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Home My WebLink Aboutpcminutes1-24-12 KAUAI PLANNING COMMISSION REGULAR MEETING January 24, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura at 9:11 a.m. at the Lihu`e Civic Center, Mo`ikeha Building; in meeting room 2A-2B. The following Commissioners were present: Mr. Herman Texeira Mr. Jan Kimura Ms. Camilla Matsumoto Mr. Hartwell Blake Mr. Caven Raco Absent and excused: Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: APPROVAI, OF THE AGENDA On motion made by Herman Texeira and seconded by Camilla Matsumoto,to approve the agenda, motion carried unanimously by voice vote. RECEIPT OF ITEMS. FOR THE RECORD On motion made by Camilla Matsumoto and seconded by Herman Texeira,td receive items for the record, motion carried unanimously by voice vote. MINUTE On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve regular meeting minutes of December 13, 2011, motion carried unanimously by voice vote. Mr. Dahiliz Mr. Chair, if I could suggest just for efficiency purposes if the Chair wouldn't mind entertaining the Subdivision mgtters before we get into the special order of the day. SUBDIVISION Mr. Texeira: To honorable Chair and members of the Planning Commission the Subdivision Committee reports the following tecommendations for the items listed below. We didn't have tiny general business, communications, or unfinished business, all we had was new business. We had 3 items that we took under consideration under the new business and zll of these were final subdivision action. The first one was S-2011-11, and this is for Ysidrd R. Macias/Thomas Kaiakapu,TMK 1-9-009:013, 1-9-010:001, and it was approved 3 to 0. The second one was S-2011-12, Antone Viela Trust Estate, TMK 4-2-010:0012, 059, this was approved 3 to 0. Chair: Excuse me; I am going to recuse myself from the Princeville Prince Golf Course. I used to be an employee of theirs so'I am going to recuse myself for that. Planning Commission Minutes January 24,2012 l FEB 282012 Mr. Texeira: The third item was S-2011-14 and this was for the Princeville Golf Course LLC, and that was approved also 3 to 0. All 3 of these items for subdivision action were consolidations. I'm sorry, these were all boundary adjustments. Mr. Blake: No construction contemplated just the boundary adjustment for each of the 3. Mr. Texeira: Thank you sir, do you have any comments? If not I would Pike to call for a motion to approve. Ms. Matsumoto: So moved. Mr. Raco: Second. Mr. Dahilig: Hartwell has to make it. Mr. Raco: So there is a motion on the floor to approve,there is a second. Mr. Blake: Any discussion, all in favor, all opposed, motion carried. On motion made by Camilla Matsumoto and seconded by Caven Racb, to approve Subdivision Committee Report, motion carried unanimously by voice vote. SPECIAL ORDER OF THE DAY Special Permit SP-2011-22 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance 904, in Moloa`a, Kauai, approx. 2,650 ft. northeast of the Old Kuhi`o Highway and 1Vloloa`a Road intersection, fiu-ther identified as Tax Map Key 4-9-13:1 (Unit B aka"Skippers") and cont4ining a unit area of 14,839 sq. ft. of a 31,246 sd. ft. parcel =Aldo & LisaAlbertoni. jHc aring's Officer Special Meeting Public Hearing held 11/18/11, Motion to approve not carried due to split 3/3 vote 11/22/11 Motion to Reconsider carried due to 4/0 and motion to 4pprov6 not carried due to 3/1 vote, no action 1/10/12.1 Supplemental No. 3 Director's Report pertaining to o this matter. Staff Planner Mike Laureta: Just to recap how we got here, supplemental report No. 3 which is Ramseyer, on the hearing history on page 1 the Director's report of November 18, November 22, we had a supplemental No. 1. That was a 3/3 tie vote. December 13, 2011, supplemental No. 2, Commission voted 5/0 to deny. January 10th,the Planning Commission voted 4/0 to reconsider and on a 3/1 vote there was no action. This is the second unit on the parcel of record. The Commission has already approved the first. Chair: Is the applicant here. Mr. Charles Foster: Good morning Commissioners, Charlie Foster for the applicant Tony Albertoni who is present. Based on the comments and the discussions that have taken place the last several times we have been together I would like to say that having done some research based on the that it is clear that a zoning authority can require that an owner obtain a special permit for nonconforming use so long as the zoning authority doesn't deny the permit once it is established that the owner actually has a lawfully established nonconforming use. That is because an established nonconforming use is a vested right entitled to constitutional protection. And a nonconforming use attaches to the land and not the applicant. Who the applicant is, is irrelevant. And the law of equal protection requires that similarly situated applicants be treated similarly unless there is a rational basis for the difference in treatment. Now the Commission has expressed concerns and said-that it doesn't want to grant permits to two adjacent TVRs owned by the same applicant. And the Planning Department in Planning Commission Minutes January 24,2012 2 response has proposed a condition that two adjacent TVRs owned by the same applicant cannot operated simultaneously. However the Commission has granted permits to adjacent TI; Rs on small lots and CPRs owned by different applicants without this condition. And there is rational basis for this dissimilar treatment between adjacent CPRs owned by different applicants anal those owned by the same applicant. Therefore this condition violates equal protection. It also effectively reduces two TVRs into one. In practical terms this serves to deny a permit even though it has been established that the owner actually has a lawfully established nonconforming use. So the condition that two adjacent TVRs owned by the same applicant cannot operate simultaneously violates equal protection and deprives the applicant of a constitutionally guaranteed property right. It is true that reasonable conditions may be placed on nonconforming uses and the department has said that the conditions here are to address impacts on the neighborhood. However, before conditions can be placed on a nonconforming use there must be findings showing a problem in need of addressing. And here there have been no such findings. On the contrary the uncontroverted testimony here is that in that whole history of the operation of both of these TVRs there has never been a complaint from any neighbors or anyone else. Here the applicant has established a valid nonconforming use, similar applications to his have been permitted,there has been no showing of any negative impacts from his TVR operations, so under the law Ofnoficonforming uses and under the law of equal protection he is entitled to his permit without ponditions that effectively render his TVRs into one. Now having said that the applicant, Mr. Albertorii, has a proposal and that proposal is that at the time that he eventually sells or transfers his property the permit on the subject property here is revoked automatically. So the neighborhood there and the island effectively eliminate one TVR out of the VDA under the applicant's proposal. This is a reasonable compromise and we hope that the commission will consider it. Mr. Texeira: Mr. Chair, I would just like the applicant's rep. to repeat that again. Mr. Foster: The proposal is that at the time that Mr. Albelloni sells or transfers his property,the subject property here, then the special permit and the nonconforming us at that time revokes. Mr. Texeira: So that only applies to the application right now, not to the previous approval? Mr. Foster: That is right. That would be this application. The other one is kind of a closed business and we would have to reopen that and then this way... Mr. Texeira: I just wanted to be sure for the record. Chair: Any more questions for the applicant? Mr. Blake: Right now what can the applicant do with the subject of the application? What use is available to them? _Mr. Foster: As a nonconforming use right now he can short term rent it, long term rent it, he can stay in it,'live in it. Is that responsive to your question? Mr. Blake: So what do you plan to achieve by getting a second permit on this one? Mr. Foster: Well he has been using, he wants to use the properties in the ways he has been using them prior to March 7, 2008 and that is by sometimes he stays in them, sometimes he rents them out short term. Mr. Blake: But he wants to be able to use them exclusively for TVRs i�he wants to. Planning Commission Minutes January 24,2012 3 Mr. Foster: Yes. That would be the right he had prior to the date of the amended zoning ordinance and as a matter of right then that right would carry through. Ms. Matsumoto: You just said I think two different things. You answered it saying that he stays, he wants to stay, he wants to rent short term and then you said he :wants to use it as a TVR exclusively. Mr. Foster: He would have the right to. Not that that is what he wants to do. What he wants to do is what he has always done and that is to stay on the property as well as renting it out short term when he is not there. Having had the property, operated it as a TVR prior to the change in the zoning ordinance he has the right arguably to operate it exclusively as a TVR. I don't think that is his plan,he will treat it the way he always has historically Ms. Matsumoto: I just wondered what you meant by exclusively because when I hear exclusively it means one thing, one use. Mr. Foster: I think that was my interpretation of Mr. Blake's question was he wants...maybe I misunderstood the question. The way I interpret it is he wants the right to use it exclusively as a TVR. I think that right is what is gr4nted with a nonconforming use if that explains my answer. Mr. Blake: So you are saying that previous to today or previous to this process both were rented out as TVRs, both units. Mr. Foster: That is correct and he also stayed in both units at times. Mr. Blake: And now he wants us to but the good housekeeping brand of approval on what he used to do. Mr. Foster: Nothing about any good housekeeping it is seals of approval. It is granting his right to the continued use of his property as he was using it prior to the change in the zoning ordinance. Mr. Blake: So what is your interpretation of the problem that we had with regard to this application? Mr. Foster: Well I know a couple of problems that you had and I know that Mr. Blake you're specifically offended by the use of an ADU as a TVR and the Planning Director expressed issues about impacts on the neighborhood. Those were the two main issues I heard. Mr. Raco Mr. Foster, if the application is denied we are not denying your normal use of using the property for long term rental, right? Mr. Foster: That would be correct. 1 Mr. Raco: My memory of the denial was because of the ADU. I just have a hard time and I agree with Mr. Kimura on the condition that the intention of the ADU and the spirit of the ADU was to provide more housing for the commranity. In this case it's a misuse of the ADU and the intention and the spirit of the law to now we are asking the ADU to become a b�siness now, all of a sudden. And the intention of the ADU from what I know is to provide more housing. Mr. Foster: And I understand your concern. My response would be that the law 904 and State statutes,neither 904 nor State statutes distinguish for the purposes of the nonconforming use whether it is an ADU or 4 main dwelling unit. That is all I could argue is that the law makes no distinction between the two the right. A nonconforming use is a right, a constitutional right and there is no distinction in 904 or any other law between and ADU or any other single family dwelling. That would be my response to that. I understand your concern. Planning Commission Minutes January 24,2012 4 Mr. Aldo Albertoni: Can I ask the Planning Director hasn't that already been established that there was an ADU that was given TVR, special permit for TVR? Mr. Foster: Mr.Albertoni makes a good point. We are aware that some ADUs have been granted nonconforming use, special permits. Mr. Dahilia: Just to respond and again I am ndt going to necessarily efttertain the question. The proposal on the floor and the open motion that is before the Commission at this point is a condition to address concerns relating to concentrated TVR use in a small confined area that may induce large amounts of traffic,poise, and other impacts to the neighborhood. And so the condition that is on the floor for the Commission's entertainment is an attempt to address the concerns raised by the Commission concerning those types of environmental and social concerns. And so each application does need to be taken on a case by case basis. The Commission has the authority to consolidate applications in circumstances where they believe two applications have a synonymous issue that they need to address in tandem. But in this particular case because one permit was already approved mitigation has to be done as a consequence of the second permit and so that is the proposal that we have on the floor. Ms. Foster: If I may respond,mitigation intends that there be something to mitigate and again I would say that there needs to be a finding of something in need of mitigation. There is no such finding here. There has never been a complaint. Mr. Dahilia: And Mr. Foster I would suggest that if you take 4 look at the minutes on the record that the concerns raised by all the Commissioners at the last meeting and the meeting before are ripe with issues concerning environmental impacts relating to noise,traffic, perking, impacts and those things. It is a finding of fact that the Commission,I believe, is entitled to make if they choose and I believe that is what is interwoven into the motion that is on the floor at this point. So that is your opinion. Mr. Foster: Well those impacts that were stated in very general terms they in no way applied specifically to the subject property here. Mr. Dahiliiz: Well Mr.Foster you are more than welcome to hire a traffic engineer or likewise if you would like to refute some of the findings by the Commission. Chair: Any more questions for the applicant? Mr. Blake: One of the conditions of the special permit is the cumulative effect of having what the Governor called a green hotel in the middle of a rural neighborhood. A4d there is no question that there are impacts for having a resort property, it is like spot zoning. I thinly I W repeating myself from last time, when you talk about mitigation you are already assuming there is a certain level of a problem that now has to be addressed. We are not saying we are going to eliminate the problem. We are going to mitigate the problem. And mitigate does not mean eliminate,a problem that was not there before. This is a rural neighborhood,there is a market for alternate, and I underscore d1ternate, visitor accommodations. This is not a substitute for the Marriott with banana trees and tropical flowers growing around it. I commend the applicant for conducting his business in suc4 a manner as to not initiate any coniplaints from his neighbors. And I think that is also something that we recognize having lived here all our lives that people hefe do not tend to complain immediately. They will go along to �et along until it becomes unbearable. That is just my general observation. Fortunately this has not been the case here. But there is still...like I said, spot zoning where resort propertied in the middle of a rural neighborhood,you are going to have more traffic,that is a given. You are going to have more people there. That is a given. And now if you have two that are not even contiguous but collocated on the same unit, I don't know by what percentage you have increased the occupancy,the traffic,the noise,the Planning Commission Minutes January 24,2012 5 trash;the burden on our infrastructure. It goes without saying and for darn sure you.have increased the density of this unit. I can understand why you want to do this and like I said I commend you for managing these two TVRs or what you had before as TVRs appropriately but I don't see how it benefits the neighborhood to have like I said,two TVRs, one right next to the other. And they are more than, like I said they are more than two on separate pieces or property that happen to share a border,they are in the same lot and that bothers me. It bothered me before, it bothers me now. Mr. Foster: I would point out that what you are doing today doesn't change anything, it grandfathers in what has already historically been the status quo. Mr. Blake: Grandfather was one,right? Mr. Foster: Pardon me? Mr. Blake: When you are talking about grandfathering you are talking about one permit. Mr. Foster: Any property that shows a valid use prior to the changes in the zoning ordinance has the right to continue that use. Now the owner,who owns the properties,is irrelevant. So whether the two houses ate owned by X and Y, or whether they both owned by X,they were both operated individually, separately as two different TVRs at the time the law changed therefore after the law they are entitled to a nonconforming use. Now the applicant here is proposing to wipe out that nonconforming use for this property in the fixture when he sells or transfers it. Chair: Any more questions for the applicant? Mr. Blake: Would he wipe out both of them? Mr. Albertoni: This is my situation. When I built this ADU it was because the County was putting a Sunset clause and at that time I wasn't aware of this TVR.issue at all. I thought if there was a TVR issue the County would have addressed that. But it was about when I was a third of the way through this house that this TVR issue on non-VDA, I never even Beard of the term VDA until that time either. So I can't stop when I am a third of the way through. So right now, I understand your concerns and I understand the people in the neighborhoods that are very upset about these TVRs proliferating and that is a valid concern. So my compromise is instead of...now I h4ve the house there so I have to do something with it, so instead of just denying it completely I would like you to consider the compromise, a compromise both ways. For ine it is a compromise because I will use it as a TVR until I transfer or sell it and for you it is a compromise because when the property is transferr9d, either is transferred or sold,then you will eliminate one of the TVRs that is out of the Visitor Destination Area. That is all I am proposing is to be able to continue to use it as I have been using it but get rid of the TVR status on it when it is transferred or sold or when either house it transferred or sold. We just got with the frst one that has already been approved.` Mr. Raco: Can you continue on? Your intention when you applied for the ADU,what was yout intention for the ADU? Mr. Albertoni: Absolutely to have a transient vacation rental. That was my intention. Chair: Any more questions? Mr. Texeira: Going back to that last question,why do you assume...can you just discuss a little bit further yotir intentions in term§of having that second unit as a TVR? Why did you assume that was going to be...why did you need to assume that! This was a financial decision on your part that you could get the biggest bang for your buck for thAt unit? Planning Commission Minutes January 24,2012 6 Mr. Raco: Before you answer that Herman,if I could just say,I mean I just heard the applicant when he was speaking the first timd that he said that when he applied for the ADU he; was applying for the ADU because of the Sunset. It is only halfway when he was through that he found out about the TVR. When I asked him the question what was the intention of the ADU he said definitely for.the TVR. He is contradicting himself in my opinion. That is why I asked for that question. Chair: Are you done Herman? Mr. Foster: I am not sure he understood the answer. Let me take it up and say that until 904 or its predecessor ordinances there was no regulation of single family TVRs. A person could build a dwelling unit, an ADU with the full intent of TVR. It was within that person's right,that person had every right to do so. Single family TVRs weren't regulated until finally in 904 closed that process. The County saw a problem with the proliferation of TVRs outside of the VDA and the County did something about it. When there is q change in a zoning law what a municipality,what a zoning 4uthority then is faced with is the examples of uses that were prior to that change in the law. Those uses have a right to continue. It is a constitutional property right. That is what the zoning authority has to contend with then. It is hoped over time those uses will drop out and he is proposing one way to accomplish exactly that is to give up one of his property rights voluntarily at the time that he transfers the property. Chair: I just want to make a quick comment. You said that he had a right operate a TVR on Ag. land. That was illegal to begin with. There was no right. I think niy attorney would like to comment. Mr. Jun&. I think there is a little confusion about the intent of ordinance 904. Ordinance 904 established a procedure to allow applicants to come in and apply for a Stag;special permit Which is required under the law to =ognize TVR on Ag. So ordinance 904 recognized the fact that they had Been operating but it the use as a grandfathered use per say. It recognized the use as allowing them to come in to apply for a State sp(Icial permit to make the use legal under the State statue. So they do have to come in and apply for a permit. And because it is outside the VDA, due to the sort of conflict betweep State law land use law and S County zoning then County zoning VDA had to be established for that nonconforming use because the use was outside the VDA. So technically they needed a k6tate special permit to operate legally. Chair: So it wasn't a right. Mr. Foster: Well the fact that the County has granted special permits on Ag. lands, numerous permits,then clearly the County's opinion is it is legal. Chair: Now,they are going through it now. The process is now. Mr. Dahilia: Mr. Foster, as I mentioned earlier, again,this is a case by case basis. The facts that are outlined in that application are being evaluated as part of the special permit process in accordance with ordinance 904 as well as HRS 205. A lot of the issues that are in the crosshairs for evaluation concern agriculture and if you look at 904 it is very clear that the intent of the Council as well qs the intent of the legislature in 205 as that farm dwellings are meant for agricultural use. And as you look at the proposed conditions for many of the otrier permits agriculture is at the heart of this. And so part of the special permit evaluation process is to determine whether there is essentially an Ag. Shibai going on. If there really is...the primary purpose is the Ag. TVR versus agriculture. And so as each of the Commissioners has evaluated in the past each of the separate applications there is a heavy emphasis on determining if agriculture is actually going on. And you see the requirements concerning farm dwellings,Ag. plans, and even Ag. easements that are now being included as part of our standard conditions of the applications. So I would assert that you take a look at not oply the County issue concerning grandfathering but it is more so the State Planning Commission Minutes January 24,2012 7 issue hence that is why there is no County approvals involved ih this particular process. This is strictly a 205 process. That is all. It is not a 904 process this is a 205 process that is going on. Mr. Foster: I would come back to the equal protection point and... Mr. Dahilia: Sir, you can make those—this is not a court of la-,,v and so I would suggest that thosi,;types of questions the Commission has heard regarding grandfathering and equal protection. If there is a constitutional claim then certainly there is another forum for you to seek that relief. Mr. Blake: See that is where there is a disconnect in my mind. You have one home,you final out that the ADU privilege is going to Sunset so you initiate a process to avail yourself the opportunity to build an ADU,not for the purposes of what the ADU law was passed and not to enhance your agricultural use. The whole purpose of this was to make a rural hotel. And that is where I have a problem with that. Mr. Foster: I would point out the Director's report states that the Ag. on this property is impressive and it is just bursting with Ag. And ig terms of when you look at it in relation to so many of the other properties that have been permitted it compares very well. Chair: Mr. Foster, from here on out don't respond to the Commissioners unless you are asked. Mr. Foster: Sure. Chair: That being said,thank you. Is there anybody in the public that wanted to speak on this agenda item? Ms. Caren Diamond: Aloha, Caren Diamond and I am here today for Protect Our Neighborhood `Ohana. I looked up the developer's public report for the condominium report for this project and I would like to take my time to read.you some things from it. This is a report that was done March 4,2010. In it the uses permitted by zoning, I will give you this afterwards, the uses that were permitted by zoning you could have checked off commercial or resort or hotel or timeshare but only agriculture was checked off. Other was checked as well and it was checked as an ADU but also written as agriculture. There is a lot of confusion about whether the ADU was formed for a TVR or what but in this status of construction and the date of completion on this rp-port it says that unit B was completed February 14,2008 So,I am not sure how you would comply to this ordinance in having been a legal vacation rental Before that if the residence wasn't finished until February 14, 2008,because by March, 2008,you have to have already established your use. And then pursuant to Act 13,session laws of Hawaii, 1977,there are agricultural restrictions on the use of the property. And sb they had to sign a farm dwelling agreement and I supposed the County somewhere has the signed farm dwelling agreement for it. On May 29, 2009 Sheilah Miyake signed off that the structure and the above mentioned condominium complied with the zoning for the district, complied with everything according to the law. It says there are no variances for the property. The parcel doesn't have any outstanding nonconforming uses. If this was d legal nonconforming use before it would have applied to the State Land Use Commission and gotten a use permit for it. It wouldn't have said it was building a single family home or an agriculture thing. It would have said it was building a resort and would have gotten permits for that and it would have had to go through the zoning change process to be legal. And so when I hear this is legal and that the legal right has to continue I hope you Commissioners understand it never was legal to have a vacation rental in agricultural land before. Again if this structure was completed February 14,2008 how can it get grandfathered in? There also was a notice of dedication to agriculture on October 27,2003 that e owner received. So if it was being used as a resort why did it get a agricultural dedication and why did it get that tax benefit? And then on the last page the developer declares subject to the penalties Planning Commission Minutes January 24,2012 8 set forth in section 14.b-89, HRS that this project conforms to the existing underlying County zoning for the project zoning and building ordinances. And this was signed on 1./13/09 and I don't believe.,.1 will leave this with you. Chair: Thank you, anybody else wants to testify? Seeing none, what is this Commission's recommendation? Mr. Dal ilig: Commission,just to I guess recap, the reason this is a special order of the day is there is a motion on the floor that was not carried and specifically the motion was to approve with a condition mitigating the impacts as a consequence of having two TVRs on ofle property. And the condition, if you look at your report that we provided to you, if you look at page 11 of the report it is specifically condition No. 21, "TVR use of the secondary dwelling unit shall be allowed only if the primary dwelling unit is not in use." And the reason why we are trying to address it in this manner Commissioners is that again there is already a TVR special permit that was approved by the Commission as a separate application number. And as this has been essentially a growing process for the department in understanding and trying to adjust to Commission concerns we have now made it a policy in house to recommend consolidation of TVR permits that are on the same parcel. So two that are on the same parcel we are going to be asking for consolidation on those. But because this particular permit was already lagged as a consequence of the approval of the first permit we suggested this condition as an alternative to mitigate the impacts that the Commissioners hive raised on the floor. And so we think that condition 21 is something reasonable that still allows soiree semblance of economic use while mitigating the impacts the Commissioners have raised. That was in a motion on the floor and it was voted on at the last meeting was not carried due to the 3/1 vote. So my suggestion Mr. Chair is that the discussion be handled on the existing motion that is on the floor on that a revote occur. Mr. Raco: The motion is what? Mr. Dahilig: The motion is to approve with condition No. 21. Chair: Do we have any discussion? Ms. Matsumoto: So that is your compromise. Mr. Dahilig: It is our compromise in a manner to tie this permit to the first permit without opening the first permit. Understandably the concerns that have been raised regarding impacts should bridge both TVk dwellings but because of the issue of the first one already receiving approval and the time for reconsideration lapsing we thought this would be an alternative for mitigation given that we cannot reopen or join the first permit to this particular application. Chair: Floor is open for discussion. Mr. Texeira: I just wanted to...can you further discuss the motion? You said the motion to approve? Mr. Dahilig: Yes. Mr. Texeira: Can you go into detail about the approval. Mr. Dahilig: The motion would be to approve the whole permit with 21 conditions and there was an additional condition that we proposed after reconsideration was voted on which was condition No. 21 which is a bridging condition to address the impacts created by tandem TVRs on the same parcel. And these are issues that the Commission�as raised. And so this is a unique circumstance because already one TVR has been approved and cannot be reopened at this point in time without an appropriate order to show cause. Planning Commission Minutes January 24,2012 9 Mr. Blake: So let me summarize my disquiet over this particular situation. We already have a nonconforming use that is considered to be sufficient,nonconforming but zgot horribly nonconforming,it fits in. Now we have a second application on the same piece of property that effectively,maybe not legally but effectively, make this resort zoning in an agricultural area. The report states that the agricultural pursuits engaged in by the owner are commendable and that means to me the comparison with people who are not as dedicated to agriculture shouldn't work to lower the bar but should work to raise the bar for these other people who don't seem to have as green a thumb or an interest in agriculture. Secondly or thirdly or whatever it is,the application for the ADU was not to create more housing in a housing shortage or to address the housing shortage on Kauai,number one. Number two,it was specifically meant to`,convert this Ag.parcel into a resort property. And in that case all of the agricultural use and the pursuits in which the owner it engaged become an amenity not a purpose. It is an alternative to the typical resort experience. That is stated I don't know how many times in the General Plan. It is an alternative. It is not a substitute it is an F alternative. So it is not like we have to do this because there is a shortage of rooms in the hotels along the coastline: And the alternative is provided for the benefit of the landowner and the traveling public or the vacationing public in a propet situation. And I am not convinced thht this has no deleterious cumulative effect on the neighborhood. Like I said there is no question you are increasing Jhe density,there is no question you are increasing the traffic,there is no question you are increasing the load on our infrastructure. There is no question that you have people coming in and out of the neighborhood expect for Mr. and Mrs. Albertoni who nobody else knows,they don't know who they are,they don't know where they come from,and there is not going to be ariy opportunity for them to become part of the neighborhood. Why, it's here today, gone tomorrow. And so for those reasons I am going to maintain my vote. Chair: We are going to take a short 5 minute recess. Commission recessed at 9:58 a.m. Meeting called back to order at 10:09 am. Mr. Dahilia: Commissioners?this particular item is again,the motion on the floor is to approve Special Permit 2011-22 witki conditions and this was the motion that was open from the last meeting with no decision. And again it is with the additional condition regarding the _ secondary dwelling unit shall only be allowed if the primary dwelling unit is not in use. And just to refresh the Commissioners recollection the reason we are approaching it in this manner is because there is an existing permit due to an approval back in November and that this is meant to try to bridge the impacts that are created by cumulative TVR use on the same parcel within very close proximity with each other. Chair: Any more discussion? Mr. Raco: What condition would that be that is being revised? Mr. Dakzilig. This condition is going to stay as is because this is not a consolidate permit. Unlike other situations that the Commission has raised concerns about consolidation is not available for this particular permit because one has already been approved and there is a bird in hand. And so this particular condition is meant as a mitigation measure to minimize the impacts created by dual TVRs on the same parcel of land within very close proximity of each other. Mr. Blake: So if we are going to add or consider it in that light are we also willing to accept his offer to cancel if and when he sells? Planning Commission Minutes January 24,2012 10 Mr. Dahilig: The department wouldh't have any objection to that condition if the Commission chooses to add that in. And just for the record again and I could be I guess corrected but at the last meeting also condition 21 was over objection of the applicant. So he had objected on the record for this particular item. Mr. Blake: He objected to... Mr. Dahilig-. To.condition No. 21. Chair: Condition No. 20 says here not to exceed 8 and not to exceed 3 vehicles. Sb let's just say the owner is staying in one of the residents and they are renting it out to say 8 people. That would be a conflict, right? Mr. Dahilig: Can you elaborate further? Chair: It says on the property so you have a family of 4, a family of 3,plus the 8 they are renting it out to, 4 vehicles. That would be a conflict, right? Mr. Dahilig: Actually you have a point Commissioner. What would you suggest? Chair: I don't know, that is why I have you guys for. Mr. Dahilig: It may be appropriate... Mr. 3un�: To say"guests". Mr. Dahilig: Maybe to say"guests". Chair: I don't want to leave it at guests only. Can we bring that number down from 8 to 6 or are we gping to leave it at 8? I don't think that house can accommodate 8 people with the owners staying there at the same time. Mr. Dahilig: Mr. Chair maybe what would be appropriate to facilitate discussion is suggesting that if a Commissioner would like to make a motion amend that condition theh the department would have no objection to reducing the number from 8 to 6. Mr. Raco: So let me motion to go into... Mr. Blake_, Before we do that, isn't it simply stated? The number of people on the property using both shall not exceed 8. It doesn't say guests or free or family or what. Chair: What I am trying to say is the primary house and the ADU cannot accommodate 8 people at one time can they? The other one is just a small... Mr. Jun¢; I think you want to get...there is the issue of adults and kids. Chair: But it is still people, right? Mr. Jung: Right but I think you changed it from or it was adults,to people. You might want to keep that in. But the Director is right someone should make a motion first. Mr. Raco: Let me make a motion and then we can go into discussion. Mr. Blake: Why isn't it affective the way it is? Chair: We need to make a motion before we can discuss it. Mr. Blake: No, I mean we have 20 already; do we really Want to change it? Planning Commission Minutes January 24,2012 11 Chair: I don't know,that is why we are going to discuss it. Mr. Raco: So motion to discuss condition 23 to go into discussion. Ms. Matsumoto: Second. Mr. Texeira: 23? Staff: 20. Mr. Jung: Actually the proper motion, you would have to move to amend to get it into discussion. Ms. Matsumoto: Move to amend condition No. 20. Mr. Dahilig: You would need a specific type of amendment so let's just make it easy, the department's suggestion would be that the Commission make a motion to amend the main motion for condition 20 to say that the maximum number of people on the property using both structures shall not...using the TVR structure, let me just strike that, using the TVR structure shall not exceed 6 at any one time. Mr. Blake: And that applies only, well... Chair: I need a second. Mr. Blake: Second. So that applies only to this ADU... Chair: All in favor say aye.. Mr. Texeira: Didn't you want to have a discussion? Chair: Then we have discussion, so z roved. Mr. Dahilig: Wait...this is discussion on the motion. Chair: I thought we vote first and theh we have discussion. Mr. Dahilig: No. Chair: Sorry, my bad. Mr. Blake: It has been moved and seconded that the maximum number of people on this property not exceed 6, is that correct? Mr. Jung: Correct. Mr. Blake: And this is the ADU we are talking about. Chair: It will be both. Mr. Texeira: His proposal is just the ADU. Isn't that your proposal? Mr. Dahilig: The proposal is just for this one and again the reason why I am suggesting this in this manner Is again we cannot reopen the first permit ani d so it is when using the TVR structure rather than both. Mr. Blake: How large is the ADU? Planning Commission Minutes January 24,2012 12 Staff. 3 bedrooms. Mr. Blake: 3, far be it from me to have someone sleep alone, 6 is fine. Chair: Any more discussion? Mr. Texeira: How would this impact the total number of people on the entire CPR? Chair: Well it will change from 8 to 6, it is both properties we are talking about, am I correct? Mr. Dahilig: No, this would be only one because again, only the ADU,because the other property could be used for other...like for instance a long term rental and they could have a f4mily of 4 or 5 or whomever lives in there. I would suggest to the Commission it may not be prudent to try to limit those types of activities regarding the amount of people if it is a long term rental. Ms. Matsumoto: I am comfortable with 6. 1 1 Mr. Jung: Why don't you restate proposed... Mr. Dahilig: Commissioners the department's proposal is to say the maximum number of people on the property using the TVR structure shall not exceed 6 at any one time. Mr. Blake: On this ADU. Mr. Dahilig: On this ADU. Mr. Blake: Is there a limitation on the main house? Mr. Dahilig: There is not limitation on the main house. Mr. Blake: So they could put 15 in there if they want. Mr. DahiIi_g: But again it is incumbent on...again because the permits are not consolidated right now w: e are dealing with the impacts associated only with this particular TVR and it is coupling with the other unit being used as a TVR. So if condition 21 is in effect, he cannot have 15 people in the other house using the structure as a TVR because it would be in violation for him to have the second unit operate with`6 people inside. Mr. Texeira I would like to address the Planning Director, so are you saying that condition No. 20 is flawed? Mr. Dahilig: Yes and I think based on the comment raised by the Chair regarding condition 20 and the potential conflict that he raised we are suggesting this motion as an amendment to clarify that issue that the Chair raised. Mr. Texeira: So we would have a brand new 20 then? Mr. Dahilig: Yes. Mr. Texeira: This would be totally eliminated. Mr. Dahilig; And then it would be based on what I just stated for the record. Ms. Matsumoto: How about the number of vehicles? Planning Commission Minutes January 24,2012 13 Mr. Dahilig: I wouldn't have any objection to having it reduced. The departmEnt would concur with any suggestion by the Commission on that if there is a reduction. Ms. Matsumoto: 2 vehicles. I would also like to suggest this language, so people on the property using this TVR structure, specific. Mr. Dahilig: Commissioner if you wouldn't mind amending your motion and setting if there is a... Mr. Raco: Let's do it all at one time because I have one too. We will make a new motion on the whole thing after we have the discussion. Chair: So are you going to withdraw the motion? Mr. Raco: No we will withdraw and say a whole new motion. With that, if you are done Cammie, what were your thoughts Mike regarding not to exceed the 3 vehicles? How did you come up with that rationale? Mr. Dal ilig: We figured if there were 3 cars...I don't know. Staff: If I may, the number of people and number of vehicles was initially discussed when we were consolidating the next project so it just carried over because there wasn't enough discussion to refine the number. Now that you are refining the number and it is applicable to a not consolidate permit,this permit is standing alone,the revision to the numbers now makes sense because it is only to one structure, one TVR structure. So 8 was based on 2 people per bedroom, 4 bedrooms, the number of vehicles was based on 2 houses on a consolidated permit. Now to refine that concept bringing it down might be appropriate. Mr. Raco: If I may, I would like to just revise that to I vehicle, 6 people. There are vans; there are kids, one family, one impact, one car. Mr. Dahilig: We have no objection to that. If I may suggest Commissioner that either the motion be withdrawn and restated or the motion to amend the main motion be amended through another motion. Chair: Would it be easier to just withdraw the first motion? Mr. Dahilig: It is up to you Chair what you would suggest. Ms. Matsumoto: Move to withdraw my motion. Mr. Blake: And my second. Mr. Raco: So I would motion to have the Director reread the... Mr. Dahilig: So given the Commissioners discussion condition 20 as the department would propose would say, "The maximulin number of people on this property using the TVR structure shall not exceed 6 at any one tune. The number of vehicles on the property relating to the TVR s�I4tictures shall not exceed 1 vehicle." Mr. Blake: So the ADU is limited to 6 people and 1 vehicle. Mr. Dahilig: That is the motion that I would suggest given the Commissioners discussion. Mr. Blake: And that would be to lessen the cumulative impacts of this vacation rental on the neighborhood. Planning Commission Minutes January 24,2012 14 Mr. Dahilig: That would be my suggestion Commissioner. Mr. Raco: I so move, Chair, as read by the Director. Ms. Matsumoto: Second Chair: Any comments? Mr. Texeira: My only comment is I feel this is a bit excessive to just say 1 vehicle for 6 people. Tome it is just a bit excessive. Chair: Can the applicant come up? Do you object on this new condition? Mr. Albertoni: It is sounding better to me but really for that house it would be better to have 2 vehicles if we had 6 people and the reason why is often we have 3 couples and sometimes they will get 2 cars for those 3 couples. Never do we have 3, cars and never do I allow more than 6 people anyway: So those things sound fine to me. Chair: Thank you. Mr. Raco: Again my only reasoning is this is a TVR and it is in the,4g. district and it is an ADU and the impacts of having 3 cars or even 2 cars. I think if it was a normal long term rental the rationale would still just have 1, car so in keeping in that line of sight that in my opinion the impact... Chair: That would be in addition to the other TVR that is being rented out. Mr. Dahiig Yes, the TVR that other than the TVR would have l car over there,right. Chair: Right so you would be having more than I car there to begin with. Mr. Dahilig: But Commissioners, again, if condition 21 is also read in tandem only one rental at a time. Mr. Raco: So the impact of traffic in and out with the guests using the driveway all day in and out, 1 car is more than adequate. Chair: Any more comments? Mr. Texeira: I think most residents hqve 2 vehicles. I don't understand the 1 vehicle; it just doesn't make sense to me. Chair: What do you guys want to do? Mr. Dahilig: You can call for a vote. Chair: Can I have roll call on the amendment. i Mr. Dahilig: The motion on the floor is to amend the main motion to adjust condition No. 20 to read, "The maximum number of people on this property using the TVR structure shall not exceed 6 at any one time. The number of vehicles associated with the TVR at any one time shall not exceed I vehicle." That is the motion on the floor. Mr. Texeira: Mr. Chair, in regards to that motion can we treat it separately? My question is I am in favor of the first part but not the second part. Chair: We can vote on the condition, he made the motion on both okthem. Planning Commission Minutes January 24,2012 15 Mr. Raco: Yes Chair, my motion on the floor was to amend both portions,both sentences at one time. That was my motion. Mr. Jung: It would be the full condition as read so you can vote to deny the proposed amendment if you don't like that and then if the motion fails you can propose something nevy if you would like. Mr. Dahilig_: Do I need to restate the motion? Mr. Texeira: Yes. Mr. Dahilig; The motion again on the floor is, "The maximum number of people on this property using the TVR structure shall not exceed 6 at any one time. The number of vehicles associated with the TVR at any one time shall not exceed I vehicle." Chair: The applicant suggested that he is going to turn in his permits if he does sell the property. i Mr. Dahilif4: That would be a new motion. 'fight now you are amending the main motion. Chair: Roll call. On motion made by Caven ;Raco and seconded by CAmill,4 Matsumoto, to amend condition No. 20 as read, motion carried by the following roll call vote: Ayes: Raco, Blake, Texeira, Matsumoto, Kimura -5 Noes: None -0 Absent: Katayama -1 Not Voting: Vacant -1 Chair: So now we make a motion on the main motion. Mr. Raco: So if I wanted to add a motion, condition No. 22 as represented by the applicant that...what was the wording, in a sale agreement. Chair: That the permit would not be used or would be forfeited. Ms. Matsumoto: Could you say what you just said again Caven? Mr. Raco: I am in the process of motioning to add the condition No. 22 as represented. Mr. Jun;;: Mr. Foster, would you mind stating that proposal you had again for the Commissioners? Mr. Foster: We would object to the proposal. We made it in lieu of the back and forth t limitation however to answer Mr. Jung's question it was that when the subject property is sold or transferred then the nonconforming use then'would somehow revoke. Again we would object to that given the votes. Mr. Blake: If the applicant was willing to surrender or cancel the second TVR permit in order to comport with the Coiulty's attempts to limit TVRs in Ag. land why doesn't he wpt to do this now? Mr. Foster: I don't understand the question. Planning Commission Minutes January 24,2022 16 Mr. Blake: If the applicant was willing to surrender or cancel the second permit,this permit,upon the sale of the property and the justification that he offered was to in that manner work with the County to eliminate TVRs on Ag. land what has changed his 'mind? Mr. Foster: It was a proposed compromise to address some of the Commission's concerns. Mr. Blake: So now he is not willing to help the County. Mr. Foster: I see what you are saying. Well the compromise was in lieu of this...the rent one not the other back and forth,there is a number of reasons that is not optimal for the applicant and this compromise was proposed in lieu of that kind of a regime. What changes or a compromise is a back and forth. Mr. Blake: So why does he care what happens to it when he sells except for the fact that the County would be,he would be assisting the County in achieving its aim of reducing the number of TVRs on Ag. land. Mr. Foster: I imagine the value of the property with the right is probably greater than the value of property without the right. Mr. Blake: I just wanted to be clear about that. Mr. Raco: Chair, if I may address the appl'icant's representative. Mr. Foster, condition No. 21 if I am not mistaken, I guess not Mr. Foster but Mike,there was a copy given to the applicant this morning or the applicant did have reasonable time to read condition No. 21. Everybody knew about condition No'. 21, right? Staff. Yes, this was it the previous supplement. Mr. Dahilig: And just to add Commissioner,the applicant's agent was present at the reconsideration vote at the last meeting and was aware of the addition of condition No. 21. Mr. Raco: So may I ask Mr. Foster, again, in plain layman's language, what back and forth were you thinking you were not going to take the condition...what back and forth,was there a condition that you were looking to strike in order to...? Mr. Foster: Yes. Mr. Raco: And what condition was that? Mr. Foster: That would be 21. We have objected on the record previously to 21 and we would hope that the Commission would consider instead of imposing that condition accepting the applicant's offer to have the permit rescinded upon transfer. Mr. Blake: 21 remains part of the application. Chair: Yes, anymore discussion? Mr. Raco: Chair, I would like to go into executive session. Mr. Jung: Commissioners, the Commission may go into an executive session on an agenda item for one of the permitted purposes listed in section 92-5(a), Hawai`i Revised Statutes, without noticing the executive session in the agenda or the execi tivd session was not anticipated in advance. The executive session may be held however upon an affirmative vote of two thirds of the members present which must also be by the majority of the members to which the board is entitled. TYie reason for holding the executive session shall be publicly announced. So you Planning Commission Minutes January 24,2012 17 move to go into executive session to have questions regarding the priviledges and/or immunities and/or liabilities of the Commission? Mr. Raco: Yes. Mr. Blake: Second the motion. Chair: All in favor say aye. Mr. Jun& You have to do roll call. Chair: Roll call. Mr. Dahik: The motion on the floor is to go into executive session to consult with the Commission's Attorney regarding rights, duties,privileges, and obligations of the Commission as it relates to this agenda item. On motion made by Caven Raco and seconded by Hartwell Blake, to go into executive session, motion carried unanimously by the following roll call vote: Ayes: Raco',, Blake, Texeira, Matsumoto, Kimura -S Nbes: None -0 Absent: Katayani.a -1 Not Voting: Vacant -1 Commission went into executive session at 10:48 a.m. Meeting was called back to order at 11:07 a.m. Mr. Dahilig: Mr. Chair,just to refresh the Commission's recollection that the motion on the floor right pow for discussion is all 21 conditions and with the amendment made and passed by the Commission condition 20 would read, "The maximum number of people on this property using the TVR sti-uc-cure shall not exceed 6 at any 6ne time. The number of vehicles associated with the TVR at any one time shall not exceed I vehicle." And that is the main motion on the floor right now Mr. Chair. Chair: Is there any other discussion or motions? Mr. Texeira: Could we introduce a motion at this time or we have to go though the vote? Chair: You can make a motion. Mr. Texeira: Mr. Chair, I would like to propose an amendment to the condition No. 20 and that is that the number of vehicles on the property in question at any one time shall not exceed 2 vehicles. Ms. Matsumoto: Second. Chair: Discussion. Mr. Dahilia: The second line of condition 20 would read, "The number of vehicles associated with the TVR at any one time shall not exceed 2 vehicles." Chair: So we have to make a roll call, right? Mr. Dahilijz: Motion on the floor is to amend condition No. 20 to read, "The number of vehicles associated with the TVR at any one time shall not exceed 2 vehicles." Planning Commission Minutes January 24,2012 18 Mr. Jung: Per the rules the silent vote goes in the affirmative. Chair: Motion carried. On motion made by Herrman Texeira and seconded by Camilla Matsumoto, to amend condition No. 20, motion carried unanimously by the following roll call vote: Ayes: Raco, Blake, Texeira,, Matsumoto, Kimura -5 Noes: None -0 Absent: Katayama -1 Not Voting: Vacant -I Chair: We are back on the main motion. There was a motion for condition No. 22 am I correct? Mr. Raco: Correct. I think we were waiting for staff and the applicant came up and suggested language and if I may, read that language so we can go into discussion. Mr. Dahilig: Given the intent of the Commission the suggested language of the department would put forward would be an additional condition No. 22 to read, "The TVR permit shall be void if the property is sold or transferred." Mr. Raco: So n otioned as read by the Director. Mr. Texeira: Second. Chair: Discussion. Mr. Jung: Just to caution the Commission permits do run with the lard and not necessarily the person so bear in mind ii may be prudent to look at maybe imposing a time frame versus a straight revocation provision. Mr. Texeira: Meaning? Mr. Junl. Meaning permits run with the land so you guys control the land and not necessarily the person. Chair: What do you mean time frame? Mr. Jung: So if you wanted it to run for a period of 1 to 2 years. I think this already has a...in one of the standard conditions, Mike? Staff. Yes, all the TVR permits have to be renewed annually. May I make a suggestion? Is it more prudent to start off condition 22 with"as represented"? Mr. Jung: Yes. But he did object to it, for the record. Mr. Texeira: I would like to ask a question. Chair: Ask who,the applicant? Mr. Texeira: Whoever can answer it, Mike I guess. In regards to condition No. 22, the proposed condition, are we setting precedence, would this carry over to other proposed TVR applications? Chair: My understanding, I don't think so. I think it is from the applicant himself,right? Planning Commission Minutes January 24,2012 19 Mr. Ddhilig: The department would not recommend this as a standard condition C)ut in light of the discussion I guess this is where the Comriiission is raising this particular condition for entertainment. The department would not make this as a recommended standard condition as a consequence of other permits. Mr. Texeira: I understand that but I thought that we were looking for continuity and treating each applicant the same. Mr. Dahilig: Certainly if you look at your reports Commissioner the way we try to approach it is that there are certain things that are pretty much broiler plate policy questions, for instance we require Ag. easements in the event that something is over an acre or issues regarding encroachment. But there are also site pacific issues that we have to take a lot at addressing, i would view this as a site specific type of issue and hence we wouldn't'Include it as our standard condition. It doesn't mean that we would preclude from proposing it as a site specific condition down the line but in this particular case I would suggest to the Commission that we would not have it as a standard condition that we would 'include as part of our reports moving forward. Mr. Texeira: I am not suggesting that I am just saying that is something that we should be aware of going forward, that is all. Ms. Matsumoto: So the suggestion to put a time frame on it? Chair: I think we alteady have a time frame. Mr. Jung: There is an annual renewal. Ms. Matsumoto: So that is in place with this. Chair: So the motion on the floor is to... Mr. Dahilig: The motion on the floor would the addition of condition No. 22 to read, "The TVR permit shall be void if the property is sold or transferred." On motion made by Caven Raco and seconded by Herman Texeira, to add condition No. 22, motion carried unanimously by the following roll call vote: Ayes: Raco, Blake, Texeira, Matsumoto, Kimura -5 Noes: None -0 Absent; Katayama -1 Not Voting: Vacant -1 Chair: So we are on the main motion. Mr. Dahilia: That is correct Mr. Chair: Chair: Any discussion on the main motion? Mr. Texeira: Can we hear the main motion? Mr. Dahili2: The main motion is to approve Special Permit SP-2011-22 as amended with condition 20 to read; "The maximum number of people on this property using the TVR structure shall not exceed 8 at any one time. The number of vehicles associated with the TVR at any one time shall not exceed 2 vehicles." Condition No. 21 reads, "TVR use of the secondary dwelling unit shall be allowed only if the primary dwelling unit is not in use." And condition No. 22 shall read, "The TVR permits shall be void if the property is sold or transferred." Mr. Texeira: In regards to that motion, you mentioned 8 as the maximum number of people. Planning Commission Minutes January 24,2012 20 Mr. Dahilig: 6. Mr. Texeira: I just wanted to make that clarification. Mr. Dahilig: My apologies. Chair: Any more discussion on this main motion? Mr. Raco_ I thought it was "as represented". Mr. Dahilig: As represented. Condition No. 22 would read, "As represented the TVR permit shad be void if the property is sold or transferred." Chair: Any more questions, seeing none loll call. On motion made by Camilla Matsumoto and seconded by Wayne]Katayama, to approve SP-2011-22 as amended, motion carried unanimously by the following roll call vote; Ayes: Raco, Blake, Texeira, Matsumoto, Kimura -5 Noes: None -0 Absent: Katayama -1 Not Voting: Vacant -1 Special Permit SP-2011-24/SP-2012-34 to permit use of an existing sin de family residence far Transient Vacation Rental oses as ermitted by County of Kauai Ordinance No. 904, in Kalihikai (``Anini), Kaua`i mauka of and adjacent to `Arlin Road approx. 430 ft. east of the `Anini Beach Park further identified as Tax MqV Key 5-3-4;20 and containin' an overall size of.25 acres = Weatherwax Family 2000 Trust. jHearing s Officer Special Meeting Public Hearinz held 11/29/11, Action deferred 12/13/11 Motion to consolidate applicatioxis into Sp-2011-24 carried due to 4/0 vote and Motion to approve as amended not carried due to 3/1 vote, no action 1/10/12.1 Supplemental No. 3 Director's Report pertaining to this matter. Mr. Dahilig: Before we go into discussion with the planner Commissioners,just to refresh your recollection this particular permit was consolidated, is a consolidated permit with two TVRs up for discussion. It was not carried at the last meeting due to a 3/1 vote sp there is an open motion on the floor to approve the consolidated action. Staff. The staff repdrt is in a Ramseyer format. Everything that is underlined and bolded is new so your eye will pick it up really quickly. If you have any questions we ate available for answers. Chair: Any questions for the planner? Mr. Texeira: Mike, can you go back and review the current use, the tvo properties. Traditionally what has been happening! Staff. Two requests are before you. The property is not CPR'd. The main dwelling unit has 3 bedrooms,the ADU has 1 bedroom. Now we are not calling it the ADU, we are making reference as primary and secondary dwelling units. That is on the first page. We consolidated by Commission action. The applicants do come and stay it is not 100%TVR use. The applicant's when they come up they can give you a better percentage of what percent time they use it also. The department has incorporated much of the Planning Commission's discussions as much as possible but we have refined it even further beyond what you have in front of you, If you have any specific kind of questions, give them. Planning Commission Minutes January 24,2012 21 Mr. Texeira: Can you describe the consolidation please. Staff. The consolidation is to the lowor permit number which is 2011-24, which is the primary residence. The secondary residence,the special permit number was higher so:both permits were consolidated into one for ease of consideration by the Commission. Mr. Texeira: But nothing has changed,right, we are just consolidating the permits. Chair: Not yet. Staff: The move to consolidate was approved 4/0 and the motion to approve as amended did not carry based on the 3 to 1 vote. So the motion before you is to approve. Mr. Blake: And if we approve we are approving two TVRs under one permit. Staff. Two TVRs, one permit but with conditions of approval that limit it to one at a time. This is where the Commission was discussing the last time it is A or B, not A and B. Chair: Any more questions for the planner? Seeing none is the applicant here? Mx. Harvey Cohen: Good morning Commissioners, Harvey Cohen on behalf of the applicant. In the interest of expediency I will hand out... Chair: Can I have a motion to accept for the record? Mr. Texeira: So moved. Ms. Matsumoto: Second. Chair: All in favor say aye, motion carried. Qn motion made by Herman Texeira and seconded by Camilla Matsumoto, to receive written testimony from Harvey Cohen, motion carried unanimously by voice vote. Mr. Cohen: Just briefly, I don't feel the need to reiterate at least the first portion of my handout today, much of what you heard is in the previous application with respect to the history and the intent of the ordinance, the fact that the ordinance made no distinction between lots with one single family dwelling or as in this case two single family dwellings. It is our position that if the Commission denies use of one or the other they are effectively creating a new subsection to the ordinance, it doesn't exist, clearly doesn't make sense. That being said the applicant remains willing to work, I think the Director put it quite well today, with coming up with a bridging condition and I refer you to condition No. 23. I think the Director said a bridging condition to deal with the potential impacts of tandem TVRs. By definition tandem means both operate at the same time but we come up with conditions to mitigate potential impacts. And that is where we were last time and the Commission voted 3 to 1 in favor of that condition No. 23. There was some reworking of that condition. You heard in a previous hearing this morning some discussion about whether or not the limitations on numbers of pPOpie or numbers of vehicles,that sort of thing, I will visit that real quickly. But again we remain committed to working with the County and the Director in coming up with this bridging condition. It is the imposition of condition No. 24, I think it has been called the A or B but not both, condition, that we feel is extraneous. If you deal with it by condition 23 there is no need for condition 24, you have already dealt with the potential impacts. The other thing that I would like mention is when we talk about potential impacts, that presumes that there are impacts to begin with. There are none here; at least there has been evidence to suggest that. And what I would suggest is you have your annual review, that is where you see if the impacts have increased from the baseline. 'The staff report has indicated to Planning Commission Minutes January 24,2012 22 date there has boen no public opposition with respect to this particular applic4tion of the tandem use of these two TVRs. It is down at`Anini Beach. So that being said we remain supportive of condition 23 which I think is a common sense way to handle the issue in terms of limitations, reasonable limitations,but we are'opposed and we couldn't support the imposition of condition 24 as we think it is both illegal but probably more importantly you have already dealt with it if you impose condition 23. Just briefly, condition 23, I think you came to this morning, as drafted I think it would have an unintended consequence of limiting the use. I think you have cast too wide a net with the language because for example it my client were living full tinge in one of the structures he has a famify of 6 or 8 he would effectively not be able to use the other structure for any purposes if the limitation is 8 people on the Property. So I think that needs to be modified like you did in the previous, or at least I would suggest that if you are inclined to impose condition 23 that you modify the language to deal with the<persons on the property utilizing that those persons be vacation users,not potentially long term residents either through long term leases or full time residents as in the'owner. I could go on,again, I realize it is almost lunch time,happy to address questions. But again I think the point is you have a mechanism,we have worked together up until this point in coming up with a mechanism to deal with the concerns and I think:condition 24 is just hammering this thing over the head and is both illogical and unnecessary,thank you. Chair: Any questions for the applicant? Have you ever rented either of the dwellings as a long term rental? Mr. Cohen: The applicant comes over quite a bit from... Chair: But has he ever rented it out as long term. Mr. Cohen: Not to my knowledge. Chair: So it has been from the get go TVR? Mr. Cohen: Yes,the property has.been in.existence since 1993. Both properties have been used as TVIZs since that time. Chair: I was just reading one of your;..the second page,third paragraph,last sentence, that it would limit the number of long term residences as well as transient rentets. Mr. Cohen: Yes, Chair,that was in reference to I think the unintended consequence of the language because as drafted if you read condition 23 literally,the way you have it right now, this condition would limit the total number of people,that includes long term... Chair: I understand. I was just commenting on your letter. Public testimony, anybody in the public want to testify on this applicant? Ms. Caren Diamond: Aloha Commissioners, Caren Diamond and I am here for Protect Our Neighborhood `Ghana today. I think it is interesting that the two applications were consolidate here; it probably makes it easier for you to make informed decisions. But before you really could make an informed decision don't you have to know the overall requests that are before you and what the impact to our agricultural land is and how many acres are being impacted by these permits that are asking to switch the land to resort use? As a Planning Commission I don't know htw you can plan very well if you don't know the scope of what is before you. When you look at the TVR log on the website it looks like there are 60 or 70 applications, almost all of them are in the Kilauea area. We have already lost most of the North Shore;it has turned into a resort. It was never ever zoned that way and it happened before this Commission without being rezoned. And so I want to ask isn't it more proper to come foi a rezoning, go before the LUC and rezone these lands if that is the request? Otherwise are you giving these use permits that last Planning Commission Minutes January 24,2012 23 forever and the properties raise in value so they never can be used for agriculture again because that value is too high for any real farmers to afford the laid? This is agricultural land. It already had protections from the State. It already had a use permit in place. So think about what you ate doing because this is a whole new permit and a whole new entitlement that you are giving these lands, thank you. Chair: Anyone else in the public want to testify? Seeing none what does this Commission want to do? Mr. Raco: Chair, if we could recess to formulate my condition that I have in mind with the planner. Chair: We are going to break for lunch. We will be back at 1:00. Commission recessed for lunch at 11:24 a.m. Meeting called back to order at 1.04 p.m.. Chair: When we left Commissioner Raco had some concerns about the conditions. Mr. Raco: Correct and if I could put it on record that if the planner could distribute the proposed language. I guess the planner can read it. Staff: What I have handed out is the department's attempt to address the cumulative concerns of the Commission. It is labeled R-1 for revision 1 and it is still in the Rainseyer format but what I have done is highlighted in yellow the difference Between the document that is contained in your packet which is supplement 3. This is just an attempt to address concerns. What it does is weave in your concerns about the additional dwelling unit ordinance and the intent of the additional dwelling units. And to further mitigate your concerns about the use of the ADU and the TVR. We are still recommending consolidation but now we are providing the applicant the opportunity to designate one or the other to be used for TVR and not to include the other. This would be basically for the doubles, for t1vo TVR proposals on one parcel of record. So the yellow highlight in the conclusion and in the recommendation is also picked up on page 12 and you can see the brackets that are being deleted, that language is being deleted. The new condition 23 provides the applicant the opportunity to designate one or the other. Now the following two conditions that are being deleted related to the maximums for the property, 8 people, 3 vehicles, and the second condition that is being deleted, "TVR use of the secondary.dwelling unit shall be only if the primary dwelling unit is not in use." This was the concept of A or B. Now this proposal,this was a first attempt at addressing your concerns about A or B,the use of the additional dwelling unit. This one only gives them one but it gives them the opportunity to choose. This is like I said, this is our first effort to try and Weave together all of the Commission concerns to date. And we are making a proposal that is a little bit different but to be consistent with all the other doubles this could be the format. Chair: Any questions for the planner? Mr. Texeira: Mike, condition No.,the old condition, the previous one would be supplanted by conditions 23... Staff. Just 23. Mr. Texeira: What about below 23? Staff: Those are the ones that are being...that was originally discussed at the last meeting and this is basically the A or B concept where the permits were still being consolidated but that the applicant could use only one of the other based on the maximums established by the other condition, S people, 3 vehicles. So this one takes it one step further based on the concerns, the Planning Commission Minutes January 24,2012 24 cumulative concerns of the Commission regarding the ADU, the intent of the ADU,the intensity of use of potential impacts to the community. So condition No. 16 is also being eliminated because this R-1, this revision 1, is only going to propose one. Chair: Any more questions Herman? Mr. Texeira: Condition No. 23 Mike,how does that relate to at the bottom, TVR use of either or? Staff: It eliminates it so now it is just one dwelling unit on the property. Mr. Texeira: And then the applicant needs tb inform the Planning Director of the designation of which one within 7 days. Staff: Yes. Mr. Texeira: And that won't be interchangeable then right? Staff: No, it is just one. See the option now is R-1 only gives you one. The document in supplement 3 that you have in the packet provides an A or B. Mr, Texeira: And this one is A or B but in 7 days you have to... Staff: No. You choose. Mr. Texeira: That is what I am saying, it is A or B and you have 7 days to decide which one it is. Chair: Are you good. Mr. Texeira: I understand. Chair: Anybody else, is the applicant here? Do you have any comments on the 'revised? Mr. Cohen: Effectively I would have the same comments that I had before the break. This in my mind doesn't deal with the purported issue that was trying to be dealt with which was the concerns about the overall density on the issuance of the TVR permit might have on the neighborhood. So if you choose to go this route Z would respectfully have to tender my...it would be over my objection. Chair: So noted. Any questions for the applicant, seeing none,thank you. Anybody in the public want to comment or testify on this agenda item? Seetrg none what does the Commission want to do? Mr. Raco: Chair would you want:a motion to approve as amended by revision No. R-1, as amended by the planner? Mr. Jung: There is the current motion. Mr. Raco: To approve, right? Mr. June: Right. Chair: To approve to amend. Mr. hIft : Well this is a new proposal to approve because they were already consolidated so you would have to amend the motion to approve to include this provision, this amendment, before you get to the main motion. Plagning Commission Minutes January 24,2012 25 Mr. Raco: So a motion to amend the main motion with these provisions. Ms. Matsumoto: Second.. Chair: Any discussion about this motion? Mr. Texeira: Mr. Chair, this is for Mike, Mike the maximum number of people, is that eliminated? Staff: Yes. Mr. Texeira: 23 takes the place of all of those things then? Staff Yes. The maximums are being recommended to be deleted because now it is only going to be one structure, one single family residence. Now if you further want to cap that... Chait: Are you good with that Herman? Mr. Texeira: I just don't understand why it wouldn't be capped,why would it be open ended? Mr. Raco: It is capped; it is capped with 8 at any time. Are you talking about the vehicles or the people? Mr. Texeira: The people. Mr. Raco: The people are capped at 8, right? Staff: No,that is being proposed to be deleted because there is only one structure now but seeing as what happened in the previous application that is available for discussion also. Mr. Blake: How many bedrooms in this one? Staff :[t is the same, the primary dwelling unit has 3 bedrooms,the secondary dwelling unit has 1. Mr. Paco: Maybe we should go through each motion to amend one at a time. Mr. Dahilig: Maybe what I would suggest right now is there is an active motion on the floor to have this wholly adopted including the amendments to the conclusion as well as the recommended action. You can either change your motion to also include the proviso regarding the limitations on, the original limitations that were in there concerning the amount of people and the vehicles or you can take that up as a separate motion. But what I would suggest is maybe withdrawing the motion and adjusting your motion to include this. Mr_ Raco: So my intension of the motion from the get go was to motion to amend as provided from the planner as a whole. I was okay kith the number of people and the parkin; being that one is going to be used a main dwelling unit now and one is going to be used as a TVR,3 cars maximum. Because it does say at ahy time so not'exceed 3 cars. It is still back from that same application so I am okay with that. Mr. Texeira: So yod wanted to keep the proviso then. Mr. Raco: Yes. Mt, Dahhilz : Maybe just a suggestion to the Commission that we adjust the suggested language to include this proviso as number 24; if you look at page 12 of R-1... Planning Commission Minutes January 24,2012 26 Mr. Raco: I can add that after this motion:. Mr. DahiU: Let me just incorporate it. Mr. Raco_ Incorporate it as amended that cbndition No. 24 be added for the maximum...should I read the whole thing, number of people, "The property using both structures shall not exceed 3 at any time, number of vehicles on the property at any time shall not exceed 3 vehicles." Chair: Any more discussion? Mr. Raco: And there is no sense reading the (inaudible). Staff. Yes, that is being deleted. Mr. Blake: That, I feel, somewhat addresses my concerns about the cumulative effects of having a rural hotel on Ag. land, a rural resort area. Not even rural, resort usage in Ag. zoned land. Chair: I'm sorry? Mr. Blake: I said that would tend to address although it doesn't satisfy me my concern about having resort use in an Ag. zoned area. So what I said with regard to the first matter that came up today about having spot zoning, what is effectively 'spot zoning, applies here also. The increased density; increased pressure on our infrastructure, increased traffic, increased number of unknown people coming in and out of what is or what was a neighborhood and what would continue to be if possible a neighborhood. Chair: Any more comments? Mr. Texeira: I would just like to ask Hartwell, if you had your druthers what would you want the condition No. 24 to read? Mr. Blake: If I had my druthers it would be just one period. Mr. Texeira: One what? Mr. Blake: One unit,period. Chair: The way it is written it is one unit but they have 7 days to choose which unit. Mr. Raco: And he is replying back to him that is what he would say. Mr. Texeira: So you are not saying anything different then. Mr. Blake: No. Actually I would like to see if I had my druthers the small unit. Mr. Texeira: Would be the TVR. Mr. Blake: Would be the TVR because it would lessen the cumulative impact on the neighborhood as d vacation rental. Mr. Texeira: Okay. I just wanted to know your feelings. Chair: Anymore questions or concerns? I havw one; I wanted to reiterate my concerns relative to the ADUs as discussed in the Albertoni special permit. Mr. Texeira: Try that again. Planning Commission Minutes January 24,2012 27 Chair: In other words my concerns for the application prior to this would be the same; my concerns would be about the ADU. My same concerns with Albertoni would be same with the ADU being used as a TVR. With that being said we already have a motion. Mr. Dahilig_ The motion on the floor is to amend the main motion to revise the recommended conditions as outlined in handout R-1 and also adjusting the handout to have the limitation on people not to exceed 8 and vehicles limited to 3 as additional condition No. 24. That is the motion to amend the main motion on the floor. On motion made by Caven Raco acid sec nded by Camilla Matsumoto, to amend the main motioh to approve to revise the recommended conditions as outlined in R-1 and the addition of condition No. 24, motion carried unanimously by the following voll call vote: Ayes: Raco, Blake, Texeira, Matsumoto,Kimura -5 Noes: None -0 Absent: Katayama -1 Not Voting: Vacant -1 Chair: Any further discussion on the main motion, seeing none, roll call. Mr. Dahilig: This is... Mr. Texeira: Wait, the main motion, so we are looking at the conditions. Chair: We just did the conditions_ Mr. Texeira: Okay so you have proviso 24,I just wanted to be sure,provisa 24 and the thing on the bottom the TVR is eliminated completely, right? Chair: Yes. Mr. Dahilig: Mr. Chair, the motion on the floor is to approve Special Permit SP-2011-24 and consolidated with SP-2012-34, as amended, by the Commission. On motion made by Camilla Matsumoto and seconded by Wayne Katayama, to approve SP-2011-24 consolidated with SP-2012-34, as amended, motion carried unanimously by the following roll call vote: Ayes: Raco, Blake, Texeira, Matsumoto, Kimura -5 Noes: None -0 Absent: Katayama -1 Not Voting: Vacant -1 GENERAL BUSINESS MATTERS Consideration of Final Building, Location, Material and Design Review for a Sing! - Family Residence on Lot 8 Wainiha Subdivision II S-84-58, further identified as Tax Map Key 5-8-009:047 ° Gan Eden LLC. Staff Report pertaining to this matter. Staff Planner Dale Cua read staff report(on file). Chair: Any questions for the planner? Mr. Texeira: The original footprint hasn't changed? Planning Commission Minutes January 24,2012 28 Staff. No. Chair: Anyone else? Mr. Blake: Are there any deadlines that are included in this or that will come into play after this matter...if it gets final design approval are there any othor deadlines that are coming up? Staff: I am not aware of any deadlines. Maybe that is something the applicant can pf esent if there are any. Mr. Blake: So this final design approval isn't preliminary, oh no, this, is just one house, excuse me. How long does this go on then? Isn't this the one that is 12 years old? Staff: No. Mr. Blake: Okay. Chair: That one is over, different location. Any more questions for the planner, if not is the applicant here? Mr. Max Graham: Good afternoon Chairman Kimura and Planning Commission members, I am Max Graham. I represent the applicant Gan Eden LLC and the principles are Dr. and Ms. Marrow. We are here for fnal design,approval and if I may step to the board I just want to refresh everyone's recollection. I am not sure if all of you were here when we had preliminary design approval. So this is the Wainiha Subdivision 11 located in Wairiha and here is an overview of the subdivision map lot 8, is the yellow outlined lot. And just for informational purposes the Brescia lot is this lot 6 over here. The Y camp is down here,the ocean is on top. This is a picture of what the house will look like. So the house is going to be placed back at the inland side of the property. It will be raised up to l 1 feet because of the flood constraints. All the living area is on top, it contains 2,455 square feet of living area and I think about 833 square feet of porch area, Lanai area. This process has actually taken about 3 years and yes we do have a deadline coming up under the shoreline setback ordinance, we need to commence substantial construction of the house by May of this year. So we are bumping up against a deadline. The whole process started with our having the shoreline determined and what we did is in this regard we worked with the North Shore `Ohara and agreed to set a shoreline that land perpendicular to the sidelines parallel to the shore, a straight line that was set back behind the furthest inland point of what appeared to be the high wash of the waves. Having set the shoreline we then had to have the shoreline setback determined, it was 70 feet from the shoreline so now the shoreline setback line got moved to approximately here. So that is 70 feet behind the shoreline it's self. On these plans of the house you can see here is the, in pink, is the shoreline, in orange is the shoreline setback line, no development is allowed within the shoreline setback area. The house development had to be in the back part of the lot and so that is back here and then the lot connects to Alealea Road by a flag pole. When we had design approval,preliminary design approve the Commission approved the location of the house subject to certain conditions so the location of the house has not changed, it is in the same location and fitting into the various setbacks, the side and backyard setback lines. When you granted preliminary 4esign approval it was subject to 8 conditions and in my application,I won't go through each condition but we h've fulfilled all of the conditions. What took the most amount of time was the condition concerning the archeological survey. We were not required to do an archeological inventory survey, instead we were allowed by State Historic Preservation Division to do a monitoring plan. What we did was to have all of the portions of the property to be excavated, actually excavated down to the depths of the proposed construction Planning,Commission Minutes January 24,2012 29 and we had an archeologist on site and the archeologist then took the information and submitted it back to SHP`D as a monitoring report! In the process of the excavation of the footprint of all the foundations,the main column,the septic tank and the septic field areas there was one partial burial found,native Hawaiian burial found do the side of the septic tank. And as a result that was an inadvertent find, we reported it to SHPD, and the representative of the Kauai Niihau Burial Council and.that particular remains was allowed to be relocated and re-interred into front of the proposed location of the house. So that was approved. Nothing else was found. It took all this time just to complete all the work, do all the monitoring,and get the approvals from State Historic's and so now we are ready to get final approval. In the meantime I have been meeting with two main groups; one is the Neighborhood `Ohana. They had concerns about the conditions of preliminary approval and so Dale, if you will pass this out. So we have a stipulation where additional conditions of final design approval. They were�oneerned about the landscaping requirements in the preliminary approval dnd so I have clarified'in condition 1 of this stipulation that the application will not plant or install any new vegetation makai or seaward of the shoreline setback line. So that shoreline setback area I showed you with the exception of long grass,nothing will be planted in that area. Second, an agreement and this is for archeological to integrity purposes,that any plants planted around t11e house would not have a root ball greater than 12 inches in diameter and that is to avoid having a large stock tree brought in afid then having to dig up the ground and possibly disturbing burial remains. So,to avoid that if there are plantings they are going to be small and we will just let them grow naturally. Third,there was a restriction that no sea built walls would be allowed along the shoreline but we want to clarify what that means is,no sea Malls or revetments anywhere from the shoreline back to the shoreline setback line. So in that whole 70 foot setback area there will no sea walls within that area. Finally, we have agreed that within 60 days of final approval we will,the applicant and owner,will apply for right of entry from the Department of Land and Natural Resources to maintain and clear the area in front of the shoreline on the State property because that area is actually quite overgrown by naupaka and other plants. Because of the way we set the shoreline there is a lot of vegetation on what is State property and so we have agreed that we will get a right of entry,we will prepare a maintenance plan and this is an ongoing plan by the way,this is not just a onetime proposal. There will be a maintenance plan to maintain that area so that the vegetation does not creep towards the ocean so that there will be more available beach area for the public. I am requesting with the final approval that the Planning Commission incorporate these conditions. Now the second type of conditions involved archeological issues. I was contacted just last week by the Native Hawaiian Legal Corporation on behalf of Hui N.lalama E Kapuna O Hawgi`i Ne and that group I think you might familiar with is concerned about the integrity of native Hawaiian burials. So I have fashioned a further condition to address issues reg� ding the possibility that theme may be further native Hawaiian burials in this area and this stipulation requires that we do,well first it allows the Commission to grant filial design approval, it accepts that the house is not going to move,that the main columns of support which hold up the house are going to be allowed to be constructed in place as shown on our plans and as approved pursuant to your tentative approval; There are'some shallow columns that run aloiig horizontally along the ground that connect the main structural columns and we have agreed to do some amount of monitoring underneath these columns or these structural members underneath any areas that are proposed to be covered by concrete,underneath the proposed septic field to make sure that there are no native Hawaiian burial remains in any of these areas. If we find any burial remains we will then prepare a burial treatment plan,refer it to the Ni`ihau/Kaua`i Burial Council and they will need to decide whether to allow the burials to remain in place or be relocated with the understanding that if any burials that retrain in place, if any are found and we ate hoping not to find any,but if any are found cannot be covered by'ard surfaces. I have presented this stipulation to the Native Hawaiian Legal Corporation and they have indicated they accept the offer to do this further investigation. There is a condition that we Planning Commission Minutes January 24,2012 30 will prepare a further monitoring plan and meet with the Hui Malama to have it finalized and then we will actually do the further monitoring and excavation within hopefully 28 days of the date of final design review approval. So we do all of this work right away to m*e sure there are not problems. That is a summary of what we have proposed with regard to the additional monitoring and then are asking the Planning Commission to approve the final design of the house and its location subject also to this stipulation concerning the further monitoring. And if you have any questions I would be glad to answer them. Chair: Any questions for the applicant? Mr. Texeira: Mr. Graham, you know the excavation, when you are looking at the...going down to do the excavations if says on this 18 inches...50%, no more than 50% of the...not to exceed 50% of the 18 inches. Mr. Graham: Those structural members, they only go down 18 inches so we will sample at least 50% of those. Mr. Texeira: Of those but not 50% of 18 inches. Mr. Graham: No. Actually we go down either to the sterile layer which is the layer beyond which there is'no indication of human life or 6 feet, whichever is greater. So it will be a good sample to get down at least 6 feet or to the sterile level. Mr. Raco: So Max,you are going to grade past the i 8? Mr. Graham: Yes. Mr. Raco: Is that State required? What is the reason for that? Mr. Graham: Hui Malama has a concern about having native Hawaiian burials covered up by structures so to accommodate their concerns we have agreed to do that. That is not a State requirement. Chair: Any more questions for the applicant? Mr. Texeira: So in the last couple of years how is the contour of the shoreline, has it changed? Mr. Graham: I don't think it has changed that much. That is a receding shoreline but we have gone back pretty far inland so I don't think that the shoreline has receded past the...I don't think the actudl shoreline has receded past the line we established in that area. Mr. Texeira: You know the original line that you established, I think ypu mentioned it was modified. Mr. Graham: Yes. Mr. Texeira: So you went further inland. Mr. Graham: Yes. Mir. Texeira: How many feet from the original time when you did it? Mr. Graham: You would have to look because the original shoreline was sort of curved and so what we did is we forgot about the curvature and put the line back behind the highest Planning Commission Minutes January 24,2012 31 point of the waves. And if you look at the adjoining lots either side of the shoreline goes back up towards the ocean. Chair: Thank you, any more questions for the applicant, seeing none, thank you, public testimony? Ms. Barbara Robeson: Barbara Robeson. I am speaking on behalf of North Shore `Ghana and we want to lend our support for these two additional stipulations that Mr. Graham has passed out to you folks. And just to give you a little history of how we got involved in this if you want to know Commissioner Blake, in 1978 the North Shore `Ohana was an intervener in this original subdivision. And in 1982 the court case Mahuiki vs. the Planning Commission was found in our favor and then the subdivision occurred in 83. So recently in the past year or so Mr. Graham has contacted the North Shore `Ohara and as he mentioned we worked on the 70 foot setback. And again we were contacted by Mr. Graham to discuss this thing that is currently on your agenda. Sb we want to thank Mr. Graham for his outreach to the community, it has kind of been unusual that happens beforehand and that We can come forward and have agreement on a particular application especially in this area where it has been very controversial over the years for both burials and shoreline issues. "Anyway, again we do support what Mr. Graham has brought forth to you folks and want to thank him immensely for his outreach and his setting the bar high for other persons that are representing applications, thank you very much. Chair: Anybody else in the public want to testify? Seeing none, what is the recommendation for this Commission? Staff: For the record the department's recommendation is to giant final design review approval of the proposed residence. Mr. Dahilip,: Just to dovetail on that, including the stipulations as submitted by the applicant in the documents submitted in the three page handout. Chair: So the motion that we make will have to include the...? Mr. Dahilig_ I would suggest that the motion be to grant final design approval as stipulated. Chair: Can I have a motion? Mr. Raco: So moved. Ms. Matsumoto: Second. Chair: Open for discussion. Mr_ Raco: If I could have the applicant come up, in condition No. 4, I know it is the State's normal practice but in our language here"The applicant shall cease construction immediately", would you have any objections if I add"The applicant shall cease all construction"? Mr. Graham: No. Mr. Raco: So that would be amending condition No. 4 to add the word "all construction". And Max the only reason I say that is .from our last(inaudible) neighbor down the road,they took that in two different ways of what cease construction, construction in the area or cease all construction. Mr. Graham: That is fine. Planning Commission Minutes January 24,2012 32 Chair: I will take that as a motion is there a second? Mr. Texeira: Second. Chair: Discussion, seeing none all in favor say aye, so move. On motion made by Caven Raco and seconded by Herman Texeira, to amend condition No. 4, motion carried unanimously by voice vote. Chair: Back to the main motion. Mr. Dabilig: The motion on the floor is to grant final design approval as stipulated and amended. On motion made by Caven Raco and seconded by Herman Texeira, to grant final design approval as stipulated and amended, motion carried unanimously bye the following roll call vote: Ayes: Raco, Blake, Texeira, Matsumoto, Kimura -5 Noes: None -0 Absent: Katayama -1 Not Voting: Vacant -I Presentation on the new Transient Accommodation Unit Certificate Allocation Program and the implementation of Ordinance 912. Staff Planner Marie Williams: Good afternoon Planning Chair and Planning Commission. I az�n here to present a brief update on our brand new transient accommodation certificate allocation program and I will just refer to it by the acronym from now on, the TAUCAP. This is ordinance 912. This is an overview of my presentation. I will summarize the ordinance, go over the exemptions process which is already in place and then get into our TAU certificate allocation and then let you know what the next steps are. Here is a timeline of what has happened with this program that began as draft bill 2386 that we referred to this Commission in November of 2010. And then in May of last year this Commission approved the draft bill with amendments. Council passed it in October as a bill 2410, draft 2 and it came into effect as ordinance 912 just a few weeks ago on;November 21St of last year. And then starting this year January 1St, our first allocation cycle is in effect. I wanted to summarize some of the main changes to the program since it was last before you back in May of last year. So this is the program that you approved, essentially we used a 5 year allocation cycle which meant that during the first year of the 5 year allocation cycle that this Commission;would adopt the number of certificates that would be available to prospective applicants. A:nd that number would simply be 7.73% of our base number and that is equivalent to the number of transient accommodation units in our base year which is the year prior to the start of the allocation cycle. Again the 7.73% is equivalent to 1.5% growth compounded over the 5 year period. We might play with that number depending on whether we have a high growth scenario or a low growth scenario. For example should there be a high growth scenario then we would take from that number up to 20%to be used for the back log of projects that are curtently entitled that might come on line over the next fe k years. And then of course once we adopt that number applicants would edme in only with their completed application for a Use, .Zoning, Variance, or Subdivision approval for more than I TAU and then they could submit a request for a TAU certificate. And these would be accepted on a first come first serve basis, and then only issued once their permit is actually approved. This is what Council approved a few months later in October. Just one of the main changes is that we changed how we will calculate our allocation number, instead of the 7,73% Planning Commission.Minutes January 24,2012 33 we reduced that to 5.1%of the base year number. And that is because we wanted to build in a way of accounting for our obvious back log of entitled projects. There are a few thousand that could possibly come on line in the next few years. And then in order to be flexible we would either add to that by 50% should there be a very low growth cycle or we would deduct from that r numbe even further by 50%if in fact there was high growth. And if the base year number was above the so called target and I will get into what that target is. Another change is that once the TAU certificate is issued it can expire. That means it is gone for good, it won't be recycled back into the pot of TAU certificates. So it sort of places more urgency on the applicant to actually use the certificate. Now you might be interested in what has happened with the exemptions because that came into effect on November 21St when the ordinance came into effect and if you recall there is only a 1 year window where people can come in and apply for an exemption. A web page has been created, you can access it on Kaua`i.gov through the Planning D,epartmeAt's website. There are forms that people can download and we have received 5 exemption applications and one has been approved,that is the Kukui`ula project. And again the exemption window is oily open for a few more months and then it is closed forever and then no more projects can apply for an exemption. Getting to the crux of why I am here today,that is because your work isn't done yet in regards to this program since it is the first year the allocation cycle you now are required to adopt the total number of TAU certificates that are available in this current allocation cycle before March 1St. In order to calculate what that allocation number is ydlz have to be familiar with some of these terms and the first is our allocation cycle,the 5 year period,the allocation base year which in this case is 2011,the year prior to the start of this year. And then the allocation basp year TAU target and this means the number of transient accommodation units in the County of Kauai on December 5, 2008 increased by 1.5%per year on a compounded annual basis for the number of years between the allocation base year and 2008. And I will show you what this looks like because it sounds a little complicated. And then in order to arrive at an actual number we follow section 8483(b),"The total number of TAU certificates available for issuance during an allpcation shall be equal td,5.10/0 of the TAU inventory in the allocation base yeah provided that this number shall be", and here are our two options, either decreased by 50%if the TAU inventory, in the allocation base year exceeds allocation base year TAU target or increased by 50%. If the inventory in the base year is less than the TAU inventory or allocation base year of the previous allocation cycle and if this number is in fact less than the allocation base year TAU target. So there are sort of tw,o conditions in the second option that have to be met. So this is how it is played out in this cycle. The yellow square represents allocation pycle we are currently in and if you go to (b)which is our base year in 2011 you can see that the red line represents what the target should be and t4at is the 1.5%growth compounded beginning in 2008. And the blue line represents actual growth and decline in our visitor plant inventory, or TAU inventory. You can see that we actually add over 500 units between 2010 and 2011 thus %raising our actual base number above our target by .bout 200. And so obviously optign i will apply and I will just take you through the process. Our actual number to the number of TAU's on Kauai of last year as reported by the visitor plant inventory was 9,872. So we multiply that by the 5.1%,it gives us 504 units, however we look at our target and see that since we have exceeded that we have to apply option B.1 that I just described. And so to decrease it by 50%we multiply it by.5 and therefore 250 transient accommodation certificates will be available during this allocation cycle. This is the number in about a month I will return and we will ask you formally adopt this number 4nd then what happens is that pursuant to ordinance 912 the very next business day we will have to start accepting applications for TAU certificates. And of course they have to be accepted tiursuant to all the requirements listed in 8-28.4(a) and in i-he meantime we will determine what this first come first serve proces§will look like and create a transient accommodation unit certificdte application. Planning Commission Minutes January 24,2012 { 34 Chair: With the exemptions how long do they have before they can start construction? Ms. William: Once you are exempt there aren't any requirements placed on that exemption it is just whatever requirements that their permits has in place so there ale no additional burdens on them. Chair: Thank you, anymore questions for Marie? Mr. Texeira: You mentioned there were 5 exemptions of which one project got approved, Kukui`ula got approved. What is the status of the other 4? Ms. Williams: I believe they are currently under review by the Planning Director and the Deputy Planning Director. Mr. Texeira: And how many units are we talking about? Ms. Williams: I'm sorry, I don't have that number. Mr. Dahilig: We can get that information for you Commissioner Texeira. Mr. Texeira: That would be good. And what is your time frame for approving the other 4 exemptions? Mr. Dahilig: I am not a hundred percent clear but I know there is a time clock once that application is accepted. Ms. Williams: It is 120 days. Mr. Dahilig: When we acc,pt it and we will be following that timeline. Mr. Texeira: So going back to the number of units,that can be constrficted in the next 5 years you mentioned that there were 200...? Ms. Williams: 252. Mr. Texeira: 252, so that is like over 40 units per year then. Ms. Williams. About 50 units a year, yes. And of course they could all be taken the very first day that the certificates are available. Mr. Texeira: Thank you. Chair: Any more questions for Marie, thank you Marie. UNFINISHED BUSINESS Special Permit SP-2012-22 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kilauea Ag. Subdivision, Kauai, east of the northern terminus of Waiakalua'Street, further identified as Tax Map Key 5-1-5:50 (Unit A, 3.925 acres), with a paxcel size of 10.180 acres = TerLe Haakonsen. THearing's Officer Special Meeting Public Hearing held 1/6/12.1 Supplemental Director's Report No. 1 pertaining to this matter. Mr. Dahilig: Let me sub in for the planner while he is getting over here. Commissioners, just to orient yourselves,the background 'information regarding the special permit application is before you in the matrix you see in the first three pages.`And then as we move forward through Planning Commission Minutes January 24,2012 35 the evaluation pretty much a lot of the conditions are...a lot of the evaluation is pretty synonymous to other applications that we have seen before hs; We want to point out our analysis on page 6 considering that it is not in a dense area,that it is separated from other neighboring residences pretty reasonably. And if you go to the standard conditions we do have all the standard conditions in place)iowever I want to point out item No. 23 which relates to the workshop garage structure. We just want to put that in there to safeguard that from being advertised or used as a separate TVR at a�y time and that annually this structure shall be available for inspection by the Planning Department. So that ig�,the report in front of you and if thee,are any questions we would be happy to entertain them before you bring the applicant up for discussion. Chair: Do you want to add anything to that Mike? Staff Planner Mike Laureta: No. r Chair: Any questions for the planner? Is the applicant here? Mr. Steven Lon&: Good afternoon Chair Kimura and honorable members of the Planning Commission. My name is Steven Long,I am architect and authorized agent for the applicant Terje Haakonsen and have the pleasure of presenting two TVRs to you this afternoon for your approval. The first one,Terje Haakonsen purchased this lot comprised of 3 CPR units'in 2006. He owns all 3 CPR units. He conducts intensive agricultural operations on all 3 units including a 60 tree fruit orchard, 88 palms of various varieties, green waste mulching operation, a 200,000 dollar water well with pump house and storage tanks. Unit:A that has the single family farm dwelling of 2 bedrooms and 2 and a half baths is primarily located on land in the SMA. The house is not in SMA but most of the property is over the pall. Unit A has approximately 4 acres and aside from the permitted improvements and a half acre of unusable steep terrain the entire are is fully planted with 10 varieties of fruit trees, flowering trees and herb garden. There have been no complaints from the public regarding the operation Of this TVR. I have read and agree with the recommendations contained in the supplemental repdri t including the item that you mentioned about the 3 car garage. That has nev k and will never be used as a vacation rental. Chair: Any questions for the applicant? Is this Beth Midler's old house? Mr. Lon&: No its not. I designed that home in 1995. Mr-. Blake: I have a question of the Director. Is the department planning to impose a standard condition on all of these applications relative to capping the number ofIpeople and automobiles on the property? Mr. Dahilia: It is an issue that seems to have arisen through Commission discussion and deliberation. It is something that we have only looked at in the context of cumulative impacts because of neighboring TVRs that are within very close proximity to each other. I guess I would hesitate to make it a standard condition that we would include but it is something certainly that if the Commission would like to use it as a mechanism for these applications it is certainly entitled to do so. We have provided our rationale on a template basis on how we would calculate cars and vehicles and I guess given the discussion that has happened today and after this meeting is finished it may be something that I can go back with the planner about and discuss whether we come up with a structured template for the next batch of applications to impose some type of limitations. But I would say at this point we don't have a methodology or a policy to be including that as a standard condition at this point but it is something we can look at. Chair: I just need more background information. Mike, do you want to describe the project in a summarization? This is part of a 3 CPR units,right, of which they comprise on 10 acres of which we'are just looking at one CPR unit, right? Staff: Yes. Planning Commission Minutes January 24,2012 36 Mr. Texeira: And the other two CPR units are not in question and they are vacant units, right? Staff: They are planted. They are in agricultural use. Mr. Texeira: There is one unit on approximately 10 acres. Mr. Long; Yes sir. Mr. Texeira: This existing TVR unit is approximately how big? Mr. Lo, n-: 2,000 square feet, 2 bedrooms,2 and a half baths. It is an unusually shaped house, shaped like a sea shell and there is a lot more living area, two living areas, a television viewing room, and then just 2 bedrooms with 2 and a half baths. The 3 car garage is primarily- used for storage and their automobile that they use on island when they are here quite;regularly is actually left outside in the parking area designed for that purpose. Mr. Texeira: Has this been used as a residence or just a TVR over the Iife of this building? Mr. Long: Thrje Haakonsen is on Kauai every months with his family from Norway. Mr. Texeira: So he uses it as a part time residence. Mr. Long: Yes it is. If yogi take a look at the rental log it is rented very infrequently. Mr. Texeira: Does he have any plans in the future to use the other parcels for TVR purposes too? Mr. Long: Absolutely not. Mr. Blake: What was your question? Mr. Texeira: The other two CPR parcels, does he have plans to do any other single family construction on those. He passed the date for TVR use as of 2008. Mr. Long: I don't know what his plan`s are. At the moment I believe that his personal family plans are to retain the 3 units as a personal estate and allow the 60 tree fruit orchard to mature. Mr. Texeira: What is the status of the surrounding properties Mike? Staff. Agricultural and farm dwelling. Mr. Texeira: TVR type? Staff: No, not TVR just open Ag. Mr. Texeira: Are there residences on some of these adjoining parcels? Staff: Next door on the north side but these properties are very large so in terms of impacts there is a lot of space in between. Mr. Long: To the north is one or two residences and then a beach access down to Pzla`a Beach and then to the south is the Pflueger property. Chair: Any more questions for the applicant? Planning Commission Minutes January 24,2012 37 Mr. Raco: Mr. Long, can you in your own words explain to me how under the special permit process under the five conditions how your applicant complies with those five? Mr, Long: Which five conditions are those? Mr. Raco: Those are for the special permit pursuant to HRS,page 6. Chair: 6 and 7. Staff The five point special permit test. Mr. Long, This is a small residence. It does not displace productive agricultural use of the property because the subject property on which the TVR is located and the two, other CPR units that are owned by the owner on the confines of the entire lot are fully engaged in agricultural activities with the 60 tree fruit orchard and 88 palm trees. The CPR unit wittJ 'l the home on it is at the very ocean end of the lot and much of that unit is in SMA over the pali and Mr. Haakonsen has gone to great lengths to plant many different varieties of fruit trees throughout the Iandscape. Mr. Raco: Is there a landscape plan or an Ag. plan or anything that you can show us? Mr. Long: As part of my application I did a detailed landscaping, planting plan that identifies all of the flowering, fruit, and herbal plants on the property. There is not much area left on the entire lot for additional agriculture. There is an extensive green waste mulching operation. Mr. Raco: So your agricultural activity do you store it in the garage that is there now or where do the employees park? Is there an employee bathroom? Mr. L2n6: There is an employee farm worker toilet, not bathroom but toilet and sink, in the garage area and there is a hard surfaced parking along the main entry drive for farm workers to park. This is a very long thin lot probably 1,500 feet long, maybe 1,000 foot driveway so there is ample room to park and to service the agriculture. Mr. Raco: In your planting plan I am just trying to see where picture I is taken from for example. Mr. Long: I am looking at that. Mr. Raco: That would be exhibit K, right? Mr. Long: Yes. Mr. Raco: Are there any more pictures like exhibit 3? I guess it's just other than that it is an open pasture, right? Mr. Long: There is a little bit of pasture in the center CPR unit associated with the green mulching area but as you can see on my exhibit L which is the agricultural site plan the most mauka CPR unit is fully planted with fruit trees and palm trees. And the most makai CPR unit with the home is densely planted in fact it would be hard pressed to find any more area on the TVR CPR unit where one could plant additional agricultural plantings. And that has been evidenced by my photographs and directional photographic site plan map. Mr. Raco: And how would the desired use not adversely affect the surrounding areas? Mr. Long: This is a larger estate with a long driveway at the end of a cul-de-sic. It is adjacent to other properties of a similar nature. The house is rented in a very limited manner. There are only 2 bedrooms, 2 and a half baths in the residence. There is more traffic when Mr. Planning Commission Minutes January 24,2Q12 38 Haakonsen is on Kauai with his family, he has 4 children, than there is when he rents the residence to vacation renters. Chair: Any more questions? I have a question, in picture No. 3 I notice tiki torches out there, do you guys hold weddings there? Mr. Lon : Not at all. Chair: So the tiki torches are for? Mr. Long: They are for their own personal enjoyment. Chair: Did this property used to have Llarna before? Mr. Long: No. There is no Llama. There are some horses down there on occasion. Chair: Were there Llama there in the past? Mr. Long: Never. Chair: And this property butts Pheluger's right? Mr. Long: Pheluger is, I believe he is adjacent to the south, the Kapa`a side. Chair: Are you sure there was no Llama there? I swear there was. Mr. Long: No but there were a lot of parrots there, red flying birds. Chair: No, this thing had four legs. I was just wondering what happened to them, any more questions for the applicant? Mr. Raco: If I may, can your furthermore tell me about your agricultural use and who do you sell your produce to? Are there vendors out there that you sell to that this will offset, this TVR will offset it? Mr. Long: Mr. Haakonsen purchased this property in 2006. To establish agriculture on the property he installed his own personal water well with two large storage tanks. That i8 used to irrigate the recently, recently meaning since 2006, fruit orchard and various plantings around the property. So at this time the only...it is not really commercial but he donates the coconuts to the Kapa`� Coconut festival end the fruit trees are not mature at this time but the gardens are used for their used for their awn personal consumption. ;This fruit orchard, these are real orchards,these aken't just trees stuck in the ground. He is there for the long haul. Ike invested 200,000 dollars in a water well to establish mature landscaping and I believe will be pursuing an agricultural dedication on the property. Ms. Matsumoto: In exhibit 3 there is a structure here, what is that? Mr. Long: That is the 3 car garage. Chair: Any more questions for the applicant? Seeing none, thank you, anybody in the public want to testify on this application? Ms. Caren Diamond: Good afternoon Commissioners, Caren Diamond and I am here for Project Our Neighborhood `Ohana. One of the requests that I had was for planning to actually put up a screen and pull up the advertisements for the various vacation rentals that are before you. And then you could actually see what it is that is being advertized, what the rate is, what it looks like and I see that this one didn't happen. But I think if you requested that it might help ? you quite a lot. I keyed in Pila`a Beach House yesterday and was pretty surprised when I found Planning Commission Minutes January 24,2012 39 the ad for this one and basically 1,750 dollars a night, that is a lot, that is a lot of money. It says they there are 2 bedroom suites in the main house and one bedroom suite in a separate guest house so I guess they rent the two different houses through this one ad. It also said that you have tiki torches that take you down to the private beach and we know that our beaches are not private. But also in further researching I found a 2002 landscape plan that was from the County and basically came from you guys, it was August 27, 2002, and it was a Special Management Area minor permit that was requested from the applicant on this parcel. Dee Crowell ?>igned off on it and one of the conditions,No. 5, was, "As represented the landscape mainteminice path shall be utilized only for pedestrian access to planted areas. Vehicular use of the path shall be prohibited and the path shall not be used for beach access." So now we have this path being a private beach access for the vacation rental people who rent t4is place. I further researched and looked at the developer's public report for this property and similar to the last one, the one I had testified on earlier this morning, the State only condominiumizes properties if the applicant signs that all dwellings are going to only be used as farm dwellings. And basically what that means is the farm dwelling is going to be...the dwelling that is constructed only gets allovyed to be constructed for it to be in conjunction with the agriculture that is happening on this parcel. I am so confused about how confused the whole situation has been because the fact that you are growing agriculture on your land doesn't mean that you get to use the house that was constructed as a farm dwelling as a resort or as two resorts. And so I am asking the Commission, please make some kind of finding of tow the farm dwelling agreements and farm dwellings and single family residences that were constructed to house a family can turn into this kind of situation that you are approving today,thank you. Chair: Any questions? Can you comment on her findings? Mr. Dahilia: There are a lot of them. I think from a contextual issue, again, the background on the context of 904 comes as a consequence of there being no definition in the State Land Use law as to what exactly constitutes a farm. Chair: What about the finding that she had with a separate rental unit besides the 2 bedrooms? Mr. Dahilig: As part of... S Chair: Maybe I am asking the wrong person, maybe I should ask the applicant to step back up. Can you answer her findings with two separate dwellings? Mr. Long: I am not familiar with the website advertising she was reading from. May I ask Caren what the date to that was? Mr. Dahilig: Mr. Long, you may want to comment whether that advertisement was actually done by your rental agent because the reason I would like you to clarify that is as we have undertaken investigations about this, apparently realtor sites in order to mare themselves look like they have large volumes of TVRs available actually lift off of the main site and copy it onto their site. And when they call they say well that one is not available but here is another one. And so it is part of a I guess for accuracy sake if you can for the Commission confirm or deny whether that particular advertisement is actually done by the agent of the TVR or not. Mr. Long: That is an interesting point because when I got involved with a.11 of my clients at the very beginning of this process I had them stop all advertising and rental of their units. I know this rental agency Beaumond Villas, I have never heard of them. Chair: Sa why are they advertising your units? Mr. Long: I have never seen this. Planning Commission Minutes January 24,2012 40 Mr. Dahilig: Just to clarify we found out through the investigations as a N,ay for these rental agencies to market themselves and seem like they are legitimate and they have a large inventory of TVRs they actually copy websites from other axe, list them as if they are noticing it as their own property. And then when they call and say I want to rent this TVR that is on the website what they will tell you over the phone is actually we don't have that available but here is one that we leave available. So in a sense it is a marketing ploy that they do. Whether it is ethical or not surely it is something that can be brought to the attention of the Real Estate Board whether this is an ethical type of activity. Bi4t what we hav6 learned through the process of investigating through advertisements is very tricky and we have to ascertain whether or not that is in fact the authorized agent that is offering the website. So in a sense they don't have any control over that sometimes. Chair: Let me ask you this, either Mike or you, I am sure you guys have looked into the advertisement. Mr. Dahili2: Correct. Chair: Is it up there? Staff: I have checked and that was one of the very first requests that Commissioner Blake requested that is why that block is included in the template. And when I started pulling up and copying and I would call if there were issues when the inspection report was`done, the responses I got back were exactly what Mike said. There are times when these rental companies go out of business and they leave the advertising up on the web. It was my original assumption, I believed it like Caren but what Caren didn't do was take it a step further. She is going to run info a lot of this;stuff where these advertisings were lifted off someone else's page. Who is responsible? They can't get to these people who take it off the web. We have another applicatisin, I am not sure when we are going to hit it, but one of the conditions was it is the same kind of advertising, farm, storage shed, approved, they were advertising it as a separate unit. And when I called the applicant's representative and said this is what is being advertised it came back that look, they went out of business. We did the inspection and it wasn't like that. So we have run into a lot of that stuff and to Steve's credit he requested all of his applicant's to take their advertising off the web until they get to this point. So don't believe everything you hear. We have checked because I wanted to print out where I could print out then I got caught where either the advertiser or realtor was out of business or it was somebody else's responsibility but they couldn't take it off the website. Mr. Texeira: So for the record is it 1 unit or 2 units? Mr. Long: It is 1 unit sir. And I am really shocked at this advertisement because it ig inaccurate and I was just not aware of this at all until this moment. Staff: When we did the inspection of the property there are no 2 units. Mr. Texeira: So you have actually done a visual on site inspection. Staff: We have done an inspection of every single thing you have got. Chair: There is no trail down to the ocean,private beach access. Staff: There is no report from Bambi as to if there was a beach access. What we were looking at was the use, the structures, the units,the permits. Chair: Maybe they are talking about the County access next door. Planning Commission Minutes 3anuacy 24,2012 41 . ....................... . Staff: Yes. Now we have run into that one too. So we have tried to provide as complete a packet of information to you as possible, it is backed up with inspection reports. And the claim that there are two units and they are advertising, I can tell you it is wrong. I don't care if it is as current as of yesterday it was not posted by Steve or his client. Mr. Dahilig: Cominissioners if it would alleviate some concern we wouldn't be averse to imposing a condition along with the other conditions saying that we are prohibiting the landowner to advertise any beach access or any beach as a private beach and to confirm that every beach access and beaches are for public use. If the Commission at the time of entertaihi.ng a motion we would be happy to suggest language should that be the Commission's desire. Ms. Matsumoto: I support that one hundred percent. Stgff: Director, we can weave that last statement of yours into condition 23 where it would provide is with the opportunity to do the annual renewal of the permit and the Planning Department would do an inspection of the structure and property for beach access concerns. We can enlarge on it too. Ms. Matsumoto: I have a question about advertising on the web. So would it be appropriate for the Planning Department if they discover something, I don't know how you would do this, doesn't reflect the actual property could you contact the real estate agents and see or Board of Realtors or something like that? Make a report to someone. Mr. Dahilig: I think on the side as an administrative matter I think it is something we can send,Mike and I can compare notes on and maybe identify websites that are up and then send a letter over to the Real Estate Commission concerning this practice of copying websites and advertising properties as their own when they really aren't their own to be advertised in the first place. We are in the process of trying to enforce on some of the non-Ag. TVRs up m the North Shore and this problem arose as a consequence of actually some of the inforihation that Ms. Diamond and Ms. Robeson have provided to us and in some cases there are 6 or 7 different websites for one particular property. It almost becomes this effect of us trying to chase the right legitimate advertisement versus relying on all 7 of them together. But we could definitely try to do that, send something over to the Reel Estate Commission. i Ms. Matsumoto: Beach access is an issue State wide, it is a very tender topic for everyone involved. Mr. Dahilig: Understood. And I think also to that point they are making represehtation that Is unlawful as there is no such thing as a private beach in this State. Mr. Texeira: I have a question; the rental of the TYR is handled by somebody, some agency rather than through you? The owner works directly with that particular... Mr. Long: I am the architect and.I am processing this application. The owner rents the house through an agency on the North Shore of Kauai. Mr. Texeira: You don't know the name of that agency? Ms. Lon; : I know the name of the lAdy, her name is Rhonda Marley because I communicate directly through her. I actually don't communicate with the client. I have made it really clear to all of my clients and their rental agents that I am to review and approve all advertising before it goes out on the web. And I am fairly familiar with you requirements and recommendations and I can assure you that none of my clients will be advertising anything that is not precisely the way you have requested. Mr. Texeira: So what is your process? How do you check what she is doing? Planning Commission Minutes January 24,2012 42 Mr. Long: I review and comment and we go back and forth and I make sure that what they are saying and advertising is accurate and correct because lay people often...for instance they might...I reviewed one last night and they talked about a guest bedroom. Well tide guest bedroom is the second bedroom,child's bedroom right next to th,6 master bedroom suite. But to use the word guest bedroom in this forum insinuates that maybe it is in a separate detached guest house and that is not exactly the case. So they may use lay person's language like guest ` bedroom, well a guest is going to stay in my kid's room. So i make sure that they don't make those kinds of rhetorical mistakes and mislead the public and you. Chair: Thank you,what is the reeomrnendation for this? Mr. Raco: I have one more question for the applicant. In your application under 6.b on page 20 you said the proposed use is in the same or substantially similar to the farm dwelling. Bui to me a farm dwelling is where a farmer lives. Aild under the SLU when you submitted the plan it was for a farm dwelling,right? So how can you go fxom a farm dwelling to a transient vacation rental now and it is the same? And the impact to me is not the same_ Mr.IM& I believe those issues are covered in the ordinance. Mr. Raco: I am asking you. I anii asking you what you wrote in your application. Mr. Long: Well I do know this,I do know that the entire family spends a lot of time farming on the property,personally,digging holes,planting trees, climbing trees, so that is farming. They stay in their house and they farm. Whenever I go out to see them they are working out in the yard or on their tractor or they are digging holes and getting dirt underneath their fingernails. ` Mr. Raco: My other question is, are there any workers on property now that help and where do they stay? Mr. Long: The workers live in the Kilauea community and they are day workers,nobody lives on the property other than the owners and an.occasional transient vacation renter. i know that there is at least one full time farmer and possibly one or two halftime employees also. It is a fairly extensive operation they have going, a 200 thousand dollar water well is a real commitment to agriculture. Mr. Raco: Welt it is a commitment to agriculture and a commitment to having personal use to it. To me if there was a 150 thousand dollar well it should be...is it distributed to Ether neighbors? Is it distributed to the community for their use, other than that to me that is just a one person,on applicant doing for their own selfish reasons. I don't see that as any kind of benefit to anybody else other than the applicant. I am just saying that,that is just a co nment. But to my question about the farm worker residence is that on your application on page 23 under housing, "There will be.no need for additional workforce housing due to the farmer residence." What do you mean? Do the farm resident lives there? Mr. Lona: No,none of the workers on the i'arm�ive on the property,they live in their own home or in a long term rental within the Yslhiuea community. Mr. Raco: And then can you explain to me how this TVR will not significantly increase the value of their property? When you write that in what way do you mean? Mr. Long: That the TVR will not significantly impact the value? Mr. Raco: Increase the property tax? How did you come up with that? Mr. Lona: Can you read that again please? Mr. Raco: I didn't read it,you wrote it. Planning Commission Minutes January 24,2012 43 Mr.lm& I know but can you please... Mr. Raco: On page 23. Mr. Long: Of my application. Mr. Raco: Steven Long and Associates. Mr. ,, Please let me take a moment to collect myself so I can answer. Mr. Raco: I am just reading from your application. Mr.1,2E& I can speak to the increase in property tax values. I believe that the County is going to be increasing the tax base for these properties so that would then be a benefit to the County. This an exclusive custom designed home with individual agricultural plantings and I don't believe that the transient vacation rental which Gecurs on a very minimum basis would increase the value of the property. That is what I say. Mr. Raco: So it would not increase the property value. Mr. Long: You mean the value of the property? No I don't believe it would increase th value of the property. Mr. Raco: But you just said it would increase the taxes. Mr. Long: I don't know far a fact because I am not privy to the assessors t4xing policies but I have heard some talk that there may be some additional tax base increase to the transient vacation rentals. Mr. Raco: Right so getting this TVR would increase your tax which would increase the value because now it is a TVR. Mr. Long: I personally don't believe that this transient vacation rental would increase the value of this property. It is already a beautifully designed home, they have a special custom agricultural farm here and I don't perceive that it would. And I don't know what the County assessor's policies will be in the future towards taxation base. Mr. Raco: I am done. Chair_ Any more questions, recommendations from the Commission or a motion? Mr. Texeira: Mr. Chair, motion to approve SP-2012-22 to permit use of an existing single family residence for TVR.purposes as permitted by the County of Ka�a`i ordihzince No. 904 with the conditions as attached by the planning staff. Chair: Mike, do you have anything to add? Staff. No. Chair: You read your recommendation already, right? Mr. Dahifig. Maybe if the Commission would also entertain an additional item No. 24 that would read, "The applicant shall not make any representation that they have a private beach or private beach access." Mr. Texeira: So that would be part of the motion as read by the Planning Director. Planning Commissibn Minutes January 24,2012 44 Chair, Do I have a second? Ms. Matsumoto: Second. Chair: Do you have any objections to the conditions? Mr. Long: No. Mr. Raco: Chair, is there any discussion? Chair: Yes, any discussion on this motion? Mr. Raco: So Chair I will be voting against the motion that is on the floor being that I don't see the applicant represented to me on the five criteria of the requirements under the special use permit or hasn't provided me...I catin of solidify the facts. Chair: Can I have roll call please; Mr. Dahilig: Mr. Chair, the motion on the floor is to approve Special Permit SP-2012-22 as amended with additional condition No. 24 relating to prohibitions on representations about private beaches or private beach accesses. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve SP-20312-22 as amended and with addition of condition No. 24, motion not carried by the following roll call vote: Ayes: Blake, Texeira, Matsumoto -3 Noes: Raco, Kimura -2 Absent: Katayama -1 NOt Voting: Vacant -1 Mr. Dahilig: The motion is 3 to 2. Given that, discussion immediately stops and moves to special order of the day on the next meeting. Special Permit SP-2012-23 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by of Kauai Ordinance No. 904, in Kilauea, Kauai, approx. 2 400 ft. north east of the Pili Road and Kolo Road 'intersection makai of the Kilauea Twin Roads subdivision, further identified as Tax Map Key 5-2-12:1 {Unit 2, 3.03 acres), with a parcel size of 33.717 acres=Neal& Barbara Beissert [Hearing's Officer Special Meeting Public Hearing held 1/6/12.1 Supplemental Director's Report No. 1 pertaining to this matter. Staff Planner Mzke Lauteta read supplemental Director's report No. 1 (on file). Chair: Any questions for the planner? Mr. Blake: We've seen this in every application that has come before use is that statement about how the economy has dramatically evolved since the establishment of the State Land Use law in 1961, so up to now there is almost two generations of this drastic change from an intensive Ag., an economy where intensive agriculture wqs very important to one where it is far less. If that is the case and that has been the case for 50 years why are we still talking about it? It would seem to me that you buy property that is Ag. zoned you know it is not intensive, you are not going to subject it to intensive agriculture. If it is less than 5 acres you know you are not going to dedicate it for Ag. use. So you know all these things already and you still purchased the land, how come now you want us to consider all these facts so that you can obtain a nonconforming use or impose a nonconforming use on the property? Planning Commission Minutes January 24,2012 45 Staff: Because I would disagree yvith you that purchasers from the mainland did not know. Mr. Blake: Tough. It is in the law, they know. Staff We will agree to disagree. Mr. Blake: But the thing is they bought from the mainland intending to intensively cultivate this land? Staff: We can only guess to why they did what they did and for someone to try and pigeon hole or pre-guess at what you should have know we have run into processes here in these applicatii?ns where they should have known before they plunked down 500 grand to a million. They should have known but they didn't. So your comment, they should have known, I will disagree with you right there but... Mr. Blake: Let me rephrase that. Staff. Let me continue, that... Mr. Blake: They could have known with the least bit of investigation and since they didn't investigate now they want us to bail them out. Staff. Using the mechanisms,the laws that exist, special permit standards in the Land Use Commission Rules, that exist, ordinance 904 exists. It doesn't say no. If they can answer the questions in their applications which is what you are seeing, you may disagree with the way they have written it, how they have written it,you may disagree but that is their application. We, the department, are trying to get this information to the Planning Commission in a consistent manner. We are going to get sued either way and if we are going to be inconsistent in the application part that is even weaker, that makes this presentation even weaker. The part about the economy is constantly evolving. The part rwhere we stopped is with hotels. We now have timeshares which was never part of the deal. We are beyond timeshares; we are into transient vacation rentals. So where the economy part evolves we have seen that,the transient vacation rental part in the Ag. district has evolved, three ordinances to try and address that issue. There is no set standard. All we can do is gather as much information as we can,present it to you in a logical and consistent fashion and let you make your determination. Your last comment was you didn't like to see how many TVR applications are in a region. Okay, I am still going to provide that information but what I did was I removed the sentence telling you how many you approved. Still it is consistent, we are still telling you how many are in that region, we are still telling you the sunset date. Whether you like it or not we are going to provide it. It has to be in the report, it has to be consistent. So while you may agree or disagree with the content of the report that is your prerogative but we are not going to change the report. Mr. Blake: Okay, you tell us how many TVRs there are in a region; what is the ppint of telling us that? Staff: So that you know where this application was; what region it is in, how many are being requested in that same region. Mr. Blake: Does the issue of carrying capacity for these rural hotels or agricultural hotels, agricultural resorts come into play at all? Staff: There are no carrying capacity studies. Mr. Blake: I know that. Should we be? There is 20 year, 30 year, 150 year. Planning Commission Minutes January 24,2012 46 Staff. Well the answer may 1 e yes,the deadline for these special permits and their applications do not permit such an endeavor. We have a 21.0 day clock from the date it is accepted. You don't have the luxury of saying time out,we are going to do a carrying capacity for Moloa`a, for Kilauea, for`Anini. Then we have to go out and get the funding, then we have to go out and go through purchase orders to get the contractor,that will be a couple years from now. How do you adjust for the 210 day clock from the date of completion of that application? Mr. Blake: Let me think about that. Staff: The department is still trying to...the concerns are real,we Ore trying to address them cumulatively and as you have seen in the beginning of today we are adjusting on the fly to meet the Commission's concerns. Mr. Blaice: My concern is for shorteiiing the report. We know,the realtors know, anyone that comes in here with the least bit of curiosity would know that intensive Ag. on Kauai is like the dodo bird, it is gone. If that is the case!then your under 5 acre parcel is not available to you for agriculture so it appears that then it is automatically available for other uses. I think it is eligible for other uses bpt it is not automatically available and it is only eligible based on these special use permits,those 5 conditions. So the thing about the economy to me is, if the economy was terrific they`Mould still come in for TVRs because it is smaller than 5 acres, slope constraints,you have soil that is less than A and B. So the economy means to me it is nice to talk about but really has no bearing on, I don't think anyway, it has'any bearing on the issue. Mr. Dahiliya: For the Commission's indulgence I want to redirect the Commission back to the policy call that was made�y the law makers here concerning these applications that you are seeing in front of you. And I am going to read from section 1 or ordinance 904 in terms of the finding of the policy of the County. And again I want to state this because this is the policy of the County. "The purpose of this bill aims to amend particular provisions of oi`dinalice 864 and 876 relating to previously implemented grandfathering provisions for existing single family transient vacation rentals outside tp.e visitor destination boundaries. However this bill maintains the prohibition concerning the commencement of any new single family transient vacation rentals outside the VDA if use was not established prior to March 7, 2008." That is the County's policy. "The Council finds that this ordinance will comport with the County General Plan Which emphasizes the need to enact clear standards and permit processes for regulating alternative visitor accommodation structures and operations in the residential, agriculture, and resort zoning districts. The Council further finds that certain provisions of ordinance 864 and 876 served contrary to the policy. The General Plan also entertains the possibility of alternative.visitor accommodations and development standards and permitted processes for regulating alternative visitor accommodation structures and operations in residential, agricultural, open, .rid resort zoning districts and should be implemented through zoning. This ordinance ivill not invalidate nonconforming use certificates issued to single family transient vacation rentals previous to the enacting of this ordinance however xoneonforming use certificate holders will remain subject to a renewal process." Mr.Blake: What? Mr. "However holders will remain subject to a renewal process." What is clear here is that it was the intent of the Council and the Mayor in its'policy for the County to enact a grandfathering process. This is part of a grandfathering process. In as much as we may agree or disagree with the policy of the County it is the policy of the County and this is.not a law malting body. And so I sympathize and I hear and I understand the frustration concerning whether the laws make sense,whether there is any rationale to there being a massive mansion with a farm dwelling but those are discussions that have been had and determined�y the policy makers of the County. And what is clear in our reports and how we come up with out analysis 3.s that we have to look at grandfathering as a policy i§sue,we have to look at compliance with the General Plan which allows some type of alternative visitor destinations dwellings. And those are the types of things that we have to look at in accordance also with what Chapter 205 says. Planning Commission Minutes January 24,2412 47 So I ask the Commissioners to consider what the policy of the law makers is and whether we agree or disagree with it that it be reviewed in that context. If intensive Ag. makes sense or didn't make sense it is in black and white in the law. So I hear you, it is hard to find intensive Ag. but it is what the law says and I ask that we look back at ordinance 904 in terms of what the policy is of the County and implement that policy. Mr. Blake. So if the General Plan extols our rural atmosphere and underscores the agricultural values that allow individuals and families to support themselves through hunting, fishing, and farming, and then also allows for alternative hotel accommodations that we have to make the decision of which one is superior. Mr. Dahiliy,: I don't think that there is...I think it is fair to say that the General. Plan can also be read in conflict. So whether we agree or disagree with certain elements of the General Plan making sense with another part of the General Plan, pretty much we have taken what we think are the relevant elements of the General Plan as also indentified by the policy makers which adopted the General Plan in the first place and they have emphasized that this type of alternative accommodation is something that is a relevant element of the General Plan. We don't choose the parts of the General Plan that are more or less re.tevant. But what I can say for the purposes of this particular application and how it is spawned off of the ordinance that it was passed the policy of the law makers was to highlight that element of the General Plan. And they believe that this law is consi;tent with it. So whether I agree or disagree, whether it is more or less relevant, it is what the policy makers highlighted as relevant in our planning document. Mr. Texeira: We are an advisory board to the Mayor and to the County Council. M. Blake: I thought we were a quasi judicial board. Mr. Texeira: Is that a valid statement or not? Mr. Jung: Well it depends on the context. When it comes to legislation, yes, when it comes to acting on permits you are gi4asl judicial. Mr. Texeira: This application is quasi? Mr. Dahili;z: Judicial. Mr. Texeira: But it is not a permit? Mr. Jung: It is a permit which requires you guys to take action on but for the legislation such as ordinance 904 it would come before this body first in an advisory capacity before it gets up to the County Council. Mr. Texeira: So we are talking about 904, right, so could we advise the County Council on 904? Mr. Blake: They have been advised. They are the ones that came up with 904. Mr. Texeira: This is what you are saying; you are saying that you don't agree with 904. Mr. Blake: But that and 2.50 will buy you a cup of coffee. Mr. Texeira: But then why mention it? Why even discuss it then if we can't do anything about it? Mr. Blake: I couldn't help myself. Mr. Texeira: Okay well I can't help myself and I just want to state that maybe we should just state for the record that this process is'flawed. We have to as you say comport with 904 but Planning Commission Minutes January 24,2012 48 we don't have to as 4 body...it seems as though our hands are tied. I just want to mention zny disploas�re with that. Mr. Blake: Well like our attorney explained to one of the prior applicants;because they have established a right prior to 2008tl ey may prove that they should be able to continue the right but it is not automatic,because you were there it is automatic grandfathering. You can be grandfathered if you satisfy certain conditions and they leave it up to us to decide whether they have satisfied the conditions or not. Some of them are empirically verifiable where you have the reservation list and the GE tax record and so forth,others we have to make judgments on and our judgments are constrained and confined to what we consider to more thoroughly address the 5 conditions than what the applicant may be proposing. Mr. Dahilia: I think that is fair. What the Council has identified as a process to, grandfather is the Chapter 205 pecial permit process. It does not make adjustments other than to make additions to what are the 5 conditions and essentially what it is, is really more 8 conditions that we look, 5 plus the 3 that are outlined in ordinance 904. So it is almost likf-, spaghetti sauce except we are throwing in meat and tortiatoes because you want to add plus to it. So it is conditions,plus,and that is how we evaluated the special permit. If there is a philosophical difference concerning whether this law makes sense o> not or whether we can be very angry at the State legislature for not defining what a farm is an4 farm dwelling is, as much as I would like to scream about it I would be screaming to a Plank wall because that is where it leads to. And as I mentioned to Commissioner Raco earlier I would love for the State legislature to determine what a farm is an4 get us out of this malaise of trying to figure out what a farm dwelling is and wvhethef it is grandfather able or whether it can be rented out short term or these types of things. So believe me it would be easier for everybody around the table if the legislature did that but unfortunately they haven't and we are in this position of determining whether what these people are doing are farm dwellings. What the Council in their wisdom or lion-wisdom, however yqu,avant to characterize it, said well we should still ruts them through a process and actually this process is what the Attorney General spggested as something that is in compliance with the,to makp sure they are in compliance with 205. And that specifically is this special permit process and that is what we are running everybody through. So I would suggest the Commissioners stick to the 5 plus 3 conditions in evaluating whether or not his passes (inaudible), if there are farm dwelling issues that need to be resolved those can be resolved either in court or by the legislature and I would leave that issue aside because it is not going to get answered by any action of this body no matter how hard we try. Mr. Blake: I can only wish the legislature war,trying as hard as we are. Chair: Is the applicant here? Mr. Lon s?. Good afternoon Chairman Kimura and honorable members of the Planning Commission. Thank you for this opportunity to sit before you again. I am here as the authorized agent to present Neil and Barbara Beissert's TVR special permit to you. The Beisserts purchased this 4 bedroom, 3 Math home in 1999 and have lived there as their primary residence since that time. Occasionally they rent the house out as a TVR. The CPR unit is approximately 3 acres with virtually 2 acres of inabcessible terrain; steep vertical terrain over the pali dropping 500 feet to the K-ilauea River below. The remaining acre is occupied by permitted improvements, a utility easement, a drainage way, and more importantly for your consideration a 20 coconut tree gkove whose nuts are donated annually since 2005 to Jessie Hessney who sells them at the coconut festival in K4pa`a. The remaining open are on the usable portion of the CPR unit is planted out with a variety of fruit and flowering trees for their personal use as they live there. There have been no complaints by the public and I have read and agree with the recommendations of the supplemental report including item 19 which requires an additional Phased agricultural plan Planning Commission Minutes January 24,2012 49 before next year's renewal. I am working closely with the landscape architect at Kauai Nursery to accomplish and implement this plan. Chair: Any questions for the applicant? Mr. Raco: I have one question for the Director. You know when we go back and check if the applicant was in business prior to March, 2008? Mr. Dahilig: Yes. Mr. Raco: That verification is through tax or how do you guys verify that? 14r. Dahill It is actually a two-step process, what happens is as part of the provisional TVR certificate, the provisional permit,what happens is that proof of payment of the TAT tax as well as GET, their tax returns, all of those are evaluated and determine whether or not there has been activity prior to March 7, 2008. This is not included as part of this application because the only thing that is requisite for them to apply for a special permit is that they get a provisional certificate. If they are not issued a provisional certificate and meet those requirements then they can't apply for this permit that is in front of you. Mike can probably go into it a little bit more in terms of what else is involved in the process but essentially if they have met muster administratively and have received the provisional certificate then it is already a determination that they have met at least the payment element of the taxes and the TAT activity and the GET activity, etc. Mr. Raco: I guess my question would b6 is how do we know if that TAT was for one parcel or several parcels and how do we tie it back to this particular parcel? Staff: The specific documentation is provided by the applicant. Mr. Raco: Which is what? Staff: The payment of the taxes,tax ID number. Mr. Raco: But under the business location it's blank. Staff. Yes but it is applied at that property right there. Mr. Raco: How do we know that? Staff. By the tax map key. Mr. Dahill All that information is also bundled into as a last safeguard an affidavit that they have to sign under penalty of perjury' understand the concern that in some ways if there isn't a specific address for the TAT or the GET license how do we know that it is for this specific parcel. Well as part of that affidavit information those two are tied together and they have to attest under penalty of perjury that these TAT license are tied to the particular activity on the lot that is in question. So we rely on the affidavit. Staff: It is also reflected on their income tax forms. Mr. Raco: But the income tax form can be from any other address. Staff: No, those are identified specifically by tax forins. Mr. Raco: I guess the affidavit and tax forms. Staff. Not so much the affidavit, it is by the tax form. I am not a tax expert but the documents I had to look at, I figured out that you may have businesses on the mainland, all over Planning Commission Minutes January 24,2012 50 the place, you have a separate form for income and expenditures for each one of those things and they are all tied down by address and tax map key. So if they didn't get past...and to your concern, you ran into one application where they were in business for one month prior to March 7, 2008, everyone else here and especially Steve's applications have been in business for a while. And they have been paying their taxes; they have been declaring their income, so they would never have gotten to this stage if they hadn't provided the financial documentation. Chair: Any more questions for the applicant? I have one. Did you get the 7a% approval from your neighbors? Mr. Long: Yes, 100%. Chair: Are you sure? Mr. Long: Yes. Chair: 100%? Mr. Long. Yes. Chair: I had one of your neighbors ask me what can he do to stop this so as far as 100%, I don't think so. Mr. Mike, can you check on that for me? Chair: They didn't write any letters in any which way or form. Mr. Long: I believe that we got all CPR unit owners' permission on this. Staff. Yes, that is reflected on page 1. Chair: Is that next to...that property that goes next to Taniguchi's property? Mr. Long: I don't know about that. It is the end of Kolo Road in Kilauea. You go all the way down to the left aild take a left; it is down a really long concrete driveway. Chair: Larry Worten next door? Mr. Long: Pardon? Chair: Larry Worten? Mr. Lang: I don't know, Scott Johnson next door. I don't know that name. Chair: Well I do believe that Larry Worten was the son-in-law of the developer of that property. Mr. Lqg I wouldn't know that sir. But I do know that they complied with the requirements of obtaining the... Chair: Well as far as 100% I know it is a definite no. Mr. Long: Mike? Staff: Larry Worten. Chair: Not Larry,I am not talking about Larry. Planning Commission Minutes January 24,2012 51 Staff. Unit A, G, D, E. Chair: I'm talking about a Taniguchi dwelling. Staff. Taniguchi's are not identified as an owner. Chair: He developed that property. Staff: They may have developed that property but... Chair: He owns property there. Staff: I show 5 approvals which is what the application reflects. Mr. Long: Including the owner so that would be 6 o4t of 7. So I may be incorrect in what I said. I would apologize for an incorrect statement; that would be 6 out of 7. Chair: I just wanted to get that clarified. Mr. Long: One further point of clarification to another question that was raised about documentation, in addition to the GET and TAT taxes being paid and records provided and Federal and/or State income tax forms submitted we also provided a guest log for those years and that was coordinated with the income to make sure that that was also accurate. Chair: Any more questions for the applicant? Ms. Matsumoto: On page 23 of your report it is for Hawaiian customary and traditidnal rights under section 7 of the Hawaii State constitution. Start With the paragraph that says, "The applicant recognizes", do you see that sentence? Mr. Long: "And respects". Ms. Matsumoto: I had a question about what Was missing there. Mr. Long: The word"the"that is a spelling mistake. I'm sorry. Ms. Matsumoto: It is small but I noticed it. Chair: Any more questions for the applicant? Mr. Raco: I do. Let me just get down to the reason why my reaction for the last application and I see it in this next application. I am not sure if it is in the next application. As you see the department, the analysis is more in depth and more in detail and when I look at yours, if we deferred this item could you provide me more in depth on the 5 reasons from your own point of view besides what you provided in one sentence descriptions? Mr. Long I would be please to provide whatever additional information I can to answer whatever questions you have. And I would like to follow up on a previous application,.but it is a similar question and that has to do with the real estate values. Mr. Raco: I am not asking to have a reason right now. I will voting for a deferral for the same reason I would voting for from the last one. I am just letting you know exactly what portion and where I am focusing in that. It would be under the section, your section.6, compliance with requirements for the SLUC special permit. When I read our staff s report their analysis is a little bit more in.depth and I am just trying to bridge both sides and you are lacking on your side. Mr. Long: Thank you for that observation. Planning Commission Minutes January 24,2012 52 Chair: Any more questions? Anybody in the public want to speak on this application please step forward? Ms. Caren Diamond: Aloha, Caren Diamond for the Protect Our Neighborhood`Ohana. I have a couple issues with this one and one of them is there is no vacation rental name of this project and I don't kriow if you know what the name is but I heard the applicant's representative say that the people lived in the house and so I am wondering what is the vacation rental name. I also would ask you to clarify, are you grandfathering in? Is that what you qre doing by giving these permits or are you giving a new permit that never existed? I will clarify a little,when ybu grandfather something that means that it was a previously legal existing use and if you are grandfathering I would like you to show and present findings of where it was previously Iegal use? Because as I understand it the State Land Use regulations allow for you applying to the LUC and can if you want to get this permit. And that was available all the time. I know ordinance 904 put in the ability for them.to apply to the County but they never were relieved from State regulations, ever,before that. And they never had the ability to operate legally. And so if you are grandfathering please explain how you are grandfathering something that was not legal before. I am bothered by the references to the General Plan because the General Plan was a recommendation. And only in 2012,now, do I hear that the County is thinking about implementing some of those recommendations into the CZQ. But we do have a CZO and we do have laws that are not recommendation,that are laws. I don't believe that this was ever...agricultural vacation rentals, resorts in agricultural lands wasn't and isn't part of our laws. And so again, how do you grandfather that and h6W do you elevate General Plan recommendations to a higher status than the law? Parody in the neighborhood which goes along with it, do only the people who violated that get these permits? And the rest of the people who may have been very good farmers,who have been following the law and were waiting to see; waiting until the General Plan was implemented and maybe if it was opened up then they were going to do it, all those people are foreclosed from doing it and the only people who are getting approved are the people who didn't follow the rules and laws. That is a backwards and perverse incentive for people to follow laws here. And the last issue I want to raise is this is part of a 33.717 acre piece and anything that is over 15 acres has to go to the Land Use Commission for approval. This Commissionl and Planning has ap&oved other ones for over 15 acres and has this Commission been sending the ,applications and your tentative approvals to the Land Use Commission? Or are we just skipping that? And when I hear we don't know what a farm dwelling is and we don't know what a farm is,why don't y,ou ask the Land Use Commission for a ruling, get a declaratory ruling on what a farm dwelling is maybe so we are not all stuck here with this unhappy situation,thank you. Ms. Jung: Just to respond to the question we discussed previously the Planning Department has been forwarding these applications up to the LUC for review. We have no comments back and from what I understand their interpretation of their rules is#hey look at the land area in terms of activity and use on the property and that is their interpretation. Ms. Diamond: I have always heard this County say they don't recognize the individual pieces and it is still one j arcel as a Whole. So it is At 33 acre piece no matter how you ctt it. Mr. Jung: Yes but we have been sending it up to the LUC for their comments and have not received any. Mr. Raco: And it is because we cannot stop our timeline in order to wait for their comments,right? Mr.hm& There is certainly a requirement for us under 91 to tackle these within a special period time but if they don't respond we can't force them. Planning Commission Minutes January 24,2012 53 Mr. Raco: And the applicant is not required to go to the LUC, right? Mr. Junin: If the area in use would exceed 15 acres then they would need two approvals, one before the County Planning Commission and then the second approval,from the LUC. But because these axe an area of use of under 15 acres then they are looking at it fiotri the County level. Chair: What is the recommendation by this Commission? Sorry, Js there anybody else in the public want to speak on this agenda item? Seeing none what does the Commission want to do? Mr. Raco: Motion to defer. Mr. Blake: Second. Mr. Raco: To get information fiom the applicant on Special Permit SP-2012-23. Chair: Just d comment, you know that our next meeting is pretty stacked but it is what it is, so with that being said... Mr. Raco: If the Commission...if we want to move on I am ready to vote too. Mr. Texeira: Mr. Chair, I am ready to vote. I don't know if the testimony provided is going to change my vote. I don't think it would. I have enough informatioh. Chair: We have a motion to defer on the floor. We are going to take a roll call. Mr. Dahilii~: Mr. Chair,the motion on the floor is to defer Special Permit item 20... Mr. Jung: Wait... Mr. Dahilig There was a second. Chair: Hartwell seconded it. Mr. Blake: But if we don't get an approval or if we don't get 4 votes one way or the other it is automatically deferred,right? Mr. Raco: Special order of the day again,right? Mt. Dahihiz Yes. Mr. Blake: So rather than go through that, my discussion here is rather than go through that pain and suffering let's just defer it. Mr. Texeira: Why won't we go through the pain and suffering the next time? Mr. Blake: What? Mr. Texeira: Why won't we go through pain and suffering the next time? What is going to prevent that? Mr. Blake: Should we defer or not? Mr. Texeira: Right. Mr. Blake: Let's defer it then. Planning Commission Minutes January 24,2012 54 Mr. Texeira: Right, it is going to come up again and what is going to prevent the suffering of going through this whole thing. Mr. Blake: Its pain and suffering right now. Mr. Dahilig: Usually a motion to defer under Robert's Rules is not a discussable motion. Chair: Roll call Mr. Dahili : Motion on the floor is to defer Special Permit SP-2012-23 to the next meeting pending more information from the... Mr. Raco: Pending if the applicant can get all the information. On motion made by Caven Raco and seconded by Hartwell Blake, to defer action on SP-2012-23, motion carried unanimously by the following roll call vote: Ayes: Raco, Blake, Matsumoto, Kimura -4 Noes: Texeira -1 Absent: Katayama -1 Not Voting: Vacant -1 Special Permit SP-2012-26 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 Ridge, Kauai, approx. 2,000 A. southwest of the Kaliliholo Road and Kuhi`o Highway intersection, further identified as Tax Map Key 5-2-17:24 Unit B_), with a unit size of 4.896 acres of a 25.951 acre parcel=Howard Samuels. FHearing's Office Special Meeting Public Hearing held 11/29/11.1 Supplemental Directors Report No. 1 pertaining to this matter. Staff Planner Mike Laureta read supplemental Director's report No. 1 (on file). Staff: Whp-n you see the attachment, exhibit 5, you see internet advertising. This is exactly what we were talking about before where the applicant had no knowledge this was on.the web. Mr. Raco: Exhibit what? Staff. 5,the applicant cannot remove this, exhibit 5,Namahana Plantation. This is one I contacted the...can I request 5 minutes, caption break? Commission recessed at 4:00 p.m. Meeting called back to order at 4:05 p.m. Staff. This is one of those int6met advertisings the applicant had no control or knowledge of and there were certain claims in here just as Caren had brought put in the last one, same kind of claims were made in this one thdt are not true. So one of the conditions of approval for this was, proposed condition of approval, was condition 20 and I am nbt even sure how they can do it but it is a proposal. "Applicant shall correct and/or eliminate any website and/or other advertising of the property and shall provide documentation to the Planning Department that this condition has been satisfied." So just realizing that the applicant on their own cannot;remove this thing from the web, they have to go through other legal channels so once the effort starts...we ran into a lot of these and that is why we had to adjust the website advertising rdsponse from yes to no,when we realized....I didn't believe it initially. But when we realized the scope it was like okay, now you know. So you can't bi°lieve everything you read. Planning Commission Minutes January 24,2012 55 Chair: Any questions for the applicant? Ms. Matsumoto: Where do you think they get all the photographs of the interior spaces? Staff. This could have been a previous realtor who had listed the site and didn't remove it when they either went out of business or lost the contract and they just left it. That is one of the possibilities. The other part as the Director had explained other realtors lifting it just to put it on their website and bait and switch. Chair: Mike, I don't see any pictures of the so called storage office. Mr. Raco: Pictures or floor plans? Chair: Pictures, floor plans; I don't see anything about the office and storage. Staff: I don't even see the inspection report. Chair: Is the applicant here? Mr. Harvey hen.: Good afternoon, Harvey Cohen on behalf of Howard Samuels. I don't have a whole lot to add. I worked closely with the department and concur with all the findings and the recommended conditions. With respect to the web advertising I actually went step beyond, I sent a cease and desist letter to the entity that put this up on the web. I have heard anything but I think that is consistent with proposed condition No. 20 that the applicant correct or eliminate or undertake best efforts to correct or eliminate. The original property manager k as since gone bankrupt and at the ffont end of the process we have had a lot of difficulty getting records with respect to GET and TAT. We were able to get that but it was quite a bit of work. I am just giving y6 u.a flavor for some of the practical challenges with some of these kinds of rouge real estate companies that are out there. But I certainly concur with the proposed condition 20 and would even go one step further that we-would undertake Kest efforts to correct 411 those. Concerning the guest cottage workshop, I believe we had satisfied that. I had sent follow up photographs to the department. Proposed conditiop 23 makes it crystal clear that we can't use that for anything except for what it was originally permitted for. So if you have any questions...just briefly on the Ag. side, this parcel unfortunately can't qualify for an Ag. dedication because it is just slightly under 5 acres but there is a significant amount of Ag. In fact I believe it would support an Ag. dedication just by virtue of what is on the property. There is a site plan depicting the agriculture as well as a list of the various fruit trees and tropical's and so forth. Ms. Matsumoto: I have a question. Look at K.l in your report and then you see the office in there. Is that the office storage? Mr. Cohen: Yes,that is what that condition 23 related to. Ms. Matsumoto: And then what are all these numbers that area circled? Mr. Cohen: Those simply related to the picture pages so for example exhibit...where it says 2, }f you looked at K.2, those are pictures from that area. Those are the avocado trees. -No. 3,to the right of that is depicted, relates to exhibit K.3 which shows the lychee, there are about 260 bananas on the property, significant amount of Mac nuts so it is kind of a coding attempt, perhaps not that artful but in terms of matching the site plan to the photographs that were presented. Ms. Matsumoto: So in KA there is a dwelling; what is that? It says orchard. Planning Commission Minutes January 24,2012 56 Mr. Cohen: I think that is just picking up a portion of the house from the angle of the picture. If you oriented the site plan it is kind of looking back toward the middle of the page so you are looking through the orchard back toward a portion of the home and that is what you see in that picture. I apologize for the reprod;action quality of the pictures; it is certainly not up to par. But we did submit, the original color ones were submitted which I think have a little better contrast and clarity. Chair: Any more questions for the applicant? Mr. Raco: My question, Harvey, on the same application and the same information as far as the 5 criteria and your explanation, it is the same as the previous application, if I co;uld get more information. It is pretty hard to read and the pictures are black and white, it is relatively hard to know rVhat we are seeing and there are no floor plans and elevations. This one actually lacks a little bit less or lacks more from at least the other applications. So the previous applications there were at least elevations and floor plans and this one there is none of that. Ms. Matsumoto: I have a question, Mike; when you do your report, a report for any application you look at their application, right? Staff: Yes. Ms. Matsumoto: So maybe you can help us or you know Caven has been talking about the five areas that he has been concerned about and he hasn't been able to find himself. Is there somebody who can point it out for us and go 1, 2, it's here, it's here? Mr. Race: I can do that for you, it is a one line sentence. Ms. Matsumoto: But you are not satisfied with the answer? Mr. Raeo: If I had to base it on that it will be a no so what I am trying to do is ask the application to provide me more information. I am tieing to be lenient about it and I can see that from the previous three applications it is all cut and paste. If you went to page 19 under section 12, 12.1 special permit requirements, blah, blah, blah, we all know about that, 12.2 which is the first heading, 'sought the objectives that the proposed use will not be contrary to the objectives sought out. Sp to me there is only one sentence there, is there more in depth, staff has provided more in depth reasoning. Chair: Any more questions for the applicant? Mr. Raco: I would hate to say that I have read the packet and the upcoming application is a lot different. I am not comparing both but... Ms. Matsumoto: It is clearer. Mr. Blake. So if l understand you, you are saying that what the applicant is stating are conclusions and notfacts that could lead us to that conclusion? Mr. Raco: Yes. So I am giving them one more chance I guess to provide us more facts towards the department's conclusions. Chair: Any more questions for the applicant? I have one, I don't see any pictures here of the...can you supply us with some pictures and more information about the office and storage? Mr. Cohen: Sure. Chair: And the floor plan for the office and storage and the house? Mr. Cohen: Yes. Planning Commission Minutes January 24,2012 57 Chair: Thank you. Is there anyone in the public that wants to speak on this agenda item? Seeing pone what would the... Mr. Raco: Motion to defer SP-2012-26, Chair. Mr. Blake: Second. Chair: Any discussion. Mr. Texeira: I am ready for the question. I think I have enough information to vote. Chair: So noted, roll call. Mr. Dee Crowell: It has been moved and seconded to defer this particular agenda item. On Motion made by Caven Raco and seconded by Hartwell Blake,to defer action on SP-2012-26, motion carried unanimously by the following roll call vote: Ayes: Raco,Blake, Matsumoto, Kimura -4 Noes: 'Texeira -1 Absent: Katayama -1 Not Voting: Vacant -1 Commission recessed at 4:15 p.m. Meeting called back to order at 4:21 p.m. Special Permit SP-2012-29 to permit use of an ekisting single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance N6. 904, in `Anini Vista,Kalihiwai, Kauai, approx. 2,200 ft. northeast of the `Anini Vista Road and Kahi`0 Highway intersection, further identified as Tax Map Key 5-3-9:4 (Unit C, comprised of 3.012 acres), with An overall Marcel size of 14.517 acres =,5`wart Ross dha Kohola Investments LLC. [Hearing's Officer Special Meeting Public Hearing held 1/6/12 Supplemental Director's Report No. 1 pertaining to this matter. Mr. Raco: Before you get started I will have to recuse myself on this application. Staff Planner Mike Laureta read supplemental Director's report No. 1, (on file). Chair: Any questions for the planner? Ms. Matsumoto: You said the 4? Staff. 4 unit CPR. Ms: Matsumoto: And the Internet advertising, so wh t we are seeing here is legitimate. Staff: Yes, well what we thought,we haven't heard anything to the contrary from applicant's representative. Chair: Any more questions for the planner? Seeing none is the applicant here? Mr. Jonathan Chun: Good afternoon Mr. Chair and members of the Commission, Jonathan Chun on bohalf of the applicant. I have gone through the report and I have no additions to it. I do have,just in answer to the question, I have gone through the website which is exhibit 4. 1 believe it is accurate in terms of describing the actual house. The only thing that I am not Planning Commission Minutes January 24,2412 58 sure and I don't have any independent way of looking at it right now or verify it is the square footages. The firm that actually did our floor plans and elevations didn't include that information on the plans it's self but I have no independent way of verifying the actual square footage of the home its self. But going over some of the concerns of the Commission, it is the applicant's position that it does meet the requirements of the State special permit under the rules adopted by the State Land Use Commission. Specifically our explanation for meeting those criteria is provided bn pages 14 through 17 including page 18 of our application and I will go through that briefly. The first criteria are the use will not be contrary to the objectives sought to accomplish by HRS 205 and 205A. As you all know Chapter 205 deals with the land use district boundaries and the criteria for that. Set forth in their application that the criteria as set forth by the Hawaii Supreme Court determining the overall objectives of Chapter 205 is this, one is to utilize the land resources in an intelligent,effective manner based upon the capabilities and characteristics of the soil and the needs of the economy. The second basis for 205 is to conserve forests,water resources and land,particularly to preserve the prime agricultural lands from unnecessary urbanization. And three, as stated by the,State Supreme Court the purpose of 705 was the allocation fpr land development in an orderly plan to meet actual needs and minimize costs providing utilities and other public services. And that is found in Curtis vs. Board of Appeals, I4awai`i 384,page 396. And it was quoting directly from the understanding committee report that was done in 1961 which is the date that Chapter 205 was adopted. It is our belief that under that siandard by the Hawaii Supreme Count and also the State House of Representatives understanding committee report under 205 is that the property acid the particular use, i.e. TVR, for this property does meet the general goal of Chaptei 205. It is based upon the capabilities and characters of the soil and the needs of the economy. As outlined in the application the soil its self is one of the purest categories within the State classification system. Under one classification system the majority of soil is called E90, E is the least productive land in the soil classification standards. Also as noted the land over there is zoned Open and in the pictures if you look at the pictures that were submitted with the application the main reason wily it was zoned Open in that area was the severe slope. Most of the property, 80%of tt e property is in the Open district with slopes going to 30 to 80%. So when you look at whether or not this land,the characteristics of the soil and the land; it is clear that it is not conducive to agricultural use its self because of the slope. The needs of the economy,it is our position that because there is a need for TVR or there is a demand for TVRs in these kinds of rural areas that it does meet these demands. To conserve forests, water resources and land,particularly to preserve the primary agricultural lands from unnecessary urbanization, again we go back to our application, land is not prime Ag., it is not A, B, and there is a small portion of C land,roughly 1,100 square feet. But as I was explaining that portion was taken up by the SMA pef mit that was issued previously in 1979. And the last part of the Chapter 205, does the allocation for land development an orderly plan to meet actual needs and minimize the costs of providing utilities and other public services. As outline later'on in our application and explanation there is no need for additional public services or public utilities in this property. It is being adequately serviced by a private utility,the Princeville Water Corporation, and there is no need fdr additional Fire or Police protection. There is no need also for additional schools roadways, all these needs are existing met and there is no requirement for any additional public utilities and public services. As far as the criteria of meeting the requirements of Chapter 205A which is the State SMA law, Special Management Area law,I would point out very quickly with the Commission that this property was approved and subject to an SMA permit that was issued I believe in 1979. In fact if there Ore questions arising as to the placement of the house,the design of the house,the landscaping and the kinds of plants that need to be planted in this lot its self, all those issues were resolved and decided by the Planning Commission in 1979 and in subsequent Commissions upon approval. The landscaping plan was approved by the Planning Commission,the building design and plan was approved by the Planning Commission also. So in regards to meeting the Planning Commission Minutes January 24,2012 59 requirements of 205A I can say very clearly that this development or this particular unit Was approved under Chapter 205A under an SMA permit which is issued under Chapter 205A. The other criteria,the desired use will not adversely affect surrounding property. We have an explanation on page 16 of our application. We point out in our application the facts that this is part of a larger`Anini Vista subd&ision project that was approved as I said in 1979, I believe. The majority if not all of the other lots in this area are very similar in scope,they all are both mixed Open and Agriculture district,they also include a lot of larger houses in the property and they also have some limited agriculture. Iri other words the use and the development of this unit is very similar to the other surrounding properties. The subject property like I said is similar in topography, character and nature with the TMK indentifled as 5-3-9:7, 811 9,and 10,hrid they are all in the same area and they all basically have the same activities going on in that area. They basically are single family residents. I am not sure how many TVR are there. I know Mike might have more information on that but I think there are maybe one or two others in that area,not in this project but in this area. But again we paint out that there is nothing inconsistent with the area and it will not adversely affect the surrounding properties or conflict with any of the existing uses of those neighboring properties. The other criteria they talk about and that is on page 7,the use will not unreasonably burden public agencies to provide toads, streets, sewers,water, drainage, and school improvements and Police and Fire protection. You do have eomments in the report from the Public Works Department, Water Department,and I believe the Department of Health. The road that services this area is a private road so there is no burden on the County of Kauai. There is no sewer for that system; it is done by individual wastewater treatment system Which was also approved as part of the overall development by the SMA permit. There was no school requirement, because these are rented out to transients there is no impact on the schools of additional students or population to be served by the school. And the water is, again, as pointed out, done by a private utility,Princeville Water Corporation or the company. So no additional burdens will b6 placed under that criteria to public utilities for additional services. The other one is unusual conditions,trends and needs have arisen since the district boundaries and regulations were established. We have pointed out in addition to the issue presented by the Planning Department that the decline in agricultural use and the rise in tourism has occurred since 1961 which was the adoption of 205. We also point out very clearly that because of this change from Ag.to tourism as being ohe of the major economic drivers of not only this island but the entire State that this is one reason why there is greater pressure on the land use in general,not only in Ag.,but in other land areas of making accommodations available for the visitor destinations or for visitor accommodations. And that is also noted very clearly in the State General Plan where it notes that there is a need for that kind of activity to be accommodated. And the last criteria made under 205 is the land in which the proposed use is sought is unsuited for the uses permitted within the district. As we pointed out the soil classification of is one of the worst in the State. A majority of the property is what we call E-90,E as being the least, a small portion about 20%, 11,000 square feet,is within the C classification which again is not the best. It is in the mi4dle of the classification study. Under the soils USDA UH soil'survey the property is noted as being riot great and basically used for at best for pasture and sugarcane mostly. So those are the reports from the two recognize soil survey reports from the State of Hawaii. We believe that based upon these facts and the criteria set forth in the State Land Use Commission rules that there is sufficient facts and basis to show that the minor use of using this one unit within this lot for a transient vacation rental'would be unusual and reasonable use of the State Ag. land. Especially given the fact of the severe physical limitations on the property ana given the fact the use of this property and the design of this property and how it was already before this Commission previously in 1979 and in years subsequent and approved by the Planning Commission in terms of its design. I would be open to any further questions if the Commission may want. Chair: Any questions for the applicant? Planning Commission Minutes January 24,2032 60 Mr. Blake. When was the property acquired by Mr. Ross? Mr. Chun: That information I think we set out in our application, I have it right over here. Mr. Ross, I believe, owned the property I think in 2007. The previous owners started in 2006. But he is the recent owner. It was between 2006 and 2007 I believe. Mr. Blake: So he wasn't the CPR, he did not CPR the property. Mr. Chun: No,he did not CPR the property. He was not the one; he bought it after the property was CPR'd. Mr. Texeira: This property has operated as a TVR since when? Mr. Chun: according to the information I have the first owner in that we know of started TVR use June 1, 2006. Mr. Texeira: I see over here, it says the company has operated a TVR on their property since June 1, 2008. Mr. Chun: I think that is the date they bought it. I am looking at some of the exhibits and some of the exhibits indicated the rentals that were under the previous owner, I think the reason why we did that was the Planning Department wanted to show two years worth of rentals for that property. Mr. Texeira: So prior to the new owner. Mr. Chun. Right. Ms. Matsumoto: I am looking at this map, the landscape map, could you describe each unit and how many bedrooms there are and things? Mr. Chun: On our property or the adjourning ones? Ms. Matsumoto: On your pioperty. Mr. Chun: There are 4 bedrooms on the property and I believe 4.5 baths. There is a large living room in the middle. It is basically like an H shape, two wings and in the middle there is a living room and on one side is the Lanai and some bedrooms and the other side is more bedrooms. And in the middle as you can see is the swimming pool that is on the makai side of the property. There'is a large Lanai. I was there at the property once, there is a large outside Lanai which is not enclosed, it is adjacent to the pool. And you wanted me to describe tl-.e landscaping around it? Ms. Matsumoto: 'Yes. f Mr. Chun: The landscaping, a good portion of the landscape especially on the makai side where the pool is, is made up of mature palms trees and that was required by the SMA permit because the large mature palms trees were required to block the view of the house and the roof lines of the house from the lower `Anini Beach road from the shofeline. In addition you would find on both`the east and west side of the property a lot' of mature palm trees and I guess other kinds of trees also. I think for reference I believe the Planning Department had in their report overhead and aerial photos of the property which shows the landscaping,not in color but in mare detail. So as you note a lot of the landscaping is on the borders of the property and that was required to shield not only the view from `Anini Beach, not `Anini Beach but`Anini Road, looking up towards the property but also to kind of shield the other units from each Ether, the views from each other so most of the landscaping is on the boundaries of the property Planning Commission Minutes January 24,2012 61 The limited agricultural use and they have potted antheriums and potted orchids underneath the landscaping to the east and north of the property and also on the west. All the boundaries e:;cept the makai boundary and they are underneath the landscaping under the shade because that is where the orchids and antheriums do a little bit better from direct sun. I cid ask them why they didn't try to plant more along the makai boundary where the drop off is 4d as you can see from our application we have some color photos which show specifically the drop off in that area. And if you note there is this white kind of wire running along the edges of that, what it is and what I found out is those are electric wires or fencing, he said'they used to plant things along the edge of that drop off but the wild pigs would come up very often and dig up what they were planting. Arid so they had the electric fence going around and he said sometimes the fence works and sometimes it doesn't but that is what the electric fence is for,to stop the pigs from coming up and rooting around. In fact one time I believe she said they had banana trees going around that area, it's good landscaping, good to Block any kind of vie s from down and the pigs just loved it. So they left it with just that. And also that marks the Boundaries;we are prohibited from the SMA permit from landscaping or doing landscaping activities below that slope so that demarcation line is roughly where the fence line is arid approximately where the rock boundary is. So we could not,we are prohibited by the SMA from clearing down there and starting Ag. activities,that is supposed to be left untouched. Chair: Any more questions for the applicant? I have a questio l how many orchids dd you have there? Mr. Chun: When I was last there which was about a year agq I believe they had about 80 to 100 orchid plants. And I know that they were working on antheriums,there were less antheriums t ecause from what I hear the salt air was killing some of the trees and stuff that were shading it and so it got exposed to more sunlight and so they kind of got spotted so they didn't develop as well. But I know they were concentrating on getting more antheriums. They also told me they were looking at putting in Spanish moss in the area, for one because it adds shade and also it is an agricultural project that florist would buy so I know they are looking at that. But from what I recall it was between 80 and 100 plants mostly on the side of where...the back side, the mauka side of the property going to the western boundary. Chair: Right here it says on page 17, income from the rental allows the applicant to continue their agricultural operations. Obviously it is a huge house,right? Mr. Chun: It is a bigger house, yes. Chair: So the nightly cost to stay there would be substantial. Mr. Chun: The cost to stay there, I believe it is,t saw on the website what they wore charging, I believe it is probably about 2,000 dollars. Chair: Does that justify taking care of maybe 150 plants? When you put down in the application to continue the agricultural operations? Mr_ Chun: Well one is I don't think you could use much more land for agricultural use. We are willing to work with the department if they think we can put in plabes elsewhere but again because the placement of the house its self,the design of the house and the size of the house was regulated by the Planning Department and the Planning Commission, we can't move the house any more, plus recognizing setbacks. So could they plant more? I guess they could put more but we are willing to work with them and try to fM4 out where we could put more. Or develop other ideas, like I said the idea of the Spanish moss came out in discussions early on in terms of what would work without the pigs again digging it up. In another.discussion just to let you know is that there are water features and one of the things is maybe raising water plants because there are not many people I heard that are actually doing that. Planning Commission Minutes January 24,2012 62 Chair: And then over here you have the income is also used to maintain the dwelling and other improvements of the subject property to keep the land in condition to benefit not only the owners and guests but to persons who visit the area. That is a private... Mr. Chun: It is private. Chair: So my question to you is how would other people come and visit the area? Mr. Chun: Well one of the criteria, one of the big concerns when this property was developed in the 70's in the `Anini Vista area was the concern by the community and the public about the views from `Anini Beach looking upwards, from `Anini Road looking upwards, from Kalihiwai looking upwards, were very concerned that if you use any house over there whether it be a farm dwelling or not that people were going to see that house and the view planes would be destroyed. So the Commission as part of 205A decided that they wanted to put very stringent landscaping requirements on that. And you know landscaping is not cheap to maintain. Chair: What I am asking is how would it benefit other people who visit the area? Mr. Chun: The public view points,by maint�initig the landscaping... Chair: But you put the trees up in front of the house so you can't set,the house. Mr. Chun: That was the general,criteria from the Planning Commission to minimize the view planes of the house, to break up ai7y kind of roof lines of the house. So there is a benefit as outlined in the SMA permit to the public in general to maintain the landscaping as required and approved by the Planning Commission. Chair= I have no more questions, thank you. Anybody in the public want to speak on this agenda item? Seeing none what does this Commission want to do? E Mr. Dahilia: Mr. Chair, you have our recommendation as ohtlined in staff report. It is a recommendation to approve with conditions and the conditions are outlined on pages 8, 9„ 10; and I I of this Director's report. Mr. Blake: I have one question of the planner. Why are we postponing for a year the requirement for an Ag. plan? Staff: Because it is going to take time to develop, that is the first thing. The second thing is when they bring it in we are going to look at it, the first thing we are going to try and determine is whether or not how much parking is necessary and should that be reserved from agriculture,where is the location of the septic system because we don't want to see agriculture on top of that. So there are a couple of things that need to be worked into this thing and you can't require it immediately. Mr. Blake: But there is a garage, right? Staff There is a garage. Mr. Blake: So the TVR use or parking would or can go into the garage. Staff: That is the assumption if the garage is operl atid available and not being used for storage. Mr Blake: Well isn't that their...okay. Staff: That is the kind of stuff we have to look at. You can't just gb in there and tell them do your Ag., do the Ag. plan no,�i. So we are going to give them time and if in on;e year it Planning'Commission Minutes January 24,2012 63 isn't more than what is there now we have several options, I think the Ag. easement thing is in here or we can bring it back to the Commission and recommend denial. Mr. Blake: As far as putting.or growing anything on top of the septic system or the leech fields, are they prohibited by law from doing that or that just a smart thing not to do? Staff Common sense because your root system is going to go in there so we have to find the location of that and then we have to see exactly what is out there. And then we are probably going to do another field inspection to verify whether or not they can add more without compromising the SMA requirements. Chair: Any more questions for the planner? Is the applicant here? Sorry, we already called him up. So what does the Commission want to do? Ms. Matsumoto: Move to approve this application. Mr. Blake: Second. Chair: Any discussion? Mr. Texeira: Yes Mr. Chair, how do we approve this application and deny the other one? What is the difference between the two? Chair: Well it is your prerogative. Mr. Texeira: Can somebody respond to that? Does anybody know? Mr. Blake: How do we approve this application and deny which one? Mr; Texeira: The first one. Chair: From what the previous... Mr. Jung: You mean the deferral of the other one? Mr. Texeira: Wasn't the first one denied? It was deferred, the first one? Mr. Dahilig: Under unfinished business the first one actually is a special order of the day because we are in a dead lock on the vote so it becomes a first agenda items, sorry, E.1. Mr. Jung: I believe that Commissioner Raco Wanted more information be supplanted in the application, what the applicant proposed. Chair_ And What I see, they have more information on their application than the first two or three applications that came before us. The information that Jonathan has presented to us is a lot more information than what the prior applicants have given us from what I can see. Does that answer your question? Mr. Texeira: No but I will accept it. Chair: Any other discussion, roll call. Mr. Dahilig: Again Mr. Chair, the motion on the floor is to approve Special Permit SP- 2012-29 with 22 conditions. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve SP-2012-29 with 22 conditions, motion carried unanimously by the following roll call vote: Planning Commission Minutes January 24,2012 64 Ayes: Blake, Texeira, Matsumoto,Kimura -4 Noes: None ! -0 Absent: Katayama -1 Noting Voting: Vacant, Raco -2 Special Permit SP-2012-21 to permit.use of an existing single family residence for Transient Vacation Rental pur�oses as permitted by County of Kauai Ordinance No. 904,in Wailapa Agricultural Subdivision, Kilauea, Kauai,approx_ 2,700 ft. north of the Kithi`o Highway and Waila a Stream intersection further identified as Tax Mgp Ke� 5-1-5:15 Unit 5 and containing an area of 1.445 acres), with the overall parcel size of 22.10 acres=Pruee& ynthia Fehring. [Hearing's Office Special Meeting Public Hearing held 1/6/12 Su» pplemental Director's Report x o. 1 pertaining;to this matter. Staff Planner Mike Laureta read supplemental Director's report No. 1 (on file). Chair: Are there any questions for the planner? Ms. Matsumoto: I have a question, it doesn't have an exhibit but it is after picture No. 2, there is a table of nuinbers,building numbers and year, zoning permits. Staff. The inspection report. Ms. Matsumoto: So that goes with the photo next to it? Staff: The inspection report... Ms. Matsumoto: Or is that just a report by its self? Staff: That is a report by its self and it has photographs attached to if and actually the staff report, pot the staff report the inspection report was pretty thorough as can be seen as you thumb through that inspection report. There is an overhead view, there is a building number, year, zoning permit number,description, and it has individual photos also. And the inspector looked in all of those sttuctures. Chair: Any more questions for the planner? Seeing none is the applicant here? Unidentified Speaker: Good afternoon Mr. Kimura,thanks for staying here late and members of the' Commission thanks for staying here late to handle this application. I am here today with the pplica�t Cynthia Fehring and also members of her family. As the planner presented to you this is Unit E, that is how it is defined in the CPR documents,Unit E. On the tax map key it is identified as Unit 5, it is the same unit of this CPR project. It is a 2 bedroom, 2 bath house, it sits on 1.445 acres. Exhibit B of the staff report is the topographical map and the important part of that is where the home is located, right on the west side that it drops off significantly, about 35 feet, down to an area where there an opportunity for the applicants to use the property for some pasture. What is interesting and what they have done here in furtherance of their Ag. activity on their property,they brought in 2 miniature jersey cows that they are going to develop into a small dairy. This pasture area at the bottom corner of this property is goirig to be used as part of a totational pasture for the small dairy operation that they hope to pursue. I would like to...given some of the expressions that have been made by the Commissioners I would like to quickly go through Chapter 13 under the special permit's five considerations that the Commission should be looking at and should be evaluating. The first one is that such use sh,41 not be contrary to the objectives sought to be accomplished by Chapter 205. What I would like to point out here is that in Chapter 205, in addition to many of the other Ag. activities that are allowed of that make up Ag. activity on property in this district. It also includes areas that are not used for or that ate not suited to agricultural and ancillary activities by Planning Commission Minutes January 24,2012 65 reason of topography, soils, and other related characteristics. So what I would like to poinf out here is given the topography of this particular parcel it is not conducive to Ag., or the very steep parts of it are not conducive to Ag. use or intensive Ag.use and the portion that is conducive is being utilized as part of the ongoing dairy operation of the applicants. So that takes care of item No. 1 under the five considerations fur the special permit. No. 2 is that it would not adversely affect the surrounding property. On the north side of this property is an access easement to the beach and so this activity,the TVR use of the property will not have any impact on that, any parking or use by the individuals that rent the property would not affect this beach access. It is consistent with other uses,just on the other side of the beach access is a botanical garden and so this use and the way they are using the land is consistent with uses of the surrounding property. No. 3,regarding unreasonable burdens,that this proposed use would not be an unreasonable burden upon public agencies. We have had as the staff report includes the Department of Health,DLNR Historical Division,Department of Engineering, and the Building Department have all indicated that there is no issues with respect to the use of the property for TVR purposes. Unusual trends, this is item No. 4,unusual conditions,trends; and needs that may have arisen since the district boundaries and rules were established, I think that one is take care of by the ordinance its self that refers to the fact that there was a need to enact clear standards and permit processes for regulating alternative visitor accommodatibn structures and operations in residential, agricultural,open and resort zoned districts. So clearly the General Plan and the County Council's position on this is that there is a need for this type of activity in a controlled way which is what we are here to deal with today. The fifth item is that the land upon which the proposed use is sought is unsuited for the uses permitted withih the district and I think I have addressed that earlier with respect to the topography of the area. I have also read through the report by the staff. I don't have any other additions to make although I wotild like to cbmment on the conditions that have been requested. There is one condition that is an applicant specific condition, it is No. 23. And at the January 6h hearing we just pointed out that we thought that the wording could be a little bit tighter so I am proposing some language that I would like considered in place of condition 23 which is as follows. "No other agricultural related structure on the subject property,Unit E of the Wailapa Road condominium, shall be used or advertised as accessory rooms for the transient vacation rental use of the Unit E farm dwelling or for unauthorized residential use,unless approved by the Planning Commission." We think that comports with the intent of the condition that was submitted in the staff report as condition No.23. And then finally I just wanted to reserve the right to object to condition No. 22 which requests the establishment of an agricultural easement. It is a right to request the establishment and at that time we just want to make sure on the record that we reserve the 'right an that we are not waiving any rights with respect to condition No.22. With that, if you have any questions we would be happy to answer them. Ms. Matsumoto: Sb you went through the five different points,could you point them out to me in your report, your application? Staff: Page 16, 17. Unidentified Speaker: Section 13 beginning with page 16. What you are looking at on page 16 is the prior application that we incorporated into the subsequent application that was filed on August i 6th In addition to that on page 4 of our application under paragraph.8.4 and b, we also added some additional information with respect to two of those special permit standards. I guess one of those I should point but is in addition to not having any impact to the surrounding area is there has been no objection by any of the surrounding neighbors and in fact one of the neighbors submitted a letter actually saying that they agree with and don't have any objections to the use of the property as a TVR. So it is actually a positive recommendation that was submitted. PlMning Commission Minutes January 24,2012 66 Chair: Any more questions for the applicant? Mr. Raco: I have one question, are you the attorney for the applicant? Unidentified Speaker: Yes sir. Mr. Raco: Are you affiliated by any chance with Steven Long? Unidentified Speaker: No sir. Mr. Raco: The reason why is that, I mean I don't want to be real blunt about it but your application and his application are the exact same. I could see his application for the last four agenda items is all the same, But you and him are two different attorneys but both your applications here are exactly tie same word for word. Unidentified Sneaker: Let me explain that. First of all I didn't know that to Ise the case. Mr. Raco: How did you guys get it word for word? Unidentified Speaker: Because the application,the first application was prepared by Mr. Bruce Fehring without involvement of an attorney or another representative. Mr. Raco: Did you write the application? Unidentified Speaker: And I did not write that application however when I was contacted to submit an application I looked at that application to evaluate whether it met the requiremehts anq responded to what the Planning Commission neod'ed. So in doing the work to prepare the application that I am here representing I incorporated that application into our papers and the application we submitted. Mr. Raco: There are only a few spots that I can see where you generalized but other than that it is word for word. Unidentified Speaker: That is what I am trying to say. Mr. Raco: It is not in one area Mr. Hale it is in the whole entire application. Chair: Caven, let's not badger the applicant. Mr. Raco: I'm sorry. So Chair, I have a hard time... Mr. Hale: I would like to respond to that so he understands. Mr. Raco: I don't ficed a resp I onse. Chair: Any more questions for the applicant? You mentioned having the application prior to this, right? Mr. Hale: Yes. Chair: What is the reason for pulling the application or withdrawing the application? Mr. Hale: I wasn't involved in the decision to withdraw the application so I don't think I can speak to that I just know at the time that Mr. Fehring's physician recommended...for a lay person coming in and dealing with this on a first time basis with something that is very important to their property it does create some stress. And I think that is what he was dealing with in a way that his physician said look,you have to. back off of this. They backed off it and then before the Planning Commission.Minutes January 24,2012 67 deadline they asked me to re-file it so that is how I became involved in it. We met the deadlines and we are here before you today to ask you with respect;to consider the application. Chair: Any more questions for the applicant? Seeing none,thank you; do we have any public testimony? Mr. Pat Wheat: My name is Pat Wheat. I own a property in the same agricultural subdivision as the Fehrings and I live at 4288 Wailapa Road right next door to the Fehring family farm. I guess why I am here is I am a little concerned about the message at least that I perceiving that if you don't play by the rules and you have done these vacation rentals that now you are getting a prize. And for the rest of us who didn't do vacation rentals now we can't do them. So it doesn't make a lot of sense to me. Maybe you could speak to me on that. Mr. Jung: Those issues have been debated back and forth as ordinance 904 went through hearings so rather than regurgitate all that you can go ahead and take a look, the Council minutes are on line so if you want to take a look. Mr. Wheat: Well okay, and this application is just for dne vacation rental in our whole agricultural subdivision, I understand,just on Unit E. I live in C, I live on D I mean and the Fehrings live on unit C. And that is the only vacation rental that we are dealing with right now? Staff: Yes. Mr. Wheat: And there is no more on the property? Staff. No. Mr. Wheat: And you are sure of that? Staff. Yes. We have done two inspections on the property, I think it was in August and December, and all structures were accounted for by permit, all permits and structures are being used as approved by the County. Mr. Wheat: Well that is not my impression but I don't really have any knowledge because I haven't been on their property but I do know that there have been rnultiple violations on their property in the past. In fact when we went in to get our building permit originally-%ye couldn't build because of the violations on their property, the building violations, and it held up our building permit for actually quite some time. When we first went in to g,,-,t out building permit it was just before the Koloko Dam disaster and there were building violations and we were told that we could riot build until these violations were taken care of And then that all carried over through the Koloko Dam thing and we were held up for several years because of building violations. And while I don't really have any problem with vacation rentals especially on this parcel that they are talking right now4 I would be concerned about vacation rentals close to my property line. Chair: Do you know of some of the violations off hand? Mr. Wheat: Well I don't know for sure but I do know there is an awful lot of traffic along my property line and different cars. Chair: So you are saying there was some kind of activity going on just recently on that property? Mr. Wheat: Well I don't know, it looked like something was going on but like I said I haven't been on the property. Chair: So you don't have any hard evidence stating that it was rented out as a TVR recently? Planning Commission Minutes January 24,2012 68 Mr. eat: No, nothing hard evidence. Mr. Raco: I have a question. As a neighbor do you see that this use,the TVR,would adversely impact your property? Mr. Wheat: No I don't. On this particular location no I don't. Mr.. Raco: Or within the whop; CPR? Mr, Wheat: No I really don't see a problem. I am just more concerned with areas right adjacent to my property where there seems to be an incredible... Mr. Raco: What unit are you? Ir. Wheat: I am unit C. Mr. Raco: So you are up the road? Mr. Wheat: D, I mean. I am unit D. I am just water side of...I wish I had more time to review this information but it was hard to get information. Mr. Raco: But you have seen on Wailapa Road more traffic. Mr. Wheat_ Well more traffic coming down on Fehring's lot C. They have a Yurt that is very close to my property line. Chair: Any more questions for, what was your name again? Mr. Wheat: Pat Wheat. Mr. Blake: There is no residence on lot C though, that is the one that is just farm. Mr. Wheat: No, there are multiple residences. I don't really know what is on :here to be honest. I know that the Fehring house is there and they have several Yurts and a bunch of out- buildings. Chair: Any more questions,? I would like to ask the applicant back up please. I don't know what page this is but we have these structures up here, can you explain to me what each and every one stands for? I see you have some Yoga, there was a Yoga studio. Mr. Hale: First of all the one you are looking at is probably an aerial that shows all of the units, the CPR, n,ot just unit C which is the unit that the Fehrings live on and Unit E. The most important thing though that would respond to your question and to Mr. Wheat's question is the evidence by the inspector who was out in July of 2011 and then just again in December of 2011. And also in the staff report, I think this is Important to point out since we are talking about this, I don't really know how to point to it but it an email from Ron Darvill from the Building Division and they reviewed, the list a whole bunch of TVR applications and they find that there is no building code violations. And so in three different instances the County has verified that the structures on the property are properly permitted and Were properly being used by the applicant. So I don't think it is necessarily the amount of structures it is the fact that they have been found by the County to be properly permitted and used as permitted. Chair: Yes well knowing how the process works, actually I am not even going to go there. I am j ust curious because you have all these Yurts up there, yes? Mr. Hale: Again, Mr. Chair, the best way I can respond to that is that it is not ij.lEgal to have a Yurt on your property if permitted, Planning Commission Minutes January 24,2012 69 Chair: I totally understand that. My next question is... Mr. Raco: Wait, what he just said, Yurts are not illegal? Chair: Can you repeat what you just said? i Mr. Hale: The Yurts...and the thing I want to make sure is that you may not be looking at just unit C,you have to determine whether you are looking at some of the other units as well. But what I was trying to say is it is not illegal to have a Yurt on the property if it was properly permitted and it is being properly used for the permitted use. I again want to stress that on two different inspections within the last 7 months there has been no violpLtions found andthe Building Division found that all the permits were in order for these structures. Chair: You didn't let me finish. I was going to ask you at any time since October 21, 2008, were any of these Yurts rented out as a vacation rental, long term, anything,have they been rented out? Mr. Hale: I think that the relevant question is whether it has been inspected and found currently to have met the requirements and the answer is that there may have been some use as you are suggesting but that has been corrected, and again as inspected... Chair: Wait, when you say has been corrected you are saying that it has been rented out before in the past�s a TVR rental or a long term rental? Mr. Hale: It's neither, they were not used for TVR rental or long term rental. There was some people staying there but that has since been changed. Chair: So these Yurts and this guest house, what are they being used for right now? Mr. Hale: The guest house is being used for guests of the owners and the Yurts are being used, one of them is an exercise studio and the other one is an art studio. Incidentally, I don't know what it is worth but I also personally have been to the property and can verify thdt these Yurts that are on unit C that you are looking at, and again I am hoping you are not looking at the other units, that we are talking about the ones on unit C that the Fehrings can control,they are not being used for some kind of a residence or occupied by a long term or even short term use by someone else. Ms. Matsumoto: So the meditation and yoga Yurts are used for your guests or by your guests? Mr. Hale: No they are used by the family for exercise and so forth. Mr. Blake: I have a question. It may be answered or addressed in your application but with regard to the products that you produce,you farm,what do you do with it? ;Vis. Fehring: Mostly what we sell now is ginger, (inaudible), organic white pineapple, bananas. Mr. Blake: To whom? Ms. Fehrina: We sell it to some of the local markets and we have some that we sell to a private co-op. Mr. Blake: And how much of your effort is represented by...how much of your agricultural effort is represented by that? Planning Commission Minutes January 24,2012 70 Ms. Fehring: Well it is growing because we have bigger plants; that is why we got the cows, it seems like... Mr. Blake: Dive me a percentag(- estimate. Mr. Hale: If I might add just a little bit to help with that there is actually vefy significant use for Ag. on unit C. Unit C has quite a large corral for pigs,for chickens, as we mentioned and as t mentioned the cattle that they have brought into the property. For the produce that you mentioned and the orchards I am going to guess and let Cynthia tell me if I am wrong but I am going to guess it is at least 50% of unit C. And the family behind me is saying more that is used for actual produce. I left out too there is quite a bit of gardening. Ms. Fehring: We have several hundred hardwood trees and we just purchase 80 Cacao trees for chocolate. Our orchards are;just coming on so in a few years we are going to have a lot of fruit to sell. And as far as vegetables we are increasing that as we go. I have some of my kids moving back home to help now with the family project. Mr. Blake: That is on unit C? Ms. Fehring` Yes. Mr. Blake: And unit B is the unit at issue right now. Mr. Hale: No, unit E. Ms. Fehring: Yes. Mr. Hale: Unit E is a little bit different because the topography as I explained but what they have done is they have incorporated the lower part of that into their pasture rotation for their small dairy herd that they are developing. Mr. Blake: So how much cultivation takes place on unit E? Mr. Hale: The staff report also has a...it is right behind the exhibit B, the topographical map, and this was an estimate of the plantings and star fruit, bananas, tropical flowers, in connection with the square footage of the property and then the estimate of the rotational pasture. And roughly that amounts to about 27 or 28, maybe about 29,000 square feet oilt of 1.4 acres. The rest of that, again, I think you can see it clearly on the topographical map is very steep slope, it is not conducive to the kind of Ag. and farming that they have been doing on unit C. If they could it would be great to have the pasture go up as far ag it could on the hill but it is just not conducive to that. Mr. Raco: Because of the gulley? Mr. Hale: Yes, I thinly the gulley is more to the west side and then you come up the steep hill that is going east or northeast to the house. Ms. Fehring wanted me to add,too, that there are bamboo plantings. Ms. Fehring: We have on the bottom there are quite a few bamboo as well. Chair: Any more questions, thank you, so what does this Commission want to do,? What is the recommendation for this Commission? Mr. Raco: Chair, I am having a real hard time that Mr. Long's application and Mr. Hale's application are exactly the same word for word. Again if I had to make a decision today I just find it disturbing that the two applications are the same from two different attorneys, secondly the information stills lacks from like Mr. Long's applications. So in that case I don't have enough information. I don't find any valid information that will support the action. I hear the adverse impact is traffic and I see that a consideration that I canilot...I want to give the Planning Commission Minutes January 24,2012 71 applicant a try I guess if that is the Commission's prerogative but that is where I am heading right now. Mr. Halve: Mr. Chair, can I speak to the question of... Chair: No. Ms. Matsumoto: And then also there is some question about condition's No. 22 and 23 and I wanted to get the Planning Department's response to the applicant's rejection of 22 and request to change 23. Is not the time to talk about that or not? Chair: Now is the time. Mr. Dahilig: With regards to condition No. 22 we understand and there will probably be objections raised by many of the attorneys that do come before the Commission and we do that with eyes wide open. We believe that it's the right thing to do and we need it for enforcement reasons particularly in situations where Ag. is being represented and if there is no Ag. continuing then we have it as a tool to essentially encourage strongly that these people that hold these permits take agriculture seriously. So that is where we think an Ag. easement is an apipropriate means of enforcement notwithstanding the objections of the attorneys. And then with respect to condition No. 23, this particular application has a lot of history and I think what you are seeing is a need to explicitly define the parameters of act}vity because of that history and issues concerning essentially the trustworthiness of the applicant. And so we believe that that is a clear condition that dan be met 4nd that it is laid out very clearly as to what we are defining as the transient vacation rental use for the property. So given that we want no question, we want it crystal clear as to what is meant for TVR use and that people are not put in essentially in situations where there should not be TVR use. Ms. Matsumoto: Thank you. Chair: So what does this Commission want to do? Mr. Blake: What would be the.-with my dilemma, Mike, what would you I guess s1fggest? Mr. Dahilig Well Commissioners obviously at a minimum the Commissioners should feel comfortable with being able to make an informed decision regardless of other applications thaf in each particular case that there should be enough information for each Commissiojle�to deliberate and decide whether there has been enough critical thought and evaluation by the applicant concerning the five standards. If you believe that needs more information from the applicant in order to corroborate the information and the evaluation by the department that is certainly within the Commission's prerogative. It is the reason why we, set the two meetings as a pattern before the 210 mandatory day deadline so there is time for some deliberation and some questioning. I must remind the Commission that there is 210 day deadline and that if the matter is deferred that the mandatory action would have to be taken at the next meeting so just to keep that in mind from an eyes wide open standpoint. And also just to add that we right now have three public hearings,two ZA's, I believe a rule amendment, as well as eight new TVRs that are going to be coming up for action on the next agenda meeting along with a special order and two more deferrals. So we have a total of right now thirteen TVRs and three public hearings at this point on Valentine's Day. Mr. Raco: Well we don't have to hear it on Valentine's Day if I motion to defer, right? Mr. Dahilig: Not necessarily because at that point if action is not taken at the nekt meeting we run up against the 210 day timeline clause and so at that point we run into the Planning Commission Minutes January 24,2012 72 situation where the Commission is forced into a mandatory action situation. It is up to the Commission how to handle the work load but I can only express what is the moving parts out there along with what is the regular business aside from TVRs that is in the pipeline right now. i Mr. Raco: And that is my dilemmq is that with our work load and our volunteer time th4t we have here that is what irritates me very, very...and I am not sure if staff is reading the applications or going through. I know staff is understaffed but when as a Coiniiiissioner I read and the application is read word for word like cut and paste and just moved around with an index it is just very exhausting. It is almost like why are we even hearing this application and I don't want to get over dramatic and say I want to deny the project, I want to have the process ruling and this one here... Chair: I feel the same way. If we can't make a decision with the ilformation that you have then...that is what I mean, it doesn't matter what the work load is,this is important. TVRs is very important to the island of Kauai and if you need more time then so be it. Mr. Raco: So in lieu of that spirit then for the applicant I strongly suggest that your attorney rewrites the application so it is not word for word.and on the same note of my conditions in supplying those five keys of evidence that ydu can say that this is the reason why I need this permit then I can find out all the informations. But for right now the information is the same and these are two different attorneys atsd two different offices so it is really disturbing to me if I am taking my time and reading these applications and taking my family time away and my business time away and when I come here and I see two applications the same,it is just uncalled for. But I will give you the benefit of the doubt and defer tAe item, Chair. Staff: Chair, I would like to take a swing in here. I do read every single application. Mr. Raco: Chair, I am not asking staff...it is just that I don't need to... Staff: No,he mentioned did staff read these applications. Well I take objection to that. Mr. Raco: I don't want to argue with staff. Staff: You need to know how this goes. Mr. Raco: I am talking to my Director and I have every right to tell my Director how I feel. I don't need an explanation. Mr. Dahilia: Let me just say this. We do not control the work product that comes into the department. We have no control over that. However and whatever an applicant chooses to pay for a private consultant to do the work that is what they pay for. It is not my job to look at the quality or critique it. Sometimes we come up with applications from pro-say people that write it by hand and notwithstanding those types of applications we have to treat everybody fairly,ender the law, we review each application and we do our investigations independently and we do our due diligence independently. We send our guys out into'the field and we write our reports as silch. So whether there is information that is not there in the applications or it is there in the application we still do our due diligence and research to ferret out ariy other issues that are not addressed in here because quite frankly sometimes people try to get away with things with the department. And so I understand your frustration with respect to the quality of the applications but we have no control over what people submit to us and we go ahead andi we take every effort of due care to ensure that every bit of information is ferreted out even if it is in or not in the application. Our inspectors go out into the field and spend time out there taking pictures,writing reports and I would like to think that people would have enough respect for the Commission to provide quality work product. If they are not meeting your standards then clearly that is something that is being heard today. But with respect to what my staff is doing I will defend his work product on our end and I will say that we have in my opinion done a pretty bang up job trying to get this stuff Planting Commission Minutes January 24,2012 73 pulled together. So with that I hear you and we can convey it to the rest of the applicants that are coming through the pipeline but at this point my hands are tied with respect tp why this concern of yours is arising. Mr. Raco: Thank you. Ms. Matsumoto: Can I say something too? I want to commend the staff for their excellent work; actually to put together a format like this has been very helpful; extremely helpful. And I can see how you imagine if you see an application you are reading this thoroughly to order to fill in and present a report to us and I can see that sometimes you have to flip all over the place to find that information. And I think today's experience is a positive one because it is putting out a message to the applicants that this is all very serious and a lot of work is taking place on all counts to make sure that we are advocating for the Garden Island. We are not just doing this, this is not a fill out the form application, submit it to get approved it is really we are thinking about Kauai. So thank you very much. Chair: With that being said I know Caven didn't put a direct attack on you Mike,he knows, I know, all the Commissioners know hbw hard you work at this. We can give you a call in the middle of the night if we have to and you have the answers for us. It has just been a very frustrating day with these TVRs and I think we have all hit our level where we just want to pack up and go home. It is at that point right now and emotions are high so I hope nobody takes this personal. We are one team and I hope we continue to be one team. Staff. Mike said it well, thanks Mike. Ms. Matsumoto: I would also like to say something to applicants. I would said obviously if you don't get the message today take time in filling out the application because it is really your story, we want to hear your story. We don't want to just go through these papers and try to figure it out. So that is the opportunity for you, it takes a lot of work but like I said there is a lot of work going on all over and I would think that is your responsibility, you need io tell us what you want,what your story is and why you want this application approved. It is really simple. Chair: So, do we have a motion on the floor? Mr. Raco: Motion to defer. Ms. Matsumoto: Second. Chair: Roll call please. Mr. Dahiliiz: Motion on the floor is to defer... Chair: Any discussion? Mn Dahilig: The motion on the floor is to defer Special Permit SP-2012-21 to the next meeting. On motion made by Caven Raco and seconded by Camilla Mat umoto, to defer action on SP-2012-21 to 2/14/12 meeting, motion carried unanimously y the following roll call vote; Ayes: Raco, Blake, Matsumoto, Kimura -4 Noes: None r -0 Absent: Katayama, Texeira -2 Not Voting: Vacant -1 Planning Commission Minutes January 24,2012 74 Special Permit SP-2012-20 to permit.use of an existing single family residence for Transient Vacation kental purposes as permitted by ounty of Kauai Ordinance No. 904 in Moloa`a, Kauai, approx. 300 ft. south of the northern terminus of Moloa`a Road further identified as Tax Map Key 4-9-13:24, comprised of 8.712 sq. ft. =Bob Orner& Jessica Gormley. (Hearing's Officer Special Meeting Public Hearing held 1/6/12.1 Supplemental Director's Report No. I pertaining to this matter. Staff Planner Mike Laureta read supplerhental Director's report No. I (on file). Chair: Any questions for the planner? Seeing pone, is the applicant here? Mr. Charles Foster: Good evening Commissioners. We have read the conditions, we have no objections. Because I understand that it is of interest to the Commissioners I would point out that my analysis, the 205 analysis begins on page 9 of my written comments. it has background and some analysis of the appellant court cases,how they analyze 205. And the analysis of the five elements begins on page 13 and runs through 17. Otherwise again, we have no objections, I would say that Mike is correct, inspection found that there was a room and a Lanai built under the stilts of the house. The applicants purchased the house that way, were shocked and infuriated to find out they have to tear all this out, they weren't infuriated at the County they were infuriated at the person who sold them the house. But they immediatbly took it out, it took I think a couple of days for theirs io rectify that situation. Otherwise we will take ahy questions. Chair: Any questions for the applicant? Ms. Matsumoto: So that is the area, I am looking just at the website photo, it says something about relax in the shade under the house, it is open. Is that the area you are talking about? Mr. Foster: I think that must be,the Ldna`i underneath. There was a Lanai underneath. And I don't know this internet advertising came from the applicants or not, I have no idea. Chair: Any questions for the applicant? Seeing none, is there any public testimony on this application? Seeing none, what does the Commission want to do? Mr. Raco: Mike, how big is the property? Staff: 8,000 square feet. Mr. Raco: (Inaudible). Staff: We are going to encouiage it and see what happens but it is a small property. Other than that, Chair,thanks to the sittomey for the case law examples he has provided. Ms. Matsumoto: So No. 20 sort of addresses that encouragement to develop mdre Ag. 4 Mr. Dahilig: We are still requiring the Ag. plan. Chair: What does the Commission want to do? Mr. Raco: Chair,I motion to believe it or not approve this application because it's circumstances and by the attorney's case law that he has provided again just to be duly noted and the square foot of the lot. Mr. Blake: Second. Chair: Any discussion, roll call please. Planning Cbmmission Minutes January 24,2012 75 Mr.Dahilig: The motion on the floor is to approve Special Pen-nit 2012-20 with 22 conditions. On motion made by Caveu Raco and seconded by Hartwell Blake, to approve SP- 2012-20 with 22 condition, motion carried uhanimously by the following roll call vote: Ayes: Raco,Blake, Matsumoto, Kimura - Noes: No -0 Absent: Katayama, Texeira -2 Not Voting: Vacant -1 Special Permit SP-2012-14 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai ordinance No. 904, in West Wiakalua,Kauai approx. 3,000 ft south of the Wailava Road W-d Kuhi`o Highway intersection further identified as Tax Map Key 5-1-5:122(Unit A),with a unit size of 1.33 acres of a 7.050 acre parcel=Michael.Larbi,��&Adrienne Sciacca, Supplemental Director's Report No. 1 pertaining to this matter. Ms. Matsumoto: I have a question,what was the house used for before this application? Staff: Bounce that off the applicant. Chair: Any questions for the planner? Seeing none is the applicant here? Mr. Mike Larbig. Good evening Commissioners and thanks again for staying late because I have traveled from the mainland to be here for this meeting tonight. I am the applicant Mike Larbig along with my wife, Adrienne Sciacca. To directly answer the question you had about the use of the house we bought the land in I believe 20p 1 or 2002 and put our substantial savings into it to buy the land. We held the land for three years and developed a plan to build that little cottage which we use as our second home. We have two small kids,they are,school age and we come over here as often as We can. We completed the house in 2005 and since then we have stayed in it more than anybody else. We offered the house to our neighbors then;and it is used to house their family when they come from the other islands and visit and also friends we have from the mainland. The application,the report from the Planning Department indicates the size of the house is 768 feet,that works for us,we enjoy it and treat it as our own home and have�een very selective on who stayq- there. Primarily it has been friends. We do no internet advertising. We have had several struggles to get our agriculture going,we planted before we built the house and we lost a lot of plants due to heavy rains during those years and then some overflow from the Koloko rn Da when it went through that drainage Swale. We also had td sign and record a elevation agreement with the County in order to get our building permit because of the low water pressure at the elevation of our house and it took us a while to get an engineer and the money together to put in a booster pump. We have that in place now and are drawing up the plans to install the irrigation so we can improve on the agriculture that we have. I have been following all day the discussion on the five points that you Commissioners are concerned about in our application for the special permit. I would like to tell you that I am not an attorney. I know some of the attorneys here that I have met over the years I have lived on the island and I use the services of an agetzt to help with the drafting and for the requirements and the drawings I had to submit with my application however I have done all the research myself and have completed the applibation,the photos,the documentation of the plants we have planted on my owh. We hope to someday enjoy the house full time here. And the documentation we submitted with the taxes we have paid with the transient accommodatiohs has been real minimal if you look through our application. That just helps t s offset our caring costs for the people that help maintain the land when'we are not here. And not that our kids are older we intend to spend more of the summers here. Planning Commission Minutes January 24,2012 76 Chair: Any questions to the applicant? Ms. Matsumoto: Where on these photos here, were is the easement for the water? Mr. Larbig: There are three pieces, we are in a lot with three CPRs, our lot fronts the road and there is a flag driveway that goes to the rear and that parcel is four and a half acres and the swale is betw=een that parcel and ours. Chair: Any more questions for the applicant? Seeing none,thank you, do we have any public testimony on this application? Seeing none what does this Commission want to do? Ms. Matsumoto: I move to approve this application. Mr. Blake: Second. Chair: Any discussion, seeing none, roll call please. Mr. Dahilia: The motion on the floor is to approve Special Permit 2012-14 with conditions. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve SP-2012-14 with conditions, motion carried by the following roll call vote: Ayes:, Raco, Blake, Matsumoto, Kimura -4 Noes: None -0 Absent: Katayama,Texeira -2 Not Voting: Vacant -1 Mr. Dahilig: Chair, what I would suggest for the next item is that you announce both item E.8 and 9 at the same time and I guess per our suggestions in our staff reports that the Commission consider entertaining the consolidation of Special Permit 2012-1 and Special Permit 2012-33 for contemporaneous deliberation and merge it into one permit. Mr. Raco: For what? Mr. Dahilig: Into one permit and consolidate the permit numbers. Per the Commission rules the Commission has the authority to consolidate applications that it believes that the facts and issues are uniquely similar. And so we believe in evaluating these two applications that given the discussion of the Commission in the past that this woLI;ld be something that would help clarify a lot of the issues concerning impacts by having two TVRs on the same parcel of land. And so I would suggest that both be handled at the same time and the Commission considers a consolidation motion at this time. Special Permit SP-2012-1 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 otthe Old Kuhi`o Highway and `AI In Road intersection, further identified as Tax Map Key 5-3-3:45; and containing an overall size of 1,720 acres =Michael Chandler. [Hearing's Officer Special Meeting Public Hearing held 11/29/11.1 Supplemental Director's Report No. 1 pertaining to this matter. Special Permit SP-2012-33 to permit use of an existing single family residence for ADU Transient Vacation Rental 12LiMoses as permitted by County of Kauai Ordinance No. 904, in Kalihiwai, Kauai, approx. 500 ft. west of the Old Kuhi`o Highway and `Anini Road intersection, further identified as Tax WV Key 5-3-3:45, a6d containing an overall size of 1,720 acres =Michael Chandler. [Hearing's Officer Special Meeting Public Hearing held 11/29/11. Planning Commission Minutes January 24,2012 17 Supplemental Director's Report No. 1 pertaining to this matter. Staff Mike Laureta: Given the action of this morning on the first two doubles staff prepared a revision 1 document the same as was prepared for Weatherwax which would include the same considerations. Would you''like me to pass it out now? Mr. Dahilik: I guess before, Mr. Chor, I guess if the Commission would consider taking up a motion to consolidate both permits under one permit. Mr. Raco: You need a motion Chair? Mr. Dahilig: It would be recommended based on the department's report. Mr. Raco: So move the motion per the Director's recommendation. Mr. Blake: Second. Chair: Discussion? Mr. Dahilisz: What I would suggest is possibly having the applicant come and raise any objections to consolidation. Chair: No? Thank you, no objections. Igo we need a roll call? Mr. Dahilig: Just take a voice vote. Chair: All in favor say aye, opposed, seeing none, so moved. On moion made by Caven Raco ana seconded by Hartwell Blake, to consolidate SP-2012-1 and SP-2012-33, motion carried unanimously by voice vote. Staff Planner Mike Laureta read Revision 1 as handed out to the Commission (on file). Chair: Any questions for the planner? Ms. Matsumoto: So the last line there,TVR use of the secondary dwelling. Staff. That is bracketed so that is being deleted. Chair: Any more questions for the planner? Can the applicant step forward please? Sorry,before we start I just want to let everybody know that if we go past 00 we will have to take a 45 minute break by law. Ms. Laurel Loo: Thank you, Laurel Loo for the applicant. Mr. Chairman, you know that in the year of the dragon it is bad luck to deny an application just before dinner. Laurel Loo for the applicant, I handed out a letter noting our objections to conditions 22, 24 and 25. I won't read the letter unless you want brie to, it is the same reasons that the other attorney's have made this morning. I had a couple of housekeeping concerns, in paragraph 15 that requires the applicant to record the conditions of approval within 60 days, that has become a problem, the Bureau has been bounding the documents because the Bureau requires a notarized signature of the Director. So I thought an easy way to fix that but to still have the approval would be to in paragraph 15 amend it so that it says, "The conditions of approval and agency comments shall be recorded at the Bureau of Conveyances concurrently with the indemnification agreement required in paragraph 1. We are required to record both documents but with my earlier approvals in November I recorded the letter of approval but those were bounced back because they weren't notarized by the Director. But I am still waiting for the indemnification agreement to be signed by the County so there are two separate tracks for recording documents so this way Planning Commission lfinuies January 24,2022 78 you record both but you can record them I am think as an exhibit,maybe have the letter of approval recorded as an exhibit to the indemnification agreement so we are riot stuck waiting for ,documents to come back from the County that we are required to record within a certain time with the letter of approval. Mr. Jung: Did you try as a declaration of covenants and restrictions? Ms. Loo: I did but this would just save time and we wouldn't have two separate approval timelines and approval tracks and it requires us to draft more documentation to do that declaration. I think it is easier especially for those not represented by an attorney. Mr. Dahilia: The department will incorporate that into its report to the Commission. Ms. Loo: Just another housekeeping issue. I was hired midway through the process by the applicants who couldn't be to finish the process all the way through so when I met with Mr. Laureta he asked me to beef up the applicant's special conditiops. I see in the application that the...in the memo to the Planning Department that I sent in on July 8th it is missing the last sentence on page 2 which is my fault and I think happened in the copying process. It just refers to exhibit's B and C as showing the steepness of the parcel which is why, you can see from the exhibit B,even the property manager has not gone to the lower level because it ig so steep. And I don't believe the department is requiring us to do additional Ag. on the lower portion because of that steepness. But the applicant is certainly agreeable to doing increased Ag. in the future and we will work with the department on where they want it to be obviously but I just wanted to point out that that lower sectior'�is really inaccessible. It is virtually impossible to climb down without ropes or other kinds o£things. Chair: Any questions for the applicant? Ms. Matsumoto: I have a question. So we are looking at the old application, I just see the photographs,so these are the two houses we are talking about? Ms. Loo: They are in the... Ms. Matsumoto: 4h, I see, it goes like this. Ms. Loo: It is really overgrown and the interesting thing about this property and the staff report notes,that it is buffered on all sides by this really big trees of lots of foliage and a considerable distance from other houses so therefore we believe the impact to the surrounding area is minimal just because of the huge amount of growth in the area,tree growth. Mr. Raco: Mike,do you have pictures like how you have the rest of them? Her plan doesn't show the topography. Staff. It would be in the... Mr. Raco: The inspector has gone out there and seen the topography, right? Staff. Yes. Ms. Loo: It is in supplemental 1. Staff: The inspector went out November 16`x`,all structures and uses exist via permit,no violations exist. So the inspection report would contain the pictures so that would be in supplement 1 that would the one that came in your packet. kevision 1 is the one I jgst handed out wouldn't have it. Mr. Raco: Which permit, 14 or 12? Planning Com4iission Minutes January 24,2012 79 Staff: Supplemental report 1 for 2012-1: Chair: Is there -tnybody in the public that wants to speak on this application? Seeing none... Mr. Blake: I have one comment to make. A picture is worth a thousand words, I hear about slope all the time. When I saw the pictures of the slope in here I better apj reciated their argument haw difficult it is to get to the bottom. Now maybe the applicants don't want to print 10 copies or 12 copies of all theirs as colored pictures. But if they printed one big one that you could put up there and see I think it would go a long way to answering questions just by seeing the picture rather than depending having to answer it in such a way as to create a sufficient word picture for you. Chair: What does this Commission want to do? Mr. Raco: Motion to approve SP-2012-1. Ms. Matsumoto: Second. Chair: Any discussion? Ms. Matsumoto: Excuse me we are approving it with the suggested change? Mr. Raco: Let me motion that motion was to approve SP-2012-1 on the revision that was provided from the planner for supplemental report No. 1, revision NO. 1. Chair: Laurel, do you have any objections on that? Ms. Loo: Nothing that I haven't already put in m written... 'Ms. Matsumoto: And that includes revising 15? Staff: Yes. Chair: So we are voting on both of them right now,right? Mr. Jung: There was the motion to consolidate. Chair: Roll call please. Mr. Dahilig: The motion on the floor is to approve Special Permit SP-2012-1 as consolidated with SP-2012-33 with conditions as amended by handout revision 1 over objection of the applicant. We are also incorporating the suggested 'changes to condition No. 15 regarding aligning the recordation with the Bureau of Conveyances with the letter of approval. On motion made by Caved Raco and seconded by Camilla Matsumoto, to approve SP-2012-1 with SP-2012-33 with conditions as amended by Revision No. 1, over objection by applicant, and incorporating changes to condition No. 15, motion carried unanimously by the fallowing roll call vote: Ayes: Raco, Blake Matsumoto, Kimura -4 Noes: None .0 Absent: Katayama, Texeila -2 Not Voting: Vacant -1 CONTINUED PUBLIC HEARING (NONE) NEW PUBLIC HEARING Planning Commission Minutes January 24,2012 80 Zoning Amendment ZA-2012-3 Amendment Draft Bill No 24222 to„5ectoin 8-1.5 of the Comprehensive Zoning Ordinance, Chapter 8 otthe Kauai County Code 1987 (as amended relating to definition revision of"Land Covera e7ndto introduce the definition of"Public Shared Use Path”= CounU of Kaua`L Mr. Raco: Chair, if I may, this is only the first reading, right, public hearing. So seeing as we have a(inaudible) we could_just briefly...because I have read the staff report. I am not sure if my fellow Commissioners have and the public hearing is probably going to be continued or closed. Mr. Dahili : Closed. I would suggest that maybe the public testimony be or public hearing be opened and closed and then if you have questions for the planner or me we.could provide them and you can move into action if yoi}need to. Chair: So am I going to ask if there is any public that wants to speak on this agenda item? Mr. Dahili : Yes. Chair: Seeing none, I need a motion to close the publiq hearing. Mr. Raco: Motion to close the public hearing, ZA-2012-3. Ms. Matsumoto: Second. Chair: Any discussion. Mr. Blake: One question for the staff. Mr. Dahilig: This is just for the public hearing. This is to close the public hearing. Mr. Blake: I have no questions to ask the public. Mr. Dahili : If I could just suggest closing the public hearing and then we can go into discussions. Chair: All those in favor say aye, any opposed, seeing none motion carried. On motion made by Caven Raco and seconded by Camilla Matsumoto, to close the public bearing, motion carried unanimously by vaice vote. Mr. Blake: Why do we want to exclude bus stops and shelter:, and so forth? Staff Planner Jodi Galinato: What we didn't want to do was penalize the developer that needed a bus stop or had the path going across their property. This was at the request of Councilwoman Nadine Nakamura. I did receive correspondence from her that we clarify some concerns that she had about it and she is happy. Mr. Dakiilig: A lot of this again is to facilitate public bus stops and public walkways, this is not for private use, essentially so they w 11 not be able to take advantage of the lot coverage exemption if they were using a bike path that is being controlled only for private use. So this has to be dedicated to the County of Kauai. Mr. Jung: And usually it is dedicated by grant of easement so it still would be within the lot for lot coverage purposes. Mr. Blake: Thank you. Planning Commission Minutes January 24,2012 81 Chair: Can I have a motion. Mr. Raco: Motion to approve and send up to Council ZA-2012-3. Chair: Can I get a second please. Ms. Matsumoto: Second. Chair: Any discussion, seeing none can we have roll call please. On motion made by Caven Raco and seconded by Camilla Matsumoto, to approve and transmit to Council ZA-2012-3, motion cat-ried by the following roll;call vote: Ayes: Raco, Blake, Matsumoto, Kimura -4 Noes: None -0 Absent: Katayama, Texeira -2 Not Voting: Vacant -1 The recodification and amendment of administrative rules pertaining to the Rules of Practice and Procedure of the Kauai Planning Commission: A. Recodifiation of previous amendments to the Commission rule§; B. Amendments to accommodate the implementation of Kauai Coin Ordinance 919; aiid C. Technical amendments related to contested case hearing procedures No Action R� eposted 2/14/12.1 NEW BUSINESS For Acceptance into Record---Director's Reports) for Project (s Scheduled for Public Hear ng on 2/14/12. Class IV Zoning Permit.„Z-IV-2012-13 Use Permit U-2012-_1.1 and Special Permit SP- 2012-36 to allow establishment of a groo child care home facilit y on parcel located in Waiakalua, Kauai, along the eastern side Wailapa Road situated at the Kuhi`o High /W wa aila a Road intersection further'identified as Tax Map Key 5-1-005:052, and affecting a Dortion of aimrox. 8.402 acres=Deanna Kanehe/Nly Growing Place. On motion made by Caven Raco and seconded by Hartwell Blake, to receive for the record Z-IV-2012-13, U-2012-11 and SP-2012-36, motion carried unanimously by voice vote. For Acceptance and finalization--Director's Report for Shoreline.Setback Activi Determination. N� ONE) ADJOURNMENT Commission adjourned the meeting at 7:00 p.m. Respectfully Submitted. it Lani Agoot Commission Support Cle ?✓canning Commission Minutes January 24,2012 82