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HomeMy WebLinkAboutpcminutes5-8-12 KAUAI PLANNING COMMISSION REGULAR MEETING May 8, 2012 The regular meeting of the Planning Commission of the County of Kaua`i was called to order by Chair Jan Kimura, at 10:43 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 Ms. Camilla Matsumoto Absent and excused: Mr. Caven Raco Discussion of the meeting, in effect, ensued: CALL TO ORDER ROLL CALL Chair: Can I have roll call please? Mr. Dahilig: Commissioner Raco, Commissioner Blake, Commissioner Katayama, Commissioner Matsumoto, Commissioner Texeira, Chair Kimura, you have five members present,you have quorum. APPROVAL OF THE AGENDA On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve the agenda, motion carried unanimously by voice vote. MINUTES OF THE MEETING(S) OF THE PLANNING COMMISSOIN (NONE) RECEIPT OF ITEMS FOR THE RECORD Ms. Matsumoto: I have a question, in the packet this copy of the bill for an ordinance to amend Chapter 8, I believe pages twenty three and twenty four are missing,at least they are missing in my packet. I was just wondering if that was on purpose. 1 VA2012 Master Fiteslcommissions\Planning\MinutesNinutes-1 5-21-12 LA May 8.doex JUN 2 6 2012 Mr. Dahilig: Let me make sure we get those to you before we hit the agenda item. Ms. Matsumoto: It is the last double sided copy. It might just be my copy. HEARINGS AND PUBLIC COMMENT Individual may orally testify on items on this agenda during the Public Hearing 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 take 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 rivelve (12) copies of written testimony can be hand delivered to the Planning Department or submitted to Commission Staff at the meeting site. CONTINUED AGENCY HEARING (NONE) NEW AGENCY HEARING: Class IV Zoning Permit Z-IV-2012-16 Use Permit U-2012-13, and Special Permit SP- 2012-37 to allow construction of a new permanent maintenance facility and expansion of the existing cemetery and associated uses within the Special Treatment District-Public Facilit y ST - P) at the Kauai Veteran's Cemetery facility in Hanapepe, and Variance Permit V-2012-7 to deviate from the requirements noted in Section 8-5.5(a) of the Kaua`i County Code (I 987) relatin to the maximum land coverage requirements within the Open O Zoning District on property situated on the west side of Lele Road approx.. 400 ft. south of its intersection with Kaumuali'i Highway,,further identified as Tax MaI2 Key 4 1-8-008:038, and containing a total area of 11.447 acres=State of Hawaii.Department of Accounting and General Services (RAGS) and County ofKaua`i,Department of Parks and Recreation (DPR). (Director's Report received 4/24/12.1 Chair: Anybody want to speak on this agenda item? Seeing none... Mr. Dahilig: Mr. Chair, seeing no testimony I would recommend that the Commission close the agency hearing for this particular permit. Chair: Can I have a motion to close public hearing? Did you guys want to speak on this agenda item? Mr. Dahilig: Commissioners, this is the public hearing portion. We will ask the applicant to come in and discuss the item as part of the action item later on in New Business. Chair: Can I have a motion? Mr. Texeira: So moved. Ms. Matsumoto: Second. 2 V:12012 Master Fileslcommissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.docx Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to close the public hearing, motion carried unanimously by voice vote. 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=Michael M. Dyer Revocable Trust. POSTPONED. CONTINUED PUBLIC HEARING Zoning Amendment ZA-2012-5 to amend Chapter 8,Article 27 of the?Kaua`i County Code 1987 (as amended)to incorporate the shoreline change data produced by The University of Hawaii Coastal Geology Group in the Kauai Coastal.Zone Erosion Study and other amendments relating to setback calculations (public review document will be made available binning March 7 2012)=County of Kauai,Department of Planning. [Postponed 3/27/12, continued 4/10/12.1 Chair: Does anyone in the public want to speak on this agenda item? Ms. Caren Diamond: Aloha, Caren Diamond. Again I guess the process is a little strange that I have to speak first. I think you are probably going to be asked to defer this item. It would be helpful if you kept the public hearing open because the bill still needs to have changes and what those changes will be we won't really know. Either way I would ask you to look at this bill in a different way and in the way that it is not only about development but about the beach and about the public trust and our public rights. And I think the purpose and the way this bill is framed at the moment is really incorrect and it forgets about the beach, forgets about the public trust. As a county you rights, and I am glad I was here this morning and so were you for the CZM education, but you county authority starts from the shoreline, from the certified shoreline, landward. And if you skip that certified shoreline process I am not sure how we are ever going to really accurately know whether your development is happening on public trust land or state conservation land or private land that should be administered under the county. Commissioner Katayama,you were asking about what tools we have and the tools we have is actually to get a current certified shoreline before development happens. And that way any development that does happen,happens landward of that and your setbacks happen from the point of a current certified shoreline. So I respectfully ask that the bill be rewritten to actually include that to happen. It is 205A, it is state law and I don't think the county has any authority to diminish state law or forget about it either. Dr. Fletcher completed the coastal erosion hazard study for Kauai and so that is on line and that is what this bill is all about is putting the coastal erosion rates into our laws. There are also other coastal hazards and so in making a bill that takes into consideration sea level rise, takes into consideration other coastal hazards would be wise for you to do. We are talking about protecting life, property, structures,people, and our way of life. 3 VA2012 Master Files\Commissions\PlanningNinutes\Minutes-1 5-21-12 LA May 8.docx We don't know what sea level rise is going to do but we know developing inland is a good thing so this bill really is...it sets forth a good policy in doing erosion rates and doing setbacks based on that. But where the law will be applicable is really the details of how this bill is written and that is what needs to be worked out. Just one more thing,or two more things,the twenty foot, going down to twenty foot setback really puts structures where it is an eminent hazards. And so the way this bill is written right now in the variance process it allows that to happen and so I would ask you to look at changing that and never letting anything go below forty feet. And also protecting our sandy shorelines and making sure that in areas of dynamic high waves that that actually happen because coastal erosion doesn't always incorporate the high wave data. And so if a lot of this bill is in making sure that the small properties are allowed to be developed no matter how small they are you also have to consider other things as well. And the last thing that I want to say is the best thing we can do is move development inland. These are your rules and you get to implement them and take the time to actually make sure that you really like them and that they do what Kaua`i really needs to have done which is protect our beaches. And statewide, if you look at why Kauai should be the leader, it is because we have the most beautiful beaches and the most amount of sandy beaches anywhere. And I think the whole world is recognizing how incredible Kauai's beaches are and the way they can disappear is through development. And so these rules are really important and I would ask and I thank the Planning Department for being open to amending these to make them right and I hope that that happens,thank you. Chair: Anyone else want to speak on this agenda item? Mr. Dahilig: Mr. Chair, Ms. Diamond is correct in suggesting that we will be requesting a deferral of the item until a future Planning Commission date and in light of that I would recommend that the Commission not take any action on the public hearing and leave it open until the next Commission meeting that this particular item is taken up. Chair: Do we need a motion to defer? Mr.Texeira: Could I ask a question of Ms. Diamond? I just wanted to ask about does anybody have any comment in regards to Ms. Diamond's statement about the twenty foot setback as opposed to the forty foot setback. Mr. DahiIig: Commissioner we will address that as part of the presentation that our department will give in New Business pertaining to this particular item. Mr. Texeira: At the next meeting? Mr. Dahilig: No,we will be taking this up under New Business but asking for a deferral. Chair: So we are not making a motion to defer right now? 4 VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 GA May 8.docx Mr. Dahilig: No. NEW PUBLIC HEARING (NONE) ALL PUBLIC TESTIMONY PURSUANT TO HRS 92 (NONE) CONSENT CALENDAR Status Reports (NONE) Director's Reports for Proiect(s) Scheduled for Agency Hearing on 5/22112. (NONE) Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2012-9 for a shoreline setback determination Tax Map Key (4)2-6-007:013 Poi`pu. Kauai for acceptance by the Commission Jack Hood. Director's Report pertaining to this matter. Chair: Does any Commissioner or two or more Commissioners want to take anything out of the consent calendar and put on the New Business? Mr.Texeira: I just want to state that I am confused by this new methodology and I really don't know why it is needed at this time. I would assume the consent calendar process is to make us more efficient and to have the meeting run in a more efficient manner but if we don't have that many items to discuss on the agenda, if we have a limited agenda then why do we need to go through this process? Chair: It won't always be this simple; the agenda won't always be this small. Mr. Texeira: So can't we do it arbitrarily when we don't have much of a...? Chair: You can take out anything on the consent calendar if you want as long as you have another Commissioner that will agree with you. Mr. Texeira: I realize. What is on the consent calendar? Where is that? Chair: All we have is a shoreline setback. Mr. Dahilig: If you look under item G, you have one item which is the shoreline setback activity determination. This is traditionally used for public comment only. The Commission would usually accept the report at the end of the Commission but we include it as part of the consent calendar because it is there for public comment. s VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 -21-12 LA May 8.doex Mr. Texeira: Okay, so when do we take this up then? Mr. Dahilig-. Based on the rules that the Commission approved a couple months ago what happens is that if nothing is moved from here that this consent calendar is deemed approved upon the adjournment of the meeting and so no action is necessary. Mr. Texeira: So how does that relate to the Director's report on item G? Mr. Dahilig: The Director's report is there for the Commission's review and if the Commission has any question on it he or she can seek another Commissioner to move it to New Business for further discussion. Mr. Texeira: Well I would like to make a motion that...how do we formally make a motion to do that? Mr. Dahilig: If you would like to discuss the shoreline setback you would need to indicate to the Chair upon his prompting whether you want to move it out of the consent calendar to New Business. Mr. Texeira: I would like to Mr. Chair. Chair: Can I get another Commissioner to... Mr. Katayama: I will second that. Chair: So we will move agenda item G.3 to New Business under M. EXEUCUTIVE SESSION (NONE) GENERAL BUSINESS MATTERS Letter(4/15/12) from Carl Young; for Request of Time Extension for Variance Permit V- 2011 1 and Class IV Zoning Permit Z-IV-2011-6 Tax Map Key 3-4-001:003. relating to Condition No 6 of the approval requiring completion of construction in 12 months or by May 11 2012 for the proposed Sprint cellular antenna sites near Halfway Bridge. Director's Report pertaining to this matter. _Mr. Dahilig: Mr. Chair, we received a letter from Mr. Young withdrawing this request so I would ask that it not be taken up by the Commission at this time. Chair: It will be at the next meeting? Mr. Dahilig: It is just removed. Mr. Katayama: That means the Special Use permit will expire? 6 VA2012 Master Fifes\commissionslPlanning\Minutes\Minutes-1 5-21-12 LA May 8.docx Mr. Dahilig: It will expire and if they choose to act on it we would have to deny and they would have the opportunity to bring it to a contested case hearing in the event that they feel that they are still entitled to the use. Mr. Katayama: But administratively because there is no request for an extension, it will exceed the expiration date. Mr. Dahilig: Correct. Mr. Katayama: So it is deemed expired. Mr. Dahilig: It is deemed expired, correct. COMMUNICATION (NONE) COMMITTEE REPORTS Subdivision. Mr. Texeira: Mr. Chair, I would like to report on the Subdivision Committee meeting. We had two items under New Business and both of them for tentative subdivision extension requests, one was 5-2008-16 and it was approved 3-0. This was a 2-lot subdivision Mr. Chair. The second item was 5-2011-16 and the applicant is Cameron K. Burgess and this is in Wailua Houselots, TMK 4-1-008:013, and this was a 4-lot subdivision and the extension request was approved 3-0. That concludes my report Mr. Chair. Chair: I have a quick question, 5-2008-16, item 1.a, I notice it is the fourth extension that they are asking for. Mr. Texeira: Yes. Chair: Do you know what agency that is that they have to work with? Mr. Texeira: I think we can call on Dale. Chair: What is the reason for the extension and what agency? Staff Planner Dale Cua: This is for which application? Chair: Soong. Staff: They are working actually with Public Works as far as addressing the roadway improvements for this subdivision. If you look on the subdivision map I have provided the subdivision occurs at that intersection of Paleihu Road,Nunu Road and Haua'ala Road. At the 7 VA2012 Master Piles\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.doex time of tentative approval for this subdivision there was a requirement that possibly making the connection from Nunu Road to Haua`ala Road. The challenge with that particular requirement is that there is a significant topographical constraint between where the subject property lies and where Haua'ala Road exists. I think there is at least a twenty or thirty foot elevation change. So although on paper what you see is an intersection it is a physical challenge to make that connection and to make it comply with county roadway standards. I think more recently, I think in the last two weeks the applicant has finally resolved this requirement to make the connection and Public Works has agreed to drop it. Chair: Thank you. Can I have a motion to approve the subdivision report? Ms. Matsumoto: So moved. Mr. Blake: Second. Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to approve Subdivision Committee Report, motion carried unanimously by voice vote. UNFINISHED BUSINESS (NONE) NEW BUSINESS Class IV Zoning Permit Z-IV-2012-16 Use Permit U-2012-13, and Special Permit SP- 2012-37 and Variance Permit V-2012-07=State of Hawaii Department ofAccounting and General Services (DA GS) and County of Kaua`i,Department of Parks and Recreation (DPR . Staff Planner Jodi Galinato read staff report(on file). Chair: Anyone have question for the planner? Seeing none is the application here? Mr. Jean Young: Hi, my name is.lean Young and I am with Belt Collins, we are the agent for the applicant. Ms. Gina Ichiyama: I am Gina Ichiyama with the Department of Accounting and General Services, Public Works Division. I am the project coordinator for the project. Our department is like the contracting agency who is doing the work for the Department of Defense so we are implementing the project through design and construction phases. Mr. Lieutenant Neil Mishiyoshi: I am Lieutenant Neil Mishyoshi, I with the Department of Defense, Chief Engineering Officer. We are basically the owner of the property and really the reason why this project falls under the Department of Defense is because the VA has a program which allows one hundred percent reimbursement for capital improvements on veteran s VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.doex cemeteries. And that reimbursement must travel through a state department; we are that department through the Officer of Veteran's Services. Chair: Does anyone have any questions for the applicant? Mr. Dahilig: I just want to ask,you have reviewed the proposed conditions, do you have any objections to the proposed conditions? Mr. Young: We have had a chance to review the conditions and they (inaudible) and we have no objections at this time. Mr. Katayama: Do you have an NPDS permit? Mr. Mishi, oshi: We will be obtaining NPDS permits at the point in time when the different phases of our development where NPDS is applicable. Mr. Katayarna: I guess to the planner, other than Health it Iooks like 411 the other agencies handle issues with projects. Staff: Yes, they have gotten all the recommendations and in addition they have even worked with Salt Ponds and they reviewed the staff report and they are satisfied with that. Mr. Blake: As you are sitting in the pavilion that is presently there facing west, in which direction does the property drain? Does it drain all around it or inland or does it drain into the ocean? Mr. Young: The property drains away from Lele Road, slopes down into the pavilion and then the area where the existing grass ends right now is roughly the low point in that general area. So the six acre expansion area that is further west of the committal shelter similarly drains into—then drains east to the back of the committal shelter and to a very flat basin in that general area. So the project will not change the general drainage characteristics for that area. Mr. Blake: So you are not going into the salt ponds then. Mr. Young. No. The project site, maybe I will show a map. The project site is here and the salt ponds are over here so it is about 1,500 feet or about a quarter mile. So the drainage area for the existing cemetery and expansion area is in this area here about 1,500 feet east of the salt ponds. Chair: I have a question. Where your parking lot ends now and your road extension coming out into the new area,will that disturb any grave sites? Mr. Young: No. Perhaps I can show you where the grave sites are. The existing grave sites are to either side of this parking lot and where the grass area where the parking lot extends there are no grave sites in that area. 4 v:\2012 Master Files\Commissions\Planning\Minutes\Minutes-15-21-12 LA May 8.docx Chair: Thank you, any more questions for the applicant? Seeing none, thank you, what does this Commission want to do? Mr. Texeira: Mr. Chair, motion to approve Special Permit SP-2012-37 . Mr. Blake : Second . Chair: Any discussion, seeing none all in favor say aye, motion carried. On motion made by Herman Texeira and seconded by Hartwell Blake, to approve, motion carried unanimously by voice vote. Mr. Dahilig: Mr. Chair, the next item regarding Class IV Zoning Permit Z-IV-201245 , we are again asking for a deferral on that item because of lack of service on the public notification requirements. Chair : This is the third deferral already ? Mr. Dahilip : There have been multiple deferrals Mr . Chair, Chair: Is there a timeline on that? Mr. Dahilig: We cannot move until they by law all the people that are served are properly served and so no clocks start at this point. Chair: Zoning Amendment ZA-2012-5 , County of Kauai, Department of Planning, Ka` aina. Staff Planner Ka` aina Hull : Good morning Chair, members of the Commission. I am going to do a brief summary about the shoreline setback ordinance. This ordinance was originally passed approximate four years ago and the intent of the ordinance is essentially to protect. . . it is twofold, to protect life and property from coastal hazards as well as protect shoreline processes from structures. For example we have all become too familiar with how seawalls can affect lateral drifts and essentially create coastal hazards in other areas . That is the meat and potatoes of the ordinance itself and its intent. Before I go into the amendments just to take a step back and discuss how essentially shoreline setbacks are established. Setbacks are essentially areas of a property, buffer zones that cannot be built in and were originally established well over a century ago as a planning mechanism under what the County Attorney will go into great length to discuss about how it started from the Chicago fires. Essentially buffer zones need to be created in order to separate fires from jumping buildings . So using ,it in the manner of shoreline protections keeps this essentially protection of life and property in mind. 10 VA2012 Master Fiies\Commissions\Planning\Minutes\Minutes- 1 5-21- 12 LA May 8.doex When you establish setbacks say for side setbacks or rear setbacks,front setbacks, it is from a property line and is relatively easy to establish, it is ten feet or five feet or half the height of the building. But you essentially draw it from the existing property line. Where it become particularly complicated for shoreline properties is that you have to draw the shoreline setback from the actual shoreline and the shoreline is a migrating entity, it moves forward or backward. And so in order to establish where exactly that setback line falls you have to go through a shoreline certification process which entails hiring a surveyor, going through the Department of Land and Natural Resources,and then ultimately having this body accept it. So with that it can be a fairly lengthy and fairly costly and in many cases a necessary measure to require. But like I said it can be fairly lengthy, it can be fairly costly. And under the original bill...well the amendments we are proposing right now are two-fold,the first point is that we are attempting to clarify or accept a specific formulaic process which we can establish a shoreline setback. When the original bill was passed Dr. Chip Fletcher who was mentioned in great detail in the previous presentation was doing a study for the entire State of Hawaii including Kauai on the erosion rates of each island. And when this bill was originally passed he hadn't completed the study for the Island of Kaua`i. So when the bill was passed it required that the applicant use Chip Fletcher's erosion rate studies where he had done it on the island if the property abutted the erosion rate studies. But if he hadn't done it for a certain area it allowed the applicant to use essentially an average lot depth formula table that was derived to establish how the setback line would be. Since that time Chip Fletcher has completed this study, it has been adopted in the Coastal Erosion Study Plan,and we are essentially coming to you as was intended originally to have the ordinance incorporate solely just the formulaic approach as opposed to the visa versa table versus formulaic approach. Under the original ordinance when the erosion rate is available it requires that those lots or those projects that have a structure under 5,000 square feet in size they set that structure back seventy times the coastal erosion rate plus forty feet. So if you have(inaudible) one foot you essentially have a setback of 110 feet. For structures over 5,000 square feet it required one hundred times the coastal erosion rate plus forty feet. The department is coming in now and recommending doing away with the table and accepting just the formulaic approach and with the sole number of one hundred times the coastal erosion rate plus forty. When it was originally adopted the seventy came from what was at that time.believed or perceived to be the average lifespan of a building. But in looking at it further we have come to understand with the increase in building materials, building processes,the update to the building code,the average lifespan of a building is that much longer and is expected to be about one hundred years,hence the adoption of the more restrictive or one hundred year timeframe. With that in discussing these amendments with people at UH and other individuals one of the key issues that the original ordinance doesn't address is subdivisions and we have decided to include or propose that it be included that this shoreline setback be imposed upon subdivisions, not only on structures but on subdivisions as well because it requires that any-subdivision coming before the Commission that is abutting the shoreline incorporate or plan for having this I1 VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May S.docx more restrictive shoreline setback. Essentially the proposed shoreline setback formula will be, if passed,one of the most progressive shoreline setbacks. Not just in the State of Hawaii but indeed in the entire country. There is one caveat though, of course,because the shoreline setback would be setback a considerable amount from what was originally established there needs to be some or we need to at least acknowledge that many lots will not be able to meet this conservative approach. There are many lots that were subdivided prior to anticipating coastal erosion,anticipating shoreline hazards and the setback would essentially not allow any buildable or in fact go beyond the property and the entire property would be located within that setback. So in those cases the department is proposing that the table be reverted back to allow for...right now we have it proposed to allow for 5,000 square feet but in discussions with Ruby Pap who is actually Kaua`is UH Sea Grant representative, she was able to point out that it might in fact be more appropriate to incorporate a minimal buildable footprint which actually is in the existing ordinance. The department is going to be taking a look at that in the future. Secondly,aside from proposing the new formula the department is also looking at amending the applicability. Now the applicability portion of this ordinance as it exists today has been extremely problematic for the department. Under the existing ordinance a fairly broad net was cast over the island,the department will argue overly broad and excessively broad in that it requires all properties abutting the shoreline to meet the standards of this ordinance. And it requires all those activities and structures covered by the comprehensive zoning ordinance to meet the shoreline setback requirements. Firstly,when we think about properties abutting the shoreline which is why it was probably drafted this way,we generally think of small lots which are why we can say it shall be applicable to all shoreline abutting properties. But in actuality there are several large properties on the Island of Kauai that do abut the shoreline and by requiring these properties to meet the shoreline setback ordinance it somewhat unfairly or unreasonably requires applicants or landowners to go through this process when in fact it more than likely is not even necessary. A case in point would be say the improvements proposed in the Koloa Mill area. Recently agricultural fencing was proposed in that area. KoIoa Mill is roughly a mile to a mile and a half from the shoreline but it sits on a property that is an abutting shoreline property and therefore the fence proposed in this vicinity was required to come through the shoreline setback determination process. And it is proposals like this that either go through this scrutinous process when it is actually not necessary or the landowner/applicant opts out of ever doing it or opts out of going through the legal process of doing it in a sense that it actually creates a violation on their property. So what the department is attempting to do or proposing to do is say that it is not applicable to all abutting shoreline properties but restricted within the vicinity of where it may be affected or affects the shoreline,we are saying that area would be within five hundred feet of the shoreline. So those projects proposed within five hundred feet of the shoreline will be required to have to go through the shoreline setback determination process. Secondly,within that five hundred feet we still have to allow for a certain amount of discretion because in looking at the 12 VA2012 Master Files\Commissions\Planning\MinuteslMinutes-1 5-21-12 LA May S.docx existing ordinance it doesn't only apply to just properties, it applies to all structures and activities occurring within what would be now that five hundred feet. So the Director needs some discretion we are arguing in order to say whether or not it will be affected by or affect coastal processes. And there are individuals and testimony received that essentially argues that it should be required for all activities and/or structures proposed within that five hundred feet. When we think of development we think of the CZO or we think of uses. A lot of times our minds just go straight to residential uses, commercial uses. The fact of the matter is a lot of the uses and the bulk of the uses that are covered in the CZO aren't just residential,they aren't just commercial,they are uses such as picnics,volleyball games,surf schools. Some of these may be required or should be required to go through the shoreline processes but picnics or volleyball games or any other type of activity like that it is arguable that it should not have to go through the shoreline setback process. But under the existing bill indeed if you propose to have say a picnic which isn't out of the ordinary in the State of Hawaii near the shoreline,technically if they come to the counter we do have to require them to go through the shoreline setback determination process. And to go above and beyond that we are looking at structures. When we look at a structure we often think of single family dwellings,we think of resorts or large scale developments. But you have to understand that under the Comprehensive Zoning Ordinance we regulate all structures and the bulk of permits that are actually passed here or the bulk of developments that actually occur on the island and throughout the entire country aren't single family dwellings,they are not resorts,they are very minor(inaudible) structures such as picnic tables,clotheslines,solar panels. When a person comes in with a picnic table on an abutting property they too are required to go through the shoreline setback determination process of hiring a surveyor,of going through the Department of Land and Natural Resources, of coming to you folks to get it accepted. The Director,we are arguing, needs some discretion to able to weed these applications out and so we are essentially proposing that he be given that discretion within the applicability section. That is the meat and guts of what we are trying to do here. There and other minor changes here and there. There is a lot of underscoring and striking out and a lot of it has to do with the fact that once you change one section of the ordinance you have to change another. I will leave it at that and if you guys have any questions... Mr. Dahilig. Commissioners, if you will indulge me Mr. Chair, I just want to thank Ka`aina as well as Ian as well as Ruby. We have been working very closely with the UH Sea Grant program, especially Dolan Eversole and Dennis Wang. We have also brought in Caren into a lot of the discussions so we have tried to be very inclusive about this and I just want to thank all of those that are involved with it so far for their work on it in trying to get something that is pretty entangled into some logical form. I just want to eco what Ka`aina did mention though,part of the philosophy on this is to rely very heavily on the Chip Fletcher study, it is something that the County found very valuable in investing its resources in order to commission this study. We find that having the science be applied first as part of the applicability section really does give us a better planning tool and better being able to sift out those projects that should require more scrutiny and those that shouldn't.And so that really is the overarching 13 VA12012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May S.doex philosophy that we are trying to implement herein so I guess Mr. Chair,those are my additional comments to the report. Chair: Any questions for Ka`aina? Mr. Blake: (Inaudible). Mr. Dahilig: Commissioner this is proposed to actually be amending the current shoreline setback ordinance. Mr. Blake: How long has it taken to amend it from its original form? Mr. Dahilig: The one that we are currently applying? Mr. Blake: Yes. Mr. Dahilia: I don't have the dates on that. it has been since 2009 the last version passed. Mr. Blake: So with regard to what Caren was talking about,we do look at this often as far as trying to stay current with what is happening on the ground. Mr. Dahilig: In terms of the science? Mr. Blake: Yes. Mr. Dahilig: Yes and I think this is...the completion of Chip's study was actually in 2010 and so we think this is the, what we have been applying as part of the previous ordinance has been the draft study and so this actually is Chip's final study on the shorelines and the provides the most current transects for erosion rates that we would want to apply as part of the applicability process. Mr. Chair: Herman, you had a question earlier? Mr. Texeira: I just wanted more information. I just wanted to comment on transects throughout the island have been completed and the average, on the average one inch per foot. Mr. Jung: About a foot a year. Mr. Texeira: And that is on average and you said some are more and some are less. Staff: Commissioner, I just want to caution that often the term is used within coastal research the term"average", but it varies depending on the place. Some places might have on Kaua`i as extreme as a five foot coastal erosion rate while some places might actually be 14 VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.doex accreting as opposed to eroding. You want to be careful in applying this notion of average and then we can derive something from that because it is really site specific. Mr. Texeira: So my question is that five foot erosion, the very intense erosion, is occurring where and how much? What part of the island? Staff: Do you recall? Mr. Dahilig: Commissioner we can get you a map on that and show you. Mr. Texeira: I just wanted to know how critical that was, if that is a very important shoreline for the island. That is a lot, five feet. Mr. Jung: The maps are also available online as well. Mr. KatUama: I think this has a lot of common sense in it. In this morning's presentation we heard a lot about sea level rise, how does this new ordinance comprehend that? I know we talk about erosion rates as the measure for setbacks but how does this now comprehend things like sea level rise? Staff. As the presentation went this morning the numbers haven't actually been finalized in fact the study is currently undergoing right now under Dr. Fletcher. There is nothing in this bill that specifically draws on sea level rise however it can be stated that it is somewhat anticipated given the relatively large buffer we are including via the one hundred times multiplier versus say other islands that don't' have a multiplier and/or have a multiplier at most I believe half of what we are proposing. Mr. Dahilig: The question of sea level rise for those of us who have been around coastal planning it is a constantly debated issue that we agree that there is change in the height of the sea compared to the land but how we quantify that is still a moving target. As part of the General Plan update what we are trying to do is from a zoning standpoint address sea level rise through a technical study that Ruby has written a grant for and this is through NOAA again to help us from a quantification standpoint refine how we should zone for these types of hazards. But the particular measure in front of you Commissioner Katayama is really more so related to the current authorizations that are under state law relating to just setbacks only. And so as Ka`aina mentioned we can presume that as part of the historical data that Chip was able to gather that part of the retreat on the shorelines is related to the rise in sea level and that is taken into calculation there. But in terms of the actual quantifier vertical rise versus the retreat,we don't have that data at this point and it is still ongoing. Chair: Once the determination of the setback line has been set on a particular property and over the years the vegetation line has moved toward the ocean and they sell the property and the next owner comes in and wants to build a house. Do they use the existing setback line? Staff. Under the existing ordinance the setback line is only good for six months however we are proposing given the time that it takes to go through permit processes and whatnot,we are 15 VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.doex proposing that that be extended to twelve months. But there is a time limit on that setback and so say if today they come in and they want to build and they got a setback in 2011,that setback would no longer be valid and they would have to go through the process again. Chair: I am not saying the Iandowners do this but say they plant their vegetation up further toward the ocean. Now their setback line moves forward... Staff: Under DLNR's,under the process of certifying the shoreline DLNR will determine that shoreline as well as the surveyor as is evidenced by the high wash of the waves and not on vegetation lines. However vegetation lines can be used to manipulate or skew or essentially hide where the high wash of the waves is which in fact has happened where landowners were attempting to essentially grow their properties. And to that there is language within this ordinance which restricts landscaping within forty feet of that shoreline. The County Attorney may have a few more things to add. Mr. Jung The shoreline setback line is just a temporary line of demarcation where you start that no-build zone. So from the setback line up,that is where you should build. The certified shoreline is good for only a period of twelve months but it is a{inaudible}, it changes from year to year but where the structure gets placed is where that setback line is going to be. But if they have to rebuild the home we have some nonconforming elements and repair elements if it doesn't exceed fifty percent there are some exemptions there. But if the home is totally destroyed and rebuilt then they would have to go through the new process which would yield, may yield a different certified shoreline which could then yield a different setback line. Chair: So the setback line is determined on the vegetation line? Mr.Jun 7: Not necessarily. Chair: The high water mark? Mr.Jung: They look at a multi-variable approach based on state law which is the high wash of the waves evidenced by the debris of vegetation lines but there are other variables. Chair: Let's just say Hanalei Bay. They are x amount of feet away from the ocean where the high water mark is. And their setback line will determine how,vegetation? Mr.Jung: DLNR has a process which they go through. So the way the process works is, Ka`aina kind of outlined,the applicant goes to DLNR and says I want to get...they hire a surveyor,go to DLNR and say here is my survey. DLNR takes a look and then the Chairperson of DLNR then approves it based on comments from DAGS where the state surveyor comes from and then if someone wants to appeal that they can appeal it and then it goes to the full board. If there is no appeal then the Chairperson just signs off on it. And then at that point they have a period of six months currently under the law to come to the County to establish the setback line based on the certified shoreline. But what we are proposing is we increase that to twelve months 16 VA2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 3.doex just because it is a narrow window of time to get in there. So DLNR sets the certified shoreline and off that certified shoreline we set the setback. Mr. Katayama: How does the department under this proposed legislation handle the erosion effect of the shoreline access which has become public access I guess controlled by the state to the private owner's property line? Because at some point you will have demarcation where the current property boundaries are surveyed and if we do have erosion rates that should at some time cross into the private property. Mr. Dahilig: The way the state law as well as the case law concerning... Mr. Katayama: How does this legislation handle that? Mr. Dahilig: The way that this legislation would handle that is with the understanding that the boundary between what is state property which is the high wash of the waves or debris line is a dynamic line and all indications from Chip's study is that this line is retreating. And so in the process of trying to maintain sandy beach areas for the public to use it should be a risk awareness issue for the private landowner that they over time will lose portions of their private property and it will become public based on evidence of the high wash of the waves. And so given the more strict and larger numbers and larger factorials that we are including in the process what we are saying is you know that you are building near the shoreline, you know that that the law in the state is the you will lose private property as the shoreline retreats and therefore over time you cannot impede that. And if they choose to impede that by armoring then that becomes a question for the State Board of Land and Natural Resources. So let's say if they want to stop it from retreating that does fall outside of our jurisdiction except for SMA issues. And really it becomes more of a property rights issue for the state to say whether they want to forfeit the ability of the shoreline to retreat and therefore lose the ability to gain or maintain that swath of sand as it retreats back. Or they can tell the landowner,private landowner you know what the laws are,too bad, the line is going to move inward. And by having the larger setbacks it will allow for that more natural progression of the shoreline and maintain that access for the beach. Mr. Katayama: So you rely on case law as to interpret that use. Mr. Dahilig Yes. That really is—it boils down to the Ashford and Soto Mora cases that clearly define where that line is and it is that high wash of the waves or evidenced by the debris line or salt line or that type of thing. Mr. Jung: In other words trespassing would be a difficult thing to prove. Mr. KaMama_ Well what about liability in the case of where the high water mark is definitely eroded onto private property by survey and now that becomes public. So is that sort of a joint liability at that point? 17 VA2012 Master Piles\Commissions\PlanningkMinuteslMinutes-I 5-21-12 LA May 8.doex Mr. Jun;n: Yes sort of because there is case law,this Littleton case that suggests the state is responsible for areas below the shoreline but the state slipped in a provision in 4612 that requires the counties to clean debris from the beaches. So there is a case that suggests in one particular case where a telephone pole was washed up but the county could be liable because we have to go and clear the beaches. Mr. Katayama: And so in this case public activities on private property. Mr. Jung: Right but there is HRS 520 which allows for...it is the recreational use statute so that has to be gross negligence versus just ordinary negligence and landowners escape liability for people who enter to use their property for recreational purposes. Mr. Dahilig And just to provide a little more context in Ka`aina's discussion regarding applicability,part of what is interwoven in the process is the county relying on a state agency that really has one person dedicated for the whole state to do this. And it becomes a very expensive and intensive process where it involves the whole Board of Land and Natural Resources as well as approval by the Chair of the Board of Land and Natural Resources. What we are suggesting from the applicability section is we believe that is appropriate in circumstances where you are within the zone of risk because we really need to clearly delineate where that line is. But in certain circumstances like Ka`aina mentioned with respect to the Koloa Mill example there are areas that are clearly outside of that area that really would not require us to finally determine where that line is. And so that is part of that element of non-applicability that we are looking at trying to put in is that okay, we know what the erosion rates are, we know what is clearly outside, we are using a one hundred year factorial plus one hundred feet. So we are being very cautious with respect to when we make bad determinations. Mr. Katayama: I think that part of the regulation is logical and reasonable. I think what is going to come before the Commission or the challenge is that the private landowners rights to preserve their property as they lose it where they don't want to forfeit the public access to their property. And hence I think a lot of discussion is going to be on what mitigation can a private landowner use to preserve that. I think that is where we are probably going to spend or someone is going to spend a lot of energy addressing. Mr. Dahilig: We include half of that equation or formula which is the default to table 2 for those that are either grandfathered as Ka`aina mentioned with those subdivisions that had been done beforehand or for those that need enough space to economically use their property. And that is a US Constitutional standard that we cannot just by regulation impede all economic use based on this regulation. Mr. Katayama: I think the key element there is a cumulative effect of doing these projects, preservation of private land rights, I think that is the challenge. 18 V:\2012 Master Files\Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.docx Staff. I will just add to, to go back to the Director's previous discussion concerning applicability. I was actually a little—hoping that it would be taken off when it was by Herman Texeira,the shoreline setback determination that is before you folks today is a particular example of where the Director could have used his discretion under the proposed amendments but could not use his discretion today. And the shoreline setback determination you folks will be looking at is an interior renovation essentially for a countertop. There is a countertop going inside a building on a shoreline property. This obviously is not going to affect the shoreline but under the existing ordinance and having it be applicable to all development and structures as it is today, essentially this is the outcome and you will see that. Mr. Texeira: I have a couple questions; one is in response to Ms. Diamond's statement about the twenty foot setback. I think it is forty feet. Can you clarify that? Mr. Jung: This ordinance or article of the CZO has its own variance section so technically the standards of how you apply a variance for a shoreline setback determination would apply. And in this case you look at the minimum setback would be twenty feet. And there is a whole host of approaches you have to take in looking at whether or not you are going to approve a variance but should you approve it there are some conditions that get attached and of those conditions that get attached there is one, no armoring devices whatsoever. And you cannot get any armoring devices in the future. You have to execute and record a waiver as such. And then you have to indemnify the County for any possible damage to the structure. So there are some built in provisions in there but that is pursuant to state law where the minimum can be at twenty feet and taken off OCCL's model, Office of Coastal Conservation Lands model of minimum twenty feet. Mr. Texeira: So we have as a County no control over what the state has already... Mr. Jung: Yes, that is set by the state. Just a point of clarification the'state does set a maximum of forty feet but the county can go further and that is what we have done in this case. And what Mike Dahilig and his staff have come up with is the hundred time annual coastal erosion rate plus the forty feet,the buffer versus what Maui does at twenty five. Mr. Texeira: There is nothing we can do about the twenty foot setback; it is out of our control. Mr. Jung: That is what the variance is for is for you guys to look at all angles on it. That was in the original ordinance that was created in 2008. Mr. Dahilig: What it does,the variance, again because we derive our authority from state law we have to hold to twenty no matter what and so what the variance process allows us is in those extreme and rare circumstances where somebody wants to make a case to the Commission that they should not fall under what is the scientific approach and then the table approach,that they need relief,that this variance process does it in those extreme and rare circumstances. But philosophically a variance is what it is, it is not meant to be the typical norm. 19 VA2012 Master Files\commissions\PlanninglMinuteslMinutes-1 5-21-12 LA May 8.docx Mr. Jung: And just as an example there are the Kuleana lots that were created well before the CZO was ever crafted or conceived so technically there are lots that are nonconforming that are out there that do exist which are entitled to density and it is just how they get that density and to minimize impacts. That is what the variances are there for. Mr. Texeira: As you mentioned some of the things we look at is climate change that affects the shoreline. How do we include the tsunami inundation,there were studies done, how does that interface with the shoreline setback? Mr. Dahilig: The way that the tsunami design relates to more vertical types of things versus horizontal and that falls under the jurisdiction of the Department of Public Works Engineering Division which administers the National Flood Insurance Rate Program for the County. And so as part of the velocity zones that the County has to enforce what the Department of Public Works Engineering Division will do is they will look at the maps created by the federal government,particularly FEMA and say okay,your velocity zone is this and your run-up is this amount therefore you need to build the house fourteen feet up in the air. And_so when you go along areas like Kilauea or even in `Anini you will see houses that area raised and that is more of a function of not our department but the Department of Public Works. Mr. Texeira: I just kind of beg to differ on that in the sense that if you look at Hanalei Bay for example historically we already have data that shows how far the waves have come up, Haena, the whole North Shore, KaIihiwai. And so I know the height requirement but the waves, it seems to me that the setback requirement should include the possibility of a tsunami coming right in. Mr. Jun; : Just by function of law based on interpretive by definitions in 205A as well as the interpretations that several cases have taken it does exclude seismic activity, so seismic waves. So it is other than seismic waves. That is the definition of what a shoreline is so it is non-incorporated per say within this particular ordinance but as the dialogue goes on where this becomes a real issue not just with sea level rise but looking at this thing under a 360 it may come up in the future. That is I think what the Coastal Zone Management Program is taking a look at. Mr. Texeira: Right but isn't there something that we should at least discuss and look at closer? We haven't had a tsunami in so many years, it is inevitable we will be having one soon, hopefully not too soon. But the North Shore is going to be impacted and we should be aware of that and address it and talk about it and have something. I don't know why I am just bringing this up now; I just think it is something we need to look further at. Mr. Dahili : Tsunami response is a multi-agency issue and it is something that we are in the dialogue with whenever Civil Defense...in fact next week our department will be participating with the other county departments in these mock exercises. We usually deal with more of the stuff post mortem but as it looks towards the future a lot of the science and a lot of the data that is derived is really in the context of flood insurance and that is the best reliable data that we have right now. And so we feel that the way that the flood insurance program is written that the zones have been identified by the federal government as to the run-ups and these areas 20 VA2012 Master Files\Commissions\Planning\Minutes\Minutes-15-21-12 LA May 8.docx that need.to be elevated and out of harm's way. The science even goes beyond just the run-ups, it goes into even design, how are the homes designed, and that is really more for an engineer to evaluate and present. I think the issues of sea level rise are things that we are as I mentioned earlier,we are trying to study up on and as the field of scientists begin to start to narrow around a certain best practice...and that is what you are seeing right now, no one is in agreement as to what exactly the event horizon is or what is the actual height for that event horizon. But I think the general consensus in the scientific community is that there is an occurrence, a scientific occurrence that is happening so our plan is to try to address that as part of General Plan policies and help that draw down, help the new laws that will come from the General Plan draw down on that philosophy that we do need to take into account whatever this may be, versus this. Chair: I have a question,the way the ordinance is written now any type of remodeling or renovation on a house would have to come through the shoreline setback procedure? Staff: On any abutting property, correct. Chair: And with this new ordinance that is being proposed that would take that out of the equation. Staff: I don't want to say take it totally out of the equation because some improvements may require to specifically establish where that setback line is but a lot of cases don't and it gives the Director the discretion to essentially weed those out. Right now he doesn't have that discretion and hence you folks are reviewing a shoreline setback determination for a countertop. Chair: Any more questions for the planner? Mr. Dahilig: I guess, Commissioners, our intention on this is to ask for a deferral. We are very cognizant of the fact that more dialogue is desired on the bill and we'will certainly still engage in it. I don't have a timeline on when we will bring this back to the Commission for review but we are anticipating at least another couple months in terms of continued outreach and engagement with UH Sea Grant as well as other partner agencies. So at this time Mr. Chair I would ask for a deferral on the matter until set for the next agenda. Chair: Can I have a motion? Sorry, Cammie. Ms. Matsumoto: So during that period you will be looking at this document and possibly making other changes,additions, editing? Mr. Dahiliz Yes. And I think as part of that,that is why we want to keep that public hearing open so that as the dialogue will continue that we want to be able to present more stuff for public feedback so that we can build a record in case there are potential challenges on the line that this particular ordinance was vetted properly through public means. 21 VA2012 Master Filesl Commissions\Planning\Minutes\Minutes-1 5-21-12 LA May 8.doex Chair: I need a motion to defer. Ms. Matsumoto: Move to defer. Mr. Texeira: Second. Chair: Any discussion, seeing none all in favor say aye,motion carried. On motion made by Camilla Matsumoto and seconded by Herman Texeira,to defer action, motion carried unanimously by voice vote. Chair: Going back to the consent calendar that was removed and now placed in New Business, G.3, Shoreline Setback Commission Review, SSCR-2012-9, Shoreline Setback Determination, Tax Map Key (4)-2-6-007:013,Poi`pu,Kauai, ,Tack Hood. Staff Planner Dale Cua read Director's report(on file). Mr. Dahilig: Commissioners, if you have any further questions for the planner we are certainly open to that but I would just like to point out that the appropriate action for the shoreline determination report an acceptance and not an approval. That is the appropriate motion for this particular item. Mr. Texeira: Mr. Chairman, in view of what the Director said I would like to make a motion to accept... Chair: 1 have to ask for public testimony first because it is an agenda item. Anyone in the public want to speak on this agenda item? Seeing none what does the Commission want to do? Mr. Texeira: Motion to accept. Ms. Matsumoto: Second. Chair: Any discussion, seeing none all in favor say aye. On motion made by Herman Texeira and seconded by Camilla Matsumoto, to accept SSCR-2012-9, motion carried unanimously by voice vote. ADJOURNMENT Commission adjourned the meeting at 12:03 p.m. 22 VA2012 Master Files\Commissions\Pianning\minutes\Minutes-1 5-21-12 LA May 8.doex Respectfully Submitted. 0 Ka� I�Df- �q� Lani Agoot Commission Support CIerk 23 VA12012 Master Files\CommissionslPlanninglMinutes\Minutes-1 5-21-12 LA May 8.doex