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HomeMy WebLinkAboutpcminutes4-10-12 KAUAI PLANNING COMMISSION REGULAR MEETING April 10, 2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura, at 9:12 a.m., at the Lihu`e Civic Center,Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Herman Texeira Mr. Hartwell Blake Mr. Jan Kimura Mr. Wayne Katayama Mr. Caven Raco Absent and excused- Discussion of the meeting, in effect, ensued: CALL TO ORDER ROLL CALL Mr. Dahilig. Commissioner Katayama, Commissioner Texeira, Commissioner Blake, Chair Kimura, you have quorum Mr. Chair. Mr. Chair if I could just take a moment to introduce three new members of our Planning Ohana this morning, they are sitting around the audience. First I want to introduce Ruby Pap,she comes to us from the California Coastal Commission, she is serving as our UH Sea Grant Extension agent so we welcome her on board. She is actually located in our Piikoi annex with the rest of our coastal staff and files. Joan Ludington-Braun who is our CZM Land Use Permit Technician, she is sitting right over here. She comes to us from Avery's office and she is well skilled in plan review and will be helping our coastal program in that respect. Finally, I want to introduce Kenneth Estes who is right there in the lanyard, he is our TVR Enforcement Technician so he will be supporting our efforts in enforcement with TVRs and helping our inspectors do the book research and drafting for enforcement. So we are expanding,we did get the additional space and if you guys take a look in our office you will notice it might look a little bit different. We did go through some reorganization and cleaning and the goal is to try to provide more space for people as well as put units together. So we just want to welcome all three of them and introduce them to the Commission. VA2012 Master FiileslCommissionsVPlanninglMinutesWinutes-14.18-12 LA April 10.docx ®R [r' 4 202 Chair: Welcome staff members. Mr. Blake: Do you want them to stand there with the Director so the'public knows who they are? Mr. Texeira: That would be nice. Chair: Ruby, do you want to say a few words and then we will call them all up one by one? Ms. Ruby Pap: Good morning everyone, I am Ruby Pap and I am the new UH Sea Grant Extension. I am excited to work with you on coastal hazard issues and other coastal management issues. I have a background in not only hazards but land use planning in California so looking forward to it. Mr. Kenneth Estes: My name is Kenneth Estes and I am going to be helping Vil Balisacan and Bambi Emayo doing the TVR enforcement and inspections. I am happy to be here. Mr. Dahilig: Just some further information on Kenny. Kenny actually just graduated from the University of Hawaii, Manoa, and he has his bachelor's in environmental studies so he is a great addition to have on board. Ms. Joan Ludington-Braun: Good morning, it is the first time I have sat in this chair. I am Joan Ludington-Braun and thank you for having me on board. If there is anything I can assist you with I am here. I come from Avery Youn's office. Chair: Thank you Mr. Blake: She is very modest. I have known her for fifteen plus years and if you wanted something done give it to her and she would hand carry it to all the offices and get it done. So I am very pleased that we have these three new people. Chair: So are we. APPROVAL OF THE AGENDA On motion made by Herman Texeira and seconded by Hartwell Blake, to approve the agenda, motion carried unanimously by voice vote. MINUTES of the meeting of the Planning Commission (NONE) RECEIPT OF ITEMS FOR THE RECORD Planning Commission Minutes April 10,2012 2 On motion made by Herman Texeira and seconded by Hartwell Blake, to receive all items for the 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. Chair: Anybody in the public want to speak on any agenda item today? Seeing none... Continued Agency Hearing: (NONE) New Agency Hearing: (NONE) Continued Public Hearing (NONE) New Public Hearing: Zoning Amendment ZA-2012-5 to amend Chapter 8 Article 27 of the Kauai County Code, 1987 as amended)to incorporate the shoreline change data 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 ofKaua`i,Department of Planning. TPostooned 3/27/12.1 Director's Report pertaining to this matter. Chair: Anybody in the public want to speak on this agenda item now is the time to speak. Ms. Caren Diamond: Aloha, Caren Diamond. This does make it a little awkward because you don't know what I am talking about now so I will try to make it so you do know what I am talking about. Basically you have the new shoreline rules and regulations before you and as I read them I had to read them over and over and over again to even understand them. I am not sure how understandable they are to you but I think it would...I guess I would ask for you to defer this so that these can be gone over better. I find that the purpose as it is listed here really...I am confused about the purpose because setbacks are a County jurisdiction and they happen from the State certified shoreline. And as I read this it seems that every effort has been made to avoid having to do that State certified shoreline with that whole process being replaced by a surveyor just submitting what he wants. Planning Commission Minutes April 10,2012 3 And then the reason for the coastal erosion study was to add science to your decisions so that they weren't arbitrary and capricious. But as I now read this you have put the arbitrary back in because you are talking about vicinity and you are no longer talking about facts where you had a shoreline that was certified by the State and then your process starts from there. And so you have confused that whole process under this and I find it probably does not comply with 205A. I am not sure how you would implement it because the question of a setback has to be from where and that where is from a State certified shoreline. That is my main point that I want to make to you that I think this bill needs to come back for. The other part is the applicability which has gotten really confusing.because if you read it, it is made to make a good bit of projects not applicable to the shoreline rules and regulations anymore. And I find that very confusing because will they be in some alternate universe of rules or how does that work? So I think that a simple applicability would be better and I would ask you to look at Maui's rules for shorelines and ask you to look at 863 which was well written both for its purpose and its applicability. And if there are minor things that need to be changed, change it,but don't change it so that our shoreline rules and regulations no longer protect our public beaches or the coast or our public use of our beaches but instead only protect the private property's rights to develop. And it looks like that is what has happened here where the public trust has been forgotten, only private property rights are in here. All the things that were in here to give authority to the County for making increased setbacks and for health, safety, welfare of both the people who are going to live in these structures as well as protection of our coastal resources seems to kind of be forgotten in here. I see reference to 46-4 which is the grandfathering statute instead of all the other authorities that were in here before. So I would ask you to please send this back to Planning, I think it needs a lot more work,thank you. Chair: Anybody else want to speak on this agenda item? Seeing none, do you have any comments on that? Mr. DahiliQ: Mr. Chair, I would request that the Commission move to defer closing of the public hearing until May 8, 2012. That will give us some time, we are still waiting for agency comments and as the planner does go into his report he will go more into depth as to the rationale behind the proposal. Mr. Blake: So moved. Mr. Katavama: Second. Chair: Any discussion? Mr. Texeira: So does this mean that you are also calling for deferral of this? Mr. Dahilia: We will be requesting deferral of action on the item to May 8,`as well. Planning Commission Minutes April 10,2012 4 Mr. Texeira: So is that the motion? Mr. Dahilig: Not yet because we would like to have the planner present the issue for discussion. Chair: So the motion is to keep the public hearing open. Mr. Texeira: You had a motion so we have to follow up with that motion. Chair: All in favor say aye, opposed, so moved. On motion made by Hartwell Blake and seconded by Wayne Katayama,to continue public hearing to 5/8/12, motion carried unanimously by voice vote. Chair: So do we have to go through the staff report or should we just wait? Mr. Dahilig: I know this is a new format for the Commission so the 'staff report will come up in item (M) of the agenda. Public Comment on All Agenda Items Pursuant to HRS 92 CONSENT CALENDAR Subdivision. Subdivision Action matters listed in the Subdivision Committee Agenda (attached). Status Report(s). Annual Status Report(12/1/11) submitted by Frances Yamada of Wilson Oakmoto Corporation Agent for Special Management Area Uses Permit SMA(U)-2005-8, Project Development Use Permit P D U-2005-26 Use Permit U-2005-25 and Class IV Zoning Permit Z- IV-2005-30 for Kauai Lagoons LLC MORI Golf(Kaua`i)LLC. Tax May Key 3-5-001:027 (Por) 168 69 171 (Por.), 72(Por.), 175 and 176. Director's Report pertaining to this matter. Director's Report(s) for Project(s) Scheduled for Agency Hearing on April 24, 2012. Class IV Zoning Permit Z-IV-2012-14 and Use Permit U-2012-12 to operate an athletic fitness facility within an existing building uildingrsituated at the intersection of Wilcox Road and Nawiliwili Road further identified as Tax Map Key 3-2-005:012 and affecting a portion of a 9.28 acre parcel = Good to Go Livinz,Inc., dba Kaua`i Athletic Club._ Planning Commission Minutes April 10,2012 5 Director's Report pertaining to this matter. Class IV Zoning Permit Z-IV-2012-15 to allow commercial development on a parcel within Kilauea Town that is greater than one 1 acre in size situated at the Hookui Road/Kolo Road intersection further identified as Tax Map Key 5-2-009:008, and containing a total area of 1.74 acres =Mike M. Dyer, Trust Director's Report pertaining to this matter. Chair: Does any Commissioner want to move anything from the consent calendar to new business? Mr. Dahilig: Commissioners, I understand that we are trying out this new format with the agenda items and part of purpose behind the consent calendar is to push out items that based on public testimony may have not issue of discussion before the Commission and can be approved ministerially. The rules of the Commission allow for two Commissioners to move an item from the consent calendar to new business if based on public testimony they feel more discussion is needed before any kind of action. Mr. Texeira: So where is the public testimony? Mr. Dahilig: It happened already. Mr. Texeira: Before, it's kind of hard for us to recall what happened before though, you know what I am saying. Mr__ DM ah_ ilig: I think that is kind of the trade off on this. Mr. Texeira: I would certainly like to be updated. Mr. Blake: Aren't we going to be updated on the 8th as far as the department's response to testimony? Mr. Dahilig: Yes. And we will have a presentation from the planner now but this is merely a mechanism for the Commission to more efficiently move out its agenda items should they see that there isn't public opposition to anything on the consent calendar. And so if there are issues on the consent calendar then the Commission can move items from the consent calendar into new business so that that way you can take care of those items that really have I guess no issues of controversy and that we can release people that are either in the public as well as presenters ahead of time versus having them sit around. Mr. Texeira: So in this particular case, item 2.A, you just discussed the format so what would be the next step if we want to take it to the consent calendar? Planning Commission Minutes April 10,2012 6 Mr. Dahili : From the consent calendar to new business you would need two Commissioners. Mr. Texeira: Okay but where is the...and you get the Director's report at the end or do we get it now? Mr. Dahilig: You got it already, written, in the report. Mr. Texeira: And that is it? Mr. Dahilig: And that is it and so we do have the staff prepared that-if more discussion you feel is needed, if two Commissioners agree,then we can pull it to the new business for further discussion, Again this just as a mechanism to officially move out more ministerial approvals for the Commission in the event they feel that there is no controversy on it. Mr. Texeira: And then if we do not? Mr. Dahilig: Then it is deemed approved once the meeting is adjouned. Mr. Texeira: Automatically. Mr. Dahilig: Automatically approved. Chair: So if we want to talk about anything on the consent calendar we need to take it out now. If not we approve the consent calendar, everything on the calendar is automatically approved without discussing it. Mr. Dahilig: Yes. So like for instance items G.3, these are for acceptance for the record and they will be for next public hearing and so some of those things may not need discussion. Subdivision sometimes there is no issue of controversy and so that based on the subdivision report can be moved out. So it just provides more flexibility for the Commission to more orderly move out its agenda rather than going sequentially. I know it is a bit of an adjustment but we feel...it is similar to what Council is doing right now. Mr. Texeira: I understand. It is just that we don't have that much to discuss. I mean we are expediting what? We have a very small agenda right now. So do we have the flexibility of going back and forth in the format or once you transfer it to this new format that is recommended you are going to stay with that format? Mr. Dahilig: We can always change the rules. It is always up the Commission if this is not working for the Commission we can change the rules back. But given the Council's movement to a consent calendar type of format we thought we would try it out and suggested it as part of the rule amendments a couple months ago. And if it is not working for the Commission we can always change the rules back. Planning Commission Minutes April 10,2012 7 Chair: So all we have is a status report and two acceptances for the next meeting. Mr. Dahilig: And subdivision. Chair: So with the subdivision if we accept it in the calendar... Mr. Texeira: There is no need for a report. Chair: I would like to hear what Herman has to say. Mr. Texeira: I would like to hear what I have to say too. Chair: So I will pull the subdivision out and have you do the report on the subdivision, is that okay? Mr. Texeira: That would be fine Mr. Chair. Mr. DahiIig: So that moves to new business. Chair: So that would be moved to new business but can we move it up on the agenda? Mr. Texeira: But in order to do that you need two. Mr. Jung: Why don't we do it formally and have a Commissioner make a motion. Mr. Texeira: Mr. Chair, I move that we move the subdivision committee report to new business, move it out of the consent calendar into new business. Mr. Katayama: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Herman Texeira and seconded by Wayne Katayama, to move Subdivision Committee Report from consent calendar to new business,motion carried unanimously by voice vote. Mr. Texeira: Subdivision Committee Report, we had three items. The first item was tentative subdivision action, S-2012-8, in regards to Princeville Golf Course; TMK 5-3-006:001, 014. There was nothing controversial in this,there didn't appear to be in this application and it was approved as amended 2-0. Just to report that at this meeting we only had two subdivision committee members, Cammie was excused and absent from this meeting. On the second two items, was the final subdivision action, S-2007-34, in regards to Kukui Grove Center Investment Group, TMK 3-3-006:-016, 019, and this was approved 2-0. The third item was S-2009-28,this Planning Commission Minutes April 10,2012 8 is in regards to the State Department of Transportation, TMK 5-1-005:113, approved 2-0. That concludes my report. Mr. Blake: Move to accept the subdivision report. Mr. Texeira: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Hartwell Blake and seconded by Herman Texeira, to accept subdivision committee report, motion carried unanimously by voice vote. Shoreline Setback Activily Determination. (NONE) EXECUTIVE SESSION (NONE) GENERAL BUSINESS MATTERS SPECIAL ORDER OF THE DAY 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 a rox.. 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 [Public Hearing closed Motion to approve not carried due to 3/1 vote on 3/27/12.1 Mr. Dahilig: Commissioners, what the procedure is in this particular situation is that there is still an open motion on the floor. There was a motion to approve but however that was not carried due to the lack of four votes and so the motion is still up for debate before the Commission. You can engage in further debate at this point Mr. Chair, and if there are any questions that the planner can answer for the Commission we are available for that. And just as a note for the record that the applicant I do not believe is in or there agent is not in the room at this point so I just want to put that for the record. And then also just for the Commission's understanding as it debates this, final decision does need to be made by I believe April 24th due to the 210 day rule, I believe, Mike? Staff Planner Mike Laureta: That is correct. Chair: Just for the record,Mike, can you check if the applicant or representative is outside before we start this please? Mr. Dahilig: Can you call their name three times? Staff. I yelled at Laurel three times. Neil is not out there. Richard is not, nobody is out there. Planning Commission Minutes April 10,2012 9 Chair: Thank you sir. So what does the Commission want to do? Mr. Blake: I have a question. At the last meeting this item failed to pass for want of a four vote, right, so if that happens again, it doesn't pass for want of a four vote and it doesn't automatically die, right? Then the next motion is do we want to deny it. And if that doesn't pass for want of a four vote they get their TVR with what conditions? Mr. Dahilig: No conditions. Mr. Blake: No conditions at all? Mr. Dahilig, That is what generally happens. Now it is something that they have to seek relief on so it is not what I would say is an automatic approval necessarily,they would have to seek relief and maybe the attorney can elaborate more on that procedure. But they would actually have to go seek it through some kind of order from us. Mr. Blake: So if I was the applicant and it neither passed nor was denied and the 24th rolls by then I would have my attorney seek an order granting the TVR. Mr. Dahilig: Yes, without conditions. Mr. Blake: Without conditions. Mr. Raco: The 24th of this month, right? Mr. Dahilig: Yes. Mr. Raco: Which is our next meeting, so if the motion fails once again then it would come up again as a special order on the 24th? Mr. Dahililr: Yes. Chair: And that would be our deadline. Mr. Raco: That is probably when, it depends on the vote, if Cammie is here,then it would be... Mr. Blake: Do we have a meeting on the 24th? Mr. Dahilig: We do have items scheduled for the 24th including the two that on in the consent agenda that was consented to. Planning Commission Minutes April 10,2012 10 Mr. Blake: Just out of curiosity, if it passes why does it pass without conditions rather than with the recommended conditions? Mr. Jun;~: Before we get into a discussion about the nuances of automatic approval I would prefer to do that in executive session just because of the content of what could potentially happen in the varying scenarios of what can happen. So I don't want to just hypothetically talk about automatic approvals because it has been fought over and over and there is a case up on appeal right now dealing specifically with the issue of automatic approval. So there is no finite law on it as of yet,hopefully soon we will but we have our arguments as to what automatic approval is. So in this case we are not up against a deadline yet. Chair: So you recommend we go into executive session? Mr. Jung: If you guys want to do that now. Mr. Blake: Before we vote. I move that we reconvene in executive session to determine our rights and duties under the TVR act with regard to the necessity of a four vote, four person vote to either pass or reject the application and the potential ramifications thereof. Mr. Texeira: Second. Chair: Any discussion? Mr. Jung: And that is to consult with the Commission's attorney on privileges, liability, and counsel as well. Mr. Blake: And the staff would remain, Mr. Laureta and the secretarial staff. Mr. Jung: Actually you have to invite them in as a resource. Chair: Any discussion, seeing none all those in favor say aye, motion carried. On motion made by Hartwell Blake and seconded by Herman Texeira, to go into executive session, motion carried unanimously by voice vote. Commission moved into executive session at 9:47 a.m. Meeting called back to order at 10:13 a.m. Mr. Dahili;7: Mr. Chair,just as a matter of course before you continue on this agenda item I would ask that the Commission also defer item M.1 relating to Zoning Amendment ZA- 2012-5,to the first meeting in May and I believe that was May 81h Mr. Raco: So moved. Planning Commission Minutes April 10,2012 11 Mr. Blake: Second. Chair: Any discussion, seeing none all in favor say aye,motion carried. On motion made by Caven Raco and seconded by Hartwell Blake, to defer ZA-2012- 5 to 5/8/12 Planning Commission agenda, motion carried unanimously by voice vote. Chair: Going back to general business matters, special order of the day, Adkins. So what does this Commission want to do? Staff: Just to note, the applicant's representative has showed up. Chair: Does anyone want to call the applicant's representative up? Mr. Texeira: I would like to ask her if she has any additional... Chair: Is the applicant's representative here? Ms. Lorna Nishimitsu: Thank you for your indulgence, for the record, Lorna Nishimitsu on behalf of Mr. and Mrs. Adkins. I think what I would like to clarify is that these are people who have been totally unfamiliar with the planning process. And so there were questions that were asked of them that they were apparently not poised or prepared to answer. One in particular had to do with the connection between the agricultural operation on the property and the TVR and in Mr. Adkin's mind it was sort of like they are independent of each other, we are doing the Ag. because we are doing the Ag. and we are doing the TVR because we would like to do the TVR. But in reality as with most of the other Ag. applicants the income from TVR helps to pay for the maintenance of the Ag., somebody needs to be there periodically to maintain the plantings, replant. And they are also aware that they are going to have to expand their agricultural activities so all of that is going to cost them money which the TVR income will help supplement. Our proposal is that prior to the renewal you have a plot plan right now that shows where the Ag. is, we will show the additional Ag. to show the increase to assure you that the Ag. is an adjunct of the TVR. The other thing is there were initially twenty four conditions and I saw that verbally two more conditions were added. I haven't seen a final written recommendation but I just need assurance that those are the twenty six conditions that are before you for consideration. One being that they could not use the workshop for transient vacation rental purposes which is perfectly understandable and that if they want to convert it to a guest house—because the property does qualify for a guest house,that it needs to secure all the necessary permits and approvals including meeting whatever flood elevations exist because it has changed since the time the property was first developed. There has been a change of where the flood lines are so they are aware that they have to comply. And like I said the Ag. expansion plan will be submitted to you prior to renewal. Planning Commission Minutes April 10,2012 12 So we would ask that you approve them or allow them to use the single family dwelling as the TVR. They are fully aware as to the limits that you have proposed of the number of guests and the number of vehicles. But at such time that they want to convert the workshop to the guest house they are willing to record as part of the declaration that you normally require be recorded, showing on the plot plan what is allowed for TVR and what is not allowed for TVR so that it is clear as an encumbrance what the limitations on this property are. Chair: Any questions for the applicant? 1 have a question for Mike. So Mike, does that property, they are allowed to build a guest house on that property eventually from what the representative is saying? Staff. The minimum property size for guest cottages is 9,000 square feet so this being a 500 square foot structure it could be converted to a guest cottage provided it meet agency requirements. And that is loosely said. So that means if they are going to do that the first thing is they will have to come back to the Planning Commission, get approval to do that,they are going to have to have to increase the height of that structure to meet flood code. And I think it is six to eight feet they are going to have to elevate that structure. But the property based on its size and zoning, qualifies for a 500 square foot guest cottage. Chair: What I am thinking is if the department allows them to build a guest house what is stopping them from renting it out as a TVR under the radar? Staff. Inspections, confirmation of compliance which is going to be an annual thing now. So condition No. 20 also includes the second sentence, "Prior to the annual renewal of this permit applicant shall arrange with the Planning Department for an inspection of the structure." So every TVR that had issues has this condition so we will be doing an annual inspection of each of these TVR permits. Chair: That workshop was illegal to begin with. Staff: No, the workshop was fine it was it wasn't converted back to the workshop when it should have been. Chair: Well they had it as a guest house and I am saying the new owners didn't turn it into the guest house they bought it as a guest house. When they bought the property it was already a guest house, right? Ms. Nishimitsu: When I looked through the records the first improvement on the property was the workshop and the prior owner got the permit from Planning to convert it to a dwelling. Then he applied to build the main house which is what we are before you for, so that was a dwelling, and the owner represented although he could have qualified for an ADU at that time,but the owner represented when he applied that I will convert the small single family dwelling back to a workshop. Well it wasn't converted. So he actually in effect had two houses Planning Commission Minutes April 10,2012 13 on the property at that time. When the Adkins went into contract to purchase it was represented to them that the property had a house and a guest house and of course they don't know any better, they didn't have somebody reviewing all the planning records. So when they bought it and they applied for the TVR permit they were told it should have been converted back to a workshop. So with Neil Sams's assistance they went and they tore out what-made it habitable for dwelling purposes. But by law they do qualify for a guest house. They understand that they cannot use it for guest house purposes until they get the necessary permits. Chair: So let me get this correct. By law they can have a guest house but they don't have to farm. According to the department the department is too small to farm to be a legitimate farm. Staff. To meet intensive, the definition of intensive agriculture, yes it is too small. But to farm, you can farm on any size property and it is just at what level is acceptable and appropriate based on soils and flooding constraints of the property. So for every TVR that has been approved in `Anini we are requiring additional agriculture through an agricultural plan and they are all about the same size. Chair: How does this lot qualify for a guest house? Staff. Based on the minimum lot size for a guest cottage. Chair: So that would be considered an ADU? Staff. No, guest cottage, not kitchen, no food prep facilities, 500 square feet max. Chair: Any more questions? Mr. Katayama: In terms of Ag. plans what does that entail? What would be the criteria for the department when the permit renewals are reviewed? Is there sort of a check list like you prepared for the TVR's? To me this was very helpful sort of helping task the TVR and each one of the permits has some form of Ag. plan and requirement. Are you going to develop the same sort of template for the Ag. plans? Staff. Well the Ag. plans are dealing with there is a certain level of agricultural use on the property. Given the constraints of the property based on the zoning. Mr. Katayama: Isn't all the zoning Ag.? Staff. No. State Land Use is Ag., that is the only constant with these TVRs. The zoning is what the department has been trying to stress to the Commission that it is the zoning that reflects the capability and success of the agricultural use. So Moloa'a, `Anini,have soil and flooding constraints so to the best of their ability the people in Moloa'a and `Anini are going to have to supplement with soil improvements and they are going to have to increase their Planning Commission Minutes April 10,2012 14 agricultural efforts. They will develop that through a plan which should show an increase in area usage on the property from what exists-now to one year from now. Mr. Dahilig: Mr. Chair... Chair: I have a question. If they build the guest house and they rented out the main dwelling as a TVR how are those people in the guest house supposed to function without anything? One goes with the other eventually, right? Mr. Dahilig: Mr. Chair, let me first pose a quick question to try to answer your question on this. I just want clarification; this has not been converted back to a guest house,right? Chair: No,not yet. Ms. Nishimitsu: No. Chair: Based on the proposed conditions and I am specifically looking at condition No. 21 that says, "No further enlargement, alterations, or expansions to the existing residence shall be permitted unless authorized by the Planning Commission or required by government agency." So what is being approved today is not the main dwelling plus a guest house it is the main dwelling only. And so if the guest house were to be starting to be advertised as a guest house that can be rented in tandem with the main dwelling that would be in violation if the Commission were to adopt these conditions. Now again it dovetails on enforcement but we would consider the conversion of that as a guest house and then subsequent rental of that property with the guest house as an enlargement of the TVR usage and would not be in accordance with condition No. 21 should it be passed by the Commission,just for the record. Ms.Nishimitsu: I just think that to risk a TVR permit and special permit that might be issued just to allow use of the guest house would be extremely stupid on the part of any applicant because a lot of applicants before you have the limitations here,they have a structure that is permitted for the TVR. None of the other structures on the same lot may have that same entitlement. So to then try to cockroach and try to use unpermitted structures for TVR use means that everything might be lost knowing that there is a lot of scrutiny. And the Adkins, I have instructed them that there is a lot of scrutiny on TVRs because there is a lot of philosophical opposition to them. And if you get your TVR permit it is a very valuable thing. If you choose to risk it that is a choice you can make but they are well aware of that. If they ever get the permission from you to convert the workshop to a guest house then that is not part of the TVR operation. Chair: I understand but what I am trying to say is with the guest house what other function would the guest house have other than to comply with the TVR because you can't cook, you can do anything. Ms.Nishimitsu: Well you would end up having to have a grill outside. Planning Commission Minutes April 10,2012 15 Chair: So you would have to go to a restaurant every night. Why else would you build a guest house expect to use it with the TVR because like I said there is no function except for sleeping quarters. Ms. Nishimitsu: The Adkins are going to be occupying the main dwelling on occasion. It is not rented 365 days a year to transients. They have eight children, some of them are adults. They all live on the mainland, everybody lives on the mainland now but if the family every wants to get together and they are using the single family dwelling not as a TVR but as a family dwelling there is going to spillover of their kids into the guest house. So they would want the ability to have additional sleeping quarters but that would not be used in connection with the TVR. So in that sense it is an accessory to the main dwelling but it is not an accessory to the TVR operation if they get permission. And just for the record I told them I would say that requiring them to come to the Commission to do the conversion which is typically a Class I zoning permit for the conversion is an extraordinary imposition on them. That they have to come to the Commission to say, can I convert, I mean I am entitled to a guest house can I convert it so it is like a big burden on them and I wanted to make the objection on the record. They didn't really want me to say it because they are basically we will jump through whatever hoops we have to jump through but that doesn't necessarily mean that they like them. Are they targeting just us and I said no it is not specifically you that is being targeted this is how the Commission has approached all of these Ag. TVRs so it is not personal, it is not a personal thing. I just needed to make my legal objection for the record. Chair: Any more questions? Mr. Raco: So I guess Chair that answer is not going to be answered, right? She cannot answer that question if the occupants are going to just use that cottage as sleeping quarters then. Chair: Well she just said that when the family comes down then they would probably be using the... Mr. Raco: The main house. Chair: No, the guest house with their family when they come down, not being rented out. Ms. Nishimitsu: When all the family gets together they are going to use the main house and the guest house. Mr. Raco: But when the TVR is being rented then the Adkins are forced to live and eat out every day. Ms. Nishimitsu: Well the Adkins can occupy the guest house but they can't cook there unless they want to set up a grill outside and grill their food because addition of a stove or any Planning Commission Minutes April 10,2012 16 other cooking appliance and then some kind of unannounced inspection or some neighbor complaining means that everything is lost at that point. Chair: I think that is why we asked if they had a certified contractor;a licensed contractor to disconnect the stove and something else just to reassure the department that there will be no such thing in the future of putting in a stove. But then again you can always put in an electric stove, what I talking about. Mr. Raco: But there is no, on record, from Public Works that there was a demo permit to demo what was not permitted, right? Staff: No, you don't need a demo permit to remove a stove and a refrigerator which is basically what they did; all food preparation facilities got removed. Mr. Raco: So was that stove gas or was the stove electric? Staff I couldn't answer that. Mr. Raco: Because if the stove was electric then obviously that was a 220 line, right, so that would be more than 30 amps which would require an electrical permit. Anything over 20 amps requires an electrical permit. So if there was a stove there that was electric or plumbing or a gas it would still need a demo permit because of its amps for the electrical and if it is gas then it would require a plumbing permit because it is gas. So either way they would have to have a permit or what was that fixture. Staff. I wouldn't, that would have to go to the inspector. Ms. Nishimitsu: I know that to construct and install you need the permit but if the requirement is to deconstruct or cut off... Mr. Raco: You need a demo permit. Ms.Nishimitsu: Utilities, you need a demo permit? Mr. Raco: Yes. Chair: That is taking out the utility line,if it is gas then you would take the gas completely away from the house or the workshop. Ms. Nishimitsu: I can always ask the client to provide some kind of evidence that the 220 line has been removed and I don't know if it needs to be a licensed contractor if it is just cutting off the power. Mr. Raco: Yes it does. Planning Commission Minutes April 10,2012 17 Ms.Nishimitsu: If that is going to be a condition of the Commission I would be happy to ask them to do it because you can't put a stove in...assuming they got the permission to convert it to a guest house, they can't put a stove in it anyway unless they remove the plumbing. Mr. Dahilig: Just for clarification. This issue has come up with respect to even demolitions are large as the Kekaha Mill. The department's interpretation of the CZO is that there is no Class I permit that is required as a consequence of demolition but we require, we assign a number and review it for historic preservation purposes only. And when it comes to issues of actual demolition it is solely within the jurisdiction of the Public Works Department and not our department. So I just wanted to put that for the record. Mr. Raco: How long is the applicant going to occupy the main house out of the whole entire year? Is it half the year? Ms. Nishimitsu: They are employed on the mainland. They had hoped eventually to be able to relocate part time to Kauai which is why they purchased the property. Mr. Raco: So if they are employed on the mainland then how do they do Ag. on this parcel? Ms. Nishimitsu: They have to hire somebody and that is where the TVR income comes in because somebody has to be able to maintain the plantings. Mr. Raco: And where do those plantings go, do they sell it? Ms.Nishimitsu: They haven't developed a market yet. Mr. Raco: Has there been a market before? Ms. Nishimitsu: Not that I am aware of but Neil Sams would because he has Orchid Alley, in order to expand the agricultural use on this property which has a lot of shade because of the existing plantings,they are looking at expanding orchids within the property. And there is a market for that. They have some orchids now. Mr. Raco: You can kind of see my linkage that I am missing here in really finding if they do Ag. or not because there was no Ag. before but the way it looks, and I am just perceiving the way it looks and what I have been hearing and what you have been saying, is that the couple lives on the mainland, they are going to be hiring somebody to do the Ag., they haven't been doing Ag. before but they want this TVR to support the Ag. So ultimately, to me, on the equal sign, what I see is that they have a transient vacation rental house here, they want to be able to self-sustain the house using the TVR to rent it out so that it helps pay the mortgage. But actually really agriculture...because you said yourself that there was no Ag. before and there was no market before, then in the past how did they do it before? Planning Commission Minutes April 10,2012 18 Ms.Nishimitsu: They have somebody maintaining it now. Mr. Raco: If I could finish Chair... Ms.Nishimitsu: Sorry. Mr. Raco: I am just explaining to you what I have heard from you today,what I have heard from them before, that I don't see Ag. being done before or now so the benefit of the doubt there, I cannot really support the application because of that. It is just not equally...other applicants at least they had rows and they had orchards and at least there was something that I could see. And then there was a guest cottage and they stayed in the guest cottage. This,this gets real complicated because they are not there and then when they are there they have to settle into the cottage just to sleep and barbeque outside. I mean who are we tricking here? It is really, the equal sign at the end of day is saying you know what, we want a TVR and we want to be able to sustain the mortgage. I just want to be clear and that is what I have been hearing. There was no agriculture before and there is no agriculture that is going to come after this. And if there is there is going to be agriculture now because of, to get the application renewed. Ms.Nishimitsu: They.purchased in 2006. The agricultural activity had to have been in place as of March 7, 2008 so there has been agriculture there. It may not have been... Mr. Raco: So you are contradicting yourself because that is what I asked you is if there was a market before and you just said no. Ms.Nishimitsu: No, I am saying that there are agricultural plantings there and they were in place as of March 7,2 00 8. Mr. Raco: But was there a market there? Ms. Nishimitsu: That, I don't know. I don't believe that they have been here long enough to themselves market what has been planted and is growing there but they understand that they are under an obligation to expand that agricultural use. I have clients who have lost their market and are donating plants to churches and senior centers because of the competition from Asian countries for tropical flowers and that would be Michelle and Justin. Their market has basically been dried out because of competition. Mr. Raco: But they had a market and an Ag. plan before that. Ms.Nishimitsu: Yes. Mr. Raco: See that is the Key right there is that there was Ag. there and I can certainly support those kinds of applicants when there is Ag. and definitely this TVR would support that Ag. because (inaudible). But in this application there was no Ag. before that, There were Ag. Planning Commission Minutes April 10,2012 19 plantings, who is to say what are Ag. plantings? Between you and me are you saying one coconut tree and twelve papaya trees is Ag. plantings? To me Ag. plantings are crops, orchards, flowers, there would be an arrangement of some kind of agricultural activity. When I Iook at the property it is just landscape planting and who is to say that a banana tree is now going to be Ag.? I have a banana tree in my house but does that make it I am doing Ag.? No. I planted the banana tree because I like to eat banana. So you see where I am losing the linkage is that there was no Ag. before but now all of a sudden they want this TVR that now they are going to do Ag. because they want the TVR to sustain the mortgage and the property. That is all I am saying. It makes it a real hard case. Ms. Nishimitsu: Expecting to see rows of plantings which are typical of larger parcels is a fair expectation. What we have got is basically 11,000 square feet that they have to work with. There is a lot of planting there if you look at the plot plan that Neil Sams prepared and identified what is planted there. They may be arranged in a manner that is not consistent with intensive agriculture when all I am doing is agriculture on the lot but like I said the Adkins are prepared to expand that planting. And if they concentrate as has been suggested to them because of the shade an orchid/anthurium type of mix they can probably develop a better marketing strategy. Because there is no point in just pouring money into having all these plantings, all my TVR income now goes to support my Ag. but the Ag. goes nowhere, it just sits there and grows. So they are aware that they have to develop a better marketing plan. They are having the property maintained because for the past five or six years since they have owned it the plantings have been there and it couldn't just be left untended, flowers had to cut back,trees had to be pruned, those kinds of things. So there is a staff maintaining it, not a fulltime staff. Chair: With that being said let me ask you this real quick. Just off hand do you know what kind of fruit trees they have on the property? Ms.Nishimitsu: There is banana,there is coconut, there was a date palm,just in looking at what was provided to me by Mr. Sams. And you know I have to apologize that he is not here because it was my failure in reading the agenda to notice that we were on the agenda and that I what I told Mr. Sams so that is my fault. Chair: So right now there isn't much on the property as of today. Ms. Nishimitsu: Banana, well it is planted throughout the property. There are orchids also, that is not a fruit tree, that is not for consumption, they have heliconia, they have ginger, and bananas really aren't landscaping they are for consumption. Mr. Blake: I have seen representations made in previous applications where they say they are so small that they raise their produce for home use and whatever they can't consume they give to the senior centers. So on a small lot like this when you have two structures on there already there is not much that you can raise that is going to (inaudible). Planning Commission Minutes April 10,2012 20 Mr. Texeira: I have a question. This is for Mike; could we revisit condition No. 21 please? I just want further clarification especially as it relates to "the workshop cannot be used for residential purpose at any time." Lorna mentioned that if the applicants stayed on the property there would be a spill over because of the size of the family to use the workshop, storage shed. I am just saying that the condition states that you can't use it at any time. Ms. Nishimitsu: That would be only if it were allowed to be converted to a guest house but the workshop/storage structure so long as it is classified as a workshop/storage structure has to be limited to those uses. Mr. Texeira: Which is what we are discussing right now, right, we haven't gone beyond that. The rest is just supposition. Mr. Raco: What did she say, storage? Mr. Texeira: Storage/workshop. Mr. Raco: So can you sleep in a storage/workshop? Mr. Texeira: No, that is what it says, you cannot, twenty one says you cannot for any, you cannot sleep there. Staff. Twenty. Mr. Texeira: Twenty, I'm sorry, that is why I wanted your clarification. Mr. Raco: Is that right Mike? Staff: Yes,twenty say, "The workshop/storage structure on the property shall not be used nor be advertised for transient vacation or residential purposes at any time. Prior to the annual renewal of the permit applicant shall arrange with the Planning Department for an inspection of the structure." Mr. Raco: So now the owner doesn't even have a chance to barbeque or sleep over there. Chair: I think what Laurel was trying to say was that in the future if they decide to get a permit to turn it into a guest cottage. Mr. Raco: Okay but right now if the TVR is approved the owner would not be on the property. Chair: Not if the TVR is rented. Planning Commission Minutes April 10,2012 21 Staff: However I need to point this out also because the addition of condition twenty six says "Applicant shall execute an affidavit for recordation purposes that will confirm that the workshop will not be used for residential purposes unless approved by the Planning Commission." Mr. Blake: Asa TVR. Staff: For residential purposes which means if it got converted to a guest cottage so I see right there twenty and twenty six are a little skewed because one says the workshop can't be used for residential purposes and twenty six says well you can if you come back to the Planning Commission and get approval. Chair: So do you want to scratch twenty six? Mr. Raco: No, it reinforces. Staff: Yes, it reinforces it. Mr. Texeira: I don't understand, why would it be skewed then? Mr. Raco: You don't want to take it out. Staff. Yes, this one is pretty clear. Mr. Texeira: Twenty is clear to me. Chair: So twenty six would say that if they want it they have to come back to the Commission? Staff: Yes. Mr. Texeira: Why do we have to worry about that? Why don't they just cross that bridge when they come to it? Mr. Dahilig: What it is, is a statement about the authority that if they choose to convert that particular structure into a guest house that the only way to do that is through Commission approval and that condition read with twenty six reinforces that reservation of authority by the Commission to say be aware, don't use this for anything but storage and workshop use. And if you decide to change it you have to come to us. Mr. Jung I think it is intended to alleviate expansion so you can't expand off what was originally proposed. Planning Commission Minutes April 10.2012 22 Mr. Texeira: I understand. I just didn't know why you had to say it again. It seemed like it was already implied. That is fine if you want to repeat it. Mr. Dahilig: I guess the other thing too is it is always safer to have repeated conditions that get read together that way. We are just being very clear to the applicant do not fool around with this house. Chair: Any more questions? So what does the Commission want to do? Mr. Dahilig: Again Commissioners, right now on the floor is the motion that was there last meeting which is to approve this particular application with twenty six conditions. At this point unless the Commissioners still want to engage in further deliberations that is the current motion to be voted on, on the floor. Chair: So can we have a discussion before we have a motion because the motion is already on the floor? Mr. Junw. You can continue your discussion. Chair: Any discussion? Mr. Raco: Chair, if I may, I would use the discussion to state my reason why I did not vote in favor of the motion that was made the last time. At the first meeting the applicant admittedly said that the TVR would not support and then what we hear today is that it will. But what we also heard today was that there was no agriculture before or there was no market or there was no plan that he had agriculture going before the actual TVR. And like I stated to the applicant's representative this morning is it looks like the equation is just leading back to the reason why I would not be supporting the motion because of what the applicant did say on the record, that the TVR would not be supporting agriculture but would be supporting the finance and the mortgage of the property. So I cannot motion for the approval on the floor because of those reasons. There is no history of agriculture and if we had to look at other applicants that we approved at least there was something, at least there was something there that we could put our hat on or I could rest assured that there was agriculture there before. In this application there was no agriculture there before and now the applicant is going to be forced to do agriculture which is just not the right way to do it. It should have been done before the special permit should have been then approved if there was agriculture but there is no agriculture now and there is not going to be agriculture afterwards. Mr. Blake: My understanding of what the Adkins stated when they were asked about whether the TVR operation supports their agriculture efforts, first he said no-and then he said they were separate and then he said even though they were separate the income from the TVR helps to support the Ag. effort. That statement I have heard before on numerous of these TVR applications,they want to farm but they need another source of income to supplement the farming income. The second thing is there was some agriculture which was primarily for home Planning Commission Minutes April 10,2012 23 consumption and now the emphasis has changed in the department to acquire an Ag. plan which means even if you are going to do it just for home consumption you better do more than you did before. Which I think is congruent to the requirements of an Ag. parcel, you are not just going to have a beautiful for instance. And then we have the fly in the ointment of this other structure which they know now if they didn't know before is a big fly in the ointment so they are fore warned that if you use it as a...you can't advertise it as an additional bedroom. And if it is utilized as an additional bedroom for a TVR rental then that puts the whole permit at risk. I am not sure myself if you have four people there and two decide to stay in the workshop how any harm is done to the overall purpose of the TVR situation. If you have four people, instead of them all having to stay in the main house two of them say we want to sleep in there and let you sleep in the main house. I am not sure like I said, it is not more than four but I don't see how that harms or works against the twenty six conditions. So that being my understanding of what is happening I would tend to support their application. Mr. Texeira: I would be supporting the application because I am not so sure, I just want to be sure that we are treating all the other TVR applicants the same as this one and I am not too sure that we are asking more of this applicant than we are of others. I am not sure about that. Mike, would you need to clarify that in terms of the marketing requirement of the TVR applicants especially as it relates to the smaller parcels. Are we requiring more from this applicant or as much as those that we have already approved? Do you see any difference between this application and the other applications of similar size? Staff. They are all pretty consistent; the conditions of approval are pretty consistent. Mr. Texeira: That is my concern. Mr, Katay ama: There may some grey but I don't think the delineation is enough to create enough separation in my mind. Chair: Okay. We have a motion on the floor already. Can you repeat the motion please? Mr. Dahilig: Again, Mr. Chair, the motion on the floor as put for vote on 3/27/12, was to approve Special Permit application 2012-25 with twenty six conditions over objection of the applicant. Chair: Any discussion on that? Mr. Blake: What was that again about over objection of the applicant? Mr. Dahili : She raised an objection to the conditions, one condition; she raised an objection to one condition. Planning Commission Minutes April 10,2012 24 Chair: Any discussion, seeing none can I have roll call please. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to approve Special Permit SP-2012-25 with twenty six(26) conditions, motion carried unanimously by the following roll call vote: Ayes: Katayama, Texeira, Raco, Blake, Kimura -5 Noes: None -0 Absent: Matsumoto -1 Not Voting: Vacant -1 COMMUNICATION (NI ONE) COMMITTEE REPORTS (NONE) NEW BUSINESS Zoning;Amendment ZA-2012-5 = County of Kaua`i. Item was deferred. ADJOUNMENT Commission adjourned the meeting at 11:00 a.m. Respectfully Submitted. Lani Agoot Commission Support Cle Planning Commission Minutes April 10,2012 25