. And so when we came io you in April of this past year we tried to outline a framework in terms of how our department was going to undertake the study for what eventually this would become. It is an evolving process I understand,there are still tweaks in terms of how maybe the Commission would like to undertake this Charter defined process and so what we can do is take the feedback, come back again in April of this year after this report has been submitted and then come up with what would be in effect a scope plan for how our department would be undertaking the study over the next few months afterwards. Ultimately what the Charter requires is that the tepoit or some type of program and I use the phrase program be adopted by the Commission and transmitted both to the Mayor and the Council as a means of determining consistent:.with the General Plan. And so that is in effect ghat would be required of the Commission with this report. Chair: Do we need to send a letter? Mr. Dahilza: We will prepare a transmittal if the Commission approves today,w.e will prepare a transmittal outlining the action that the Commission has taken with respect to this report. Planning Commission Minutes January 10,2012 10 Mr. Katayama: This is just sort of my comment to what the Director's purpose is. To me the value of this report is striking a balance in CIP in determining capacity needs of the County as we move forward. I don't think the issue is precision but it is the issue of is the Planning Commission in concert with the other agencies that are developing whether it is water capacity, traffic capacity, playgrounds,that we are doing things that are not building not so much excess capacity that we can't utilized in a timely(inaudible). Or, we are under developing capacity where we are creating extreme overhead to meet our General Plan. So I think at that level I think the department is great in sort of providing this kind of reference point and again it can be in the hundreds of millions of dollars or again it is more of building capacity at the appropriate places and appropriate times. Mr. Dahilig: I think that particular comment was helpful Commissioner and we will try to refine how we can expand the scope of our study to place more focus on the 20,000 foot view type scenario. Mr. Blake: What were you going to put the emphasis on? Mr. Dahilig: Looking at from I guess a 40,000 foot view standpoint so looking at the net effect of all things at it relates to the proposal on the table and what consequences it have to the Commission as it moves forward on these issues of capacity and whether it opens capacity or restricts capacity. Again it is the if/then effect of these particular projects. Chair: And for me it gives us as a Planning Commission an opportunity to be more proactive in the process which I am thrilled about, any other comments? Mr. Blake: I think this is wonderful what the department is coming out with.now especially since we were supposed to be doing this all along. I am reminded of what General Eisenhower said, he said in preparing for battle the plan is usually useless but the planning process is absolutely necessary. Chair: Thank you Marie for your great work we certainly appreciate it. Ms. Williams: Would you like me to read the recommendation? Chair: Please. Staff Plafuler Marie Williams read department recommendation(on file). Chair: Thank you, could I have a motion? Unidentified Speaker: Public comments? Chair: I thought I asked for public comments already, do you have some more, anybody else? I already called for public comments earlier, do you still want t.o...I can reopen it. Ms. Cheryl Lovell-Obatake: For the record again my name is Cheryl Lovell-Obatake. Regarding the General Plan I was one of the CAC members of the 2000 General Plan. I must reiterate my historical memories,the Chapter 3, Caring for Land, Water and Culture deals�lot with the State's responsibilities and I would hope that the County of Kauai will be consistent with.the DLNR State Historic Preservation Division because of the responsibilities that need to be negotiated by legislation. ,And so I want to mahalo Marie for the General Plan report,the Capital Improvements. I no changes that have happened in the Chapter 3 and I hope that you will also focus on the State responsibilities at implementing the actions and also the heritage maps, thank you. Chair: Anyone else, if not I would like to call for a motion. Mr. Blake: Moye to submit the FY 2012/13 —2017/18 Six-Year Capital Improvement Program report to the County Council as part of the Mayor's 2012/13 budget submission. Ms. Matsumoto: Second. Planning Commission Minutes January I0,2412 it Chair: Any discussion? Mr. Katayama: How difficult would it be to put the summary tables that we talked about? Is this on some kind of database that you can manipulate? Ms. Williams: Yes. Mr. Kgjgyaama: I think the 3 elements that we talked about, one is the time horizon, second is by category, and third is by funding source. Ms. Williams: Okay. Mr. Kata ama. I think that would give sort of a nice snap shot on the capital improvement and how the funding sources need to be reviewed. Ms. Williams: We could add that to our transmittal to the Mayor. Mr. Katayama: Perfect. Chair: We have a motion as read by Hartwell and a second so could we have roll call on that please? OP motion made by Hartwell Blake and seconded by Camilla Matsumoto, to submit FY 2012/13 —2017/18 CIP Budget Program to County Council and Mayor, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Raco, Katayama, Texeira -5 Noes: None -0 Absent: Kimura -1 Not Voting: Vacant -1 Commission recessed at 10:11 a.m. Meeting called back to order at 10:30 p.m. Executive Session: Pursuant to Hawaii Revised Statutes Section 92-4 and 92-5(a)(4) and Kauai County Charter Section 3.07(E), the Office of the County Attorney requests an executive session with the Planning Commission to requuest authority for a possible settlement proposal in the ease of Coconut Beach Development LLC vs. Bryan Baptise, et. al., CV08- 00036SOM KSC_(United States District Court for the District of Hawaii.) This briefing and involves the consideration of the powers duties, prvile eg s, immunities and/or liabilities of the County as they relate to this agenda item. Executive Session: Pursuant to Hawaii Revised Statues Section 92-4 and 92-5 a 4 and Kauai County Charter Section 3.07(E), the Office of the County Attorxey requests an executive session with the Planning Commission to discuss matters pertaining to Hawaii Revised Statutes Section 514B and the provisions of Ordiz"lance No. 904. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Planning Commission and the County as they relate to this agenda item. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to go into executive session, motion carried unanimously by voice vote. Commission went into executive session at 10:40 a.m. Meeting called back to order at 11:50 a.m. Letter (10/29/11) from Philip Ross, Coco Palms Ventures, LLC, to Planning Director Michael Dahilia transmitting 20,11 Status Report on the progress and status of the project.and Planning Commission Minutes January 10,2012 12 compliance with all conditions of approval for Special Management Area Use Permit SM&D- 2005-1,Project Development Use Permit PDU-2005-4 Use Permit U-2005-6 Variance Permit V-2005-1 and Class IV honing Permit Z-1V-2005-5.Tax MaKev 4-1-3:p 45, 11, 17 and 4-1- 5:14 & 17, Wailua,Kauai. Staff Report pertaining to this matter. Mr. Dahili : Good afternoon Commissioners we will start off and then as Mr. Laureta comes in we will have him join in but we have received the annual status report as required by the terms and conditions of the Special Permit. Mike if you want to catch up on A.3.a on the Coco Palms staff report. Staff Planner Mike Laureta: You want me to take it from the top? Mr..agililip- Yes. Staff. Description, as approved the Coco Palms Resort reconstruction project includes 200 multi-fatnily dwelling units and 48 hotel units of which none will include lockouts. The hotel units are situated mauka of the Lagoons ponds in one and two-story bungalow structures; retail shops and space, restaurants,property offices, assembly rooms and 689 off-street parking of which 10 public parking stalls on the main hotel side will be designated for use by the public including a parking structure,redevelopment of the Sea Shell Restaurant and tennis center. As per the performance conditions of approval a pedestrian bridge over Kuhi`6 Highway that would not exceed 30 feet in height,roadway improvements to Haleilio and Apana Road including improving the pavement width of Apana Road to accommodate two-way traffic and the installation of curbs, gutters, and sidewalks along Apana and Haleilio Road. Driveway, roadway and associated improvements including the relocating of the main driveway entrance on Kuamoo Road several hundred feet mauka. Discussion,to ease review by the Commission the department has placed its comments in the form of a matrix addressing the Planning Commission's 31 conditions of approval: This matrix is attached to this staff report as exhibit 2. The matrix systematically addresses the conditions of approval.concerning whether each has been met,has not been met, is still pending, or is no longer applicable. Additional comments are also provided for each individual condition when further explanation is necessdry. The other exhibits listed below have been attached to this report for the reference of the Commission. The department has received numerous complaints concerning the derelict nature of the site structures and the Might it poses on the community surroundings. As further detailed in the matrix the current permit conditions do not provide any mechanism for this department at this time to insist on site demolition and remediation. We understand the negative image the site carries especially at such gateway point for the Wailua and Kapa`a community. However it is the department's evaluation-that the developer does not sit in breach of any conditions at this time. Upon review the department believes the status report submitted by the developer is accurate and complete and warrants acceptance by this Commission. Attached are 10 exhibits and that concludes staff's report. Chair: Do we need to go over any of the exhibits? Mr. Dahiis: Maybe, Mike, what we can do is walk the Commission through exhibit 2, the matrix. Staff. So if everybody can flip to dxhibit 2 and turn your booklet sideways,the layout of this matrix provides basically the general category on the left, coconut grove,parking, lot coverage. The next column would be condition number and the next 3 columns would be status, met,ndt met, not applicable, and then department comments. So depending on your interests you can Either look on the left side category which will show lot coverage,parking, coconut grove, development and design guidelines,pedestrian bridge, setb4cks,prohibition of lockouts, Sea Shell Restaurant, shoreline set back fees, agreement with Avery Youn, DLNR SHPD, condition No. 13, Public Works, condition No 14, DOT Highways, 15,performance is condition 16. Then agency requirements,lighting, catch all, annual status report which is condition No. 22 which generates this'report, DOT emergency ev4cuatioxi plan,removal of sales office, Planning Commission Minutes January 10,2012 13 recordation. If sold.the agreement of sale comes to the Planning Commission which is 27, use of Kauai contractors is 28,LEEDS requirement is condition 29,coconut grove is 30, community liaison is 31. The comments, if the x is in the not met that means it will be complied with but they are not at the proper step to meet that condition. The comments would pretty much clarify that. I am open to questions. Chair: As indicated by Mr. Laureta does the Commission have any questions for hire? Mr. Kimura: Yes I do. Over here, condition No. 13 and it says it has been met, "The applicant shall develop a plan for cleaning and maintaining the fish pond." Has that really been met? Staff: If you would like the public;to answer I can let theirs do it. Mr. Kimura: No, I am asking you. Staff: Condition 13... Mr. Kimura: Condition 13 (g). Staff. Yes. Mr. Kimura: Has it been met? Has someone been out there to check on it? Staff: In this sense this would be not met because they are not in the position to start doing this quite yet because it is not open to the public. Mr. Kimura: But isn't that one of the recommendation's s for the extension? Staff. No it was not, cleaning and maintenance of the coconut grove was the first one... Mr. Kimura: So it should have been"not met". Staff. Well it's not met and then the comments as I said but they are not in the position to have that done yet. Mr. Dahilijz: Let me clarify it this way. Whether they are actually executing the plan or whether a plan has been adopted, it should be viewed as two separate measures here, and based on what is commented in the comments section that SHPD has the plans. Ultimately whether or not the historic preservation plan is executed and done in an appropriate manner becomes the jurisdiction of the State Historic Preservation Division. Mr. Kimura: So it has been accepted by... Mr. Dahilig: Yes, SHPD accepted the report at the April 22,,2009 meeting and in terms of them actually approving the preservation plan that becomes their Jurisdiction not the County's jurisdiction at that point. And so to the affect that the plan is being implemented, it is correct in saying no, the plan is not being implemented but is there a plan, yes and that is what the condition requires. Mr. Kimura: It says here, "shall be resolved prior to any ground...", okay, my bad. Mr. Raco: What about(g)? Mr. Dahilig: "Applicant shall develop a plan for cleaning and maintenance of the fish pond on the project site and submit to SHPD for review and approval. These requirements shall be resolved prior to any ground disturbing activity or construction on the project site." So essentially they have fret it in the sense thAt they have developed the plan. Whether SHPD is concurrence with it or whether they are executing the plan, because there has been no construction on the site at this point elements of the plan have not been implemented at this point. Planning Commission Minutes January 10,2012 14 Chair: Does anyone else have any questions? Mr. Raco: I have a question for our attorney if he can shed some light on this action on condition No. 19 where it says"or revoke the subject permits through the proper procedures should the applicant fail to comply with the conditions of approval". With the conditions of approval that have not been me so far What are our legalities? There is no "met". Mr. Jun. There are certain element's in terms of how you look at something not being met. I think what everyone is concerned with is the project time table which they had 5 years and then they got the 3 year extension to January 25, 2013. If the project does not get completed by 2.013,January 25, 2013, then they would be in non-compliance and could be subject to revocation so it all depends on the specific condition and the language that is in there. And not met in terms of a time table, if there is no time table to not meet it bui can eventually be met then it could be subject to revocation, if not,they still have time to meet the conditions. Mr. Raco: Is that for...as a Commissioner can I pick one condition that I disagree That it has been met, he just hasn't met that I can use those grounds to revoke? Mr. Jung: Sure, as a Commissioner you could petition an order to show cause to have the body take a look at why you think a condition hasn't been met. Chair: Anybody else? Since there are no further questions the Director has informed nab that the applicant is not present today so with that in mind I am going to being calling on the public. Mr. Raco: What is the reason for the 4pplicant not being...? Mr. Dahilig: I got a call from their attorney yesterday informing... Mr. Raco: Who is their attorney? Mr: Dahilz_: T#eir attorney is Douglas Ing from Watanabe Ing, in Honolulu, and I was informed that the applicant nor their agent would b, at the meeting today. Mr. Raco: They won't be able to attend or something came up? Mr. Dahili�: I can't read into what...1 was just informed that they wouldn't be here with no explanation. Mr. Kimura: That is a little Inconsiderate on their part knowing that Coco Palms has always been an issue for the island residents of Kauai and for them not to even show up to this meeting is kind of disrespectful to this board, I feel, or the people of Kauai, anyway, my personal opinion. Chair: Anyone from the public wishing to... Mr. Dahill,: Mr. Chair, I have 7 people on this list for testimony as well as we received written testimony from the Wailua/Kapa`a Neighborhood Association signed by Rain Regush. I will go ahead and call the names, first one up is Rich Hoeppner followed by Charles Pereira followed by Ken Kriner. Mr. Rich Hoeppner: Aloha,my name is Rich Hoeppner. I live on Nono Road just tap the hill from Coco Palms. Coco Palms Hotel is a disgrace to the island of Kauai. It has sat vacant now for over 10 years, it is a breeding ground for rats, the odors from the adjacent sewer station is a health hazard and the deterioration of the buildings must be addressed. These buildings should be raised and the property should be utilized for the island community. Nothing has been accomplished by the holders of this permit. Anything that has been done has been done mostly by volunteers to keep the property, the Aina, visually and culturally acceptable. They have failed to fulfill their obligations; the owners have failed to fulfill their obligations established by this Commission. It is a health hazard, a fire hazard, and a visual blight on the Wailua area. All Planning Commission Minutes January 10,2012 15 permits that have been issued should be revoked and this property should be handled by somebody else o hex thap the current permit holders,thank you. Mr. Dahilia: Charles Pereira followed by Ken Kriner followed by Cheryl Lovell— Obatake. Mr. Charles Pereia: For the record I am Charles Pereira. I worked at Coco Palms for 24 years. I did the grounds,the zoo,the tennis courts and at Christmas time I was Santa Claus. It is kind of sad to see that nothing has been done over there. Larry Rivera still has his weddings and I have helped him cut,the grass just in the areas where they have the weddings taking place. To make is short, I sure would like to see someday something happen there, aloha. Mr. Dahilia: Ken Kriner followed by Cheryl Lovell-Obatake followed by Maine Dunbar, Ken Kriner, Cheryl Lovell-Obatake, followed by Elaine Dunbar followed by Ken Taylor. Ms. Cheryl Lovell-Obatake: Thank you, for the record again my name is Cheryl Lovell- Obatake. I just want to also indicate that I am employed by the Cultural Survey of Hawaii as a cultural monitor for the Department of Transportation, Kuhi`6 Highway and Kuamoo Road. Also I have testified.on this project several times several years ago. This project,because it is Federally funded,not this project but DOT is Federally funded for the Kuhi`o Highway and Kuamoo Road I have been involved with section 106 on the Advisory Council on Historic Preservation. I would like to indicate as my monitoring job observing all of the traffic and archeologists there are several issues,the issues of the fish pond as mentioned by Mx. Raco or somebody here. Regarding that fish pond it has a State number, SHPD has recorded it as State historical. There is an auwai that discharges into Kaumuali`i Park. The transportation will be encroaching 11 feet into that park and adding on the culvert to discharge the lagoon water. Now if you recall in the permits, I knout Mike would have,the NPDS permit which is the Department of Health discharging water into Wailua using that auwdi system. I am concerned about a lot of issues there were already mentioned by a few speakers and looking at the application,once upon a time when the Office of Hawaiian Affairs, Boots Regan, was running that office and our concerns at that time was the asbestos of that building. There are 80 burials that are in front of the arcade which is historical. And then again, too,with the SHPD office they need to be a little bit more capitulating with the owner and that the owner should be capitulating with the Department of Transportation how the roadways are going to go. It is going to enter through Kuamoo and one way out to Haleilio. I have no idea whether the applicant is communicating with the Department of Transportation regarding the entrance and exit of when the hotel will function and that is important so I would recomrhend that the Planning Commission also get iii contact with the Advisory Council on Historic Preservation which is on a Federal level in monitoring all the compliance,thank you for your time. I would also like to add as my monitoring of the Ki hi`o Highway and Kuamoo Road there are matters that I think that this Commission should also,not on the ACHP but the National Environmeptal Protection Act or Agency because of the pohuted water,the water quality of that pond and*here it is going to be discharged, it is going to be discharged into Wailua River where the KIF Canoe races are for schools. But I would like to submit more written rather than taking up anybody else's time and minutes if I may, later. Chair: Yes. t Ms. Lovell-Obatake: Thank you. �/Ir. Dahilig: The department will make it part of the record on this. Elaine Dunbar followed by Ken Taylor followed by Ray Harris. Ms. Elaine Dunbar: Elaine Dunbax for the record. The County's letter to Mr. Koss regarding construction schedule to satisfactorily detail completion of work, Mr. Ross's response was...oh,to Mr. Ross,was"Please reply within 10 days of receipt of this letter. If you fail to reply within such time this matter will be referred to the office of the County Attorney". I was just wondering if the letter was referred to the Office otthe County Attorney when he failed to respond. Planning Commission Minutes January 10,2012 16 Mr. Junk: Actually I did see a response that got forwarded,albeit it was late,that did come up with somewhat of a construction time table so we are evaluating that right now. Ms. Dunbar: Well you do know the construction time table issue is mute okay because the construction time table was based on the demolition time table and now that is out of the picture so he cannot meet a construction time table. I can't figure out what is behind the scenes with all this preferential treatment and allowance for this situation. Ross's reply was I am sorry for the tardy reply. Mind you this is a letter that said reply within 10 days. Usually when you get a letter like that you make sure you get your ass in gear and reply in 10 days,right` His reply was due on November 27,2010, his reply was sent December 10, 2010,that is 14 days. It is pretty clear if you read the section 115 of the ordinance for unsafe buildings, Coco Palms meets all of the criteria, every last bit of it. I don't understand the staff report that can't find any breech of conditions. It is just ongoing. They guy is playing the County. The fish ponds from what I heard have been damaged,they are in disrepair cvorse than before and although the plan for the fish pond is not being implemented the delinquent delay in everything surrounding this building is what is causing the plan not to be implemented. All these excuses about the State has to do this for the fish ponds,the State is required to do that and blah, blah., blah,if the building was going according to tine frame and plah the State would come in and take care of that fish pond. So you can look at it as an indirect or direct cause, whatever it is it is the developer's fault,the fish pond. You know I really have a hard time coming up here anymore because of Mr. Jung's smirking at everything the testifiers say. You think this is funny? Chair: Excuse me this is just no appreciated. I would call on the public to please refrain from that kind of repartee with the Comznission and the attorneys,thank you very much. Mr. Dahilig: Mr. Chair, I would just like the Commission's indulgence before I call the next one to clarify the testimony. This department is a zoning and permitting department. Issues concerning building safety, fire hazards, and health hazards are addressed by agencies like the State Department of Health, the Fire Department, and the Department of Public Works Building Division. Our requirement here is relating to zoning and permitting and does not directly bear upon immediate health and safety issues. That is not our jurisdiction issue. I still have Mr. Ken Taylor and Ray Harris on the agenda. Mr. Ken Taylor: Chiit and members of the Commission my name is:Ken Taylor. First I would like to wish each of a Happy 1�ew Year and also remind you that some of bld folks have hearing problems and it would really be helpful in a public meeting for each of you to remember to speak up,thank you. My conceirns are with the staff report that there are no violations. 1` really have problems that go back to the November 17, 2010 letter that was sent from the County to the developer and his reply December 10`h with his submitting a construction schedule. The developers were grante� a 3 year permit extensions by this Commission that expires January 25, 2013 in order to tear down the present buildings and complete new construction. In a letter to the County dated December 10,2010 the developer submitted a construction schedule imitating that demolition would commence April, 2011 with the project completion date, 2012. No work has begun and it seems unlikely they will be able to finish the project in just one year. Meanwhile our cherished landmark Coco Palms is an eyesore which continues to deteriorate and become more dangerous. You Commissioners should require a new timeline indicating when the demolition will start and finish. I say that because we have obviously had one timeline set and it hasn't been lived up to and just that fact is really hard to understand how you could come forward with 1 clean bill of health on this project and let it move on. It doesn't make any sehse and I am disturbed. But anyway, if you are not going to pay attention to the timeline that has already failed it is time to set a new timeline and hold their feet to the fire to get it completed. A condition also should be not only the timelifle to be adhered to but the County should move forward with condemnation if the timeline isn't held to. We can't just keep rolling these things over and over it has been 20 years this facility has sat there and just slowly deteriorated. Planning Commission Minutes January 10,2012 17 There have been all kinds of community response to the conditions and the eyesore that is down there,it is not becoming to the community or the island tourist irxdustry to have this kind of eyesore. And as far as this project moeting all the conditions I believe that condition 19,the Planning Commission reserves the authority to approve additional conditions and condition 20 states additional conditions may be imposed by government agencies prior to or during the construction and use. So I think you have the ability to put some strong conditions in place that hold their feet to the fire to get this thing torn down and rebuilt or condemn the whole project. When I read the letter of November 17th and the replies it is just beyond me, it is mind boggling why or how staff could come up with that all the conditions have been met. There is no way in the world that you can sit here honestly and accept that kind of a statement. And it is time that you folks did you job and move forward, let's move into this New Year on a positive note and do what is right for the community,thank you. Chair: Thank you Mr. Taylor. I would just like to add to what you just stated, I believe we try to do our job quite diligently and I just wanted to state for the record that I personally didn't appreciate that comment. Mr. Dahil.ia: Mr. Harris. Mr. Ray Harris:'Hello,I am Ray Harris. I live in Kapa`a and I am a member of tho Wailua/Kapa`a Neighborhood Association and I was asked to read this letter on behalf of our chairperson, each of you have a copy. I will just whip through this; I hope you don't fall'asleep. "Dear Planning Commission Chair, in your deliberation of this annual report the Wailua/Kapa`a Neighborhood Association hopes that you will secure the additional 'information since the report we believe lacks sufficient detail. We urge you to please seek the answers to the following: A) Was a copy of-the State DLNR Land Agent's 2/11 report for the historic coconut grove which is a State leased land provided to you? B)What is mean by a continuing mowing plan for the coconut grove area? Does this mean mowing once or twice a year? If so, it should be increased. C)Do you have the Public Works or DLNR report that evaluates whether the new flood gates are effectively managing the drainage problem, condition 1. D) Is there standing water in the below ground parking structure? E) Has the Planning Department conferred with Public Works regarding building code section 115 related to unsafe buildings? F) Is condemnation a viable way to address the derelict building along the highway? G) Is revoking a Project Development Use permit or SMA permit precedent setting for the County? We encourage the Commissioners to put these findings into record for everyone's benefit and to consider imposing permit conditions as allowed by condition 20 which states, "Additional conditions may be imposed by government agencies prior to or during construction and use." We ask the Commission to secure some minimum performance requirements from the developer. Demolition and construction deadlines, condition 16 concerns the construction deadlines. Please read the Novembei 17,2010 letter from Mr. Costa to Mr. Ross, it states, `Be advised that if the construction schedule does not satisfactorily detail completion of the work by January 20,20,13 the Planning Department may institute an order to show cause as to why the above reference points should be revolted. Mr. Ross's reply states, "Included schedule reflects the start date in April,2011 and completing in December, 20-12." However the fact is that every target benchmark has been missed, demolition did not begin in April,2011, and even though the demolition plans were ready for pick up in 2007,2 years before the Commission granted the 3 year extension. With no work commencing in 2011 Planning Commissioners have the opportunity to direct staff to institute an order to show cause as to Why the above reference4 permits should be revoked as Mr. Costa recommended. Failure to perform, challenging economic times is a set back for most business but is not a sufficient reason to (inaudible). V-ven during the penacle of the real estate boom in 2006 this property had very few condo sales. The likelihood of finding investors at this late date is slim to noise. According to the Planning Department during the 2008 meetings it is inappropriate to maintain the validity of a permit when there is no financi'hg or when the c!evelopment plan and its components are changing. Project Development changes,the scaled back cost saving plan that Mr. Ross has discussed in past testimony but has yet to submit or change the scope of the building by utilizing existing concrete structures and using existing footprint. These proposed changes are substantial and constitute a significant difference from the knock down/rebuild concept that received the original permit. Planning Commission Minutes January 10,2012 18 Recommendation, Commissioners can provide the most benefit to the community by instituting an order to show cause for revocation by removing the entitlements to build on this property. The purchase price would drop and a better suited,more viable community(inaudible) buyer could purchase Coco Palms. See attached article from Hawaiian Magazine,March,2010, page 2. Our board urges the Commission to secure some minimum performance requirements from the developer by imposing additional conditions for immediate demolition and other remediation. Otherwise, with the likelihood of no action until 2012 we look forward to permits expiring July 25, 2013,thank you. Chair: Thank you very much. Mr. Dahilig: Mr. Chair that is all that signed up for testimony. Chair: We have one more Ms. Liberta Albao: My name is Liberta Hasia Albao, I was a former employee of Coco Palms until Hurricane Iniki and 6 months after the hurricane we were all terminated, I'would like to say I support this report, Coco Palms status report. And I also chartered Queen Debofah Kapule Hawaiian Civic Club, I am the President. I am now the Vice President and I attended all of the meetings from last year to this December regarding the Kuhi`6 Highway improvement process,Kuamoo Road and we have come a long way. There is a lot of money involved in the improvements in that area and I thank the highway department and now I don't have to sit in traffic. It is remarkable the improvement of the flow of the traffic. I am here today to express my manao that when we met in December we had to give our mitigation process ideas and the deadline was Jangary 6h. And I wrote to Darryl Youilg of the Transportation Department,he is the person that in the hearings he gets everything together and sends us an overview report. I am very thankful today that Mauna kea Tra,k was at the meeting because I asked the question what is the status of Coco Palms,he brought that report from the Planning Commission 4nd now we know what is going on. A lot of times there is so much paperwork that it is a lot to learn. I want to say right here that 3 years ago I had a potential buyer and we thought it was going to be a win/win situation in purchasing Coco Palms but there were several boundaries that they bouldn't agree with so that was put off the table. But I was told in the future it is a viable project. I also want to state that people say that when they demolish I think the report was 3 and a half million dollars. In my recommendation I asked that ally(inaudible)be considered to acquire some of the good building materials and it be donated to the Native Hawaiian organizations, Charter schools, Immersion schools that are in need of these building materials. I think that we can work together but we need more timoa and I thank you for listening to me. Chair: Anyone else that is not on the list? Ms. Marge Freeman: Good morning, Marge Freeman. I wanted to just add one thing and that is you are goifig to hear a lot about how much money the developer has already spent. But the County and this;Commission are not resp�nsibte for his financing,that has nothing to do with you and should not be taken into account. You are responsible for an eyesore and for possible danger there. You are not the people to talk to about danger. I suggest that you push ahead and push the people who are responsible for it. The minimum you should do besides that is to make a clear timeline starting with this date,what date they must start demolition,what date they must finish demolition,what date they must start building,what date they must finish building. And if anywhere along the way those are not adhered to should strongly consider some kind of legal action, condemnation, whatever legal action there is,that is all. Chair: Thank you very much for that information, anyone else that we haven't seen? Seeing none,I just wanted to ask Mike if you had any further comments based on what your just heard and based on the letter that we received from-the Wailua/Kapa`a Neighborhood Association. Planning Commission Minutes January 10,2012 19 Staff: No additional comments. I think exhibit list documents the department's tracking of these permits over time. Chair: Thank you,Mr.Blake? Mr. Blake: So when 2013 comes and goes were any strictures placed upon the applicant with regard to coming iz and asking for another extension? Mr. Dahilia: This becomes a catch 22 Commissioner. On one hand and again as our report states we understand the issues concerning the blight that the facility in its current state is posing upon the surrounding community. However if the permit is revoked totally upon expiration and no extension is granted then the people financially responsible for the project would have no financial incentive to continue to put money into the project. So it ptits us in a catch 22,.whether you want to extend the project and allow them more time and put stricter conditions on it allowing for I guess for demolition. Or in reverse you could revoke it based on the expiration of the condition in 2013 but upon which time the developer most likely will not be around to put mohey into the project so it becomes a catch 22 type of scenario. I can tell you from a philosophical standpoint, ai least inter-de&rtmentally, our department does not condone land banking. There are other permits that are coming and approvals that are coming through the pipeline that will come before this Commission'relating to large scale other developments on the island that condition terms are coming up and the financial exigency issues tend,to come up but we do not have that as a bearing on how we evaluate whether a permit should be extended or not and I want to make that very clear to the Coinmission. And so when 2013 happens it really depends first and foremost whether the applicant is going to ask for an extension. If the applicant comes for an extension then we need to evaluate how long they are going to have the extension for,what conditions are they willing to add to the permit conditions and whether it is something that is suitable given the current nature of the facility. I don't want to beat on this phrase but it is one of these"we will cross that bridge"when that request does come.forward. We will almost anticipate that the developer will ask for a continued extension"of this project based on financial circumstances. Mr. Blake: We could go back however many years and it was the same thing. We say that the developer would have no incentive to keep putting money into the project if there is no permit but if the project is determined to be a danger to the public and the public meaning the State or the County has to go about rectifying the situation then that those costs and expenses are attached to the property which means the value of the property goes down,right? Mr. Dahilig_ Right and to trigger those typed of temediation efforts where you have the County or the State as a protector of health and safety and the public welfare to exercise their powers to come in and demolish the structures on the,taxpayer's dime,thai could be an option. But that is not within the providence or jurisdiction of this particular department or Commission. That again has to relate to another agency that has the jurisdiction to come in for immediate health, safety, and welfare concerns and initiate that type of demolition based on their finding. Mr. Blake: Be that as it may just to keep bemoaning the fact that the economy isn't�vhgt it was when they bought it and therefore we should just extend this over and over and over again, it doesn't make sense anymore. Mr. Dahilia: It is a difficult situation, it is one thing if you are talking about a raw piece of land that has nothing on it and we are talking about it from the standpoint of land banking. That is to me a more clear cut case with respect to hailing this department recommend or not recommend extensions because it doesn't pose a health and safety circumstance as well as just from an eyesore issue. But we are dealing with a situation where there are existing structures on the property, it is going to cost millions of dollars to rectify and remediate including asbestos removal from what I understand and so somebody has to pocket that cost. And so that is where again that catch 22 issue comes in if it is solely a departmental and Commission issue alone but I want to reiterate that there are other avenues beyond the permit conditions that we can look at as a means of compelling the Iandowner to take these down in a timely manner. Chair: And what would that be? Planning Commission Minutes January 10,2012 20 Mr. Dahilia: That would be, again we do not have aLlthority by law to immediately go in and say take these things down now because of health and safety issues it falls upon the departments like the Department of Health,Fire Department,Department of Public Works;those are immediate health and safety agencies. We ale a planning and zoning and permitting agency. Mr. Kimura: Comment, so basically there are two ways that we can get the ball rolling in this situation,one would be the Planring Department may institute an order to show cause,that would be one way to revoke this permit,right,because they haven't eomplied to demolition and. finishing this project by 2013, January. I don't think it is possible that he can finish it. And the second:one would be the State, "Should the State lease for the coconut grove be cancelled, termid tion or assignment to the Planning Commission shall reconsider the subject permits",that would be the other way. Mr. Jun&: Yes,either way if there is a petition to revoke the subject permits it would be premised on a violation of one of those 31 condition. So if the lease gets terminated then it could be potentially subject to revocation or if the logical timetable that they will not be able to construct by January 25, 2013 could arguably be grounds to revoke. But that is up to the Commission to decide. Mr. Kimura: He has one year to commence construction prior to all approval of permits which he hasn't applied for hasn't picked up those permits so basically that is out the window. Mr. 11a Right but I believe that was condition 16 which was amended, right Mike, to allow for full completion of the project by January 25, 2013. Mr. Kimura: But he had to commence construction within a year of approval of all permits but because he didn't have all his permits he doesn't have to start construction. Mr.11u1& But full completion though is still a significant deadline. Mr. Kimura: Yet start the project within a year so January 1P of this month would be his deadline basically to start this project within a year because all he has is one year left from January, 2013. So basically the end of this month should I say though,right? Mr. Jung. It is certainly an argument to make. The process that occurs is that if there is a revocation of a permit then an order to show cause would come before this body and the body would review the grounds for what could be a point of revocation on a violation of condition. And then if the Commission finds that there is a salient point to create a contested case and it goes into a full hearing in which then you guys would make a recommendation as to revoke, amend, or modify the permit. So the first step is the petition,the second step is the order to show cause,if there is grounds then the next step is the contested case. At that point you would have the applicant come into a full mini trial type situation looking at all the various aspects of each of the conditions. So it is hard to speculate as of right now but should there be a petition then the order to show cause has to be dealt with. Mr. Blake: If it gets a buyer they are going to come in for extensions oz he is going to come in for an extension so we are faced with an extension,I Mean we know we are going to be faced with an extension request. So what do we do? Mr Dahilia: And that is...I think when that juncture happens in terms of what they ate requesting in that extension request our depattment needs to take a look at it,evaluate and weigh before we make a recommendation to the Commission,the benefits of having the extension gicanted with additional conditions or the benefit of not recommending that the condition be amended to allow the extension. So it is hard to anticipate at this point what exactly thev are going to .ask for and what they are willing to do but it becomes part of that discussion process that once they decide to initiate on their end that we will evaluate it and provide,-the best recommendation we can. Mr. Blake: Say the same applicant comes in for aft extension, %t is not like he is a virgin, I mean we can look 4t what he has done in the past as to the credibility of that Tequest. Planning Commission Minutes January 10,2012 21 Mr. Dahilig: That does bear on our evaluations whether these conditions and it is not only in this case but there are many other permits out there and there are many other permits out there that because of the financial state of the economy are not being followed through with. So just as a heads up you will systematically start to see these things being addressed when as these extensions come up. And like I mentioned previously our philosophy in house is that we do not use that as a means of trying to determine whether an extension is warranted or not and we do not look very highly upon situations where there is land banking through a permit. And if this becomes a land banking type situation then that is something that we will take into account. That is our processing essentially. Staff: Commissioner Blake,we have already crossed that bridge before, once,in 20Q9 when they came mi i and asked for the same thing you are.talking about, a time extension. And when we brought it to the Commission the public came in with a laundry list of concerns much as they are doing now. What we did was we established performance conditions that they had to satisfy, one was clean the grove,sebond was you have to dedicate that pond,there were 3. But we gave them 6 months to db it and if you did it within the 6 months you got 3 years which is what gets them to January, 2013. So the hypothetical what if,'if somebody is going to come in for another time extension for whatever reason by anybody we have already sent one consideration that can be put on the table. If you want an extension you perform. How do you perform? What does the public really want? Itemize it,prioritize it. Do you want a demolition bond,how much,for what? There is a lot of stuff you can play in at that point but because we already went down that road and said you want a time extension here is what you are going to do and you have x amount of months to do it. That is one possibility. But to hear your question, I just wanted to remind you we have done it. But another round is what if s,another round of public concern, agency concern, department concern,that is all going to be thrown into the mix. Mr. Blake: That is all what? Staff: All going to be thrown into the mix to consider if someone is going to ask for a time extension on assignment of the permits, there is no telling what is going to happen. Mr. Blake: So the 3 items have been performed? Staff. Yes. That was done within the time period that the Commission.approved. I think we gave them 6 months . Mr. Blake: And there are no drop dead dates coming up,right,between now and 2013. Staff: No,there are none. Chair: Mike, you mentioned that extension was granted for 3 years in 2009 based on the 3 conditions,right? Staff: Yes, I have them. Chair: But I mean other factors have come into play since then other than the 3 conditions and one is the demolition plan that they had discussed wish us in which we sat down with them and we discussed x amount of months it would take for them to demolish the property and then they were going to begin construction after demolition. And we kind of like worked out the timefranie and they were supposed to have started the demolition... Staff: The Commission had that discussion and it was pretty lengthy,it was reverse engineering,let's work back*ards from the time the deadline,the end date,hoW long is it going to take to get the permits,how long is it going to tak6 to process. And this November, 2010 letter I guess is a result of it because it is a little strange to me to see that letter come in so far after the Planning Commission had acted and after the time parameters had already been thoroughly discussed. So it is there,it is on the record, it is for the Commissions consideration. But the 3 items that got them the 3 years was cleaning and maintenance of the coconut grove and Planning Commission Minutes January 10,2012 21 drainage ditch, finalization of an agreement with the Department of Transportation Highways Division regarding highway right-of-way improvements and the undergrounding of the utilities that was a big one. And then the resolution of the issues with DLNR Historic Preservation including the dedication of the fish ponds which was done but it was never finalized by DLNR. So the documentation was done, it was accepted, it was jusi never completed because DLNR has issues, internal issues. s Chair: If we could just take one at a time. Talking about the mowing that they slid they would do but they haven't done it on a consistent basis,They would do it and then stop doing it. And they know that they were coming before the Commission now se the property is cleaned. In your mind's eye would ybu say that they conformed to that condition to mow? To me it is like it should have been consistent and kept the yard down. Staff: The first thing I have tq ret-hind the Commission and I reminded the Commission of this in 09,that coconut grove lease is not part of this SMA permit. Chair: True, I remember that. Staff. So us forcing them to'do something that wasn't part of the permit and them agreeing,that was because of the public pressure. So they did it again in November of last year and it is okay now but are they going to do it the way Coco Palms used to do it? We can't condition an SMA permit on a property that was never part of the permit so that is where I am going with that one. Chair: Going to the fish pond area was it required that they clean the trap? Staff: It was dedicating the fish pond to DLNR and they got the number assigned, it is a historical site it is just their process never completed its self They submitted all the paperwork, all the pictures,executed all the agreements;it just never got finalized on the DLNR end. Apd I think Nancy can answer that if she is still here. Ms.Nancy McMahon: Good afternoon Commissioners,my name is Nancy McMahon and I was the former State Archeologist and the Kauai Archeologist. In 2009 I was already appointed as the State Archeologist and the condition that came to us when.Avery was the architect for the project was to put the fish ponds on the State register. The process that that has to go through is the Mayor,the landowner has to agree to it,they put a nomination through, KHPRC reviews it and then it gets sent up to the Hawaii Review Board. Once the Hawaii Review Board sees it They agree to put it onto the State register. They also recommended a National Register but process kind of stops because the parks service and the keeper of the register in Washington DC would then have to agree to that. And that was the paft that went on and it was not put on the National Register because that is out of the State of Hawai`i's control. The rest of it was they also had to put a preservation plan in for the fish pond. They have archeological monitoring plan that was approved by me. And then the preservation plan had halt, it was not approved by DLNR because the architectural historians in the office when I was there had concerns about getting some documentation actually about the building it's self, some of the Elvis Presley issues, some of the more current historic cultural issues not necessarily prehistoric. And so most of that preservation plan was written for the fish pond and the restoration of the fish pond, it had nothing to do with the building in fact. So that preservation plan has never been completed. br actually it was sent in, informal discussions took place with the architectural historian that was hired by DLNR to meet with the consultants and discuss their issues and there has never been any other transmission at that point in time. So that is why there has not been final approval on the preservation plan, if that helps you out. Chair: Any questions for Nancy,thank,you, any other questions, if not... Mr. Raco: Motion to defer SMA(U)-2005-1,P.D.U-2005-4,Use Permit U-2005-6, Variance Permit V-2005-1, Class IV Zoning Permit Z-IV-2005-5,TMK 4-1-34, 5, 11, 17 and 4- 1-5:14, 17. Mr. Kimura: Second. Planning Commission Minutes January 10,20I2 23 Chair: Any discussion on the deferral? Mr. Blake: Why are we deferring? Mr. Raco; I would have questions for thy, applicant's representative or whoever the applicant is. Chair: For me it is because we received some information recently,today as a matter of fact, that I would like to take a look at myself. A whole bunch of stuff came in that I would like to review further, anybody else? Mr: DahiliZ: Mr. Chair if we could just clarify a deferral to the next meeting or a deferral until we can arrange? Mr. Raco: No specific date. Chair: Are we up against a timeframe? Mr. Dahili;r: No, this is at the Commission's request and the Commission's consideration. Chair: Fine, roll call please. Mr. Dahilig: The motiofl on the floor is to defer the matter before the Commission relating to the status report of Coco Palms. On motion made by Caven Raco and seconded by Jan Kimura, to defer action, motion carried b;v the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Raco, Katayama, Texeira -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Chair: Nominations are no in order for the position of Planning Commission Chair, nominations need not be seconded, are there any nominations? Mr. Raco: I would like to nominate Jan Kimura as Chair for the Planning Commission. Chair: Any other nominations? Mr. Blake: I join in that nomination. Chair: If not may I have a motion to close the nominations. Mr. Raco: Motion to close nominations. Ms. Matsumoto: Second. Chair: All those in favor say aye, those opposed, motion carried. On motion made by Caven Raco and seconded by Camilla Matsumoto, to close nominations for Planning Commission Chair, motion tarried unanimously by voice vote. Chair: Are there any requests for a secret ballot? Seeing none could we have roll call please? On motion made by Caven Raco and seconded by Hartwell Blake, to nominate Jan Kimura as Planning Commission Chair, moti©n carried unanimously by the following roll call vote: Planning Commission Minutes January 10,2012 24 Ayes: Matsumoto, Blake, Kimura, Raco, Katayama, Texeira -6 Noes: None -0 Absent: None -0 Note Voting: Vacant -1 Chair Jan Kimura: Nominations are now in order for the position of Planning Commission Vice Chair. Mr. Raco: I nominate Hartwell Blake. Are there any further nominations? Hartwell, you are being nominated as Vice Chair for the Planning Commission. Chair: Are there any other nominations for Vice Chair, seeing none may I have a motion to close nominations. Mr. Raco: Motion to close nominations. Ms. Matsumoto: Second. Chair: So moved, all in favor say aye, all opposed, motion carried. On motion made by Caven.Raco and seconded by CaWillA Maisumbto,, to close dominations for Planning Commission Vice Chair, motion carried unanimously by voice vote. Chair: The name of the Commissioners who have been nominated to fill the position 6f Planning Vice Chair would be Hartwell Blake. Are there any requests for a secret ballot vote, seeing none. Mr. Dahilig: The nomination on the floor is to approve Commissioner Blake as Vice Chair for the Planning Commission. On motion made by Caven Raco to nominate Hartwell Blake as Planning Commission Vice Chair, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Blake, Kimura, Raco, Katayama, Texeira -6 Noes: None -0 Absent: None -0 Not Voting: Vacant -1 Chair: I appoint Mr. Herman;Texeira as Chair for the Subdivision Committee and Commissioner Matsumoto as Vice Chair and Mr. Hartwell Blake as a member of the Subdivision Committee. Mr. Raco: I second that. Chair: So moved, all in favor say aye... Mr. Dahill : We don't need to vote. Chair: We will break for lunch. Commission recessed for lunch at 1:04 p.m. Jan Kimura was excused at 1:04 p.m. Meeting called back to order at 1:42 p.m. Special Permit SP-2012-6 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Kalihiwai Kauai approx. 500 ft. west of the Old Kizhi`o Hi hwa-y and `Anini Road Planning Commission Minutes January I0,2012 25 intersection, further identified as Tax Map Key 5-3-9:8 (Unit C), with a unit size of 2.967 acres of a 17.732 acre parcel=John Suppes dba Clarum Corp. rHearings Officer Special Meeting Public Hearing held 11/29/11.1 Supplemental No. 1 Director's R Rort pertaining to this matter. Staff Planner Mike Laufeta read.supplemental No. 1 to Director's Report(on file). Mr. Dahilig: Commission, I just want to highlight condition No. 24 as well, that is something that is now appearing as part of the standard form in our conditions relating to the establishment of agricultural easements. Mr. Katavama: What form would that easement be in? Mr. Dahilig: I think at this point what we would be looking at is right now we are dust asking for a reservation of the right because we are still trying to identify a host agency within the County that would be able to handle the assignment of Ag. easements as well as how we would impose an agricultural easement as part of an enforcement plan or if we would require it outright. There are still a number of details that need to be worked through Commissioner but we just wanted to reserve the right at this point to figure out how to best set up such a system. Mr. Katavama: Is there a baseline that is established as part of the Special Use Permit? Mr. Daher g: In terms of agricultural easements? This is something that is an.idea of first impression I would say. It is not something that we normally require in any of our permitting thus far. It is an idea that has come to mind and come to the forefront of discussion with respect to preservation of agricultural lands and has come up in many symposiums and conferences about this notion of ag. easements and so we want to leave that door open in case it may be a mechanism for us to try to preserve agricultural use. Staff: For further clarification this condition will be attached to only those units that are over an acre in size so the smaller ones won't have the area, the bigger ones, generally the one acre, that is where they will apply. Vice Chair Blake: Any questions of the Planner? Is the applicant here.? Mr. Steve Long: Good afternoon Chairman Blake and other honorable members of the Planning Commission, my name is Steve Long. I am a local architect and been practicing on Kauai for 20 years. I would like to thank you all for being here and for the opportunity to present these 3 TVR Special Use Permit applications to you for your final approval today for my friends, neighbors, and clients. This is my first time before you, initially in the beginning of this process I submitted and had accepted 17 nonconforming use permits. Over a third of those have decided not to proceed with the Special Use Permit because they did not adhere to the strict requirements of the law and the current ordinances or they did not choose to maximize the agriculture on their properties to the extent that I felt was necessary or required by the ordinances. I am pleased to be in front of you today, all of the applications that I am going to present to you today, 3 of there, satisfy all the legal County, State, and Federal requirements that have been put forty by yourselves. And most importantly they adhere to the spirit of the zoning laws of the Comprehensive Zoning Ordinance of Kauai and to various neighborhood considerations. Two of them have filed their schedule F IRS forms documenting their commercial agricultural activities and on all 3 of them virtually all the usable area as well as some of the land over the Pali and SMA is planted with legitimate agricultural resources that is either sold to or consumed by residents of Kauai. None of these 3 applications have ever received a complaint about the vacation rental guest's behavior. I have read the staff reports and support all of their recommendations. With regards to item 24 that was just recently outlined, the agricultural easement, I can assure you that professionally there will be no need to apply this because I will personally confirm ihat the area within these properties will be maximized with agriculture and the requested agricultural plan. Planning Commission Minutes January 10,2012 26 The first of the applications is John Suppes, he is a neighbor of mine. He purchase his CPR unit in 2000 and built a 5 bedroom, 5 bath family farm dwelling in 2002. Immediately upon completing the home he planted fruit trees which are now 10 years old and producing mature fruit and a variety of different fruits which is consumed by his family, by the farm workers, agricultural workers that take care of the property, as well as enjoyed by his occasional guests and neighbors including me. This property is located on Kalihiwai Road right at the Y if you take a left down to `Anini Beach. This is a considerably sloped property. The 2 acres in size does not really represent the limited usable agricultural area on the property. As noted in the Planning Department's supplemental report virtually all of the cleared area around the home is planted in mature fruit trees and all areas are occupied by permitted improvements. At the beginning of this CPR process I advised them to remove a couple of flowering bushes and eliminate 2 excess parking spots on the property which weze additionally planted in orchards. The remaining severely sloped terrain that has not been cleared around the house and planted an orchard has been left in a natural state to support existing wildlife corridors. Think you, do you have any questions? Chair: Any questions for the applicant's representative? Mr. Texeira: Has this unit been used as a residence at any time? Mr. Long: Yes, absolutely. Mr. Texeira: How long has it been used as a TVR? Mr. Long: It has been used as a TVR since 2006. The family spends as much time at the property as possible. Mr. Texeira: So that means it is not a TVR year around then? Mr. Long: Not at all. Their guest log which we have a copy of is limited in numbers. Mr. Texeira: So would you say that maybe one third of the year? Mr. Long: No, not at all. I would say 15% of the year, Chair: Any other questions? Ms. Matsumoto: I am looking at exhibit 5 in the packet and is this current information? It is dated... Mr. Lona: Exhibit 5 would be... Staff: Exhibit 5 would be the website advertising. Mr. Long: I know that there is not website advertising at this time because during the review process I had all of my clients remove their advertising from the web. So this is 9/27, so this is September so that would be 4 months ago. None of my clients have any web advertising at this time until they receive their final approval even'though they have been issued a contingent temporary operating permit. M r. Texeira: Mr. Blake, could I ask a few more questions? Your guest house... Mr. Long: There is no guest house. Mr. Texeira: Where did I read about a guest hol se? Staff: That was one of the issues that was resolved prior to us getting to this point that the website advertising, based on that, we questioned them and based on the site inspection. Planning Commission Minutes January 10,2012 27 Mr. Texeira: So there is no guest house. Staff. Not any more. It is a workshop. That is why the condition of approval, 21, so condition 21 on page 11 addressed that issue. Mr. Texeira: Thank you. Mr. Long: And to further clarify that sir there are no appliances at all in that,area that could be construed as being used for residential use and the couniprs of the cabinet;; have a plywood work surface on them. Mr. Texeira: Thank you for that clarification. V1r. Kata�ma: Mike, for this process, what was the established date for vacation rentals, what was sort of the out off? Staff: August 16, 2011 was the very last date.... Mr. Katavama: No but when was that vacationi rental operations needed to be..? Staff: You needed to provide financial documentation, tax return information, reservations list information all prior to March 7, 2008. So, so long as you had that information prior to that date then you could be considered what 904 considers as nonconforming. Mr. Katayama: And what is the jgricultural activity that schedule F...is this one of the properties that has schedule F? Mr. Long: No sir. Staff: No. Mr. Katayama: So what is the reported agricultural activity? Mt. Long: Virtually all of the land, usable area, on the CPR unit is occupied by permitted improvements, the house, driveway, and septic system is planted out in fruit trees and orchards. Arid most of those trees are 10 years Old and have been producing mature fruit and being enjoyed by workers, neighbors, and guests and the family as well. Mr. Katayama: Is that exhibit S in your submission? Staff. That would be exhibit 3 attached to my staff report, it shows you the types of trees and the density of trees. Mr. Katayama: So exhibit S is sort of the plot plan for the entire lot,tmk that is in' your applicant's submission? Mr. Low That is correct. 1 prepared a site plan for the entire lot with all 5 CPRs as well as the individual CPR unit for which we are seeking... Mr. Katayama: And the application is for lot C, unit C? Mr. Lon;7; Yes. Chair: Any other questions for the applicant or Mike the planner? Chair will entertain a motion relative to the planner's report. Mr. Texeira: Mr. Chair, I would just like to ask you a question. Do we need to have the public...? Chair: I thought this was closed already? Planning Commission Minutes January 10,2012 28 Mr. Jung: Every agenda item is open for public comment so following the applicant coming up them you ask if the public Wants to testify. Chair: Does anyone in the public have anything to offer on this application? The answer is no so we move onto the planner's report. Staff: Based on the foregoing findings, foregoing evaluation and conclusion, it is recommended that Special Permit SP-2012-6 to John Suppes dba Clarum Corp. be approved subject to the 24 conditions noted below. This concludes staff's recommendation. Chair: Do you have any comment Mr. Long on the 24 conditions? Mr.jgn& No sir, we have read the staff report and agree with all their recommendations. Chair: Do Commissioners have any comments on the conditions? Mr. Texeira: Mr. Chair, move to approve the application as read by the planner with the supplemental conditions. Ms. Matsumoto: Second. Chair: Is there any discussion? I have a question of either our attorney or the Director. You know when the Ag. category was created it was anticipated as I understand it that not all parcels would consist of at least 5 acres so that took those less than 5 acre parcels out of the Ag. dedication, the ability to have an Ag. dedication even if all the land was substandard, is that correct? All you needed was 5 acres of Ag. land and you could... Staff. For dedication purposes? Chair: Yes. Staff. I have seen in several of these applications that long time farmers who have smaller than 5 acres were able to dedicate land for agricultural purposes however those rules have been tweaked by Real Property Division. So the minimum is 5 acres. Chair: Regardless of the productivity of the.soils. Staff That is correct. That is why the department is also reflecting the zoning of the property and the zoning as you see in this application, the topo map, there are slope constraints. You have slope constraints. You have drainage, flooding, that is why it is in the Open zono. But, the answer is yes. Chair: And so what we are faced with it seems as a matter of course is if the property is too small to be dedicated that is one item that you put on the approval side of the page. And then since it is not at least 5 acres incapable of dedication it seems like there is an automatic conclusion that it is unsuitable for Ag, or intensive Ag. And so my question was what is the definition of intensive Ag.? Mr. Jung: Intensive agricultural means the growing and harvesting of plant crops for human consumption or animal feeds primarily for sale to others and involving long range commitment to one crop such as sugar, pineapple, sorghum; or grain. Chair: When was that enacted? Mr. Junk: I believe it is in 1972 but it could have been amended in there but I think it was one of the original definitions when the CZO was adopted. Myles is here who has all the historical knowledge on the CZO...so it was a part of the original CZO, 1972. Planning Commission Minutes January 10,2012 29 Chair: So my question to the only real farmer on the Commission is, is this still a favored or is the dedication if you want to use that term to one crop still considered to be an acceptable means of utilizing your agricultural land and capabilities? Mr. Katayama: I think the term is dated because if you look at the type of technology that is available and also other kinds of tropical crops that are available both non- orchard as well as orchard crops I think you will have trouble. I think that was based on the sugar/pineapple model. They really have to revisit that. t Chair: The only place that sugar is grown right now is on Maui,right? Mr. Katavanma: That is correct. Chair: Pineapple is confined to small farms. Mr. Katavxxia: It is a fresh fruit business; it's not a(inaudible). Chair: Where do they raise sorghum here anymore? Mr. Katavama: They have tried(inaudible) but that has not gone well. Chair: So I wonder why we keep using these terms that just because they appear in the book when they don't have any bearing on reality today. That is just my own personal question. Mr. Katayama: That is challenge in preserving the agricultural stability through a zoning process where we are going through trying to I guess have the flexibility to maintain agriculture yet the agricultural component with the test of being intensive Ag. or any kind of Ag. seems to be very low barred. I think that is the issue that we all wrestle every time we face a TVR as an alternative use that is placed on agriculturally zoned land. Chair: And my other question or issue is we don't ever seem to have an expert say that this parcel is unsuitable for agriculture it is just too small,got a few slope problems, C,D, E soil so automatically it is unsuitable. And I don't think that is true. There are all kinds of things you can raise on C, D, or E lands. Maybe not cane or pineapple or sorghum or p4payas but there are all kinds of othei things. Because the people that used to live on these lands all had gardens. So I believe we should be more discerning about just automatically categorizing these small parcels are uhsuitable for agriculture and therefore the only thing I have left to do it have a TVR. Mr. Dahilia: Commissioner Bldke I see the rationale that you are laying out and when we took at ordinance 904 these are characteristics that by law we have to go through an evaluation phase whether it is slope, size, shape,as well as this notion of intensive agrriculture. It is code defined we go through that exercise. Certainly our evaluation whether it meets those standards as prescribed by ordinance 904 can be discussed on the floor and be disagreed with but I think based on our evaluation we tend to take a look at things from a 360 standpoint,not just one factor,but all the factors combined, soil, shape, size and those types of things rather than rely on one particular item over the other. So`it is a rorommendation and certainly it can be discussed further but I think based on the specific characteristics of this lot we think that it can meet those 904 defined characteristics. Chair: I understand that these characteristics are set forth in 904 but I would prefer that the applic4nt show me why that particular slope makes it unsuitable or those particular soils make it unsuitable rather than us just assuming that that is a fact. And that doesn't necessary have any bearing on this particular application this is just part of the discussion portion after the second to the motion. Does anybody else have anything to...? Staff: Chair,the Special Permit applications contain that information. What I have noticed in dealing with the huge number of applications is they are structured and it is formatted in the same way io meet the requirements of ordinance 904. This staff report template format is a way to get as much information to you in the least amount of pages, sort of, but we have tried to boil down everything to what 904 requires,bare minimum 904. Your concerns are beyond. I agree,but 904,the definition of intensive Ag.,none of that ability is given to us, 904 just boxes Planning Commission Minutes January 10,2012 30 us in and that is what these staff reports show. So the effect that it is zoned Open for certain reason,lot size, drainage;topography, soils,that is it. Whether we agree or disagree . hat we have gone to is look at they are doing agriculture, they have got agriculture as compared to they don't. But everybody does to a certain extent. A minority have schedule F. In the next two applications you will see they do but his property is too small,too much slope. And same goes in `Anini and Moloa`a,too small, drainage constraints,that is the kind of stuff we ate looking at. Chair: Thank you. Mr. Katayama: I think Commissioner Blake,I think you sort of articulated the issue that we all wrestle with is that the principle foundation of all of this is the presurription that it will hel. perpetuate or support Ag. And to that extent obviously if you are submitting a schedule F it m es it easier, if you don't have a schedule.F or...the question is what agricultural activity is this nonconforming use supporting? And fit what point does it become a hobby, does it become landscaping,or dogs it just become a sort of amenity to the activity of agricglture? I think obviously if you are in intensive Ag. that call becomes a lot easier and as you slide down the scale td where it becomes a lawn, is that agricultural activity enough to justify approving this nonconforming use on Ag. property? And I think you have articulated that issue that we all wrestle with because'I think that is the hurdle or the bar that we need to see and obviously the higher the bar fhe easier it is to make that call. Chair_ Any other comments? Call for the question. Mr. Dahilia: The motion on the floor is to approve Special Permit aP-2012-6 vrilh conditions. On motion made by Herman.Texeira 4nd seconded by Camilla Matsumoto, to approve Special Permit SP-2012-6 with conditions, motion carried.unanimously by the following roll call vote: Ayes: Matsumoto, Katayama, 'Texeira,Blake -4 Noes: No -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 SUBDIVISION Ms. Matsumoto: For tentative subdivision action for S-2002-21,Kukui`ula Development Company,Hawaii, LLC, TMK 2-6-019:022, 023, and 024,the recommendation was approved with a 3 to 0 vote. Final subdivision action for S-2005-26,Eleanor M. Cox,TMK 2-7-005:028, the recommendation was to be approved and that was met with a 3 to 0 vote. Chair: Chair will entertain a motion to approve the subdivision report. Mr. Katayama: So moved. Ms. Matsumoto: Second. Chair: All in favor,motion carried. On motion made by Wayne Katayama and seconded by Camilla Matsumoto,to approve Subdivision Committee Report, motion carried unanimously by voice vote. Special Permit SP-2012-7 to permit use of an existing single family residence for Transient Vacation Rental purp©ses as permitted by County of Kauai Ordinance No. 904 in Kilauea,Kauai, approx. 1,500 ft,west of the Kilauea Lighthouse Road and Kauapea Road intersection, further identified 5-2-4:63,with a parcel size of 9.084 acres= William&'Sandra Strong. (Hearing's Officer Special Meeting Public Hearing held 11%29/111. Supplemental No. 1 Director's Report pertaining to this matter. Staff Planner Mike Laureta read supplemental No. 1 Director's Report(on file). Planning Commission Minutes 3anuaiy 10,2012 31 Chair: Any questions of the planner? There being none is the applicant in the audience? Mr. Steve Long: Good afternoon Chairman Blake and other members of the Planning Commission, name is Steve Long, I �m a practicing architect on Kaua'i and I am the authorized agent to present Bill Strong's TVR SUP application to you. Bill purchased this property in 1999 and built a 3-bedroom,2.5 bath family farm dwelling in 2003. As Mike indicated there is an ADU on property which is occupied by the resident employed farmer. We are not seeking a TVR for the ADU. The adjacent property which is also owned by Mr. Strong contains the greenhouse and mulching operations. Bill has asked me to read a letter to you on his behalf. "I understand that our TVR application will go before the Planning Commission for discussion on January 10th and I would like you to read these summary points to the members of the Planning Commission and members of the community who may be present. My wife and I purchase the two lots that comprise our property in the spring of 1999. Promptly upon completing the purchase we began investigating the dedication of as much of our land as possible to agricultural use. This led us to seeking and receiving a 10 year agriculture dedication from the County of Kauai effective January 1, 2000 for a substantial portion of the property. Over the ensuing 10 year period we increased the amount of land dedicated to agricultural use resulting in us renewing our agricultural dedication at the end of 2009 but committing to a 20 year dedication not just 10 years with substantially all of the land dedicated to agricultural use other than permitted improvements and parking. In connection with this most recent agricultural dedication we planted over 500 coconut and palm trees, citrus trees, and floral trees. All of the seed stock was purchased locally and we used local labor to install the trees in addition to our own efforts. We spent a considerable sum of money to put in place a drip irrigation system. Once again such system was purchase on island and installed by local professionals. We planted over 900 tea plants that were also installed by local professionals in addition to our own efforts. We utilize local professionals and our oAm onsite employees to maintain the installed trees and tea plants and to assist in their sales. We have an active vegetable garden in place on the subject property that our onsite employees consume. They live onsite in an addition farm dwelling unit. We have complied with the letter and spirit of all County of Kauai and State of Hawaii laws and ordinances including the timely payment of all.GET and TAT taxes since 2006 when we began periodically renting out the subject property. We only infrequently rent the subject property. Often the subject property has been rented to neighbors or friends of our,gamily. We have timely filed both schedule E and schedule F of the US Federal Income Tax form 1040 with respect to th rental of the property and the farming activities respectively. At no time have we ever received a complaint from anyone with respect to any aspect of our occasional renting of the property. In fact prior to the TVR proposed legislation being raised very few people were even aware of the fact that the property was occasionally rented. My family and I spend as much time on the property as we possibly can, in fact my wife and I were directly and actively involved in the physical installation of the trees and tea plants as referenced above. Most importantly I would want the Planning Commission and the community that my wife and I intend to retire to this property. At that time we would expect to spend the dominant majority of our time in advancing our agricultural business on the site. This is the only property that we own. Steve, I would be pleased if you would share my comments with the Planning Commission and the community,with best regards, yours sincerely, William Strong". Chair: Any questions of the applicant? Staff: I have one correction. Steve, can look at number 19? Number 19 is not supposed to be there. I would like to propose, provided Steve doesn't object, to remove it. Mr. Log: Yes please so remove that. I didn't catch that. The guest house, there is a guest house, a permitted guest house on the property. It is not advertised nor is it rented as part of the TVR rental process. Mr. Texeira: So what is its function? What is the function of the guest house? Planning Commission Minutes January 10,2012 32 Mr. Long: When they are staying at the property they often have their guests and family stay there. Mr. Texeira: And that is the only...? Mr. Long: That is the only use of it. This particular home is only rented a few times a year as evidenced by the guest log. Chair: Any further questions for Mr. Long? Thank you Mr. Long, is there any public testimony to be offered on this application? Seeing none let's move back to the planner's recommendation. Staff. Based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2012-7 to William and Sandra Strong be approved subject to the following conditions and amended it would be 22 conditions and the removal of condition No. 19. This concludes staff's recommendation. Chair: Any questions for the planner? Chair would entertain a motion relative to his recommendation. Mr. Kato ama: So moved. Ms. Matsumoto: Second. Chair: Any discussion, all in favor say aye, it is unanimously approved. On motion made by Wayne Katayama and seconder, by Camilla Matsumoto, to approve staff recommendation as read by the planner, motion carried unanimously by voice vote. Special Permit SP-2012-5 to permit use of existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Seacliff Plantation, Kilauea, Kauai, approx. 2,700 ft. east of the Iwalani Land and Palimoana Road intersection, further identified as Tax Map Key 5-2-4:96 (Unit A). with a unit size of 3.0 acres of a 11.0 acre Parcel =klizabeth Freeman dba lMfakana Pomaikai LL(-': [Hearing's Officer Special Meeting Public Hearing held 1 1/29/11.1 Supplemental No. 1 Director's Report pertaining to o this matter. Staff Planner read supplemental No. 1 Director's report(on file). Chair: Any questions of the planner? Mr. Texeira: Mr. Laurota, could you expand on the two-unit CPR? So there are two separate existing on this CPR? ' Staff: Yes she owns both units and she started the farming agricultural operations on the property before she even built which it took me a while to figure that out but based on her schedule F and her plot plans she is dedicated to agriculture. Mr. Texeira: So they overall size of that CPR which she owns, well she owns two separate CPRs? Staff. Two separate CPRs, this is only for unit A which is 3.0 acres. Now there are slope and soil constraints, it is basically rocky. Mr. Texeira: Unit A has only one TVR? Staff: Yes. Planning Commission Minutes January 10,2012 33 Mn Texeira: And the other TVR is on the other CPR. Staff Arid there are no building improvements on that one. Mr. Jung: It is a vacant CPR unit. Mr. Texeira: It is a vacant CPR unit. So there are two units on one CPR then, right? Staff: Two CPR units, one parcel. Mr. Texeira: And the other CPR parcel is vacant? Staff. Yes,well it is being used in Ag. Mr. Texeira: But you said most of the property is sloping. Staff. And rocky. Mr. Texeira: What are the current uses of those two units, they are both TVRs? Staff: Only one, unit A has the TVR. Mr. Texeira: And what is the other unit? What is the use of the other unit right now? Staff: Agriculture. There is no other dwelling unit, one residential unit on A, B is agriculture,being used for agriculture, no residential unit. Chair: And that is the only unit that we are concerned with here is unit A. Staff. That is correct. Chair: Any other questions for the planner? Mt. Katavama: Just to clarify Herman's question, unit A is a smaller unit, it has a TVR, it has an existing garage, it has a farm office. Staff: If you look at exhibit 3... Mr. KatUama: Well I am looking at exhibit I-I and R as sent in by the applicant. This is the site plan? Staff. Yes. So unit A has the majority of the development, unit B has agricultural related improvements. Mr. KatUanla: If we are considering unit A for the TVR what agricultural activity is happening on unit A? It is sort of hard to segregate the two because they are both addressing the entire TMK. Maybe you can help us with that, what is the agricultural activity in unit A versus unit B because it is difficult to sort that out because it is sort of addressing the entire TMK. Mr. Lon;^: I will talk about that, one clarification is on unit B there is a permitted greenhouse. Mr. Katayama: Is that the farm shed? Mr. Lon;;: Yes and a farm shed; there is a permitted Yurt/greenhouse as well as a storage shed. So there is virtually little difference in the intensive agricultural activity on the entire lot it is just that one of the CPR units happens to have a house on it, a farm dwelling on it that is being used for TVR purposes. So there is a substantial amount of potted plants and orchards and gardens on both of the CPR units and they are operated as a single farm. Planning Commission Minutes January 10,2012 34 Chair: Any other questions? There being none is there any member of the public that would like to comment on this application? Seeing none let's move back to the recommendation by the planner. 512. Staff: Recommended action, based on the foregoing evaluation and conclusion it is recommended that Special Permit S B T'to Elizabeth Freeman doing business a Makana Pomaikai LLC be approved subject to 23 conditions of approval and specifically condition 19 is specific to this parcel. "The other agricultural related structures on the property shall not be used or advertised as accessory rooms for the transient vacation rental use of the:main farm dwelling. They cannot be used or advertised independently of the main farm dwelling." All the other conditions are standard including the new condition for the Ag. easement which is 23. Chair: Any comments on the recommendation? Chair will entertain a motion relative to the same. Mr. Katayama: Move to accept and approve. Chair: It has been moved and seconded that the Commission approve the recommendation Hof the planner with regard to this application, any discussion? Again, an observation, on page 3 of the report at the top of the page it says "this soil is poorly suited for machine till ability,"and again I wonder what exactly is machine till ability. Mr. Jung: Is that from the (inaudible) study? Staff. Yes and from the USDA Soil boob which is...USDA Soil Survey and there is a soil book. Machine till ability means you can use a machine or you can't. In this sense you can't because it is rocky. Chair: You can't use any machine? Staff. If you look at the topo map attached to this thing,we have been on site, it is rock. This is Seacliff Plantation, this is the slopes. Mr. Jung: Just for clarification the A list study was Agricultural Lands of Importance to the State of Hawaii. So the State conducted a comprehensive survey of all soil qualified lands using a scale from A to E with U as being the worst. Chair: Okay,that answers my question, any other discussion, call for the question. _Mr. Dah'llig: Motion on the floor Mr. Chair is to approve Special Permit application On motion made by'Wayne katayama and seconded by Camilla Matsumoto, to approve$" ?, motion carried unahimously by the following roll call vote: s t2.— Ayes: Matsumoto, Katayama, Texeira, $lake -4 s,2-9-12— Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Mr. Loa : May I clarify your concerns with an additional comment? I have a note here from Gary Smith, a resident of Kilauea and it says, "Aloha Elizabeth, ]; do know your property very well. My personal familiarity with it goes back over 45 years when I used it to hunt pheasant in that area. At that time the land was referred to as "Opala" land because it could not be used to grow sugar due to a steep terrain. The Robinsons raised cattle on this land until the closing of the plantation in 1971." So what Elizabeth and my other clients are doing is actually taking land that opala land and putting it to real, legitimate agricultural use. May I clarify your concerns with an additional eominent? I have a note here from Gary Smith, a resident of K-11auea and it says, "Aloha Elizabeth, I do know your property very well. My personal familiarity with its goes back over 45 years when I used it to hunt pheasant in that Planning Commission Minutes January 10,2012 35 area. At that time the land was referred to as "Opala" land because it could not be used to grow sugar due to a steep terrain. The Robinsons raised cattle on this land until the closing of the plantation in 1971." So what Elizabeth and my other clients are doing is actually taking land that opala land and putting it to real, legitimate agricultural use. Chair: I think that is commendable and just as another observation if you have ever been to the Kaloa Plantation Days,the opening event,the first Saturday of the week of activity, has to do with the K61oa field system from the Catholic Church all the way down to Po`ipu. It is solid po hoi hoi so it has always been opala land that was good just for Koa and grazing. But historically that land produced more food than Hanalei Valley and it shipped the produce, it supplied whaling ships, it shipped sugar to the Union during the Civil War and it also shipped sweet potatoes and other produce to the 49ers in California. So opala land is like our classification because we didn't know any better. But somebody knew better,just another personal observation. Special Permit SP-2012-12 to permit use of existing single family residence for Transient Vacation Rental purposes as permitted b� County of Kauai Ordinance No. 904, in Kalihiwai, Kauai, approx. 1,850 ft. northwest of the Old Kuhi`n Highway(aka Kalihiwai Road) aid I�uhi`o Highway Highwqy intersection, further identified as Tax Map Key 5-2-10:21 (Unit B), with a unit size of 2.0 acres of a 5,05 acre parcel =Judy Walkee& Dan Bonow. [Hearing's Officer Special Meeting Public Hearing held on 11/29/11 . Supplement4l No. 1 Director's Report pertaining to this matter. Staff Planner Mike Dahilig read supplemental No. 1 Director's report (on file). Chair: Any questions for the plai=ner? Have we set a cap on how many TVRs we are going to allow per area or neighborhood or district? Staff. No. Chair: Do we intend to? Staff. No. Chair: Then why do we even report it? Staff: Just to keep the Commission up to date as to the intensity of use in certain districts and now that kind of information being reported is consistent with what is being reflected in all the other reports. So out of 81 total applications you know that Kilauea got 30, Kalihikai got 25, West Side got 1, Koloa got 1, Kalahe:o got 4, Kapa`a got 2 or 3. So knowing that it is just like the information contained, we have tried to 'standardize it for your information and not that you know what region it is it is, okay, we know where all of these things are going,why and it is a matter of do they meet ordinance 904 requirements. Chair: Do you ever foresee a time when you will say that is too many and we are not going to take any more for this particular area? Staff: No. It will come back as the conditions of approval,the neighborhood will be our eyes and ears and then we will be able to deal with these things ohe on one because we are going to find out if these TVRs are being actively managed with these conditions of approval. If they aren't we are going to be the first ones to hear about it. Well maybe the police. Chair: any questions for the planner? Mr. Texeira: So Mike,this is how many detached units? Staff. Only one unit, agriculturally related structures, (inaudible) accessory structures, that is related to the agricultural,use that is okay. Mr. Texeira: I am not questioning that I just asked how many detached. Planning Commission Minutes January 10,2012 36 Staff. Based on the inspection,based on the amount of Ag. use there is even no way to determine how many accessory structures they need because you need propagating, you need processing, you need storage sheds. Mr. Texeira: I wasn't questioning the need I was just asking. I just wanted to confirm the number of units. Mr. Katayarra: Isn't it 3? Staff. The term"units" catches me,unit is the residential unit, accessory structijre is storage sheds. Mr. Texeira: Let me rephrase that then 4ccessory structures. Staff: 3. Chair: Any other questions? The applicant is sitting at the table to address us, do you have any comments on the report? Mr. Dan Bonow: Well'actually we just wanted to say aloha Chair Blake and Commissioners and thank you for the opportunity to actually represent ourselves which was kind of a scary proposition when we started and we have gotten this far so thank you very much. It has been actually kind of a learning experience and I thank you. I am the co-applicant Dan Bonow for the record and my co-applicant is Judy*41ker who is the actual deed owning property owner so any questions you have for us would be answered at this time. Staff: Chair,just for your information they live in the house and when they are not here then it becomes a TVR but this is their house. Chair: So approximately how much time are you not here? Mr. Bonow: When Judy's mom was really ill and dying a couple of years ago we were gone a lot. What we pray for is good health from the rest of our parents because Kauai is our home, we have lived here for 12 years so we hope not to be gone very much. I hope that answers your question. Chair: Any other questions for the applicants? Thank you, is there any member of the public who would like to testify on this application? Seeing none we will move back to the report and the recommendation. _ 12. -12- Staff: Based on the foregoing evaluation and conclusion it is recommended that Special 43ermit °�2 to Judy Walker and Dan Bonow be approved subject to 21 standardized conditions of approval. Mr. Texeira: So moved as read by the planner. Ms. Matsumoto: Second. Chair_ It's been moved and seconded that we accept the recommendation from the planner. So there is not going to be that standard Ag. easement added to this one? It doesn't appear to be necessary. Mr. Dahilig_ Mr. Chair we would recommend also the addition of the Ag. easement provision in here and maybe if you could entertain whether the applicants would object to such a condition being added to the docket. Let me just read it for discussion purposes. The condition would read,"The Planning Commission reserves the right to .request the establishment of an agricultural easement on the property in favor of the County of Kauai should at the time of permit renewal agricultural effort on the property be determined to be unsatisfactory or revoke the permit due to lack of this effort." Planning Commission Minutes January 10,2012 37 Chair: Do you have any comments, objections? Mr. Bonow: I would hope and pray that next time we get inspected we are doing as well as we did this time so we can accept that, thank you. Ms. Walker: But prefer not to have it but if we must we will. Mr. Bonow: Simply because if you look at all the deeds on properties you see all these easements from the sugar irrigation ditch and everything else and it is kind of an encumbrance on your property. With respect to your opinion maybe we could put it in, if we cold not put it in it would be better for us. Staff. Let me explain Dan. This is a standard condition now being imposed on all the TVRs being approved and the idea is at the time of renewal people 'now understand the Commission and the department's concerns that agricultural use is a paramount coexistence with the TVR. So one year from now if you are not at a better Ag. than you are now the possibility is we cart go in and request an Ag. easement or we can request cancellation of your pen-nit. But it depends if you sell the property or a whole Bunch of other things play in but to actually get to the Ag. easement that means you drop the Ag. ball. Mr. Bonow: Got it, no problem. We are fine with that. Chair: Chair will exitertain a motion to amend the recommendation to include the standard phrase. Mr. Texeira: So amended. That would be part of my original motion so we just amending thiLt original motion to include the amendment as proposed. Chair: Is that okay with the second? Ms. Matsumoto: Second. Chair: Any fiuther discussion, call for the question. Mr. Dahilig: Mr. Chair the motion on the floor is to approve Special Permit application 2012-12 with the additional condition relating to agricultural easements. On motion made by Herman Texeira and seconded by Camilla Mats6inoto, approve SP-2012-12 with the additional condition relating to agricultural easements, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Katayama, Texeira, Blake -4 Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Chair: Did you do a lot of gardening on the mainland? Mr. Borrow: Not really. We tiptoed into this, when we first moved here people told us waif: 10 years until you understand what is happening until you plant a bunch of stuff. Stupidly I planted a bunch of stuff right close to my house like some bamboo aztd stuff which I:thought was really pretty. And now I am so glad that we are just slowly getting the place working as a true Ag. property. Special Permit SP-2011-32 to permit use of existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Koloa, Kauai, approx. 780 ft. west of the Maluhia Road and Wailaau Road intersection further identified as Tax Map Key 2-8-5:20 with an overall parcel size of 1.002 acres =.Diane & Lindsay Faye. jHearing's Officer Special Meeting Public Hearing to be held 1/6/12.1 Supplemental No. 1 Director's Report pertaining to this matter. Planning Commission Minutes January 10,2012 38 Staff Planner Mike Laureta read supplemental No. 1 Director's report (on file). Chair: Any questions or comments of the planner? Mr. Katayama: Mike, in exhibit 3 what is the new project site? Staff. That is her ADU. That is this,the application. Her existing main dwelling is over... Unidentified Speaker: It was built in 1917. Staff. That is where she chooses to live. Mr. KatUama: So actually the new project site is the existing TVA? Staff. Yes. Chair: Any questions for the planner? Mr. Texeira: Mr. Chairman, I just wanted to ask Mr. Laureta question about the...Mr. Laureta how long has this been used as a TVR? Mr. Diane Faye: I am Diane Faye the applicant. We built it I think in 94 and didn't start until about 95. We,built it because we have 5 daughters and needed the overflow so we started using it that way and then people started wanting to use it. But we have always paid out TAT and our GEE'on it and we have had no complaints from the neighbors and it's really nice. Chair: There being no questions, i's the applicant ready to address the Commission? Ms. Faye: Sure. Chair: Do you have any comments on the reportt? Ms. Faye: Everything is fine and I hope you approve. Chair: Any questions for the applicant? Is there anyone in the public who wishes to comment on this application? There being none we will more back to the recommendation. Staff. Based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2011-32 to Diane and Lindsay Faye be approved subject to 23 standardized conditions. The Ag. easement is 23, additional agricultural use is 21 and those are all standardized. Chair: Chair will entertain a motion on the recommendation. Mr. Texeira: Motion to approve as read by the planner. Ms. Matsumoto: Second. Chair. Any discussion, call for the question. Mr. Dahilig: Mr. Chair the motion on the floor is to approve Special Permit SP-2011-32. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve Special Permit SP-2011-32, motion carried unanimously by the following roll call vote: Ayes: Matsumoto; Katayama, Texeira, Blake -4 Noes: None -0 Absent: Raco, Kimura -2 Planning Commission Minutes January 10,2012 39 Not Voting: Vacant -1 SDecial Permit SP-2011-24 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalzhikai (`Anini),Kaua`i mauka of and adacent to `Anini Road, approx. 430 ft. east if the `Anini Beach Park,further identified as Tax Ma�Key 5-3-4:20 and containing an ovetall size of .25 acres = Weatherwax Fa;i 20011 Trust Wearing.'s Officer Special Meeting Public Hearing held on 11/29/11.1 SUplemental No. 1 Director's Report pertaining to this matter; Special Permit SP-2012-34 to permit use of an existing single family residence(ADS for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904 in Kalihikais`Anini), Kauai,mauka of and adjacent to `Anini Road., approx,430 ft. east of the' `Anini Beach Park, further identified as Tax Map Key 5-3-4:20 and containing an overall size of .25 acres = Weamerwax Family 2000 Trust Mearingg's Officer Special Meeting public Hearing held 11/29/11.1 Supplemental No. 1 Director's Report ep rtaining to this matter. Chair: These are two units on the same piece of property correct? Mr. Dalailig: Tlat is correct Mr. Chair, Mr. Chair,based on the reports for both of the agenda items listed thi° department would recommend the Commission consider entertaining a motion for copsolidat on of both permits; specifically this would be permit application number SP-2011-24 and SP-2012-34 pursuant to section 1-6-14 of the Rules of Practice and Procedures of this Commission. Ms. Matsumoto: So moved. Mr. Texeira: Seconded. Chair: Any discussion? Mr. Dahilijz: And Commissioners again this is just to dovetail on the discussion that the Commission was going into at the last Commission meeting in the beginning of December concerning impact issues that transcend both applications. And maybe just as a suggestion Chair that the applicant'p representative maybe wanted to address the Commission concerning this particular motion before the Commission. Mr. Texeira: So before we have a vote. Mr. Dahilia: Yes,just for the record. Mr. Harvey Cohen: Good afternoon Commissioners, Harvey Cohen on behalf of the Weatherwax Trust, Happy New Year by the way. I concur with the department's recommendation to consolidate these two permits,they are identical with respect to the facts and the findings and the conditions suggested. The only difference really relates to the two different logs that were presented and the financial data at the front side. And also just to reiterate what I said at the last meeting,when we first started down this process we actually submitted this as one application and it was only after discussions with the department that we were encouraged for whatever reason to bifurcate the two so now we are just putting them back together. The applicant does not have a problem. Chair: Any other discussion, all in favor... Mr. Texeira: Of what? Chair: Consolidating the... Mr. Texeira: Okay, I just wanted to be sure. Planning Commission Minutes January 10,2012 40 Chair: All in favor of consolidation say aye, all opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Herman Texeira, to consolidate SP-2011-24 and SP-2012-34, motion carried unanimously I y v: oice vote. Mr. Katayama: So what is the surviving application? Mr. Dahilig: I guess in terms of terminology it would be a dual permit number but it would be only for the facts of one so for record keeping purposes they are going to be considered interchangeable but gone master permit is going to remain. Mr. Texeira: What is interchangeable? Mr. Dahilis�,: In terms of cataloging 24 and 34 are considered the same permit. Staff. Chair, would you like me to elaborate on the staff report? Chair: Yes. Staff. In terms of the consolidation staff recommended that the very first permit, SP- 2011-24 be used as the master permit, this is the first item. The second item starts on page 3 of the supplemental report for SP-2011-24 and on it, page 3, it is bolded, in discussions ,yith the applicant's representative there were no objections to consolidating the request to one master permit. In this instance it would be SP-2011-24 since that request applies to the main house. This master permit would cover both residential units. In order to address the Commission's concerns the following considerations were offered: 1) The maximum number of adults would not exceed 8 to 10 on the property at any one time. This number was derived from the 3 bedrooms in the main house and 1 bedroom in the ADU. 2) the maximum numbet of vehicles on the property at any one time would not exceed 3 vehicles. In order to address the coticern of the potentidl division of the property by CPR or any other means into 2 units the applicant's representative is agreeable to a condition of approval whereby if and when the property is divided into 2 units the master permit would attach only to the main house. And then wb,.en we continue on to...the specifics would be identified in the conditions of approval,that would be condition 16 on page 11 which is underlined and oil page 12; condition 23. So it picks up on those representations to address the Commission's concerns about intensity of use, density,traffic, noise. Mr. Dabilig: Mike, I know this is a new condition that we are instituting but we didn't catch the Ag. easement condition on this one? Mr. Katavama: But in this case it is not really relevant. Staff: This is small than I acre. Mr. Dahilig: Okay then that is my bad. Staff. But we are recommending a condition to implement an Ag. plan to increase and supplement the Ag. use of the property. We know that there is some difficulty because of that large tree in the back but we will deal with that when he comes in. Mr. Katayama: I don't think-ghat is really relevant as well. Mr. Texeira: Mr. Chair... Chair: Anybody have any... Mr. Texeira: Impose upon you to speak? Chair: Questions of the planner? Mr. Texeira: I do, Mike the two units, the two separate units, CPR units, right? Planning Commission Minutes January 10,2012 41 Staff. Yes. No, this is not CPR'd, if he does CPR ... Mr. Texeira: Not CPR but two TVR units. Staff. Yes. Mr. Texeira: Two TVR units,how are they going to be treated in terms of the rental, can you explain that again? Staff: It will be governed by 23 which would limit the number of adults on the property at any one time and the number of cars on the proporty at any one time. Mr. Texeira: So in other words if you had two distinct families or groups of people they don't have to be related, right? Staff: True. Mr. Texeira: So they could be rented at different times, it doesn't have to be the same time,right? Staff. Correct. It is not A or B, it is so long as you don't exceed the limitations,on vehicles and adults. Mr. Texeira: 1 thought we had a discussion on this. I am kind of confused on this. Mr. Dahilig: Given the concerns regarding impacts,noise,parking, and over commercialization of the area, for this particular type of permit that has not been a CPR situation we are recommending mitigation conditions that involve the amount of usage. And so in this particular case what we are recommending is a limitation on the amount of people as will gas a limitation on the number of vehicles. Mr. Texeira: How far apart are these units from each other? Staff. Not even a store's throw. But the most important part that we haven't mentioned yet is the Commission's concern regarding long term.rental. So because this is a parcel of record,no CPR, the applicant was agreeable that if they were to divide the property to a CPR or by any other means the master TVR permit goes to the main house,the ADU becomes a long term rental. So you cannot sell one as a TVR. Mr. Texeira: I understand that because it is not a CPR. There was a concern on our part, the Commissioners, about having two units on one small parcel. But this was CPR units,right? Staff This is why we capped it with intensity of use, number of adults, number of cars, that is where we are proposing to address the concern about density and intensity. Chair: Any other questions? Mr. Katayama: I think just from a clarity point of view you need to really identify more descriptively what the main house is and what the ADU dwelling,is since we are keeping alive both the permits, 2011 and 2012. The presumption here is that the larger unit is a main house but that is not really clear. Mr. Dahilig: Just for clarification and for documentation purposes we will make a notation that the house involved in permit 24 is considered the main house and the house that is involved in permit 34 is considered the ADU. Mr. Katayama: So I think if you just call it that way and make it capital. Mr. Texeira: And that is my concern, the ADU and the main house are going to be TVRs. Planning Commission Minutes January 10,2012 42 Mi. Dahilia: We are looking at it and that is the purpose of the consolidation and Vve recommend it because we are looking at it from the standpoint of whaT is the'totality of the use and trying to minimize the totality of the use to a certain number versus creating separate permits that potentially could be split off and sold as separate TVRs. We are looking at it from a holistic standpoint. Mr. Texeira: But you are looking at it from a position of if you sell the parcel,right,I am looking at it just from a TVR use in Ag. land airtd utilizing these two close units as TyRs. I just had a concern with that that is all. Chair: I have a question. Have we ever had a two-story residence or excuse me,two residences contained in a two-story building both of which were...let me back up, have we ever had a situation where you had two residences within one building that were subject of a TVR application? Staff: A duplex? Chair: A duplex. Staff. No. They are all single family residences. Chair: Do we have any policy? Mr. Dahilia: Coming back to synthesis of ordinance 904 it deals strictly only with single family structures and so if there was a duplex that was coming in for an application we would automatically already bounce that because multifamily dwellings are not allowed without some type of prior approval in the Ag. district. Chair: So here we have gone one step beyond that and have two single family residences on one small parcel that wish to each be regarded as a TVR, separate TVRs not an accessory,the ADU will not be an accessory to the main house. That is what we are faced with today. Mr. Dahilig: That is the difficulty vyith the ADU law is when it went into effect what it allowed was the constiruction of a free standing'separate single family dwelling and so that is the basis why this notion of a single family dwelling being able to come in and apply lmder 904 why ADUs are allowed. ADUs aren't treated as accessory dwellings they are treated as separate single family dwellings under the code. Chair: And when I believe this was Councilman Tehata's pet project...well I shouldn't call it a pet project that would minimize it. He was trying to address the shortage of housing on Kauai which was drastic at the time by allowing homeowners t44t could satisfy certain conditions to build an additional unit on their property where they would not haye been able to do so in the past or prior to that time. And so to me the ADU was not conceived for purposes of creating a rural hotel. I know that TVRs on Ag. land are disfavored generally and they are not congruent to agricultural purposes. So reality being what it is an owner can get one so far on Ag. land,now we have an owner that is coming in for two and who knows what is down the line,three, foul,ten? But the leeway was not intended to create Ag. resorts,the leeway to build another or to increase the density on the lot was not meant as I understand it and I followed that pretty closely at the time, was not intended to create Ag.resorts. So that is my concern or one of my concerns with having two on one lot. Refresh my memory,did they use the typical qualifications, bad economy,too small for intensive Ag. and so forth? Staff: Yes,this property is pretty small. This is a relocated Ku.leana. This is a small lot, you are of going to get Ag. Chair: And s they already have one TVR,right? Staff: No. Planning Commission Minutes January I0,2012 43 Chair: The main house isn't TVR yet? Staff. No, we have two applications here we are cbnsolidating into one. Chair: I know but is there a preexisting TVR on the property? Staff. No. There is nothing. Mr. Texeira: What are they doing now? Staff: They are applying for the two transient vacation rentals. Chair: I see, okay. Mr. Texeira: But the two homes are used for what, the two units currently? Staff: Transient vacation rental use and residential use when they come over and their friends come over.. Mr. Texeira: So that is interchangeable. Staff: Yes. It is like the previous applicant's, it is not 100% TVR it is both residential and transient vacation rental. Ms. Matsumoto: So you think the mitigation proposed conditions would be helpful to work out? Mr. Dahilig: In analyzing the scenario regarding two TVRs on one parcel or one lot and for the Cgmrnissioner's information this will not be the only set of applications that will come before the Commission regarding dual units on the same parcel or lot. We thought it best from the standpoint of enforcement to look at the matter as a whole rather than trying to get into a scenario where gyve are picking and choosing that we are looking at it from an impact standpoint. And I think from a Iand use standpoint when we look at the impacts it is the safest means of applying conditions of mitigation. And so looking at what is reasonable for the area given the noise, parking; commercialization and intensity of use we found it fit to recommend 9 adults as a cap and 3 cars at any given time. And then to allay any concerns regarding severability of the parcels in the event that the parcel is CPR'd we are putting a limiting condition so that only one TVR essentially survives and only one master permit remains so you do not have two ;separate TVRs that can be sold off as separate(inaudible). Mr. Texeira: I can understand that. I can't understand when you cap the number of adults on the property, it says over here 8 to 10, right, so 10 would be the maximum amount? Mr. Dahilig: That is what was recommended by the applicant. Playing a Iittle bit of King Solomon we split the baby and said lets go with 9. Mr. Texeira: So is 9 going to be effective? I see 8 to 10 is why. Staff. Your number. You can choose. We had a discussion, we established a range, we split the baby in half, if you want to split that bugger in half again... Mr. Texeira: Let's say you say 9 adults on the property. I don't see much of a compromise. This is a 3 bedroom home, how many people are going to stay in a 3 bedroom home? You could have a family, husband and wife and 4 kids,that is 6 people and then the other unit is a one bedroom unit and so you are going to have 3 adults in that one bedroom unit. It is kind of maximum already unless you are going to be sleeping on the floor. Mr. Dahilig: You could go 2 by 4 mid come up with 8. Planning Commission Minutes January 10,2012 44 Staff: 2 by 4 and come up with 8, 2 adults per room,that is 8 adults so we go to 8 not counting kids because everybody lias them. Mr. Texeira: That is what I am saying there is no compromise. You are kind of maximizing the use of those units that they can stay in so what is the compromise over here? Staff. We have heard that there,were a lot more people staying in those kinds of units, that is why we decided to cap it at a reasonable number. Mr. Dahilia: It is certainly up for discussion that if you would like to reduce the number some more that is certainly within the Commission's prevue and discussion but we recommended the number just because that is what we felt was a reasonable amount. Reasonable can differ on this. Chair: Any more questions? Does any member of the public wish to comment on these applications? There being none we will go back to the planner's recommendation. Staff: The recommended action by the Commission, b4sed on the foregoing evaluation and conclusion it is recommended that Special Kermit SP-2011-24 to the Weatherwax Family Trust 2000 for the main dwelling unit and additional dwelling unit be 4pproved subject to the following conditions. And there are a total of 23 conditions,2 of their are applicant specific, 16 would be as previously mentioned if the applicant were to divide the property the main house would become the TVR permit and the ADU would become a long term rental. Condition 23 establishes the caps for the use of both.structures by establishing the maximum number of adtilts on the property and the number of vehicles on the property at any one time. Mr. Texeira: The property is a quarter acre,right? Staff. Approximately,yes. Mr. Texeira: So it-11,000 square feet roughly give or take a few feet. Staff: Approximately, yes. Mr. Texeira: $o you have 2 units on 11,000 square feet that is what you are saying. Staff. There exists 2 residential units on the property, yes, quarter acre. Mr. Texeira: Why didn't we treat it as two separate applications versus one? Staff: In the beginning we in the reading of the ordinance it said one single family residence so when the applicant came in for two under one we were thinking wait that is not what the ordinance says,you need one TVR permit per residential unit. So in reading it back and forth the applicant concurred and submitted the second application which accounts foi the gap in the numbering of the special permit. Even though both houses satisfied the requirements of ordinance 904 they could both be treated separately. But now that the Commission has gone down this road pretty far in seeing the concerns for these types of applications, 2 on one parcel, I can see where we need to address the intensity, density,traffic, noise problems a little bit better and this is only the second of 6 applications,you face 4 more. You have the second one following Harvey's. So in trying to address 1:h.ese doubles, I call them doubles, it is either CPR or not CPR but they are as permitted by ordinance 904 they can request a TVR Special Permit for each single family residence. So now we were faced with 6 doubles, 6 applicgnts seeking 12. Can we better manage those which is what the department's effort has been all along,how can we better manage these for the community and how can the community know how to manage to see what is approved and not. This one,the long term rental i9sue came out hot and heavy and then the density, intensity of use,noise, traffic came out pretty hot. So in order to address those we have had discussions with the two applicant's representatives and we have come up with a mechanism to address those concerns. Planning Commission Minutes January 10,2012 45 If you would like to propose additional controls we are open but in the initial cut they can't sell the second one as a TVR, it is going to automatically convert to a long term rental, there is one. Capping the number of adults and the traffic, there it two and three. �o I think the department got there acid the applicant's representatives could see yoiir•dilemma and they have been open to this. Mr. Karma In condition No. 23 is that standard nomenclature in.describing maximum occupancy in terms of adults? Mr. DahlIi :. That is a good question. Staff Standard... Mr. Katayama: If you build a 3 bedroom house and you ask for a certificate of occupancy is there sort of a rule of how many people you can have in there. I am not sure what we are trying to describe. Mr. Jun -.& There is a reference in the CZO that allows for 5 unrelated people to live in a home but not necessarily 1 consistent family. So if you have a family of say 21 then that issue is not really dealt with. Mr. Katayama: So if you have a family of 21 can they live in a 1 bedroom home, single_ family? Mr. Jung: That is a tough question. Mr. Katayama: Again, this is our first attempt...I like the concept; it i$like 6 to 1,half dozen to the other. At the end of the day you come back to the same loaf. I am just wondering if this is the right descriptor for what we are trying to do. And I will yield to the expets on this. Chair_ I still have a problem with the spirit of the ADU versus shoe horning it into this type of situation. Before wd vote on this I would like to kndw whether that can be done or not. Or whether the fact that the ADU was not meant in a�iy way, shape or form when it came into existence to be used as a transient vacation rental as opposed to a long term rental to satisfy the housing needs of Kauai,whether that is possible. Mr. Dahilig: Commissioner Blake,I would even take one step beyond that and say I don't think any of even the single family farm dwellings were ever meant ffom the get go to be used in this manner. And that is where you saw the litany of ordinances 864, 876, and 904 to try to address this problem. I don't think anybody thought someone would take a farm dwelling and then turn i:t into a multi-million dollar home for rental to people that do not normally reside oll the island.' And so I think from a philosophical standpoint I can see your point that we wouldn't want to condone ithe use of additional dwelling units as vacation rentals but everything that has come before the Commission whether it be an ADU or not an ADU was never intended by the original legislation to ever be used in this manner. This is again an attempt by the legislative branch to address the grandfathering issues concerning what was an unregulated use before this all happened. So whether'cave agree or disagree the AD[J holds the same leg'41 standing from a single family dwelling standpoint as a normal single family dwelling and is entitled to at least apply for this Bence our desire to look at minimization through conditions and tying them together versus hinging on what is legislative intent that happened before my time and is pretty clear with respect to even non-ADU single family dwellings. Chair: Well since I am more than twice your age I don't mind saying,but because no action was we are stuck with Ag. TVRs because no action was taken so pretty soon it became a right. That is not the situation here. This is the first time we have been ad4ressed or confronted with 2 TVR units on an Ag.parcel that is not really an Ag. parcel because it's not machine tillable and you can't dedicate it to Ag. and it is less than 5 acres and on and on. So when lire we going to say enough already instead of just letting it happen and then continue to happen down the road because this becomes a precedence? Plannipg Commission Minutes January 10,2012 46 Mr. Dahili`6)-: I think from a precedent standpoint the valve has been shut off, if you haven't applied prior to the August deadline you can't come in and receive this type of approval from the Commission anymore. That is why we know there is a fixed amount out there that are floating around within our department for approval, nothing else has come in since then and we have an idea of now what is the approved parcels or what are the parcels that are coming in for approval. It will not spawn more of these things from what we understand. Chair: If we table this or defer it, it is like the push me pull me in Doctor Doolittle. It is kind of an animal but it is not really the same thing. I am uncomfortable with just conditions to try and...see what we are trying to do is come up with a condition that will address everything we can think of, conceive of,right now that is going to be a problem. I venture to say that someone will come up with some problem that we haven't conceived and it is not going to be addressed by a condition. The only way we can deal with that is to say no. The valve has been turned off but it being a.I valve and in the nature of a valve can be turned on again or be loosened and that is what I am concerned about. And I am not sure exactly how to address that right this second. Mr. Dahill I understand the desire. I do need to inform the Commission though that this is the second crack at the application and given the requirements of special permits there is a maximum 210 days for decision making. So there has to be some type of vote today by the Commission because the 210 day deadline is January 19, 2011. Ms. Matsumoto: I am looking at condition 23. 1 appreciate your attempt to mitigate the number of people and cars. I was looking at the number of bedrooms so it is actually like a 4 bedroom, 4 bedrooms that we are talking about and I would like to suggest instead of making it 9 having it not to exceed 8 at any time, 2 per bedroom. Mr. Dahilig: 8 and would you say persons or adults? Ms. Matsumoto: 8. Mr. Dahilip,: Persons, okay. Ms. Matsumoto: And I cars. Mr. Dahilijz: I think the department would be amiable to that condition. I am not sure about the applicant. Chair: Any other comments before we...? Mr. Junk: I think before you guys start discussing ce`s°tain conditions, you can discuss them,before you make motions or motions to amend certain conditions you might want a main motion first. Ms. Matsumoto: I move to change condition No... Mr. Dahilig: To approve: Ms. Matsumoto: To approve the application. Mr. Kat@ygMa. Both applications. Ms. Matsumoto: Both applications, 24 and 34. Mr. Katayama: If you need a second I will second that. Mr. Jung: Given there are only 4 Commissioners you need 4 votes to have valid action. Chair: So the lack of 4 votes action within the 210 days deadline. Planning Commission Minutes January 10,2412 47 Mr. Jung: Well if there is not action on the last day of which the Commission can take action by no valid action, 4 votes or more,then the Commission has an additional 45 days to take up the matter pursuant to the Chapter 13 rules. Mr. Dahilig: The way we understand it there has to be an attempt to vote. If there is no valid action at that point then it triggers a 45 day extension automatically. But if there is no action taken today period on a vote then the permit will get approved without conditions. Mr. Texeira: But we have 45 days. Mr. Dahilig: Assuming that there is not 4 either way. Chair: Is there any further discussion, call for the question. Mr. Katayama: Do you want to make an amendment? Ms. Matsumoto: So I move to amend condition No. 23 to read, "As represented the maximum number of adults on the property using both structures shall not exceed 8 at any one time." And then keep the bullet"The number of vehicles on the property at any time shall not exceed 3 vehicles." Mr. Dahilig: So you are keeping the word"adult" Commissioner or you want to use the word"person'. Ms. Matsumoto: 8 people. Mt. Katayama: Second. Chair: Any discussion, call for t:he question. Mr. Dahilig: This is just on the amendment to... Mr.!Ln& Do you want to ask the applicant! Mr. Dahilig: Do you have... Mr. Cohen: Well actually I would like a chance to make a couple of quick comments since it seems like this thing kind of went in a direction. l=astly with respect to ADUs in general you guys have approve ADUs on Ag. parcels. Secondly this particular ADU was a legal nonconforming use prior to the ordinance. So the coupling of the two has been an attempt, I believe a good faith attempt on behalf of my client to work with the department to address your concerns. With respect to Commissioner Blake's question with respect to concerning the nomenclature of ADU I would point out if this were a guest house specifically the ordinance wouldn't have allowed us to get in the door. The ordinance was very specific with respect to single family dwellings. I think the drafters if they wanted to disclude or disallow ADUs it would have said that in much the same way that the department doesn't let an applicant come forward seeking a Special Use Permit in Ag. lauds on a guest house. I don't know the entire legislative history but I think that was a purposeful decision in crafting the ordinance. So again by virtue of trying to come up with a set of conditions to address the Commission's concerns, legitimate concerns with respect to density and overuse, potential overuse, I think Mike Laureta put it really well. This was a real good faith effort. I don't think my client would be amenable tb the changing of the phrase "adults"to "persons I think that is an unreasonable request. Based on the special permits that I have been present at I don't believe you have put limitations with respect to numbers of adults or persons or vehicles on any permit to date. So this is ground breaking territory. I cei rtainly concede to the 8 but I would request that it be kept at"adults"with all due respect. Chair: We have done;that before haven't we, limited vehicles and number of people. Mr. Dahilij..: Yes. Planning Commission Minutes January 10,2012 48 Staff. On TVRs? Chair: On TVRs? Staff. No we haven't. Mr. Dahilig. But in other applications we have. Staff. Because out there we have an 8 bedroom, 8 bath TVR, it is coming. Chair: Didn't we do that at the last meeting? Limit down in Moloa`a, I think, how many people could be housed in that vacation rental? Staff: That is Albertoni, he is next. We didn't finish him off, he is right there. Mr. Jun : I think what the Commission did look at is making sure no additional vehicles were parking outside of the actual area of the lot. Mr. Dahilig:: Just for clarification the motion on the floor if approved would be over objection of the applicant. Mr. Texeira: And the objection is just the language, "adult"? Mr. Dahilig: "Adult"versus the word"persons". Mr. Texeira: So if we change it to 8 adults you still would object? Mr. Cohen: No, I would be fine with 8 adults. Mr. Texeira: Can I have a clarification on that please? If we say 8 adults does that mean you can have x amount of children? Mr. Dahilijz: That is what that means. Mr. Texeira: Couldn't we just say 8 adults and 0 children? It doesn't make sense to have 8 adults and 8 children, you know what I mean? You are defeating the whole purpose. Mr. Dahilig: It is within the Commission's discretion at this point. Mr. Texeira: I can't see that, you want to 8 adults, have 8 adults but please. Mr. Dahilii if let's say it is a 3/1 or 2/2 on the amendment to the motion that is considered a failure at that point. - Chair: You vote for the amendment and against the main motion? Mr. Dahilig: That is an option. Mr. Texeira: For clarification, this is the second go around so if we don't approve this it is going to be automatically.... Mr. Dahilig: My recommendation to the Commission is there has to be at least some type of action on a main motion before January 1 9th. And so the stage that the Commission is at right now is an amendment to the main motion. Mr. Junw. Currently there is a motion to approve with amendment motioned with a second so you guys are in discussion on the amendment. Mr. Texeira: Mr. Chair, as I mentioned I cannot understand you have S adults and how many children. I don't see the compromise over here. s Mr. Dahilijz: The motion that we have on the door says 8 persons, not 8 adults per my understanding per Commissioner Matsumoto. Mr. Texeira: So you are sticking with that then, 8 persons? Ms. Matsumoto: Yes. Chair: Is there any further discussion on the amendment? Staff: I would like clarification. Now that we have joined both and we are going to take action on both at the same time is there a danger of killing both at the same time if you don't get...? Mr. Dahilig: Well the consolidation is in effect one permit, it is one perniIit application. So both live or die by the sword. Chair: So I can call for the question then on the amendment and the amendment only. Mr. Dahilig: Yes you can. Chair: Call for the question. Mr. Dahilig: This is on the amendment to the motion to read, "The maximum number of persons on the property using both structures shall not exceed 8 at any one time." On ml tion made by Camilla Matsumoto end seconded by Wayne Katayama, to amend condition No. 23, motion carried by the following roll call vote: Ayes: Matsumoto, Katayama; Texeira, Blake -4 Noes: None -U Absent: Raco, Kimura -2 Not Voting: Vacant -1 Mr. Dahili2: You are now back on the main motion. Chair: Is there any further discussion on the main motion, call for the question. Mr. Dahilig: This is on the main motion as amended. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve as amended, motion carried by the following roll call vote: Planning Commission Minutes January 10,2012 50 Ayes: Matsumoto, Katayama, Texeira -3 Noes: Blake -1 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Mr. Jung: There would be no action despite the silent vote. Mr. Dahilig: The 2/1/1 at this point because it is not a majority so a silent vote will not count I believe. Mr. Jung; There is no action so the silent vote would go with the majority. Mr. Dahilig: So I guess; at this point it would be put on the next agenda as a Special Order of the Day. COMMUNICATION Memorandum (1/4/12) from Commissioner Herman Texeira to reconsider the action denying Special Permit SP-2011-22 to permit use of existing single family residence for Transient Vacation Rental purposes as permitted by unty of Kauai Ordinance No. 904, in Moloa`a, Kaua`i, approx. 2,650 ft. northeast of the Old Kuhi`o Highway and Moloa`a Road intersection, further identified as Tax Map Key 4-9-13:1 (Unit B aka"Skippers") and containing a unit area of 14,839 sq. ft. of a 31,246 sq. ft. parcel=Aldo &LisaAlbertoni.. [Application denied 12/13111.1 Mr. Texeira: I would like to make a motion for the Commission to reconsider the action denying Special Permit SP-2011-22 to permit use of an existing single family residence for TVR purposes as permitted by Kauai Ordinance No. 904. Ms. Matsumoto: Second. Chair: Moved and seconded for reconsideration of the action denying permit SP-2011- 22, is there any discussion? I have a question of staff. Refresh my memory on what this was about and why it was turned down. Staff The same consideration that you just went through with Weatherwax applies here. The only difference is that parcel is CPR'd, house, main dwelling, and ADU CPR'd into two, it is the exact same thing. Mr. Dahilig: And just to add that what is unit A, I believe one is...the other one is called Gilligan's if I recall. Staff. Skippers got approved... Mr. Dahilig: That was approved by the Commission in November. Chair: And Gilligan's was turned down? Staff. Yes. That is the ADU but it is 3 bedrooms. The main house is 1 bedroom. So the same concerns apply, traffic, long term rental. Chair: Well that sounds a lot simpler than I recollect. What do you recall Mr. Director? Mr. Dahili2: There were concerns regarding the additional dwelling unit nature of the second application so the first one was approved with conditions that the Commission cannot touch at this point without an order to show cause. The second one was denied based on the discussion of additional dwelling units. Mr. Texeira: So what is the recommendation? Planning Commission Min4tes January 10,2012 51 Mr. Dahilig: At this point we think more discussion would be healthy for this particular item and so we would ask the...that would be our...the department cannot request a reconsideration they can only be requested by a member who has voted in the affirmative which is the motion on the floor at this time. Mr. Texeira: I was one of those that voted in the affirmative. Mr. Dahilig: If reconsideration is past the motion to deny the application would be on the floor again for discussion. Chair: So it was denied and one of the Commissioners who voted for denial has moved to reconsider. Mr. Dahilig: That is correct and it has been seconded. Chair: So is there any...has anything changed since the last time, the last meeting or the last action on the application? Mr. Texeira: Don't we have some other points of vii,w to consider at this time? That was my point of reconsideration. I thought that we would like to entertain some other paints of view. Staff. The applicant had discussions with the department and along the similar lines as Weatherwax that they were willing to limit the numbers or vehicles and people, adults, on the property and the same kind of consideration for, because it is two CPRs, if one of the CPRs was sold the master permit would go with the main dwelling which is the 1 bedroom and the ADU would convert to a long term rental. Mr. Texeira: That is fine. I would jdst like to discuss other options and that would be that the two units would be treated as one. Staff. Yes. Mr. Texeira: And they would be rented at the same time and not at different times if they were to be rented and it would be one party. It wouldn't be two separate parties it would be one party. Staff Okay. Mr. Texeira: Do you want me to repeat that? So the two units would be treated as one unit and parties renting the TVR would be one party, not two distinct parties. So I would like to have discussion on that. Chair: So this is the same as Weatherwax, on master permit or is this two separate permits? Mr. Dahilig: It is two separate permits Commissioner. Chair: And are we considering one master permit like Weatherwax? Mr. Dahilig: I think you cannot reach that point until you get to a point of reopening the debate on the matter. Chair: Whether to reconsider or not. Mr. lung: The standard for reconsideration is hasty ill advised decision making or added information and I think Mr. Texeira is talking about added information based on the Weatherwax situation. But for the purposes of a motion for recon.5ideration it brings it back to the original motion which was to deny. At that time you can start discussing but the motion for reconsideration generally has a very limited debate. Planning Commission Minutes January 10,2012 52 Chair: Any discussion on the motion? Mr. Jung: For the motion to reconsider you need 4 votes to make valid action and if there are no vote;,the motion for consideration fails, it's done. Mr. Katayama, So again what is the basis for reconsideration? Mr. Dahilig: There is additional information concernink options for the Commission to entertain regarding this particular type of application that relates to two TVRs within one parcel. Mr. Texeira: So we need to entertain a motion. Mr. Dahilig: The motion is on the floor from what I understand. Mr. Texeira: I am the one that in.itiaied the motion so could I make a motion? Mr. IgII& You did. Mr. Texeira: I am waiting for a second. Ms. Matsumoto; I seconded it. Chair: So now you can discuss why you think you should... Mr. Texeira: I have no discussion. Chair: Do you have any justification for your motion? Mr. Texeira: I think it is a good idea. Chair: Does everyone else think it is a good idea? If so I will call for the question. Mr. Dahilig: This is on the motion for reconsider... Unidentified Speaker. Can the applicant make a comment on the record to the motion? Mr. Dahilig: Up to you Chair. Chair: Not right now. Mr. Dahilig: The motion on the floor is to reconsider the denial of Special Permit SP- 2011-22. And just to confirm an aye vote would be in the affirmative. On motion made by Herman Texeira and "seconded by Camilla Matsumoto, to reconsider denial of SP-2011-22, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Katayama, Texeira, Blake -4 Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Mr. Jung: Now that the action has been reconsidered the main motion is back on the table in terms of the motion to deny. Mr. Dahilig: Mr. Chair, if I could just to clarify before we present maybe other items for consideration before the Commission if I could ask for a suspension of the rules if I could ask for clarifying questions from certain Commissioners? Chair: Yes. Planning Commission Minutes January 10,2012 53 Mr. Dahilig: Commissioner Katayama,from what I understand at the last Tneeting there were concerns about this application with respect to again two TVRs within close proximity of each other and the amount of noise and intensity it would generate. Mr. KatUaama: That is correct. Mr. Dahilig. And Commissioner Matsumoto from what I understand parking and the amount of ckirs that would be generated by two TVRs operating next to each other would also be...was a concern with respect to having two TVRs within close proximity to each other. Ms. Matsumoto: Yes. Mr. Dahilig: Commissioner Texeira, I think there were also concerns regarding intense commercialization of TVRs being again in close proximity to each other and that is why it was only looked at as having two in the same areas would be too many for approval. Mr. Texeira: Yes. Mr. Dahilig: Given those concerns about the intensity of use and from what I understand it was the denial action at the last meeting we do have a proposed condition that maybe for the Commission's entertainment we can put on the record. And then at that point we can have the applicant come up and weigh in and if Mr. Laureta wants to discuss what would be a proposed condition that we`could put on the floor regarding this application. Staff. I will pass this out. Commission recessed at 4:28 p.m. Meeting called back to order at 4:38 p.m. Mr. Dahilig: So Commissionets,just bring you back up to speed,we did pass out for discussion purposes a proposed condition,two conditions, and an amendment to condition 16 and this is concerning regarding the sale of the CPR unit:. Again ttat is something that we proposed as a mitigation measure as well as something similar to what was discussed in the Weatherwax application regarding the limitation of adults and vehicles. And then(inaudible) would be the last one as a rrieans of trying to mitigate the application is where we would say that TVR use of this structure shall only be allowed if the TYR approved pursuant to Special Permit 2011-21 is not in use. So it becomes a situation of A or B as a means to mitigate some of the conce s that were raised by the Commission regarding intensity of use,noise,parking,and over commercialization. We feel that this may be an appropriate means in this particular circumstance because it is a CPR, one already has an approval from the Commission,that this may be a means of being able to allow TVR use to occur but it cannot occur if the other TVR application is being used as a TVR at the time. And so it becomes a unit A or unit B type of scenario and only one at any given time is acting as a TVR. Mr. Texeira: Is this something new? Mr. Dahilig: This is something different because you already have one application that was approved by the Commission in November and that cannot be consolidated. Mr. Texeira: So clarification,that approval in December,that is a TVR at the moment. Mr. Dahilig: The one in November and that was unit A and that was called Gilligan's and this one is Skipper's I believe. Mr. Texeira: So the issue is Skipper's? Mr. Dahiliv: The issue here would be Skipper's only. PIanning Commission Minutes January 10,2012 54 Ms. Matsumoto: So, on this sheet here in the conclusion I would like to discuss the possibility of changing limitation on the number of...take away"'adults" and put in"people"and leaving the rest the same as is. And again on the last page the first bullet as 23, "As represented, the maximum number of people on the property using both structures shall not exceed 8 at any one time." Mr. Dahilig: Commissioners,just for procedural reasons if this is palatable for`-the Commission in a situation where approval of the permit makes sense now with these additional limitations, for procedural reasons I would suggest tabling the motion to deny first. But if not then the existing motion that is still on the floor needs to be disposed of. So if there was a desire to move from a denial to an approval with conditions rather than vote down the denial I would suggest that the Commission table the denial. Mr. Texeira: Or I could take away my motion. I could withdraw my motion. Mr. Dahilig: The motion to reconsider has already been approved and so for reasons to keep the option of denial on the table, rather than voting it down it may be in the best interest of the Commission to consider tabling the motion to deny if a motion to approve with conditions as proposed by the department were to be put on the floor. I just put that out there for the Commission's entertainment at this point. Chair: It is being reconsidered. Mr. Dahilig: Right. Chair: And.we have been offered an avenue upon which to base reconsideration by the planner. Mr. Dahilig: This is correct Mr. Chair. Chair: And so now does anyone have any questions of the planner or observations or comments or statements to make on the record? Mr. Katayama: For my clarification procedurally we are under reconsideration. Mr. Dahilig: Correct. Mr. Katayama: So what are the choices there? What are we voting on, on the reconsideration? Mr. Dahilig: What you can do is again vote on the original action which was to deny. You can vote to now approve with conditions but if you were to move that route what I would suggest is before that motion is made a motion to table the motion to deny be taken first for procedural reasons. Mr. Katgy na: If we do not table the denial and move to approve with new conditions and that fails wouldn't the denial stand? Mr. Dahilig: No because the denial had been reopened up. Mr. Katayama: So would it go back to no action? Mr. Dahilig: It would be no action. Mr. Texeira: That is why we have to table? Mr. Dahilig: The reason why I would suggest tabling the motion to deny is that from a procedural standpoint it keeps more options open to the Commission from a deliberation standpoint versus disposing of a motion to deny. It leaves it in stases essentially. Mr. Texeira: Mr. Chair, I would like to make a motion to table the;motion to deny. Planning Commission Minutes Ianuaiy 10,2012 55 Ms. Matsumoto: Second. Chair: Any discussion, call for the question. Mr. Dahilig: The motion on the floor is to table the motion to deny. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to table motion to deny, motion carried unanimously by the following roll gall vote; Ayes: Matsumoto, Katayama, Texeira, Blake -4 Noes: None -0 Absent: Raco, Kimura -2 Not Voting: Vacant -1 Chair: So now we move into... Mr. Dahilig: Into just the discussion on the application. Chair: Any questions or comments for the planner? Mr. Texeira_ If there is a motion to approve I would just like Mike, if you could read the motion. Chair: There is no motion to approve yet. Mr. Texeira: Nb, if I were to make a motion to approve. Mr. Jung: If you want the conditions read? Chair: We are just asking the planner to review the supplementation of his report. Staff: Based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2011-22 to Aldo and Lisa Albertoni for the main dwelling unit...should ADU be in there? And additional dwelling unit be approved subject to the following conditions, there are 24 conditions, 3 of them are applicant specific, 16, 23, and 24. 16, any property interest in the subject property be transferred be sold the Planning Commission shall be notified prior to the closing of the sale. Further, if 1 CPR unit is sold this TVR Special Permit would attach only to the main dwelling unit also known as Gilligan's in order to make available the ADU, Skipper's, for long term rental use. 23, as represented the maximum number of people on the property using both structures shall not ekceed 8 at any one time, the number of vehicles on the property at any one time shall not exceed 3. And 24,TVR use of this structure shall be allowed only if the TVR approved pursuant to Special Permit 2011-21 is not in use. Chair: Questions, comments? Ms. Matsumoto: I guess it is now time to suggest that we change... Mr. Dahili& I guess Commissioner we would 'incorporate into our proposal to the Commission that the word adult actually be now termed as people versus adult in the conclusion and also in condition No. 23. Chair: Questions or comments? Mr. Katayama: Clarification, so when it stated that the special permit for the main dwelling unit and the ADU be approved I thought this permit application was focused jusit on the ADU unit. Mr. Dahilig: That is correct and maybe I could refer to the County Attorney to further explain how this mechanism would work. Mr. Jung: You are referring to condition 16? Planning Comd.iission Minutes January 10,2012 56 Mr. Katgama: I am referring to the first sentence on the recommended actions by the Commission as well as the underlying conclusion, in last paragraph. Staff: I believe that first sentence should be eliminated because we can't j oin both of them,"Consolidation of both residential units on this parcel of record under one master permit in addition to the limitation on the number of adults and vehicles on the property at any one time does address Commission concerns relative to intensity of use and potential impacts to the surrounding neighborhood." Mr. Katayama: And what about the first sentence under recommended actiop by the Commission? Staff: Yes, that one because this is for the...we would have to strike"main dwelling unit"since that has already been approved. So under recommended action, "main dwelling unit and"would be eliminated because we are dealing only with Lhe additional dwelling unit. And under the conclusion under the underlined, the fourth paragraph, yes we are dealing with two independent permits. Mr. Jun&. So what exactly is your theory,to tie them at the hip so one operation cannot operate if the other is not in operation? Staff. That is what 24 would be doing, tying them at the hip. Mr. Dahilig: So essentially the use in 2011-21 would remain unchanged and that the use of this particular permit would be incumbent on how thAt original permit is being used. So it becomes a if/then type of scenario. Ms. Matsumoto: So we are taking out the"based on the following conditions"paragraph or sentence here? Are we? Mr. Dahili&: Yes. We should actually be eliminating the last sentence as well as in the conclusion the language "to address the Commission's concerns",that sentence should be stricken. And then Commissioners, I guess given the confusion apd.I apologize for.that that we are not cleat on this that the sentence in 16,the added sentence,should actually be stricken. So Commissioners for proposal reasons the department would only propose the first sentence of the last paragraph iri the conclusion along with the"additionally it is", and then condition's 23 and 24. And that is what we would put on the table for entertainment for the Commission. Chkr: So you need A motion to delete those portions? Mr. Dahill&: No we wouldn't propose it; we are not propbsing it at this time and we would incorporate as Commissioner Matsumoto has laid out,the phrase "people"would substitute the phrase"adults"in the last pdragraph of the conclusion as well ag the first sentence condition No. 23. Mr. Texeira: So do we need a motion to clean that up? Mr. Dahili&: We would just propose it as is. So it would read starting with paragraph 2, the third paragraph in the conclusion,"Additionally it is concluded that even though the department has strong reservations about TVR uses outside the VDA especially within SI.,UD Ag. (inaudible)most be paramount, our recommendation(inaudible)under the confines bf the law including Federal constitutional considerations concerning property rights and takings the County's ordinance 904, the recommendations of the General Plan,apd Chapter 13 of the Planning Commission's Rules of Prdctice. It is finally concluded that the consolidation of both residential units of this parcel of record under one rp' aster permits..." I apologize, Commissioners can we take a two minute recess? Commission recessed 4.50 p.m. Meeting called back to order 5:00 P.M. Planning Commission Migutes January 10,2012 57 Mr. Dahilia: Again Commissioners I apologize for the mix up and the quality of work here and he will try better to be more accurate on our submittals to you. With respect to the conclusion what I would recommend is that the last paragraph read,"The Commission has concerns about concurrent-dse of the TVR with the TVR on SP-2011-21, specifically the intensity of use and potential impacts to the surrounding neighborhood". Let the read it one more time,"The Commission has concerns about concurrent use of the TVR with the TVR on SP-2011-21, specifically the intensity of use and potential impacts to the surrounding neighborhood". I would recommend that condition 16 remain as is without the addition and the condition 22 would read,"As represented the maximum number of people on the property using both structures shall not exceed 8 at any one time. The number of vehicles on the property at any one time shall not exceed 3 vehicles". Condition 24 should read,"TVR use of this structure shall be allowed only if the TVR approved pursuant to SP-2011-21 is not in use." So in that effect the condition would be that it becomes an A or B type of scenario, it is not A plus B. Chair: Any comments, questions? Staff: One change also to add to the Director's notes was recommended action by the Commission to delete"To Aldo and Lisa Albertorii for the mail dwelling unit and",we delete that one because this is only in reference to the additional dwelling unit. Chair: No comments or questions? Again, I commend the department for bending over backwards in an attempt to accozmnodatc the application. Well before I say that would the applicant like to comment on what has transpired so far? Mr. Foster: Sure, thank you Chair, Charles Foster for the applicant. I could let the public go first...The applicant had in discussions with the department arrived at some proposed conditions and those conditions were the limitation on the aggregate number of now people staying,the number of vehicles and had also said that they would agree that upon the sale or transfer of either of the units having special permits fbr a single family transient vacation rental located on this TVR parcel then this permit will be revoked. So at some point down the line one of these will go away if either of them is transferred. He is opposed to regime under which he can only use one at a time. He would like to be able to use them both with the limitations and he will entertain any number of limitations and conditions addressing the concerns of crowdirfg or traffic br any other kind of impacts. One of his main objections to the either or is for him he has expressed that it is areal headache in administration. He wants to be able to advertise them both and it is just a family running this,he doesn't have an organization to manage the kind of...if somebody wants tq rent it from the 1St through the 12th but somebody else wants to rent one from the 1 ith to the... that is the kind of thing he has experienced and that he is anticipating. So he would agree to as I say the limitations addressing the impacts but he has instructed me he does not agree to rent them off and on,to rent one and riot the other. It I am clear. ` Mr. Texeira: So can I be clear that he wants to lump them together as one unit in the rental process? They are distinct units but... Mr. Faster: Distinct units,he foresees renting them to different parties. Mr. Texeira: At the same time. Mr. Foster: Yes but he will adhere to a limitation on the number of persons on the overall, aggregate,together, on bath units on the property and the number of cars. So in other words 3 cars only, 8 persons or whatever is reasonable that you decide. Mr. Texeira: That is similar to the last applicant. Mr. Dahilig: It is what he is proposing. We would not concur with that proposal and the reason why again is because we think in this particular circumstance because one permit,unless the applicant is willigg to open up the other permit for consideration at this point but my suspicion is that the other permit is not on the table for discussion. So we think that from a Planning Commission Minutes January 10,2012 58 proposal standpoint we would minimize the concerns of the Commission as raised when they took the denial action concerning impacts, intensity,noise,traffic,parking, that the either/or approach to th1s would be a means of being able to control and minimize the impacts on the property. And so by having the A or B scenario really in effect allows one TVR at a time in that area which is some ways may open up this particular TVR, in terms of how they choose tTom a business plan choose to manage it, can open up to other possibilities for them as well. Mr. Texeira: So the department's recommendation is,..could you please be spebific and read that recommendation? Mr. Dahilig: So the department's recommendation would be to amend their original report to state, again, in the last paragraph in the conclusion would say, "The Commission�has concerns about concurrent use of the TVR with the TVR on SP-2011-21, specifically intensity of use and potential impacts to the surrounding neighborhoods". We would strike the phrase"main dwelling unit"so it would read, "Based on the foregoing evaluation and conclusion it is recommended that Special Permit SP-2011-22 to Aldo and Lisa Albertoni for the additional dwelling unit be approved subject to the following conditions. Condition 18' would remain as is and would not have the additional language there and there would be two additional conditions, condition 23 and condition 24, condition 23 would read, "As represented the maximtn number of people on the property using both structures shall not exceed 8 at any one time and the number of vehicles on the property at any one time shall not exceed 3 vehicles". Condition 24 wt�uld be, "The TVR use of this structure shall only be allowed if the TVR approved pursuant to SP-2011- 21 is not in use". C air: Any comments or questions of the applicant? Mr. Katayama: For the Director, SP-21 has no restrictions on occupancy. Mr. Dahilig. That is correct. Mr. Katayama: So I think that is a quid pro quo is that if you are using both then there is no restrictions on the main house. So I think that is your either/or scenario rationale for that. Mr. Dahilig: That is correct. Mr. Texeira: So Mike, one would be long term and one would be TVR? Mr. Dahiliz We are not suggesting that it would necessarily turn into a long term but certainly the restrictions here do allow for TVR use under certain conditions and as the applicant's representative knows there are other economic options for the applicant to use this particular property besides just TVR use along. Mr. Texeira: But he would be able to use either unit as a TVR? Mr. Dahilia: Either unit but it would not be an A plus B scenario. Mr. Texeira: It would be simultaneously. Mr. Dahilig: It would not be simultaneous. Ms. Texeira: So if unit A,the ADU, is used as a TVR would the conditions apply to unit 1 or only the proposed ADU? Mr. Dahilig: If They were only renting out 22,the ADU,and we discover through enforcement means that 21 is being rented out as well then that would be a violation of the conditions for TVR use. Mn Texeira: Right, but these conditions that we mentioned right dow are only applicable to the ADO? Mr. Dahilig: That is correct. Planning Commission Minutes January 10,2012 59 Mr. Katayama: (Inaudible). Mr. Dalili>r: Only a violation of 22 upon which time there are a number of means, OSC, revocation,modification, and then we now have civil fine authority as well. So we can look at the option of civil fines as a means of compelling compliance with the law and the permits. Chair: As I started to say, I commend the department for what I consider bending over backwards to try to make the application work. But it seems that we are becoming contortionists in this regard the idea is you apply and if you fall within the standards that have been set forth then you get your TVR. At the time that was done one TVR was contemplated,not two on a lot. So now we are faced with at least two cases of which we are sure of for two TVRs on one lot and one small lot,both of them shall lots. So it is not inconceivable to see this happening down the line. And enforcement has always been a problem Because of the cat and mouse game that many citizens choose to play with the County. And it is not reflection on your clients but that is just a known fact. Mr. Foster.. I understand, Chair. Chair: And we have had testimony in the past about how TVRs impact a neighborhood, coming and going of a lot of unknown people,q lot of unknown cars,people who have enough times to be of concern to their neighbors act as if this is strictly a vacation and they don't que to the same neighborhood values as the rest of the neighbors and that is a problems. There has been testimony about the overload on community facilities primarily garbage pickup. So it is not,I believe, it is not just a cut acid dried simple matter of having one and then adding another one. You have all these other considerations that come into play that are not necessarily empirically verifiable but they exist because we have had public testimony by citizen after citizen after citizen complaining about this happening. And here we have a concentration of two ADUs, excuse me two TVRs on a tiny lot,too small for Ag. and that is why we can't use it for Ag. or that is one of the main reasons we can't use it for Ag.but we want to use it to pravide alternate vacation, alternative v4catioh facilities to the general public or the traveling public. And those are the considerations that went through My mind when I voted to deny and I know that a lot of work has gone into this and a lot of thought has gone into this by the department in its attempt to be fair. But I am still not convinced that these additional conditions militate sufficiently to negate all of the other negative dings that happen when you have a concentration of TVRs in a neighborhood, especially on a,,mall lot where it becomes art enclave of vacation rentals. I think this also militates against the type of lifestyle that we are trying to preserve by our General Plan and that has been a matter of study by the Action Alliance and so for those reasons I am going to maintain my no vote. Any other comments? Mr. Texeira: No, you said it very well. Chair: What is before us to vote right now? Mr. Foster: May the applicant make a comment? The concerns have been stated in very general terms. I would like to just put on the record that neither of these properties have ever had any complaints. The applicant is very thoughtful of the neighborhood as well as of kris property. He wants to preserve his property, doesn't of low partying and limits the number of people and has never had any complaints. Also the concerns of use intensity and impacts, if those°were made more specific I believe that we could make proposals that would allow him to operate both concurrently and address the department's needs. I understand Chair that this doesn't adds ess necessarily your philosophical opposition, I understand.that. But I want to say to the specific departmental concerns I would like a chance for the applicant to address those more specifically and see if something can be worked out. Mr. Dahilia: If I can have leave to respond Mr. Chair,having had the opportunity to supervise monitoring enforcement of these types of operations I believe that I concur with the Chair's assessment regarding what these impacts actually are. Looking at it,noise,traffic, the community character, over commercialization,we even say in the report we have gotten complacent about animal house type of activities and so on any given Sunday you cannot Planning Commission Minutes January 10,2012 60 anticipate what type of people are going to be in the house at any given time. I could sit right back and tell you a tale of TVRs that have gone and been animal houses but then the next day they are not. And so our attempt here was to try to minimize that while allowing some freedom of use with the second property,not a lot of use but minimize it tq a point where it is in effect the activity of only one TVR. That is the net effect and that is why we are proposing this method at this point. But ultimately it is up for the Commission's consideration on this and I would remind the Commission that we would need some type of motion either way. You do have a tabled motion and then you do have the option of approving with the conditions we are proposing but that some action be taken today on either course of action. Chair: Does anybody have anything to add? I appreciate your client's past actions and their willingness to work with the department. But whenever you use the term mitigation to me you have already accepted a certain level of inconvenience, we are going to mitigate the inconvenience. We are not going to delete the inconvenience we are going to do somethin�that is going to inconvenience but not a lot because we are going to mitigate it. And to me TVRs are an alternate type of vacation experience not a substitute for the Marriott. At the Marriott you can party hearty 24 hours a day if you want but this is an alternate and as an alternate there are going to be restrictions on it and the restrictions have to meet with the...because it is a special use permit,meet with the or have the ability to meld and mold into the neighborhood. That is one of my biggest concerns. And it doesn't matter how often or strict you are about your applicants coming into the house you are not there 24n to say cut that out right now. All it takes is for on(*,-party to or one group of people to decide that they are going to bend the rubs or maybe not even thing about it. And�o we are in a position of having to do the best we can not to let that happen knowing that it is going to happen and knowing that despite the best intentions of the owners they can't control if all the time. That may also happen with long time residents and neighbors but you have at least the ability to bad vibe your neighbor into some kind of compliance or neighborly action where the vacationer is gone. And again, I know I am repeating myself now but that is why I would vote to deny the second ADU. i Mr. Foster: May I make a point? Under the standard conditions that somebody did have I think even one outrageous neighbor at night that would be grounds to revoke the permit and so I think it has...I think you have installed that sort of safety mechanism into the document at this point to alleviate those kinds of problems. Chair: It is true we could take that action but nobody wants to do that. I mea4 you go through this whole exercise trying tb accommodate the application and that accommodation of course cuts both ways. And we are not just sitting here waiting for you to screw up so we' can pounce and say that's it. We want never to have any problems with this alternate vacation experience. Mr. Foster: Finally may I make a proffer? I wanted to object on the motion to recall this question on grounds that new information doesn't contemplate the kind of information that was used here where there is another applicant with a similar situation. I would just put that on the record. I am not asking to argue about that I just wanted to place that for illy own procedural... Mr. Dahilig: And let me just state for the record that reconsideration is not a right of the applicant and that it is a standard that is outlined through Robert's Rules of Orders through the Practice and Procedure and is exclusive to the Commissioner and the Commissioner alone. Mr. Foster: And I don't know if the public wants to speak. Chair: Is there any public testimony? Hearing none, did you have something you wanted to add Ms. Matsumoto? Ms. Matsumoto: I just want to say that for this particular application I think the solution that has been presented is a good step forwarc as an example. -1 think that,I think it will help to limit people's goals of what they want to do with property. And I like the idea of limiting the number of cars for example and people because that is the...I think that will help tremendously in neighborhoods. We can't control what people are going to do 100 percent but I have to say if you have these rules and you break them,you come on vacation and you spend thousands of Planning Commission Minutes January 10,2012 61 dollars but you are sitting on this thought that I am really not supposed to be here, I don't think that is a great vacation. I wouldn't feel good about it. Some people might iiot care but...they can come and enjoy Kauai and just keep it simple, take care of the communities and have a good time:. That is all we are asking, it is very, very simple. And I think it will limit the size of dwellings as well, you have 2 per bedroom, as someone who is going to build a vacation rental, am I going to build a gigantic house with 3 bedrooms because I think maybe 20 ja eople can stay there, no, I might have second thou�hts. We are not there 100 percent but I think we are moving forward in a good direction. We are not leaving it as is, we are paying great attention...we have staff involved in looking at all of these conditions,people are going out to inspect more, a lot has happened in the last few years and I think people know that. It is out there and it is being documented right here. So I think we are moving in a good direction in fulfilling our goal of taking care of Kauai. That is just my thoughts, it is not 100 percent but we are getting there. Chair: Anyone else? Mr. Texeira: I would like to share some thoughts about the application. You are against the proposal? Chair: My vote is going to stay the same. Mr. Texeira; My concern is that I just wanted to see one TVR on two units and your proposal, the department's proposal is that except that you are saying that you can have a T'VR use on either unit. am I correct? Mr. Dahilix On either one, yes. Mr. Texeira: So the bottom line is you only can have TVR activity at a time. Mr. Dahiliz That is correct. Mr. Texeira: And that is my,;to me that is limiting the use. I mean I would be comfortable with that and so I just wanted to add that, along with the conditions that you have recommended. Mr. Katayama: This Commission has been dealt a hand, we have pending cases, and if you distill the issues it really comes down to density. You have created the use in the form of a transient vacation rental that could expand the density of what was originally envisioned as a single family dwelling and in looking at the applications on smaller lots that issue I think is more of a concern. I think the department has brought in a very unique solution that strikes a balance between the community's concern as well as the property owner where we are not I don't think unreasonably limiting their rights but we are holding them responsible to what the original intent of the structures were. In hearing the development of this concept I think it has a lot of merit. These are not new endeavors they have been around for quite a while and based on the reports of the documents submitted it has been with no issues at least reported to the department. So in terms of the concern with it can get out of hand, I can understand that, but I think by addressing it through density you strike a balance between the community and the property owners. I am glad that we went this reconsideration process and had the ability to sort out this methodology and I think it, for me, has a lot of appeal. Chair: Any further comments? What motion are we voting on now? Mr. Dahilig: At this point Commission, from what my understanding is, the motion to deny has been tabled and there is no pending motion on the floor at this time for the Commission's consideration. So I would say that the options before the Commission is to either take from the table the motion to deny and revote on it or to have another motion either to approve the permit as earlier presented or with the proposed amendments that the department has laid out today. Planning Commission Minutes January 10,2012 62 Chair: Anyone feel moved to move? Ms. Matsumoto: Move to approve the permit application with the amendments as read by the Planning Director. Mr. KatUama: Moved and seconded to approve the application subject to the additional conditions. Now you need 4 votes to approve this. Mr. Dahilig: That is correct. Chair: If you don't get 4 votes what happens? Mr. Dahilig: I will refer to the County Attorney for his opinion on the matter. Mr. Jung: Given the action was revised or revived and the fact that action was taken within the 210 day period previously, if there is no action today there is an additional 45 days for the Commission to take up the matter. Chair: Any more discussion? Mr. Texeira: I just want to be sure on the motion, so that would mean that we are tying the other application to the hip meaning that it is either, or, right? Mr. Dahilig: That is correct. Specifically that would be the provision T'VR use of this structure shall be allowed only if the TVR approved pursuant to SP-2011-21 is not in use. Chair: Any further discussion, call for the question. Mr. Dahilig_: The motion on the floor is to approve SP-2011-22 with amendments as proposed by the Planning Department. ` Can motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve SP-2011-22 as amended, motion not carried unanimously by the following roll call vote: Ayes: Matsumoto, Katayama, Texeira -3 Noes: Blake -1 Absent: Raco, Kimura -72 Not Voting: Vacant -1 Mr. Jung: No action taken. It will now move to the next meeting special order of the day. PUBLIC HEARING (NONE) NEW BUSINESS (NONE) ADJOURNMENT Commission adjourned the meeting at 5:37 p.m. Respectfiilly Submitted. Lani Agoot Commission Support Clerk Planning Commission Minutes January 10,2012 63