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HomeMy WebLinkAboutpcminutes3-27-12 t KAUAI PLANNING COMMISSION REGULAR MEETING March 27, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura, at 9:00 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Ms. Camilla Matsumoto Mr. Herman Texeira Mr. Hartwell Blake Mr. Caven Raco Mr, Jan Kimura Absent and excused: Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair: Can I have roll call please? Mr. Jung: This is just for the Commission's edification, this is pursuant to the new rules, our new Planning Commission rules are in effect and we have established procedure now to hopefully streamline more of the ministerial tasks that your guys do. But this roll call is just one of Mike's ideas. Staff Dale Cua: Thank you Commissioners. I am working down the list, Commissioner Katayama I see is absent. Commissioner Matsumoto (here), Commissioner Texeira(here), Commissioner Raco (here), Commissioner Blake (here), and finally Commissioner Kimura (here), I have one Commissioner absent. APPROVAL OF THE AGENDA Chair: Can I have approval of the agenda? Mr. Texeira: So moved. Ms. Matsumoto: Second. APR 2 4 2012 Chair: Any discussion? Mr. Texeira: Mr. Chair, before we move forward, the sequence of this agenda will remain the same? Chair: Yes, all in favor say aye, any opposed. On motion made by Herman Texeira and seconded by Camilla Matsumoto,to approve the agenda, motion carried unanimously by voice vote. MINUTES OF THE FOLLOWING MEETINGS OF THE PLANNING COMMISSION On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve meeting minutes of February 14, 2012 and February 28, 2012, motion carried unanimously by voice vote. RECEIPT OF ITEMS FOR THE RECORD Mr. Jung: We received two items thus far, one is a March 27th communication from Sierra Club relating the Coconut Beach agenda item and two other communications, one dated March 16th from Sandra Kay Line regarding Kukui Marketplace and the other is a letter dated March 6th from Jeremy Fife in support of the Kukui Marketplace application. Mr. Texeira: Do we need to have a motion to receive? So moved. Ms. Matsumoto: Second. Chair: All in favor say aye. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to receive communications into record, motion carried unanimously by voice vote. HEARINGS AND PUBLIC COMMENT Individuals may orally testify on items on this agenda during the Public Comment Period. Please call the Planning Department prior to the meeting or notify, Commission Staff at the _meeting site. Testimony may also be accepted when the agenda item is taken up by the Commission at the discretion of the Chair. Testifiers shall limit their testimony to three (3) minutes, but may be extended longer at the discretion of the Chair. Written testimony is also accepted. An original and twelve (12) copies of written testimony can be hand delivered to the Planning Department or submitted to Commission staff at the meeting site. CONTINUED HEARING (NONE) NEW HEARING Planning Commission Minutes March 27,2012 2 Zoning Amendment ZA-2012-5 to amend Chapter 8,Article 27 of the Kauai County Code 1987 (as amended) to incorporate the shoreline data change produced by The University of Hawaii Coastal Geology Group in the Kauai Coastal Erosion Study and other amendments relating to setback calculations (public review document will be made available beginning March 7, 2012) = County of Kaua`i,Planning Department [POSTPONED TO 4/10/12.1 Special Permit SP-2012.25 to permit use of an existing single family residence for Transient Vacation Rental purposes as permitted by County of Kauai Ordinance No. 904, in Kalihikai, Kauai approx. 600 ft. south of the `Anini Beach Park, mauka of`Anini Road, further identified as Tax Map Key 5-3-4:18 comprised of 11,451 sq_ft. =Richard Adkins. Staff Planner Mike Laureta: This is the last of the TVR requests coming before you in this public hearing format. We have two for contested case and three under appeal but this is the last of the regular applications. The reason this is coming before you singularly and last minute is because the applicant had difficulty meeting the notification requirements twice so now it has made it on. The template is the same; it has been updated to include the two conditions that were added the last time the Planning Commission met on these TVR applications. Specifically this application is for Richard Adkins in Kalihikai. The location map is exhibit 2 of the staff report. This TVR is the farthest from a paved road of all the applications you have reviewed, tax map key 5-3-4:18. The property is 11,451 square feet. The applicant has orchids, tropical flowers, bananas, coconuts, mangos, ginger and herbs,which is reflected on exhibit 3. And there is another map located at the end of the information packet that you have, it is the foldout. The most recent inspection, yes, the department inspected the property on December 12, 2011. Field inspection verified the extent of the agricultural use on the property and that no zoning violations exist. Files research reflects that a guest house designation reflected on the plot plan is incorrect and that there is no conversion from workshop to guest house. The applicant has converted it back to a workshop after that inspection. In the discussion part of the report starting on page 3 it is basically all the same information that has been presented to you before as is the preliminary evaluation and conditions. Chair: Any questions for the planner? Mr. Blake: When I asked you previously why there was no Ag. plan required I was told that the property was too small. What goes into that decision about the size of the property requiring or not requiring an Ag. plan? Staff. Basically you are using 10,000 square feet, the size of the property, and the existing Ag. on the property as benchmarks however if you would like to impose that it can be done. However, if you look at the plot plan even the last page of the property, the open and available areas,there are some areas but we don't have a location of the cesspool or septic system and one area is going to be available for parking. So how much to be gained by additional parking isn't going to be much but it can be added if you desire. Planning Commission Minutes March 27,2012 3 Mr. Blake: My thought was if it is Ag. then they should be doing Ag. even if it is just a small portion of the property that can be dedicated to that use. When I was reading through this the applicant said that he has lime trees which are too bitter to use. So I am wondering is this the function of his Ag. practices or is it a bitter strain of limes? Why even have them there? Staff. It is also a function of the soils. Mr. Blake: That is what I was wondering about whether it was a function of his Ag. practices and his fertilization and so forth. Those are my questions. Mr. Texeira: Just going back for my review, so you have two units on the property. Staff. No. Mr. Texeira: You have the main house then you have a converted workshop converted to guest house, right? Staff: No. The staff report reflected this designation is incorrect. There was no permit to convert the workshop to the guest house and when we notified the applicant of that the applicant converted that guest house back to the workshop. That is one. The second part is on the conditions of approval it prevents the applicant from, one, expanding the structure for the TVR use, two, it prevents him from advertising that second structure, and three, he can't convert it to a guest house unless he comes back to the Planning Commission. Mr. Texeira: Would you describe to me what is in that workshop right now? Is it a kitchen, does it have a bathroom facility? Staff: If you look at the inspection report attached to the staff report... Mr. Texeira: What page is that? Staff: Exhibit 4...it doesn't have a floor plan, I can check with the inspector as to the floor plan. But we did receive pictures that conversion was done and had to have been done by the date of the public hearing which was originally scheduled in January. Mr. Texeira: So at this point we don't know. Staff: Well at this point it is back to the workshop. Mr. Texeira: Correct, in name only. I mean we don't know if it has bathroom facilities and kitchen facilities. Staff. I can check with Bambi on a break. Planning Commission Minutes March 27,2012 4 Chair: Let me ask you this, I'm sorry, is there anybody else? Ms. Matsumoto: So the photographs in this packet here are of the house or are they of the converted workshop? Staff. It is of...one of the pages says workshop, it is designated Pic. 2 in the inspection report, it shows what Bambi saw when he went there and did his inspection and it has residential improvements. Ms. Matsumoto: So are these photos, Pic.2, they are different from the ones in the back of your report on pages...it says 4, 5, 6, 7? Staff. They are the same pictures it is just the interior would have to be changed. Ms. Matsumoto: So the photos on pages 4, 5, 6, and 7 are of the workshop converted structure? Staff The pictures 4, 5, 6, 7 are from the report from public works. Ms. Matsumoto: And they are photos of? What are they photos of? Staff. The said in their report, I will read it to you, "A site inspection was conducted on December 13,by Malie Aiu and Wynne Ushigome of the Department of Public Works. The purpose of the inspection was to determine if the existing residence was in compliance with the flood-plain management ordinance." They made some comments that would be in the recommendation and determination phase on page 3. Ms. Matsumoto: So the photos again are photos of the single family residence? Staff. Single family residence and the pertinent service items like the propane tank,the spa, electric meter box, that is related to the single family residence. Chair: Any more questions for Mike? Mr. Blake. Mr. Laureta, I am looking at the exhibit, there is no number on it, but it is right after the inspection worksheet and says TMK 5-3-4:18, TVNC 4243. Staff. Of Public Works or Planning? Mr. Raco: Planning. Mr. Blake: And there is a big dark line drawn on it, an arrow pointing out the parcel. Mr. Raco: The TMK map. Planning Commission Minutes March 27,2012 5 Mr. Blake: And my question is, where is the access to `Anini Road? Staff There is a driveway, as you see on the plot plan there is a driveway that exists to service from the subject property to `Anini Road. Chair: That is the only road that goes to Otto Farm, the old Otto Farm, am I correct? Staff. I am not sure where that one is but there is a driveway that leads to the... Chair: The whole area used to be Otto Farm. Staff: This structure is the farthest one away from a paved road that the Commission has considered yet. Mr. Blake: So it crosses the stream. Chair: No. Mr. Blake: It doesn't? Staff. No it doesn't. Chair: You cross the stream on the main road, `Anini Road right after that mansion down there, take a left, it is on that sand road that goes back where Jonny Akana used to farm bananas before at the Otto Farm. And that is the reason why I have a hard time believing that it says here the soil is very hard, it is barely penetrable with a shovel when that whole are used to be farmland. Staff: It is flood-plain. It is more sand and mud so it has to be rich soil from the flooding but.._ Chair: When you say it is very hard I have a very hard time believing that. I am very familiar with that property along there and I don't know. I just can't believe that it is hard, any more questions for the planner? Mr. Raco: Mike,the TVR is for the guest house or the house? Staff. The guest doesn't exist. It is a workshop. Chair: So why are there pictures of the guest house or the so called workshop in here, Coconut Hut the thing is called? There is no pictures of the house that I can...oh there is. So why would they put the pictures of the so called Coconut Hut in here? Planning Commission Minutes March 27,2012 6 Staff: When you do an inspection you are going to take pictures of everything. That is the Planning Department. When Public Works did the inspection as they said they only did the main house because that is the discussions we had with Public Works, they also questioned the guest house because nobody had permits for a guest house. The guest house is off the table. It is a workshop. The conditions freeze it as a workshop. So there is only one single family residence. Mr. Raco: So why is it on Emayo's inspection report that he has a workshop to single family residence permit, Z-IV-79-98? Staff. We have had subsequent discussions about that with Public Works also so it is a guest house and you can confirm that with the applicant that the conversion was back to the workshop. Mr. Raco: So permit No. 479-8 was to convert the workshop to single family but you are telling me now there is a new permit to revert it back to a workshop. Staff: Well a permit wasn't required because we clarified with Bambi that there wasn't a Z number, Class I permit to convert it to the guest cottage. So there has been action subsequent to these reports involving both Planning and Public Works. Mr. Raco: What is that application then,479, because there is a single family permit, Z- IV-944. Staff: That is for the first big house, the main house. Mr. Raco: But under his report he says workshop to single family residence. Staff. As far as we are concerned there is one single family residence, one workshop, if you want me to get more information from Bambi I will ask for a break and we will get it. Mr. Raco: Yes because why would Bambi put in his report workshop to single family residence and put the permit number? Staff: Because I am thinking it relates to the other structure too. Mr. Raco: What other structure? Staff. The single family residence. Mr. Raco: It specifically says workshop to single family residence. Staff. Yes, there are two structures. Planning Commission Minutes March 27,2012 7 Mr. Raco: I know that. Staff. So structures morph from workshops to single family residences, it could have been both of these things, workshops before they went...so let me go check with Bambi. Mr. Raco: There are two permit numbers. Chair: So this workshop wasn't permitted to be converted into a residential unit so there is no permit for it, right? Staff: No because the other opportunity when the processing was done was to include a guest house room as an accessory bedroom for the TVR. Chair: No, what I am asking is was there a permit to convert it from a workshop to a residential unit? Staff- I can go...as there is so much concern about what is what I will go ask Bambi and I will bring him here or I will get more information from Bambi. Chair: Any more questions for Mike? Is the applicant here? Mr. Neil Sams: I am Neil Sams, High Tech Drafting and Design. This is Mr. and Mrs. Rick Adkins, they have come from Tennessee and they use the property probably about every other month when they come out. I can definitely shed some light onto the confusion of this as far as the workshop is concerned. Going back in history the original person who bought this property was not Mr. and Mrs. Adkins, they have owned it from about 2006'or so, five years. There was a workshop permit applied for and granted on the property. That workshop permit was then converted into a single family residence and so I believe that workshop is the one that you guys were just discussing with Bambi. Then another single family residence was desired and they applied for a permit and got a permit to build a two bedroom single family residence with a stipulation that the existing single family residence be converted back to a workshop. And so that process happened. In that process there was still looked to us and I checked with Planning to see if indeed a guest house, if the property qualified for a guest house. And when we initially submitted the application our intent was to get the guest house approved and add it into the TVR application. There was a determination found by...although the existing workshop was built to meet 9MSL flooding standards there was a secondary flood study done that doesn't show up unless you pull recorded documents that shows that a river flooding elevation of 11.3 feet was required. Now the original workshop was built at 9.3 so when we wanted to do the guest house it looked Iike we would have to comply with this 11.3 elevation which it didn't and so it economically became unfeasible to actually get the guest house included in this application. So we decided at that point to convert it or make it be,just leave it alone and let it be a workshop and no pursue the guest house because of the time constraints of all of these proceedings. So I hope that makes it a little bit clearer. Planning Commission Minutes March 27,2012 8 Chair: Any questions for the applicant? I have one. When did you apply for your permit for that two bedroom residence? Mr. Sams: The two bedroom residence was applied for by a previous owner which would have been prior to 2006. 1 have got some of that...I could get an exact date. Chair: When was the house built? Mr. Sams: I think it was built, I think this was in the $0's. Chair: No, the two bedroom I am talking about. You built the guest house first you said, right? Mr. Sams: No they build a workshop, a 500 square foot workshop, converted it to a 500 square foot residence and then applied for the two bedroom house and got that permit based on the condition that this 500 square foot house be converted to a... Chair: You are talking about the same property? Mr. Sams: The same property, yes. Chair: So what was built first,the workshop was built first or was it the two bedroom residence built first? Mr. Sams: There have been two workshops built on the property so the initial workshop, it is one workshop but it has had the life of being a workshop, a primary residence converted back to a workshop. So it has had three lives in its existence. Chair: That still doesn't answer my question,two bedroom, workshop, what was built first? Mr. Sams: The workshop was built first. Chair: And the two bedroom was built in 2006 you said or put the permit in, in 2006. Mr. Sams: No, well prior to that. I believe it was in...I can get the exact date but I believe it was in the... Chair: Well it wasn't in 2011, right? Mr. Sams: Correct, not anywhere near that. Planning Commission Minutes March 27,2012 9 Chair: That workshop was supposed to be converted back to a workshop when the house was built, am I correct? Mr. Sams: Correct. Chair: Okay, why is it in 12/12/2011 the workshop was still a Coconut Hut, a single family dwelling when it was supposed to be converted back to a workshop back in whatever date you guys built the house in? Mr. Sams: That is true and this was sold to these folks that it was a legal guest house. It was only in my investigations while we were working with Mike trying to get this permit that we actually found that it was not a guest house and that it should have been a workshop during that time. Once that was found out they took immediate action to make it a workshop or at that point we were looking at trying to legally make it a guest house. But it was presented to them by the previous owner, am I correct in that statement, that that was a true guest house. Chair: This is for the attorney. Is there any way possible that we can go after that former landowner of that property selling something that was illegal? Isn't what we are going to court on right now,today, or something to that matter? Mr. Jung: Today? Chair: Yes. Mr. Junk: The permit runs with the land so technically the landowner who inherits or purchases the home, if there is a violation they could be the ones subject to the violation. So it is hard to go after a past landowner when it is the land its self that is the subject of the potential violation. Chair: The new owners could actually go after the old landowner. Mr. Junes If they want to file their own civil action but it would be a private action between a... Chair: So there is nothing the County can do to go after the previous landowner for selling something that was illegal. Mr. Jung: Our role is to ensure compliance with the code meaning that the new landowner owns the property and contact the new landowner and say hey, look, you have to bring this into compliance. Or if they don't want to bring it into compliance we can fine them. Chair: So when they built the new house no one went out to check the workshop that was converted back to a workshop? Planning Commission Minutes March 27,2412 10 Mr. Junk: I am not sure. I am sure they would have done the inspection at the time of the construction for building permit issues but I am not sure if Planning did any inspection. Chair: So question, with that being said, so you guys didn't know or the new owners didn't know anything about the unpermitted workshop? Mr. Sams: Correct. Chair: So when did you guys find out? Mr. Sams: We found out while I was doing my investigation putting the plans together, - pulling the permits, doing my as-built drawings for this permit. And in pulling these documents together it was unclear in looking at the building records, it was unclear as to what actually was there. Because this thing went from one thing to another to another it was unclear as to what it actually was so I had to dig deeper and in digging deeper we found this should have been converted back to a workshop. We then looked at the possibility of two things,proceeding with the guest house permits which is what we initially wanted to do until we realized there were some flood issues and then the alternative was to make it a workshop so it was in that process of filing all of this paperwork. So the initial filings show intent of this having a guest house with it. Once we determined that would certainly not be doable in this timeframe and it may not economically be worthwhile for the client to do because raising a house two feet is quite a costly thing. So we discussed it with Mike and Mike recommended we amend these documents to reflect what it legally is and make it that and so that is what the clients decided to do. Chair: Who did the work to convert it back to the workshop? Let me rephrase that question,was it done by a licensed contractor? Mr. Sams: The work to convert it back basically was remove a refrigerator... Chair: No that is not the question I am asking. What I am asking was it a licensed contractor that did it? Did you do it by yourself? Mr. Adkins: No, I hired somebody but he was not a licensed contractor. Chair: What I am trying to get at is what kind of guarantee will the Planning Department have that this will never be converted back into a single family dwelling illegally? People come in, they move the stove, leave the stub out, inspection passes they put the stove back in. What kind of guarantee can we get that this will never be converted back into a single family residence? Mr. Sams: This I am sure is one of the conditions on here so this does give the Planning Department the right to,the Planning Commission the right to inspect. He could give you his word right now, it would be in writing. I understand your question and it becomes a matter of integrity. I can tell you these folks have integrity. Planning Commission Minutes March 27,2012 11 Chair: I am sure they do but in the past...we can't just take your word for it. Nobody takes my word for it. It is what it is. It is just that we want some kind of... _ Mr. Raco: In regards to that issue Chair, one remedy I know that we have done before and I don't know if we can do this but the applicant can apply for a demo permit to remove the existing fixtures that he has there. And then with that if there is a condition to remove and to apply for a demo permit that the gets those items removed and 'inspected,can we then after that permit gets finalized, can we then approve his TVR? So that we feel a guarantee that the applicant applies for their demo permit after satisfying that issue then we can move forward in approving this TVR. Mr. Jun>;: I understand the concept of that but the problem is we have time limits imposed on how and when we need to act. Mr. Raco: My only time limit is that, yes, we probably have a legal time limit but we don't have the violations, they have the violations. So could they concede to us that they would waive the timeline in order for them to take care of the demo first and then do the TVR application approval process. Mr. Junk: Well I think the perceived violation is rectified, right? Staff There is no violation. They had to have resolved this prior to the first January public hearing so I think going beyond the Chair's designation for single family residential use it is a tighter definition that the structure cannot be used for any residential use. Chair: I understand that but in the past where an inspector goes in and we find a stove there and you have to remove the stove. So they take the stove out,the inspector leaves, they put the stove back in. What kind of guarantee can we get that there will never be a stove back in there? Staff: I don't think you will get it because 220, 440, we can prevent that. Chair: I will give you a good example Mike,the prior residence of this property was supposed to turn that thing back into a workshop; they never did when they were supposed to. Do you understand where I am coming from here? Staff. Let me give you a little bit more information. I think you are right on point but this TVR process ran into a lot, I would say about eight to ten situations exactly like that, Moloa'a, `Anini, Kilauea. This process, the TVR application process, we required when the inspection revealed the problem,the violation,we told the applicants you have to remove these items prior to the public hearing. What we ran into was people such as this applicant, two things can happen, they either bought it knowingly and they were going to just take the risk and run or Planning Commission Minutes March 27,2012 12 they didn't do diligence prior to them purchasing it and putting earnest money in it and buying it. And they only ran into it when they ran into this process. We can't make a supposition as to what really happened but we had people ripping out fifteen to twenty thousand dollars worth of interior improvements in a guest cottage to make that thing back to a guest cottage. We had another guy in Moloa'a rip out, two of them in Moloa`a rip out sub-floors that were constructed below the flood height that didn't have permits and they guys tell us we didn't know. And I say I am sorry,that is not my problem, it has to come out. So this kind of stuff, it is legal. It is legal when it gets to you and this process has been pretty good because we are making them do Ag. and we are correcting violations that would never have been caught unless they came in through this pipeline. But you want guarantees, I am listening. I haven't from an inspector's standpoint you can always rewire, you can always re-plumb. A demo permit, it has been done. But how much more, I am on unfamiliar grounds so keep going. Chair: I want you guys to understand something. This is nothing personal against you guys. It is because what happened in the past, we just don't want to see a repeat of it. I hope you guys don't feel we are trying to... Mr. Raco: So with that,Neil, as the planner just said that it is legal,was there a demo permit pulled by the Building Division? Mr. Sams: No there was no demo permit. I am not sure at what level a demo permit would be required because a refrigerator was unplugged. I don't think a demo permit would be required for that. Was there a stove in there originally? So the stove was unplugged and that is it, that is the only think needed to make that a workshop because it had actually been a house at one point so this think went from workshop to house to what we thought was a guest house back to workshop. Chair: Cammie has a question but before Cammie I have to leave real quick. Maybe the applicant can kind of help us out here. What are you willing to do to give us a guarantee that the workshop will never be turned into a living residence or is there any? Mr. Junk: There are no guarantees in life we can only condition permits to the affect that they are legal conditions. In this case there is condition twenty, should the Commission want to approve this permit condition twenty says, "The workshop/storage structure on the property shall not be used nor advertised for transient vacation or rental purposes at any time." The intent of a zoning permit is to state what the intended use is. If the workshop is for a workshop use then it has to be for a workshop use. So that is inherent in the permit issued and if they violate that, that could be subject to a zoning violation which could trigger a ten thousand dollar a day fine. So inherent outside this process is the ability for us to enforce on the workshop: It becomes an issue of enforcement and getting inspectors out there. So we can work with the Director on stepping up enforcement on these types of things but there will have to be an annual recertification or annual renewal submitted to the Planning Department to re-look at all Planning Commission Minutes March 27,2012 13 these issues which may lead to an inspection which then you could take a look at whether or not the workshop is still a workshop or it has been illegally converted to a guest house or an illegal dwelling unit. So there are built in controls to assert regulatory powers in this case. To condition it beyond condition twenty I don't think is necessary because it is in there now if they violate that condition they could lose the permit. But if you guys want to have any suggested language we could re-look at condition twenty to beef it up if you want. Chair: Before I leave I want to make a comment. I believe in my heart that you guys will comply with all the conditions. You guys seem like that kind of people. With that being said I will turn this Chair over to Mr. Hartwell and Cammie, you can go ahead with your question. We are going to take a caption break. Commission recessed at 9:55 a.m. Vice Chair Hartwell Blake sitting in for Chair Kimura. Meeting called back to order at 14:07 a.m. Vice Chair Blake: Are there any other comments from the applicant? Mr. Sams: Yes. We have had a moment to discuss and the applicants hear your concerns and want to make sure that your concerns are met in a manner that would make you happy and that they can comply with. The applicants are proposing that we have an affidavit drawn up and it be recorded and the affidavit state that the workshop would remain a workshop and not become anything else and that this would be a recorded document. The only caveat to that would be should they ever want.to legally apply and cover it to a guest house that at that point they could do it. But in its lifetime for this process here it would be a workshop and they would be willing to create this affidavit legally binding affidavit and have it recorded. They are also comfortable adding some plantings. I will add and I have been on this property that there are very large coconut trees, mango trees; most of this property is in shade. We can add some anthuriums and orchids, low light type of plantings which we will do. We can have this be evaluated on the yearly basis so that you can see there is even a stronger effort on Ag. But I will say personally that this property is planted very heavily and what is there it puts shade on everything so there are sun loving plants that could be put in at this point but we can put in shade loving plants and they are agreeable to doing that. Vice Chair: Any comments? Mr. Texeira: Mr. Chair, could we get the County Attorney's opinion on that recommendation? Mr. Jung: The affidavit would be fine with us. Planning Commission Minutes March 27,2012 14 Ms. Matsumoto: I have a question. What is the definition of a workshop? Mr. Jung- I will look at the CZO. I am not sure. Ms. Matsumoto: While he is doing that, I guess this is not just for this particular applicant but the photographs don't show the after. We have been hearing all morning they took this out,they unplugged that, not even took out but unplugged. I don't see any after shots what was done as a result of the inspection. And in some applications we have seen the after so I would like to suggest that whenever you have an annual report or an application with this kind of circumstance that there are documented photographs. I think those would help me at least. Staff. As I mentioned to the Chair just before he left only the applications that we ran into difficulties with, this being one of them, is a condition twenty put in that we will do annual inspections of those properties from here on out and the pictures will be part of it. That is the first part. The second part is the picture that is attached to the inspection report from the Planning Department, TVNC-4243, Pic. 2, as Bambi confirmed the left most picture, that stuff was taken out. The wood floor is part of the structure. And in the far right, the lower one that shows the bar sink and a counter top, that also remains. Now what Dale and/or Ian can confirm to you is that a workshop does not have a definition, does not have a limitation on having a toilet or a bar sink or a counter. So then it is up to the inspections thereafter to confirm the use. So the things that remain in that workshop, the bar sink, the counter top, and that is it. Then it is all open. Vice Chair: Anyone else? Mr. Raco: Can the applicant explain to me how does this TVR support your Ag. effort? Can you have the applicant speak? Mr. Adkins: I am not sure I understand exactly your question. So you are asking me how the... Mr. Raco: How does the TVR support your Ag. effort? Mr. Adkins. I am not sure it does. Our Ag. effort is separate from the TVR anyway. It certainly provides some needed income which helps maintain the property acid helps plant more and take care of what is planted. Mr. Sams: Is it alright if I add to that as well from my personal observation? Mr. Raco: No, that is fine. Vice Chair: Anyone else? I have one other question. What is the workshop used for? Mr. Adkins: Currently it is not used. It is used for just enjoying the property sitting under the mango tree. We really don't have a use it is just there. Planning Commission Minutes March 27,2012 1s Vice Chair: Any further questions? If not you are excused right now and we will ask for any public testimony. Does anyone else wish to testify on this matter? If not I will entertain a motion to close the public hearing. Mr. Texeira: So moved. Ms. Matsumoto: Seconded. On motion made by Herman.Texeira and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by consent vote. Vice Chair: The public hearing is closed. Do we need any more time to fine tune anything before we act on this? Staff. I have the two conditions of approval to add. Do you want me to go into those? Twenty five, condition twenty five, "Applicant shall develop and implement an agricultural plan prior to the renewal of this permit", and twenty six, "Applicant shall execute an affidavit for recordation purposes that will confirm the workshop shall not be used for residential purposes unless approved by the Planning Commission." Vice Chair: So if the applicant prepares and files the affidavit they will provide a file copy to us? Staff Yes and that will be recorded with the conditions of approval, the agency comments, and that affidavit. Mr. Jung. Mike and Dale, are you guys going to incorporate this into your directors report or should we have the Commission move to amend to incorporate it? Mr. Cua: Typically the staff report would be amended to include these two additional conditions. Mr. Jung: So then the Commission in its motion does not need to move to amend those two stated conditions should you wish to approve. It is being incorporated by reference, by the department's recommendation. Vice Chair: What is the pleasure of the Commission, do you want to act right now? Mr. Texeira: I do. Mr. Chair,I would like to make a motion to approve. Ms. Matsumoto: Second. Vice Chair: Moved and seconded that we approve the report subject to the addition of two additional conditions, is there any discussion, all in favor say aye, opposed. Planning Commission Minutes March 27,2012 16 On motion made by Herman Texeira and seconded by Camilla Matsumoto to approve staff report as amended, motion not carried by three (3) to one (1)voice vote. Mr. Junk: So given the vote was three to one there is no action, you need four votes to make valid action. So the matter gets referred to the next meeting as a special order of the day. So for the applicant, because there was no action it carries over to the next meeting. For a permit to get approved you need four votes which is the majority. Mr. Sams: The only comment I have is they are coming from Tennessee specifically for this and I would either suggest that if there is any comments that anyone had in the negative vote, if there is any way that we could discuss that and come to a solution to address whatever concerns those may be. Or is there a later time today where you will have other Commissioners where we could revisit this so that they don't have to make a special trip back from Tennessee to be at the next meeting? Mr. Jung: The only way for it to come back would be a motion for reconsideration and given there was only one vote technically that person would have to make the motion. But by function of the rules it gets moved to the next meeting as a special order of the day when there is no valid action. So technically it is more appropriate that it goes to the next meeting. And you can't have discussions with the Commissioners outside of a Commission meeting because you are not supposed to have ex parte communications. So if you want to work with the department you certainly can in coming up with any new conditions you are looking at. But in terms of the Commissioners themselves please do not contact the Commissioners. Mr. Sams: I understand. That motion would have to happen from the dissenting Commissioner, is that true then? Mr. Junk: Yes. Mr. Sams: Is that anything you would consider? Mr. Raco: No. Mr. Sams: Just wanted to speak on their behalf and see if I could make their lives a little bit easier with this, thank you. CONSENT CALENDAR SUBDIVISON ACTION MATTERS LISTED IN THE SUBDIVISION COMMITTEE AGENDA Mr. Texeira: Mr. Chair, I would like to report the Subdivision Committee meeting that was held at 8.30 this morning. We had two items for new business and the first item was for Planning Commission Minutes March 27,2012 17 tentative subdivision action and this is in regards to 5-2012-10,Don Ho Enterprises, TMK 4-6- 12:123, 125, and the action taken was approval and the vote was 3-0. The second item on the agenda was tentative subdivision extension request and there were two items, the first item was 5-2008-04 and this was for Niu Pia Land Company, TMK 4-4-2:12, 13, 15 and 88. This is a 32- lot subdivision in Wailua Homesteads and again this is an extension request to January 1, 2013. The motion was to approve which is was, 3-0. The second item on the subdivision extension request is 5-2010-12 and this is the State of Hawaii, DLNR Land Division, TMK 4-6-3:4, 1, 21, and 34. The purpose of this application was for a water tank and so this was approved and the vote was 3-0. This concludes my report Mr. Chair. I need a motion. Ms. Matsumoto: So moved. Mr. Texeira: Second. Vice Chair: Discussion on the subdivision report? All in favor say aye, opposed, motion accepted. On motion made by Camilla Matsumoto and seconded by Herman Texeira,to approve Subdivision Committee Report, motion carried unanimously by voice vote. EXECUTIVE SESSON (NONE) Chair Kimura returned to meeting. GENERAL BUSINESS MATTERS Annual Status Report dated January 24 2012 by Naomi U. Kuwgye of Imanaka, Kudo & Fujimoto Authorized Agent for Class IV Zoning Permit Z-IV-2006-9, Special Management Area Use Permit SMA U -2006-4 and Project Development Use Permit P.D.U-2006-6 Tax Ma Key (4 4-3-2.15 16 and 2 Waipouli Kauai= Coconut Beach Development, LLC,Mitchell T. Heller, Manajeer. Staff Planner Jody Galinato: Just to summarize, the subject permits were approved by the Planning Commission in January of 2007 to construct apartment/hotel resort complex with 343 multi-family units, six hotel rooms and associated amenities. Part of the condition was to provide an annual report and complete substantial construction. In the meantime there have been multiple lawsuits on this project and the time has been changed with the tolling agreement to February 29, 2012, is when the clock starts on this project. We have been in contact with the State Historic Preservation Division, they are still reviewing this. The applicant is in the process of starting a shoreline certification and we would recommend that you accept the annual status report. And additionally the applicant is advised that all applicable conditions of approval including the provision of annual status report as required by condition No. 8 shall remain in effect. In light of the lengthy legal process that was recently settled staff would recommend that Planning Commission Minutes March 27,2012 18 the applicant shall provide a detailed timeline and status update addressing all the conditions of the original approval prior to the next annual status report in 2013. Chair: Any questions for the planner? Is the applicant here? Ms. Naomi Kuwaye: Good morning Chair, commissioners,Naomi Kuwaye on behalf of the applicant and with me is Mitchell Heller,the manager. Chair: Do you have any comments or questions on the staff report? Ms. Kuwaye: No. We have been in contact with the planner and we agree with the conditions. Chair: Any questions for the applicant? Mr. Texeira: The last paragraph in the staff report included a lengthy, I'm sorry, that the applicant provided detailed timeline and status update. Could you address this please? Ms. Kuwaye: Because the litigation has just concluded we are restarting the engines and reengaging all of our consultants. Once all or our consultants are back on board we have advised the planner that we will be putting together a timeline and the agreeable date was prior to the next annual report filing. Mr. Texeira: Could I ask the planner, you said prior to the annual status report. Is there any reason why you could not provide a time like sixty days or thirty days? I don't know if that is necessary or not. Staff. We wanted it before the next annual report but because State Historic,they submitted last year on this and their staff is very short over there and they don't have that information and we are also waiting for the shoreline certification because that could have some major implications on this project. And since they are just getting started now that is why we put it prior to, if they get it done earlier that would be great. And I am also been in contact with the Sierra Club on this and they are aware of it. Chair: Correct me if I am wrong but I think what Mr. Texeira is asking is can you ask them to give the status repot sixty days prior to the deadline? I think that is what you are asking, am I correct? Mr. Texeira: No. I am not concerned about that I am just saying if they could submit, I'm sorry you are correct. Not the status report. Let me clarify that. Not the status report but the timeline. I know that the planner stated that because of other matters but I am just stating that why couldn't we send a letter to those agencies saying that this is our proposed deadline so that they would try to comply with that deadline instead of just keeping it open ended. I don't know if that is necessary or not but I just wanted to throw that out. Planning Commission Minutes March 27,2012 19 Ms. Kuwaye: We understand the Commission's concerns just because this project has been lengthy and I would advise you that we have been sending regular email requests to the Director of the State Historic Preservation Division just because we can't do anything, grading, grubbing, anything until SHPD signs off on that document. So SHPD is essentially the main driver right now, in the meantime what we have done is we are engaging our consultants ready to go so that when SHPD signs off on the approval we can get a better feel of just moving things along. We do understand the Commission's feelings on this matter in making sure that this project proceeds forward in a timely basis. Mr. Texeira: Has the State responded to your request at all? Ms. Kuwaye: She did send an email back to us apologizing for the lateness in their review, it has been a couple of years but we explained to us that they are short staffed and that is the way SHPD works. Mr. Texeira: I understand. Chair: Excuse me did you say a couple of years, the review? Ms. Kuwaye: Yes. Unidentified Speaker: We submitted February 11, 2011 so a year and a couple of months. We submitted February 28, 2011 so it is going across a couple of years. I think that is what Naomi meant so we are talking about roughly thirteen months ago. In the past couple of months our construction management people in Honolulu as well as the archeologists themselves have been in touch with people at the State and are pushing as best we can. . Mr. Raco: So Dale, my memory is saying that we have acted upon moving forward on other applicants before,right, if the State is lagging. Staff. We have conditioned it that we approve subject to certain agency requirements. Mr. Raco: If they are taking two years and the applicant is ready to go. Chair: Knowing that property I think we want to wait. We are talking about behind Beach Boy. Mr. Raco: Right but how long do the applicants wait? Ms. Kuwaye: We legally cannot proceed forward under the State law until SHPD signs off and the Planning Commission cannot, should not, proceed forward until SHPD signs off. I think there are legal implications for the Planning Commission. Planning Commission Minutes March 27,2012 20 Mr. Jung: She is correct. Technically we should wait until SHPD gives their two cents in terms of what historic features are on the property. Staff: From a permitting standpoint the permits have already been approved so it is not like they are applying for new permits their permits have already been approved. Mr. Jung: This is for the commencement of grading, grubbing, site work and whatnot. The permits are approved; this is just the status report on the issues regarding the conditions. Chair: So today we are just accepting the status report. Mr. Jung: Correct. Chair: Thank you, anyone in the public wants to speak on this agenda item? Seeing none... Mr. Raco: Motion to accept annual status report SMA(U)-2006-4 and Use Permit U- 2006-6, TMK 4-3-2:15, t6 and 20. Mr. Texeira: Second. Chair: So noted, any discussion, seeing none all in favor say aye, opposed, so moved. On motion made by Caven Raco and seconded by Herman Texeira, to accept annual status report, motion carried unanimously by voice vote. Mr. Blake: I have a question. This letter that was submitted by the Sierra Club, it goes into the file and what effect does it have if any on the commencement of construction once we get the SHPD report? Staff: I can answer that. The Sierra Club just had some concerns about where the shoreline certification is going to end up. We have conditions for design review. Before we can sign off on the grading permit we do need the certified shoreline, we do need the historic and we do need Department of Health approval. So they are aware of that they are just very concerned about the shoreline so they just wanted that in the record. Letter(11/0/11) from Walton D. Y. Hong, Authorized Agent, requesting to amend Condition No 2 to allow extension of time for Special Permit SP-89-20, Use Permit U-89-47 and Class IV Zoning Permit Z-IV-89-53 Tax Ma Key 5-3-006:014 Portion Princeville Kaua`i= Glover Honsador LLC Staff Planner Dale Cua: Thank you Mr. Chair. Just a brief background, as noted in the staff report subject permits for this project was initially approved by the Planning Commission in July of 1989 to allow a temporary cement batch plant facility that would basically serve Planning Commission Minutes March 27,2012 21 construction projects located on the North Shore. The permits were initially granted to Princeville and there have been several extensions granted over the past twenty two years. In 2004 the applicant took over operations of this facility. The applicant submitted a request for an extension in June of 2010 indicating that they had secured a new location by lease in Anahola however they are currently experiencing delays in complying with the requirements of the State Department of Health for that particular site. So based on their request condition No. 2 of the permits was amended by the Planning Commission on December 14, 2010 to allow another extension of time to operate the facility as well as to accommodate the anticipated move to the new location. Right now what you have before you is the applicant is requesting an amendment to condition No. 2 to allow another extension of time to continue to operate the facility until the new location becomes operational.. The justification of the extension request is noted in the applicant's correspondence. The additional time would allow the applicant to comply with the requirements of the State Department of Health as well as the County Department of Public Works for that future location in Anahola. Based on the department's evaluation we are recommending another one year extension and that condition No. 2 be amended to read and as noted in the staff report that December 31, 2011 deadline date would be amended to December 31, 2012. And the next status report deadline date would be amended from April 20, 2011 to April 20, 2012. And that concludes the department's recommendation and evaluation. Chair: Any questions for the planner? Mr. Blake: Why is the status report due eight months before the termination of the permit? Staff: It is an opportunity to brief you on the permitting status as well as updating you on is going on with the project. Chair: Any more questions for the planner? Seeing none, is the applicant here? Mr. Walton Hong: Good morning Mr. Chair and members of the Commission, for the record my name is Walton Hong representing the applicant Glover Honsador. With me is David Perrie of Glover Honsador. I would just like to note that we agree with the staff report and its recommendations. Part of the problem we have is getting all the necessary permits. One of the . permits we had to get was a final NPDS permit from the Department of Health that was issued a week or two ago. As you know our original request for the extension was in November of last year because we knew it wouldn't make the December 31, 2011 deadline. Part of our agreement with the Department of Hawaiian Homelands is that they review and approve the final plans. Even though we did not get the final NPDS permit until one or two weeks ago about a month ago we did submit the final plans for their approval in anticipation of the NPDS permit being issued. We have not yet received that approval from DHHL yet,the Department of Hawaiian Homelands. As soon as we get that then that should be the last obstacle that we should Planning Commission Minutes March 27,2012 22 have to cross to begin moving. We agree with the condition that upon moving the batch plant from the Princeville site we will restore the Princeville property as much as possible to the original condition. If there are any questions I will be glad to respond or have Mr. Perrie respond. Chair: Any questions for the applicant? Mr. Blake: So the site is tied down, you are there. Mr. Hong: Yes, we already have a signed lease with DHHL and paying lease rental. Actually we want to move as soon as possible. Chair: Any more questions for the applicant? Mr. Texeira: In talking about the existing site, this question is for anybody, you want to restore the existing site to its original condition and you stated as much as possible. I don't know what that...that kind of leaves a lot of things for... Mr. Hong: The reason why I said as much as possible, let's say for example the original site was heavily overgrown with trees; obviously we can't restore the trees. That is basically what I meant, bring it back as much as possible before we began our operation. Mr. Texeira: Prior to them actually moving will we get a report from the applicant stating that the site has been restored? Is there anything in any condition stating the before final approval is given or before they make their final move that we will be able to see some kind of report from the applicant stating that they actually did comply with that statement. And that the inspector would go out and inspect the site to see that it was actually done? Chair: I think it would be based on the landowner that would justify that is acceptable to them that they have cleaned up or is that a County condition? Mr. Jung: Well there is the condition in the County but I think the landowner would have a say in the terms of the lease given it is mine. If you guys want to speak on that it is up to you. Mr. David Perrie: That is correct. Upon cessation of activities we will clean up the site, restore it and hand it back to the landowner, Princeville. Chair: I think what Mr. Texeira is asking is if you guys could notify the department saying that we are done with Princeville, we are about to leave the property or we are leaving the property and if the cleanup is acceptable to the County, yes? Mr. Texeira: That was my question, yes. Chair: Do you have any concerns or comments on that condition? Planning Commission Minutes March 27,2012 23 Mr. Perrie: No, that is fine. Chair: I just want to make a comment before we move forward. I for one would hate to see the batch plant leave Princeville, you pour fifteen yards of concrete you have to wait for the second truck and if it is right in Princeville it serves the whole North Shore. I'm sorry things didn't work out, out there;preferably I wish it did as far as the residents and-all the development on the North Shore. Being in Anahola we have to wait twenty more minutes for the truck to get back. So I just wanted to make that comment. Does anyone want to speak on this agenda item? Seeing none what does the Commission want to do? Mr. Raco: Chair, motion to accept into record and allow the extension. Mr. Jung. It would have to be a motion to accept and approve. Mr. Raco: And approve SMA(U)-2006-4 and P.D.U-200606, TMK 4-3-2:15...oh, parcel 5-3-6, Class IV Zoning Permit 89-53. Ms. Matsumoto: Second. Chair: Any discussion, seeing none all in favor say aye, opposed, motion carried. On motion made by Caven Raco and seconded by Camilla Matsumoto, to accept and approve staff report, motion carried unanimously by voice vote. Commission recessed at 10:48 a.m. Meeting call back to order at 11:00 a.m. Application for an Amendment to Class IV Zoning•,Permit Z-IV-93-25 and Project Development Use Permit P D U-93-21 to develop a multiplex cinema at a property located in Lihue Kauai at the intersection of Pikake Street and Kalepa Street, further identified as Tax Map Key 3-3-003:034 =Kukui Marketplace SPE Inc. Staff Planner Ka`aina Hull: Good morning Chair, members of the Commission. The applicant is requesting permission to construct and operate a nine screen multi-plex cinema at the subject property. Eight theaters are proposed to have seating that ranges from eighty three to one hundred sixty five seats and one larger theatre is proposed to have two hundred ninety nine seats with the total seating accompanying approximately 1,274 patrons. The theatre will be approximately 29,900 square feet in size and the building will range from thirty two feet in height to fifty feet in height with hours of operation being primarily between 11:30 am and 12:00 am. In 1993 the Planning Commission approved the subject permits to expand Kukui Grove Shopping Center. The approved expansion included three separate phases, the first phase Planning Commission Minutes March 27,2012 24 included what is now the K-Mart building and the area previously occupied by Borders Bookstore. Phase II was to be a 100,000 square foot addition,primarily to be located on top of the K-Mart building and Phase three would be a standalone 20,000 square foot building. To date Phase II and III have not yet been built. Concerning the surrounding properties, immediately north and east of the project site are residential subdivisions, southwest of the project site is a large retail venue, south and southeast of the project site is a golf course and northwest of the project is a large retail complex, Kukui Grove Shopping Center to which the subject permits allowed an expansion. In review of the proposed amendments to the subject permits the following should be considered. Concerning urban land uses the Kauai General Plan states one of the key policies in the framework for preserving Kaua`i's rural character is to promote growth and development in compact urban areas. Lands included within the urban center designation shall be centers for government, commerce and transportation that serves the entire County or a larger region. Uses may include shopping centers, government offices,churches, and other institutions. The proposed center cinema facility meets the criteria established for uses on lands designated by the Kauai General Plan urban center. Pursuant to section 8-5.1 the proposed use is an outright permitted use within the general commercial zoning district. Concerning lot coverage and parking requirements the applicant meets both,particularly the parking, it well exceeds the parking requirements established under section 8 of the Kauai County code: And finally, the location size, design and operating characteristics of the proposed multi- plex cinema facility are not anticipated to create unusual noise, traffic, or other impacts that may be objectionable, detrimental, or incompatible with other uses in the vicinity. I can hold off on the conclusion and recommendation until after. Chair: Any questions for Ka`aina? Mr. Texeira: Ka`aina,just for clarification, the project is going to be located at the existing parking lot of the K-Mart store, am I correct? Staff: Correct and it is the parking lot that is located or would be in the rear of the K- Mart store so not on the side where the entrance is but behind where currently there is a lot of parking stalls but there are just a few County recycling bins. Mr. Texeira: So the location of the theatre as we look at the parking lot would be on the Poi`pu side of the parking lot? Staff. Correct. Sorry, it would be more adjacent to K-Mart and then some of the parking for the site would be on the Poi`pu side which you can see, I believe, in one of the exhibits they placed up there. Mr. Texeira: So that means that if you wanted to go and park behind K-Mart like you can do today which is very convenient, you can't do that because the theatre will be in that space. Planning Commission Minutes March 27,2012 25 So you will have to go and park further away from the existing parking stalls that are right adjacent to Wal-Mart, am I correct? Staff: The theatre is going to go directly adjacent to the K-Mart building in the rear so there still will be parking, approximately 200 parking stalls available for theatre patrons. It will be closer to the Costco essentially. Mr. Texeira: That is what I am alluding to, so it is a little bit more inconvenient then. Mr. Raco: Are you thinking that it goes in front of the K-Mart or in the back? Mr. Texeira: In the back. But right now when I go to K-Mart I park in the back which is very convenient just to park in the back and walk into the side entrance of K-Mart. And so what I am saying is if I use that side entrance and I leave K-Mart and I take my shopping cart I will have to walk a lot further to get to my vehicle. Staff. Correct. Mr. Texeira: Now the proposed theatre complex will be using most of the parking lot, correct, that rear parking lot, which would include their own parking stalls and the overflow parking that they mentioned in the report would be the same overflow that would be used for Wal-Mart's patrons, K-Mart, sorry. Staff: They are actually in conjunction(inaudible) same property so under the Kauai County Code a theatre of this size requires 159.25 stalls which you round up to 160 stalls. They are proposing 200 stalls so they have forty excess stalls specifically within the theatre area. In doing the calculations for the K-Mart facility they also have an excess of forty stalls which could potentially be used for overflow parking. But being that these permits were also approved originally as an expansion of Kukui Grove Shopping Center which has an excess of approximately about 500 parking stalls, additional overflow parking could go to Kukui Grove Shopping Center as well. So there are multiple places where overflow parking could go it just depends on where the patron wants to park. Mr. Texeira: How does this project proposal relate to the existing theatre in Kukui Grove in terms of competition? Staff. I think we can anticipate that it is going to be a competitor but that is not something that zoning can particularly take into account. Mr. Texeira: But as a Planning Commission we should take this into consideration? Staff: I think the attorney would advise against that. Planning Commission Minutes March 27,2012 26 Mr. Jung- We do live in a free market enterprise so it would be difficult to deny a permit just based on a competitor going out of business. Mr. Texeira: But isn't economic concerns a concern of this Planning Commission? I am asking you a leading question and I am aware that I am doing that. Mr. Jung: That is fine and I certainly understand your concern however your decision making should look at the use of the land and whether or not there is an impact on the land rather than an impact to a competing business. Mr. Texeira: I was under the assumption that we should look at all factors. Whenever I consider an application I always look at all factors and so I don't know if that is a mistake on my part but that is something that I do. Chair: Any more questions for the planner? Seeing none is the applicant here? Mr. Greg Kamm: Thank you Mr. Chairman, good morning Commissioners. For the record my name is Greg Kamm and I represent the applicant Kukui Marketplace SPE, the landowner. With me today are Wade Lord,manager of Kukui Grove Shopping Center and Kukui Grove Marketplace. Also we have Scott Wallace,president of Hollywood Theatres,the theatre builder and operator and finally we have Colin Russell,the project architect and a specialist in the unique requirements of theatres. First I wanted to thank the department and especially Ka`aina Hull and Dale Cua for working with us prior to submittal fine tuning the application. I also wanted to compliment the department on what I consider an excellent staff report. Ka`aina has made a thorough presentation so I didn't want to duplicate his effort in an effort for Commission efficiency and as directed by a little bird. I will of course be happy to address any questions from the Commission and the department. Thank you very much. Chair: Any questions for the applicant? Mr. Texeira: The question that I posed to the planner in response to the existing theatre operation, could you respond to that? Mr. Kamm: I would agree with Mr. Jung's comment that we are in a free market system and it is up to the theatre goer to decide where they want to go to the theatre. There is also in fact a chance that we will have more films coming to Kaua`i with what would be a total of thirteen screens at that point, fourteen counting Waimea. We have not made any arrangements with the existing Kukui Grove Cinema and it is up to them to secure their own films and up to us to secure our own films. Chair: Does that answer your question Mr. Texeira? Mr. Texeira: I guess so. Realistically we all are concerned citizens, we all live on this island and I am sure that you are concerned about all businesses on the island and this will Planning Commission Minutes March 27,2012 27 definitely have a very serious impact on the existing business. And I am not sure they could withstand that competition. I haven't done any study on it but just looking at it I would think they would have a real tough time to make a go of it. Now wasn't this original theatre developed by Kukui Grove, that whole parcel? So wasn't there at some point... Mr. Kamm: The original existing Kukui Grove Cinema? That was before my time with Grove Farm but my recollection is that they leased the land and the theatre developed their own, similar to what is going on with this application. Mr. Texeira: So I am just thinking if the leased the land from Grove Farm, Grove Farm must have let them know that, gee, I am happy that you are doing this and now Grove Farm is going to this other applicant and saying hey, go for it. Mr. Kamm: Well actually Grove Farm is not the owner of the land and is not involved in this application. Mr. Texeira: But they were the original landowners. Mr. Kamm: They were the original landowners and interestingly the application which we are seeking to amend here today was addressed to me as an employee of Grove Farm. Chair: I want to comment on Mr. Texeira's question about impacting the other theatre. In the same sense, I am not saying I am for or against,but in the same sense the theatre going next to K-Mart which K-Mart is just about going out of business, it is pretty sad, that their market value has dropped. But maybe with this theatre going there it would revive K-Mart in a sense like it might be taking one out of business or hurt them financially but you are still helping another business in the same sense,just a comment,just an observation. Mr. Texeira: Can I respond to your observation? I concur with that observation. I mean obviously putting a theatre next to K-Mart is going to impact their business positively. I totally agree with you. I am just saying can't we all get along over here? This is a small island, we all respect the tenants. I just raise that concern. But this is a very valid application; it is a good thing for the island, I believe,with more theatres opening up it is more opportunity. I just wanted to mention that. Mr. Blake: As I understand it Kukui Grove Cinema is Consolidated Theatres and this is a different distributer? Mr. Kamm: I don't believe that Kukui Grove Cinema is a Consolidated Theatre but this is not the same operator as.Kukui Grove Cinema. Mr. Blake: So do you know whether both operators would be going after the same movies? Planning Commission Minutes March 27,2012 28 Mr. Kamm: I think that is yet to play out over time. That has to do with what movies come out, who has the best connections, what are they willing to pay. I don't frankly have that intimate knowledge of the film industry or the film distribution industry to give you a real accurate answer of that. But if there is a top notch hit that comes out I imagine both theatres would want to play it. And they might play them consecutively. Mr. Blake: So we wouldn't have the choice of deciding which theatre we want to go to, to see the movie at the same time. Mr. Kamm: It is possible that it could be released to both theatres. Unidentified Speaker: No its not. Chair: Hold on, you will get a chance to comment. Mr. Blake: So are your clients here that could answer that? Mr. Kamm: Yes,this is Wade Lord as you know. Chair: Have your questions been answered Mr. Blake? Mr. Blake: No. Mr. Lord: Hi Commissioners, my name is Wade Lord for the record: I am the general manager for Kukui Grove and Kukui Marketplace SPE. I wanted to address your question if you could restate it for me please. Mr. Blake: Both entities, both separate entities would be competing for the same films or are the manner in which they lease the films or rent the films different like the fact that one theatre has the Descendants keep the other theatre from getting it? Mr. Lord: My understanding is that there is no control over the movies between the theatres and it is merely an open market to buy films so in theory both theatres could show the same film at the same time. I am not an expert in the film industry either but that is what I have been advised by the theater operator. Mr. Blake: That answers my question. Chair: Will your prices be compatible with the theatre now or is it going to go up? I guess that would be a question for the operating company. Mr. Kamm: This is Mr. Scott Wallace of Hollywood Theatres,the president. Mr. Wallace: Thank you Council, Commission Chair and members. Let me clear up a few issues about film distribution,you have asked some very good questions. First a little bit Planning Commission Minutes March 27,2012 29 about Wallace Hollywood Theatres. We operate theatres in Kona, we operate theatres in Hilo, we operate theatres in Kahului, and we operate theatres in Lahina. So we are pretty akamai to what is going on in film distribution in Hawaii. In this case in Kaua`i we have always anticipated that both theatres would be allowed the opportunity to play both movies. We don't make that decision; the film companies make that decision. But I will say for the record today that we will never insist upon an exclusive of any movie in this market. We want the public to be able to determine where they want to go for the show. And when it comes to pricing let each theatre determine its own pricing independently and use price as a way to compete. So for example as I said in Kona we compete with a Regal theatre which is the largest theatre circuit in the world and they are about five and a half miles away and we both played Descendants, we both played Hunger Games, we both played The Vow. And the people of Kona can decide if they want to drive south to the Regal theatre or if they want to drive north to our theatre. And this is really important from a competitive point of view because there are a lot of technological shifts happening in the movie theatre business right now. For example there is something called digital equipment or digital presentation. If you have digital it gives you a better picture, better sound, and it eliminates the problem of scratches on the film. So as exhibitors we compete in other parts of the mainland where wo provide one type of equipment that is better than another to try to get the customer to come to us all at the same time by providing the customer, the consumer, with a better choice and a better viewing experience. So that is how I see this situation panning out. We don't make the decision but we will never stand in the way of having any competitor including the Waimea theatre play whatever film they so choose at the same time. Did that answer the question? Chair: Not mine. Are your prices going to be compatible with the theatre now? Mr. Wallace: Absolutely. We are priced a little differently. So the answer is they only operate for example like today Hunger Games,they operate a 5:25 and an 8:00 show. If we were operating today in Kaua`i we would be operating a 12:00 show, a 3:00 show,then a 5:00 and then an 8:00. It is a two and a half hour movies so we couldn't do anything past 8:00. We would be offering earlier shows at a discount, a matinee price, usually about sixty percent of the top adult ticket and give people a discount at the matinee because we do operate a full five show schedule especially during a spring break period like now. And it doesn't matter if it is spring break for just the locals it is spring break for all the people who are tourists here, basically all of March, all of April, So it would be on that kind of a schedule. So we would be offering different prices, matinee prices earlier in the day. Chair: What are your prices on the other islands right now as an adult? Mr. Wallace: Anywhere from seven dollars, we had theatre on Molokai for a while, we were seven dollars there. We were shut down when the Molokai Ranch ceased operation there. It was a very good theatre, seven dollars to eight to nine dollars and then there is a premium for 3-D that is usually three dollars. But the customer has choice if they want to see it in 3-D at the Planning Commission Minutes March 27,2012 30 higher rate of if they want to see the same film in 2-D. And then you have the child prices, senior citizen prices, military discount, student prices, adult. Chair: Would the clientele have to rent the glasses from you? Mr. Wallace: That is a good question. It is interesting; other municipalities particularly in Europe have prevented us from giving children under the age of eight the glass because it is the weight on the head. The 3-D model is changing to a reusable glass that is higher quality and the technology is changing to have no glass at all but that is down the line. Chair: When you say no glass at all you are talking just he frame? Mr. Wallace: I meant the glass and the frame. We are trying to move to a model without a glass because it is sort of a silly thing in a theatre,the glasses and they are recyclable and they are not. There are some systems that have glass dishwashers where you reuse them to have a higher quality. The problem with all these glasses, it is too much weight on the head for a two hour movie so you get a lot of people that get fatigued. That is why there is"really a trend right now with more screens in the theatre you can offer the picture two ways, 2-D without the glass and 3-D with the glass. Once again, let the customer figure out if he wants to pay an extra 3 bucks or if he really doesn't want to wear the glass at all. Ms. Matsumoto: So you are saying your prices vary, do they vary say for example your senior prices, are they the same at all your theatres across the board or do they vary from community to community? Mr. Wallace: A good question. All or our prices vary community to community. For example in Hawaii we have a large military presence, we have a more aggressive military discount. In our Florida market we have raised the senior citizen price a little there because eighty percent of our audience at one of our theatres is senior. But each market is priced separately based upon nuances of that market. Ms. Matsumoto: So they are priced differently in Hawaii. For example in Hilo it is going to be different from Kona or Oahu? Mr. Wallace: Absolutely. When you look at the entire price range from child all the way up to adult there would be differences between prices during certain times of the year and for certain pictures sometimes. Ms. Matsumoto: I have more questions. I am going to keep going with my questions. Why did you choose nine showrooms? What was the reasoning behind that? Mr. Wallace: We are constrained on the site for parking, parking is really important so we always sort of say how much can we build. But we also look really carefully at our business in Kahului and Hilo where we see our business, how much gross revenue we are doing. We can Planning Commission Minutes March 27,2012 31 try to figure out that we are going to be hopefully better than Hilo but maybe not as good as Kona or hopefully as good as Kona but probably not as good as Kahului. So we looked at those theatres and those sizes and then did sort of an analysis of I think our Hilo theatre is too small, it is 26,000 feet. Our Maui theatre is probably a little too big at 38,000 feet and so we sort of interpolated among looking at the Hilo theatre,the Kona theatre and the Maui theatre, looked at the parking ratio, looked at the ratio, looked at the location, and then came up with nine. Ms. Matsumoto: And did you look at the Kauai community as well? Mr. Wallace: Absolutely. We tried to compare Kaua`i's...when we took this to our board to get it approved we tried to figure our well what is the tourism component at the site and it is hard because you know if rains a lot you get a lot more tourists than when it is sunny. But we looked at how many tourist were here versus Hilo doesn't get obviously many tourists but we looked at those factors too and we sort of gave it a little extra multiple because we think obviously we will get a bigger kick from tourists in Kauai than we do in Hilo. And in Kona it is a very spread out market too sort of like Kauai but more so I think. Ms. Matsumoto: I hope this is an appropriate question. I am curious to know whether or not any of their theatres have closed down in Hawaii. Is that appropriate? Mr. Jung: You can certainly ask the question but just bear in mind that day to day operation and things of that nature the Commission doesn't necessarily have control over because it is management responsibility in terms of how they deal with that stuff. Design, site plan, specific use, those are the things you should focus on but if you have a question you can certainly ask it. Ms. Matsumoto: So if you care to answer that and if so what were the reasons? Mr. Wallace: I think it is a really good question because I think every community faces what would happen if the theatre doesn't work, do you have an empty building? Is that an issue? I have been operating theatres in Hawaii since 1991 when I acquired the Holiday Theatre circuit in bankruptcy court here which was at that time being put out of bankruptcy by Consolidated and we are able to get product in the theatre and make that circuit become really Consolidated's first competitor. Since then we have probably opened six to eight new theatres, we have closed two or three theatres. In each case we have closed a theatre we have sat down with the landlord like on a single or twin theatre and have made a deal to give back the theatre to the landlord at a mutual type of term. There was a theatre on Oahu called Restaurant Row that was turned back to the landlord, a theatre in Kailua on Oahu that was turned back to (inaudible), we had a very favorable lease, they wanted the theatre back. In many cases the landlord comes to us and says hey, we need that space and we come up with a mutually satisfactory conclusion. But we don't have any vacant buildings in Hawaii of any vacant theatres, in fact in Hilo there was a theatre that was an older generation theatre and when we opened a new stadium theatre in Hilo we converted that theatre to a discount theatre Planning Commission Minutes March 27,2012 32 which is pretty amazing. It is a dollar a seat, dollar fifty at 6:00 or beyond and it really is a pretty big boom. It is in downtown Hilo if you know Hilo as apposed to where the Wal-Mart is and it really provides people an opportunity who can't afford the high prices or can't make the matinee show. So that is also one of the things we try to create a longer life to a movie theatre. Chair: Any more questions for the applicant? Mr. Blake: I am looking on page eight of your presentation booklet or folder, one of the changes that were implemented is that you are going to be using LEED principles in the construction and operation of the theatre? Mr. Wallace: Yes. Mr. Blake: So I was wondering whether you are going to be capturing rainfall on this rainy, most rainy of islands to do your irrigation of your landscaping. Mr. Kamm: Well actually we are already, the site already has access to Grove Farm ditch water and recycled water and that is what is being used today so we are going to continue with that. Mr. Blake: So you don't have to burden our potable water resources. Mr. Kamm: No, not for irrigation. Mr. Texeira: It seems to me that a nine screen multi-plea cinema theatre is an aggressive, a real strong indication that you really believe in the future of people attending your theatre in the future. Is the economics better for you if it is a larger project such as this? Mr. Wallace: It is not just the number of screens it is the square footage and the number of seats, 1,2074 compares to 3,800 seats for example at Ward on Oahu compares to about 1,250 seats we have in Hilo. So it is really a question of not number of screens but number of total seats and the size of the building. But let me say one thing about the theatre business because the doomsday of the theatre business has been predicted for many, many years, ever since the advent of television. Last week there was a movie that opened up called The Hunger Games. It is the third biggest opening in the history of the business in March. Normally we do business at summer holidays and Christmas. The Hollywood Theatre circuit was up 180 percent for that weekend. The industry as a whole up through last weekend through Sunday is up twenty percent over 2011. The movie business right now with the kind of films that are being shown is just thriving but we are always going to be a victim to bad movies since we don't make the movies, we just show them. So nine screens to me is the appropriate number, if anything it is a little under aggressive only based on space constraints. And being in Hawaii for as long as I have you can't always get all the square footage that you want. But to me it is not so.much nine screens as it is a little under 30,000 feet which is fairly conservative. Planning Commission Minutes March 27,2012 33 Mr. Texeira: So one of your theatres has eight three seats? Mr. Wallace: That is correct. Mr. Texeira: What market are you going after? Mr. Wallace: We want to play more specialty kind of films, more art films, specialty films. You can't dedicate 200 seats to that kind of a movie so when you bring nine screens to Kauai you can bring in art and specialty films and play them for more than a week. And you have to allocate them into eight three seats because the size of the market for a separation which is a best foreign language film on the academy awards, you can't dedicate 299 seats to that film but you can probably dedicate eighty three seats. It is exactly what we did in Maui,we have fourteen screens in Maui in Kahului, we have four screens under one hundred seats and we bring to the people of Maui films they have never had a chance to see. Or you couldn't see in the old days of two or three hundred seat auditorium. Mr. Texeira: So you are trying to attract a large gambit of potential theatre patrons as well as film coming to Kauai. Mr. Wallace: We want to play all the film that is available up to reasonable standards. There is a movie called The Artist, black and white silent film, won the academy award. It wasn't a big picture in Hawaii but it deserved to play on the national availability date and not after it won the academy award. You could put a movie like that on the break or when it opens for everybody else in an eighty three seat auditorium. You probably couldn't justify that in a 299 seat auditorium. So the smaller seated theatres give us the ability to play more of the unusual art and specialty films. Mr. Texeira: You mentioned earlier that if all being equal you would have constructed more theatres on that site if you had more room to do so. What would have been your ideal amount of theatres that you were seeking? Mr. Wallace: It is complicated by how much rent I have to pay and how much I am really going to earn on the margin. If the rent would be less I would build probably another 5,000 feet. But you have to balance the rent that you are paying with how big you can have it and it gets to the point of no return. I would have to restate that on the economic deal that we have which is a reasonable deal at nine screens and 30,000 feet, it is pretty tough to exceed that unless the landlord was willing to give me a rent reduction. And last I spoke to him they aren't too seriously interested in that. Mr. Texeira: I guess what I am trying to get at, I am concerned about your competitor and their surviving so I am just asking you these questions because I feel that you feel that you haven't, in your development plan,that you won't be touching the entire need of the film market on Kauai. Planning Commission Minutes March 27,2012 34 Mr. Wallace: Clearly just with our nine screens and the existing four, most areas even with a population, we calculated around 68,000 people plus tourists you would normally have up to twenty screens in a market like that. Not every screen would have 300 seats but you would have a lot more screens available. We traditionally in our company have up to twenty two screens whether it be us and a competitor in the same area. Mr. Texeira: And in your case you have a competitor in your area and so you will have thirteen screens, right? Mr. Wallace: Nine plus four, right. And the public can pick between the two or a theatre can develop a strategy of playing more artistic kinds of films or specialty kinds of films. There are lots of alternatives for theatres to peacefully coexist,pricing. In Restaurant Row we built a theatre and all of a sudden Dole got built and we became more of an art theatre and that became the way we survived and we became a lower priced theatre. So there are lots of options for other theatres. Ms. Matsumoto: I am looking at exhibit six and I see numbers in boxes, 177, 212, 184, 195. Mr. Kamm: Thank you Commissioner. I had exactly the same question for the architect last night and those are simply room designators,that is the title of the room if you will. They don't relate to the number of seats. It says aud. 83, in the upper right,that means it is an eighty three seat theater. Ms. Matsumoto: Okay but 136 means... Mr. Kamm: It is simply the room numbering system that he uses because as you see there are numbers in boxes in the concessions, in the lobby and so forth. This architect has done quite a number of theatres and he has his own internal codes for what types of rooms they are. Ms. Matsumoto: Thank you. Chair: Any more questions for the applicant? Mr. Blake: On page eleven of the folder under landscaping it says that the current site if fully landscaped with mature Hong Kong orchid trees along the north facing embankment and additional landscaping will be implemented. Do you propose to use any native species? Mr. Kamm: We haven't gotten that far along in our development and we certainly wouldn't presume to do a detailed landscape plan before we had land use approval. But absolutely we would consider them if they are viable and appropriate to the site. Mr. Blake: I would like to encourage you to do that. Planning Commission Minutes March 27,2012 35 Mr. Kaman: Thank you,I knew you would say that. Chair: Any more questions for the applicant? Seeing none, thank you, anyone in the public wants to...sorry, Cammie do you have another question? Ms. Matsumoto: I had a thought. You know we are trying to make Lihue a walking area to encourage that so it looks like people will have the ability to walk to the theatres as well. Mr. Kamm: Absolutely. And this was a big factor in locating the the where it is,there are sidewalks on almost every side of that parcel. There is direct connection to the shopping center food court, speed hump, crosswalk that leads down to the theatres. And to show you my commitment to the principle I just built a house within walking distance of this theatre. Ms. Matsumoto: And right now where are bus stops located? Mr. Kamm: There is a bus stop over by Macy's which is sort of the main hub and then there is a bus stop at K-Mart, in the front of K-Mart I believe, and it is conceivable that we can encourage the County to come further into Kukui Grove as well and perhaps the theatre itself. That is an operational thing with the Kauai Bus. Ms. Matsumoto: Also, you know that recycling area there? Mr. Kamm: Yes. Ms. Matsumoto: Is that going to continue? Mr. Kamm: Absolutely. 'The recycling will be moved around to the side very close to where it is today but not exactly where it is today. Mr. Raco: What about the Sunshine Market? Mr. Kamm: The Sunshine Market I believe has already been moved to the side of K- Mart and the dog training will continue as well. Chair: While we are on the subject what about those guys with the remote control cars? Since we are on the subject about... Mr. Kamm: As long as we have space, as long as Kukui Grove has space it is going to try to service the community non-profits, volunteers, activities, as best it can and I think we have done a darn good job so far and we are going to continue doing that. All the activities that are occurring there we will try.•-we have either relocated or we will relocate. • Chair: So have you guys already talked to them and discuss this project coming up and them having to find... Planning Commission Minutes March 27,2012 36 Mr. Kamm: The model cars guys, I would leave that to Wade. I don't know the answer to that question. But the other three, the dog training,the recycling, and the Sunshine Market we have made arrangements for. . Mr. Blake: My last question. I noticed that the completed diagram there has hot pink accents. Mr. Kamm: Yes, it printed a little brighter than...I think in the presentation they are supposed to be coral from the architect. Mr. Blake: As I recall the rest of the shopping center, this will be...are you intending for this to stand out in the shopping center or to fit into the shopping center? Mr. Kamm: It is kind of down in a hole so it doesn't relate to the architecture of the rest of the shopping center very much. Mr. Blake: I was talking more about the color scheme. Mr. Kamm: It has a unique color scheme, different than the rest of the shopping center. Ms. Matsumoto: That is an interesting question because I am just thinking about other theatres on Oahu for example. I don't know how the lighting situation is for the signage if they try to keep the lighting down to a minimum so it is not too bright. And I am thinking that I don't see a whole lot of bright lights when it comes to theatre building but I might me wrong. I was just wondering about that too. Mr. Blake: It may be in the hole but I know that in the past we have recommended and sometimes conditioned the color scheme to be more earth tones. I am sure you don't want the thing to be so well camouflaged that no one sees it but we want to achieve a balance there. Mr. Kamm: If I may Commissioner Blake, other than the coral signage this is almost entirely earth tone if you look carefully at it, we have greys and browns and kind of a dull copper color. The glass facing west is bluish so that does stand out a little bit. But by in large other than the color of the signs which are minimal I would characterize this as earth tones. Ms. Matsumoto: Or intensity of the lighting, exterior lighting. Mr. Kamm: The exterior lighting is down-lighting other than the two identifiers which are internally lit. But we are very careful to...shearwater sensitive and make sure that we are like the parking lot lights that exist out there today to have the lights be down-lights only. It is a condition you have trained us well to anticipate. Chair: Any more questions? Planning Commission Minutes March 27,2012 37 Mr. Texeira: I just wanted to ask you in terms of your scheme architecturally and everything else,what you are proposing is what you do in other parts of the state? I guess what I am trying get at, what I would like to get at is this theatre proposal unique to Kauai? Have you considered the features that Kauai offers and make it unique and not typical so when you come to this theatre you say, you know what, there is Kauai in this theatre. Mr. Kamm: This is Colin Russell,the architect who can probably best answer that question. Mr. Colin Russell: Thanks Commissioners. This is absolutely unique to Hawaii. In fact I spent a lot of time thinking about the theme of this building and what do I think about when I think about Hawaii. I have been to Kauai many times, it is my favorite island, and when I think of Hawaii I think about the ocean and I think of coral, I think of blues, I think of earth tones that in the red earth. And so the reason there are more colors than there would be normally in a building like this is because they help to break up the mass and make it look like a series of smaller masses. I have.a done a lot of things to sort of try to increase the horizontality meaning the reveals that go horizontal trying to keep it tucked into the space so that the higher part of the building works with the slope of the bank. So this is unlike any other theatre I have done and it is because it is in Kauai which is a unique place. Chair: I kind of want to wrap this up. Do you have any more questions? Seeing none, thank you, anybody in the public want to speak on this agenda item? Mr. William Blair: My name is William Blair and my family owns the Kukui Grove Cinemas. He is not being totally honest with you about how the film industry works. He talked about Hunger Games. There is no way 600 yards apart from him that both of us can play that movie. The film company will decide who plays it. Scott owns 500 screens, I have four. I will never see the day of light of good films again. He could possibly put Hunger Games on three screens, not one,three. If he put it on one he could play it in his big house for a week, maybe two, then he will move it to the next house, the next big house, 180 seats. Eventually it will end in the eighty three seat theatre where it will play forever. Waimea will go out of business immediately because there will be no film for them. He will want us to play The Artist and all the little films because he will control every big film. Apples to apples, two grocery stores open up 600 yards apart. They both have the same can of corn on their shelf and anybody can pick which store they decide to buy their can of corn. It doesn't work that way in our industry. This man, Scott Wallace, vowed to put us out of business. We had a nice thing going down at the marketplace. We were ready to sign the lease. All of a sudden they said no, we are going with Scott Wallace because he is going to open up the theatres every day at 11:00 and run all day long. It didn't last long because the operating costs become too much, He eventually went out of business. He closed it down because nobody wanted to go there. He talked about, which island I don't remember, five miles apart and they Planning Commission Minutes March 27,2012 38 both play the same film. That is Regal that is his competition. I am telling you right how the film companies will do business with him and they will shut us out. He came to my father sometime in the 90's and wanted to buy our theatres. My father told him what he wanted. He told my father he was crazy and he walked out and said he would put us out of business. He had (inaudible) named Dick Gambogi, very close friend of my family from back in the 60's and 70's. Dick came to my mom and told her Scott Wallace wants to put you out of business and this is what is going to happen. You can't put two theatres 600 yards apart and expect both sides to survive, it won't happen, it can't happen. I will be the one that has to play the crappy movies, he will get everything. Also, one last thing, when my father came to this island and wanted to build theatres he wanted to build up in the shopping center. Longs permit would not permit it because of parking. So I would like to know when did Longs change their view? Supposedly they are going to get 500 stalls of parking up in the mall. We couldn't have that. Why does he get it? We will go out of business slowly but surely, we will bleed to death,thank you. Chair: Thank you. So, what does the Commission want to do? Sorry, can you read your recommendation please? Ms. Matsumoto: I have a question. Is it appropriate to ask a question... Chair: After the conclusion. Staff: It is hereby concluded that the proposed construction and operation of a multi-plex cinema at the subject property will be appropriate and compatible. The use shall not be detrimental to the property or surrounding environment. The applicant should institute the Best Management Practices to ensure that the operation of this facility does not generate impacts that may affect the health, safety and welfare of those living or working in the surrounding area of the proposal. It is hereby recommended that the proposed amendments to Project Development Use Permit U-93-21, Class IV Zoning Permit Z-IV-93-25 to allow the construction and operation of a multi-plex cinema at the subject property be approved. The first two conditions are original conditions of approval established by the PIanning Commission on April 22; 1993 pertaining to structures that met the respective zoning requirements and have already been built it is recommended that these two conditions be removed. Condition No. 3 should remain as it pertinent to the subject amendments as well. Furthermore it is recommended that additional conditions be included to ensure that the proposed construction and operation of a multi-plex cinema at the subject property is compatible with other uses on the property and is not detrimental to persons or environment of the surrounding area. The other conditions are standard conditions of approval generally placed on virtually all zoning permits. If the Commission wishes I can read them or they stand as stated in the Director's report. Planning Commission Minutes March 27,2012 39 Chair: Cammie? Ms. Matsumoto: 1 want to back track a little bit about how movies get to be in theatres because...my question is do companies bid on movies and if so how does that work when you have several companies in an area. Is there a higher bidder or does it get decided on by the highest bidder? Mr.1pn& I think there has been a lot of leeway in terms of looking at day to day operations and the movie industry itself. But if you could limit your questions to the site plan, the design,the color scheme, the impact that the proposed project would have on the neighborhood in terms of traffic and what not I think that would be better because when we are looking at nuances of how businesses operate it strays from the land use aspect of it verses a business aspect. But I only give advice so if you want the answer to your question you can certainly ask. Who are you going to direct you question to? Ms. Matsumoto: I felt we heard one side, an explanation of the business from one side and when this gentleman was talking about movies... Chair. Do you want to ask him to come back up so you can ask him a question? Ms. Matsumoto: Yes,just a simple question if you want to. Mr. Junk: If you want to ask the question you certainly can. Chair: How do I do it? Mr. Junk: You have to suspend the rules. Chair: I suspend the rules. Mr. Blair: Bidding for films stopped a very long time ago. The film companies decided it was there product and they will decide where they want to put it, period. Ms. Matsumoto: Thank you. Mr. Raco: Mr. William,I am a little concerned because you just stated when you were testifying that he will get all the big movies and you will get all the small ones. So are you saying different now? If the movie directors or the movie whoever the brokers are they decide who get it, right? He doesn't decide so you won't get the A or the B's, sometimes you will get the A's and sometimes you'll get the B's. Mr. Blair: No, it won't work that way. Mr. Raco: So how does it work then? Planning Commission Minutes March 27,2012 40 Mr. Blair: We have bookers and buyers. They deal with the bookers for each film company. My brother fights to get film in here. It is a very, very tough business and like I said he controls 500 screens, I control four. He is a big fish. And there is another thing that was not brought up is that Grove Farm has a deal with Regal to bring ten more screens in here by the airport eventually. Now we are talking twenty three screens in Lihue. What happened to the rest of the island? Why not Kapa`a? Why not Princeville? Chair: There is one coming up in Kilauea. It has already been approved, right at the miniature golf. Mr. Raco: Are we ready for a motion? Chair: Yes, what does the Commission want to do? Mr. Raco: Motion to approve Class IV Zoning Permit Z-IV-93-25 and P.D.U-93-21, to amend, at TMK 3-3-003:034, Ms. Matsumoto: Second. Chair: Any discussion? Mr. Raco: So let me just state why I motioned to approve was from a business point of view I know that there is competitive business amongst business owners but I also look at it from a community standpoint. That community would drive a business in our out of business. I think this gives us choices. Personally, when we go on vacation we try to hit a theatre. Not to say here on Kauai we don't have the best facilities but it is always nice to have an option to go and see what is out there. And I think as a parent it is my obligation to always expose my children to what is out there and also keep them back here where things are normal. But I think options for people and options for the community is always a good healthy thing. I think from a business standpoint the community will decide ultimately if this.will go or not. And more so if the owner has more clout in getting more films it is always good to get more films out here that we can expose. I think it is a good competitive give and take and that is why I motioned to approve because I think the community needs to have a choice. Chair: Any more discussion? Seeing none can I have roll call please. On motion made by Caven Raco and seconded by Camilla Matsumoto, to approve department recommendation, motion carried unanimously by the following roll call vote: Ayes: Matsumoto, Raco, Blake, Kimura -4 Noes: Texeira -1 Absent: Katayama -1 Not Voting: None -0 Planning Commission Minutes March 27,2012 41 COMMUNICATIONS (NONE) COMMITTEE REPORTS (NONE) UNFINISHED BUSINESS (NONE) NEW BUSINESS Zoning Amendment ZA-2012-5 — County of Kaua`i,Planning Department. (POSTPONED TO 4/10/12.1 ADJOURNMENT The Commission adjourned the meeting at 12:03 p.m. Respectfully Submitted. r Lani Agoot Commission Support Clerk Planning Commission Minutes March 27,2012 42