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HomeMy WebLinkAboutpcminutes8-14-12 KAUAI PLANNING COMMISSION REGULAR MEETING August 14,2012 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Jan Kimura, at 9:13 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Hartwell Blake Mr. Jan Kimura Mr. Caven Raco Mr. Herman Texeira Absent and excused: Ms. Camilla Matsumoto Mr. Wayne Katayama Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Kimura called the meeting to order at 9:13 a.m. ROLL CALL Planning Director Michael Dahilig noted that four commissioners were present and there was quorum. APPROVAL OF AGENDA On the motion made by Herman Texeira and seconded by Hartwell Blake to approve the agenda, the motion carried by unanimous voice vote. MINUTES of the meeting(s) of the Planning Commission (NONE) RECEIPT OF ITEMS,FOR THE RECORD Mr. Dahilig stated that they received a letter from Terry Kaplan pertaining to agenda item F.3 in support of the Princeville Shopping Center's zoning amendment to ZA-88-7. 1 VA2012 Master Files\Commissions\Planning\Mimes\2012-8-14 Planning Commission Minutes SEP 11 2012 On the motion by Herman Texeira and seconded by Caven Raco to accept the items for the record, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (NONE) New Agency Hearing: Class IV Zoning Permit Z-IV-2013-1, Use Permit U-2013-1 for improvements to the existing Ornellas Tank site in Kanahi which includes construction of two (2) 0.5 million gag llon (MG) concrete reservoirs and drilling of an exploratory well, and Variance permit V-2013-1 to deviate from the land coverage requirements within the Agriculture District, pursuant to Section 8-7.6 of the CZO on a parcel situated at the Kaauuni Road/Kawaihau Road intersection further identified as Tax Map Key 4-6-011:003 and affecting a total area of 0.836 acres=County of Kauai Department of Water. f Director's Report received 7/24/12.1 The Commission received testimony from Sherman Shiraishi, representing Mr. Gary Yamamoto, an adjoining land owner to the Ornellas water tank. Mr. Yamamoto is a third generation farmer and his residence is next door to the water tank and his farm abuts the water tank. The property was always in agriculture. They oppose the siting of the water tank at the Ornellas tank site. If it is granted,they are requesting that the Commission address the concerns of Mr. Yamamoto and other land owners in the area. One of the concerns is aesthetics and visual impact. The have seen proposed siting plans and visuals that minimizes the visual impacts and they want to ensure that the plans are followed. Their concern regarding the well is that homes in the area are serviced by cesspool. They also want to ensure that Mr. Yamamoto's agricultural activities are not hindered or curtailed by siting of the water tanks. They also would like to ensure that drainage issues are addressed. According to the tax maps there is an easement for drainage purposes fronting Mr. Yamamoto's parcel and they would like to ensure that there would be no additional drainage resulting from the water tank, adversely affecting Mr. Yarnamoto's land. According to the public notice they have the opportunity to submit concerns in writing up to seven days after the close of the public hearing. After they review the application and proposed plans and after discussing the proposed siting with the Department of Water, they intend to submit written testimony outlining their concerns, but they wanted to inform the Commission of their initial concerns. Commissioner Blake questioned the distance that a residential sewage facility needs to be located from a well. Mr. Shiraishi stated that he did not know the required distance, but noted that the cesspools are already there. Commissioner Blake referenced a well,in the Omao valley area where residents were justifiably concerned because some of them were within the standard distance. He stated that it 2 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes is a real concern. Regarding the visual impacts, he questioned if they were totally opposed to the permit, or just ensuring that the contemplated landscape is in place. Mr. Shiraishi stated that they are opposed to the water tanks, but they understand that development may dictate the siting of a well somewhere in the area. If that is determined to be the best area, then they are concerned about the visual impact. They have seen landscaping plans and horizontal site views, and they want to ensure that those plans are adhered to if the Commission grants the application. Commissioner Blake urged Mr. Shiraishi to stay on top the landscaping issue. He recalled a large retail outlet that was supposed to plant mature trees to break up the parking lot, but the trees were not mature when they were put in. Mr. Shiraishi noted that a member of the applicant's family was present, so he was sure that she would stay on top of it. On the motion by Caven Raco and seconded by Herman Texeira to close public hearing and advise the Planning Department work with Mr. Shiraishi in resolving those issues if possible and come up with pre-crafted conditions for visual and other impacts, and develop a scheme at the next meeting,the motion carried by unanimous voice vote. Mr. Dahilig stated that based on the testimony from the public, when they take up the action item,the Department will recommend.a deferral of the item until the next scheduled Commission meeting to flesh out some of the issues. Commissioner Texeira questioned if the Department of Water would be present for that agenda item. Mr. Dahilig stated that they will request a presentation from them under New Business. Request to amend Ordinance No. PM-175-88 (Zoning Amendment ZA-88-7) to utilize additional income requirements for employee housing d reduce the number of employee housing units required for the original rezoning and expansion of the Princeville Shopping Center on a property located on the makai side of Kuhio Highway, approx. 1,500 ft. east of the Kuhio Highway and Hanalei Plantation Road intersection and approx. 500 ft. east of the Kuhio Highway and Kahaku Road intersection Princeville Kauai further identified as Tax Map Key 5- 4-005.031 048, 049 and 5-4-006.014 and containing a parcel area of 17.9 acres=Princeville SC Development LLC. [Hearing continued 7/24/12.1 Supplemental No 1 Director's Report pertaining to this matter. Mr. Dahilig noted that other than the written testimony there were no people signed up to testify. Chair Kimura asked questioned if anyone from the public would like to testify. 3 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes The Commission received testimony from Susan Wilson. Ms. Wilson agreed with Chair Kimura's statement that employee housing is housing. She emphasized that it is employee housing, whether rental, affordable, or sold and it has been a phrase that has been confused over the years. Regarding the Commission's comment regarding possible incremental development, she stated that it has been a precedence that has prevailed in the Princeville area for prior projects such as the Bali Hai Villas. She stated that they need to reassess the need. One of the previous testifiers referenced an access road that was promised behind the shopping center and wanted to talk about preserving the neighborhood that would be affected. Those houses were built when the ranch worker houses were wiped out by the tsunami and families have lived there for a long time, so she felt that access should be considered. She felt that the housing issue for employees in the Princeville area has been a lost opportunity and they don't want to lose it again. She referenced newspaper articles from 1998 that noted an agreement between the developer and the County that if employee housing did not begin in a timely manner, that site would be turned over to the County at no charge. Commissioner Blake questioned if the Housing Director will be available for comment. Chair Kimura stated that they received the report from the Housing Agency. On the motion by Caven Raco and seconded by Herman Texeira to close public hearing, the motion carried by unanimous voice vote. New Public Hearing(NONE) All public testimony pursuant to HRS 92 Mr. Dahilig stated that Mr. Carl Emperato signed up to testify on Item 1.2 in the matter of petition to appeal decision of the Planning Director concerning the Kauai Beach Villas Phase H. The Commission received testimony from Mr. Carl Emperato. Mr. Emperato stated that he is speaking on behalf of the Coalition for Responsible Government that is an informal coalition of Kauai community organizations and citizens, formed in 2008 to enact the 2008 Charter Amendment, Section 3.19 of the County Charter. They drafted the language to the Charter Amendment, developed the supporting data and justification of the amendment, commissioned legal research in support of the amendment, obtained and filed with the county more than 2,900 signatures to put the amendment on the ballot, and drafted the information provided by the County of Kauai to the voters of Kauai, conducted the campaign that resulted in the voter approval of the charter amendment by a margin of 64 to 36%, and participated extensively in the County of Kauai's drafting of Ordinance 912 which implements the Charter Amendment. Kauai Beach Villas Phase II is asserting that Section 3.19 of the Charter is invalid, unconstitutional, and was not adopted in the form required by HRS 46-4 of the 4 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes County Charter and does not substantially advance a legitimate State interest. As the organization that spearheaded the enactment of Section 3.19 they believe the CRG is a very appropriate party to participate in any discussions and deliberations related to those assertions. In accordance with the Planning Commission's rules of practice and procedure they are petitioning the Planning Commission for status as an intervener in any and all applicable proceedings that may result from the appeal including any applicable proceedings that may be commenced in response to the Planning Director's recommendations that the Commission refer this matter to a hearings officer. The written testimony goes into detail on the reasons why they are qualified to be treated as an intervener under Section 1-4-4 of the Commission's rules. He felt that it should be clear that CRG has a broad, deep,unique, and vital interest and that they represent the public interest in assuring that the spirit and the letter of Section 3.19 of the Charter as well as Ordinance 912 are completely and faithfully executed and defended. In requesting intervener status, their request for intervener status should not in any way be misconstrued as implying disagreement with the Planning Director's decision, or as any lack of confidence in the motivation or the ability of the County to defend Charter Section 3.19 or Ordinance 912 against those assertions that have been made by Kauai Beach Villas. He pointed out that the Charter Amendment and Section 3.19 only transferred the power to issue zoning permits,use permits, subdivision permits, and variances for transient accommodation units from the Planning Commission to the County Council and required that the Council make findings that granting those permits would be consistent with the General Plan's growth scenarios and in the best interest of the County and its people. He stated that it is hard to conceive that there is anything invalid or unconstitutional about that. He also pointed out that Ordinance 912 that established the TAU certificate program and defined the criteria for exemptions was passed by the Council as an independent, stand-alone Ordinance that could have been passed with or without the Charter Amendment, so any allegations regarding the unconstitutionality of the Charter Amendment is irrelevant because any grievance regarding Ordinance 912 are a separate issue entirely from the Charter Amendment. They are stand alone. I Ie thanked the Planning Director and Planning Department for what appears to be fair and reasonable administration of Ordinance 912 and request that the Coalition for Responsible Government be allowed to become an intervener in all applicable proceedings. Mr. Dahilig recommended that the Commission, due to a change in legal counsel,take up item I.2 relating to the petition to appeal the decision of the Planning Director denying Kauai Beach Villas Phase II request for exemption. GENERAL BUSINESS MATTERS In the matter of Petition to Appeal Decision of the Planning Director. Denying Kauai Beach Villas Phase II LLC's Request for an Exemption Pursuant to Ordinance No. 912 (Chapter 8,Article 8 Article 28.5 of the Kauai County Code,as amended 1987),Tax Map Key L4 003.007 Kauai Beach Villas Phase II LLC. Memorandum dated August 8,2012 from Michael Dahilig, Director of Plannina to Honorable Commissioners of the Kauai Planning Commission recommending the Commission refer the matter to the Commission's Hearing Officer, Richard Nakamura,Esq. 5 VA2012 Master Filcs\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Mr. Dahilig stated that given the subject and complexity of the legal issue, he is recommending that the Commission grant the petition to be handled by a hearings officer, specifically Richard Nakamura, Esq., the Commission's retained hearings officer, and delegate authority to dispose of all 'motions and stipulations between the parties, receipt of evidence, evaluation of all evidence and recommendation of proposed decision and order for Commission review and action. He asked that the counsel for both parties state their position on his recommendation. Deputy County Attorney Ian Jung, on behalf of the Planning Director, stated that they have no opposition to the referral to the hearings officer. Mr. Greg Markum on behalf of KBV Phase II, LLC, stated that it was his understanding that this is the procedure that the County wants to impose on this matter and they have no objection. On the motion by Hartwell Blake and seconded by Herman Texeira to implement the procedure for referral to hearings officer, the motion carried by unanimous voice vote. Commissioner Texeira questioned the handling of the request by Mr. Emperato. Mr. Dahilig stated that it will be handled by the hearings officer based on procedure. They would need to meet a threshold of legal standing that he will have to assert before the hearings officer. Commissioner Raco stated that the Commission will make the decision, but the hearings officer will make the determination that he has valid rights to intervene. Deputy County Attorney Amy Esaki stated that he will have an opportunity to be heard. Commissioner Blake stated that he had a legal procedural question generally related to this agenda item. Deputy County Attorney Esaki recommended posting an executive session on the next agenda. CONSENT CALENDAR Status Reports (NONE) Director's Report(s) for Proiect(s) Scheduled for Agency Hearing on 8/14/12 (NONE) 6 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2012-10 and Shoreline Setback Determination SSD-2012-34 for a shoreline activity determination,Tax Map Key.(4) 2-6- 011.008 Koloa Kauai for acceptance by the Commission--Earl Payton, Director's Report pertaining,to this matter. Shoreline Setback Commission Review (SSCR-2012-11 and Shoreline Setback Determination SSD-2012-35 for a shoreline activity determination. Tax Map Key (4)2-9- 001:002 Koloa Kauai for acceptance by the Commission=Palms Hawaii for Kawailoa Development LLP. Director's Report pertaining to this matter. On the motion by Caven Raco and seconded by Herman Texeira to approve the consent calendar items, the motion passed by unanimous voice vote. EXECUTIVE SESSION (NONE) GENERAL BUSINESS MATTERS (Continued) Update on recently enacted amendments to Hawaii Revised Statues Chapter 92, regardini? Hawaii's Sunshine Law. This update will briefly discuss Act 177 which creates two new permitted interactions) and Act 201 (which allow boards to conduct meetings by"interactive conference technology"). Mr. Dahilig stated that beginning July 1,there were amendments to Chapter 92 that were adopted by the Governor. The Department felt it would be appropriate for the Deputy County Attorney to provide an update on the changes and how to conduct business. Deputy County Attorney Jung suggested that it might be more appropriate to wait for Commissioners Katayama and Matsumoto to return. On the motion by Caven Raco and seconded by Herman Texeira to defer the agenda item, the motion carried by unanimous voice vote. Memorandum dated July 26 2012 from Michael Dahilig, Clerk of the Commission to Jan Kimura Chairperson and Members of the County of Kauai Planning Commission relating to Delegation of Authority to the Clerk of the Commission to Receive Director's Reports Prescribed Pursuant to Sections 8-19.6(c-d), Kauai County Code. 7 VA2012 Master riles\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Mr. Dahilig stated that in the memo, he is requesting authority as the Clerk to have class 1V permits received pursuant to Sections 8-19.6(c-d). He stated that it is a procedural step that the Commission is used to handling under"Director's Report(s) for Project(s) Scheduled for Agency Hearing", but they ran into a situation concerning quorum issues, and when there is a lack of quorum or a cancellation of a meeting, they could run into a foul of the timelines set by the Ordinance by not having the Director's reports accepted into the record. He clarified that he would only be asking for the authority in situations where there is a lack of quorum or a canceled meeting to keep the clock and timelines moving. He stated that there needs to be Commission's acceptance of the Director's reports before they can move into public hearing. Chair Kimura suggested that they first run it by the Chair or Vice Chair of the Commission either by phone call or email for transparency rather than just delegating authority to the Department. Commissioner Blake felt that anything that keeps the clock running so they are not up against deadlines is worth considering. More importantly, he felt that they should have enough Commissioners to vote how they feel versus keeping it moving. He questioned when the Commissioner vacancy will be filled. Chair Kimura stated that he is meeting with the office of Boards and Commissions on Friday to address the issue. He stated that it is not his responsibility to find another Commissioner but he is getting involved as the Chair. Commissioner Blake noted that Commissioner Matsumoto will be leaving at the end of the year, and suggested another woman Commissioner and someone who can represent the residents of the west side. Chair Kimura stated that will be taken into consideration. Deputy County Attorney stated that the time clock will start by receiving the report and setting the matter for agency hearing. He stated that by tailoring it to lack of quorum or cancelled meetings it assists the Department in making sure that things are followed up appropriately regarding time clocks attached to permits. Chair Kimura clarified that instead of it being up to the Department to just receive it, he is suggesting that either the Chair or Vice Chair to accept the Director's report. Mr. Dahilig stated that based on that input, his request would be that as the Clerk, the delegation be limited just to quorum issues or cancellation only upon consultation with an officer of the Commission, preferably the Chair. Chair Kimura stated that within a 24 hour period, if they are unable to contact the Chair or Vice Chair, then the Department can handle it. Commissioner Blake noted that the subdivision chair is always available. 8 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Chair Kimura stated that an officer of the Commission would be okay with him. The Commission agreed. Commissioner Texeira questioned how they would receive or review the report. Chair Kimura stated that it is just for acceptance, and they would be receiving it by the next meeting. He questioned if the agenda item would expire if the next couple of meetings are cancelled and the report was already accepted. Deputy County Attorney Jung stated that it would depend on the kind of permit whether it is a special permit or Class IV. There are built in provisions. Chair Kimura stated that if they don't have quorum or a meeting is canceled for whatever reason, the Department wants to start the clock by accepting the Director's report. It would not be fair to the applicant if they start the clock but it the application expires should they cancel the next couple of meetings. Deputy County Attorney Jung stated that within HRS 91 and the Planning Commission Rules they have deadlines that must be met so the permit can move along in an orderly fashion. If they don't meet the deadlines and there is no exemption or agreement with the applicant to meet those deadlines, the applicant can assert under the doctrine of automatic approval to have the permit approved. He stated that the application wouldn't expire. Mr. Dahilig restated that he would tailor his request to seek authority to accept reports under section 5-19.6(e-d) of the Code only in situations where there is lack of quorum or a cancelled meeting and that before accepting those reports he shall as the clerk consult with the Chair and in their absence, an officer of the Commission, prior to accepting the report. On the motion by Herman Texeira and seconded by Hartwell Blake to delegate authority to the Clerk of the Commission to receive Director's reports under Section 8- 19.6(c-d) only in situations where there is lack of quorum or a cancelled meeting and that before accepting those reports he shall consult with the Chair or an officer of the Commission, the motion carried by unanimous voice vote. COMMUNICATION (For Action) (NONE) COMMITTEE REPORTS Subdivision Commissioner Texeira presented the subdivision committee report. He stated that the following items were for tentative subdivision action and approved 2-0: 9 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Mr. Dahilig stated that the applicant probably left when he heard there would be a deferral. Commissioner Texeira stated that he can ask his questions at the next meeting. Mr. Dahilig stated that the Department will do their best to address Mr. Shiraishi's concerns and his written submittal within 7 days and do their best to come up with additional litigation for that project. Commissioner Raco asked staff to have the applicant come up with a 2 dimensional and 3 dimensional landscaping plan so there is something in the record to see what was proposed. Commissioner Blake stated that it seems the siting of the water tanks and the well would also preclude development in the surrounding area. It's not only a matter of the wells being potentially polluted, but it would also restrict development in the agricultural land from occurring. He stated that he is concerned when people don't show up for hearings. Chair Kimura noted that the applicant was here earlier and left. Commissioner Blake stated that they also had questions for the Housing Agency and they were also not here. He stated that they risk being deferred forever. Mr. Dahilig stated that at the end of the day it becomes the responsibility of the applicant to comment on whether or not they agree with the agency comments. It has been the standard practice of the Department to bundle all the agency comments and make an evaluation for the Commission. He stated that it is highly unusual for the Department to request that agencies be present for every comment that they submit. They normally rely on the written comments, otherwise it would be a logistical burden to have all agencies on standby. Commissioner Blake stated that they agencies make their comments, but the applicants should be at the hearing. If it is not important enough to the applicant then why should the Commission view it as important? Deputy County Attorney .Tung noted that the applicant is actually the developer petitioning for the Zoning Amendment and they are here. The Housing Agency is just commenting based on the conditions that affect the Housing policy. Commissioner Blake stated that the biggest concern is the application is the housing. Mr. Dahilig stated that given the discussion,the Department recommends that the Commission defer this item to the next available Commission meeting for action. Commissioner Texeira requested that the representative be available. On the motion by Caven Raco and seconded by Herman Texeira to defer this agenda item, the motion carried by unanimous voice vote. 11 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Zoning Amendment ZA-88-7=Princeville SC Development, LLC. Director's report pertaining to this matter. Staff planner Kaaina Hull stated that at the July 24, 2012 public hearing, public testimony was received both for and against the proposed amendments to Ordinance PM-175-88. The Planning Department stated that while the proposed amendments can be considered, it is a primarily a Housing Agency issue. The Department received comments from Housing Agency that morning but was not ready to make any evaluative statements concerning said comments. Since that time, the Department has received and reviewed revised comments from the Housing Agency. In reviewing the proposed amendment to Ordinance PM-175-88, the following should be considered: 1. The Housing Agency of the County of Kauai is the agency specifically tasked with and responsible for carrying out the Housing policy for the County of Kauai and the Housing requirements and recommendations established under Ordinance 860. 2. As proposed in the attached recommendations by the Housing Agency a low income rental incentive should be added into the conditions of approval which states if the employee housing units are built on the subject parcel, a low income rental units alternative, as detailed in Section 2.2(d) of Ordinance 860 may be used to meet with the requirement of Section 2(d)(ii) of this ordinance provided that the minimum period of affordability is 60 years, and provided no County land or funds or Federal funds administered by the Housing Agency are utilized to subsidize the development of the employee housing units. 3. Section 2.2(d) of Ordinance 860 states that the incentive for low income units is available when required work force housing units are provided for low income households at affordable rental rates provided no County land or funds or Federal funds administered by the Housing Agency are utilized to subsidize the project and provided the period of affordability of low income rental units is for a period of 40 years. State and Federal low income tax housing credits, tax credit programs are permitted subsidy. If a developer provides workforce housing units affordable to household earnings no more than 60% of the Kauai median household income each rental until provided shall be equal to two workforce housing units required. If a developer provides workforce housing units affordable to households earning no more than 80% of the Kauai median household income, each rental unit shall be equal to 1.5 workforce housing units required. 4. Adopted into law on December 13, 2007, Ordinance 860 is the official housing policy for the County of Kauai. 5. As established under 2.2(d) of Ordinance 860, incentives for additional credits are given for low income rentals. 6. As presented by the Hawaii Housing planning study of 2011, 60% of the Kauai households currently earn 80% or less that Kauai's median household 'income which is currently $76,300. 12 VA2012 Master Files\Commissions\Planning\Minutes\2012-5-14 Planning Commission Minutes 7. The recommendation is that the Housing Agency do not propose to alter the existing workforce housing requirements to solely align with what the applicant is requesting. The Housing Agency is recommending that the work force housing requirements originally established under Ordinance PM-175-80 be maintained,however in addition to the requirements certain credits and incentives should also be provided to address Kauai's significantly large demand and overall needs for low income rentals. 8. The Housing Agency is also recommending that the prioritization of those who qualify for the workforce housing units be expanded beyond those who are employed by the shopping center to include as a second priority those that work within the Hanalei district, and then, thirdly to those who work elsewhere on Kauai. 9. The Housing Agency also recommends to replace the substantial construction requirement Condition 2(d)(iv)(c) with a requirement that building permit approval for shopping center expansion not be granted until the Housing Agency ensures that adequate financing and development measures have been taken on part of the housing developer. Commissioner Blake asked for clarification on the last statement. Mr. Hull stated that it is in order to ensure that financing has been established for the housing prior to the Planning Departments signing off on any building permits for the shopping center expansion. Commissioner Blake questioned if there was a condition that substantial completion or that the pouring of foundations had to be accomplished. Mr. Hull stated that is what was originally established but now the Housing Agency is requesting an amendment to a financing condition. Commissioner Blake questioned if it would speed up the process or slow it down. Mr. Hull stated that it would be additional assurances that the housing requirement is met prior to the expansion. The rate would be at the will of the developer. Commissioner Blake stated that his concern is that especially subdivisions pour the foundation and then it sits for years until the circumstances satisfy the developer with regard to spending more money on the final project. In this case,they know there is a housing shortage, and the details are going to be provided by the developer when they do their housing study. If they are required to pour the foundations as a condition after they get their certificate of occupancy, they pour the foundation,then what? Mr. Hull stated that in addition to pouring the foundations, Housing is asking for documentation from the developer that financing on the housing project itself has been closed, essentially to establish that more than financing and pouring of concrete is done. 13 VA2012 Master Files\Commissions\Planning\Minutes\20I2-8-14 Planning Commission Minutes Commissioner Blake stated that because it has been changed several times, he is concerned that it may never happen or that the accomplishments of the goal will be unnecessarily delayed from the point of the workers and the north shore. Mr. Dahilig stated that as the policy for the County is a graduated determination on how many units are appropriate based on the income and target levels. He distributed examples from the Housing and Urban Development website that the Federal Government determines with respect to median incomes and different thresholds. Ordinance 860 uses those metrics in determining how to meet affordable housing exactions that are levied on permit applications, subdivisions, etc. As an example, the prior Ordinance in 1988 did not incorporate graduated ways to target income thresholds. When the Department crafted the recommendation, the Housing Director originally asked whether it was necessary to attend the meeting and the Department indicated that it was not necessary. He noted that the Housing Director is in attendance to answer any other questions on Housing policy. There are bonuses in Ordinance 860 for units if lower income is targeted, and the applicant is asking for that flexibility. Chair Kimura reminded the Commission that however the Commission votes, the item will still require Council approval. Laurel Loa representing the applicant, Princeville SC Development, LLC, Makane Maewa, the affordable housing developer, and Steve Bush,project manager were available for questioning. Ms. Loo stated that they would be happy to make a presentation, but noted that the Commission's recommendation will be forwarded to the Council and she fully expects to review the considerations again. Commissioner Texeira questioned the recommended 60 year period of affordability and how it affects the Ordinance. Mr. Hull stated that it essentially came down to providing affordable housing for a longer period of time, and there is better financing in place for 60 years for work housing. He noted that it does not specifically align with what is laid out in 860 but aligns with the intention. Chair Kimura questioned if the applicant concurs with the Housing Agency's comments. Ms. Loo stated that they have a number of issues that they would be happy to review or they would be happy to have the Commission vote on the recommendations so they can tweak them at Council. The only one that would have a negative impact would be the condition regarding building permit approval. They hope the Commission can tweak that language so the Council will receive a package that can work. Mr. Bush stated that the current recommendation is that the building permit for the shopping center would be contingent upon substantial completion of the affordable housing which would mean poured foundations. In order to reduce the economic burden on affordable housing,they elected to proceed with the civil design for the entire site in its entirety including 14 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes the site grading,site drainage, and underground utilities. The site grading and underground utilities would have to proceed across the entire site so they can complete the civil work prior to construction. In order to ensure that the affordable housing will go forward with the shopping center, they suggest that the constraint be changed so that the building permit for the shopping center would be contingent upon the issuance of the building permit for the affordable housing and that there be conditions placed upon adequate progress and time limits for completion of both components. The developer would be willing to accept a condition that states the certificate of occupancy for the shopping center would be contingent upon the issuance of the certificate of. occupancy for the affordable housing. That would ensure that the affordable housing is done at the time that the shopping center could begin operations in the expanded portion. The other point is that in order to reduce traffic impact on the neighboring housing as was pointed out earlier they have designed it so there would be no access to the affordable housing site through the Honu Road access. The shopping center and the affordable housing would have a common entrance which would both calm traffic going into the affordable housing as well as expand the ease of access for the shopping center. They are looking to proceed as an entire development which they feel would reduce the economic impact on the affordable housing and makes it a more viable entity. They requested that the Commission consider those modifications to the constraints to the issuance of the building permit. Mr. Dahilig stated that the Department still stands by their recommendation. Deputy County Attorney Jung stated that if they are looking for a legal standard,the Commission can approve, approve with modifications, or deny. If they approve or approve with modifications,the report would be sent up to the Council to hear within 60 days. If it is denied then a report still gets sent to Council but the applicant has 15 days to appeal the decision to the Council. Regarding the law on certificate of occupancy, in speaking with the chief engineer, they issue certificates of occupancy as a ministerial function. He did not see a problem with a performance condition on the issuance of a certificate of occupancy but it would have to be detailed language in terms of the requirements of that condition. Commissioner Blake asked for clarification that the infrastructure would be in place before they pour the foundations. Mr. Bush stated that they would want to complete the site grading as well as site utilities so they would have the finished building pads established with utility laterals to those building pads. The site as a whole would need to be graded due to significant grade changes between the two sides of the parcel and they want to minimize the impact on the ability to utilize the land. One of the constraints in the lay out is the extreme grade changes to the back of the site and they want to utilize the site efficiently. It would require grading through the entire site prior to commencement of construction. Commissioner Blake stated that he would assume that the site work would have to be done before the foundation is poured. Mr. Bush stated that the site grading and site utilities would Heed to be done. 15 v:\2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Commissioner Blake questioned that the utilities would also need to be in for the housing project. Mr. Bush stated that it would include the housing and also the overall site drainage. Commissioner Raco asked for clarification that in doing the civil work the applicant would be obtaining a grading permit and then they would apply for a building permit which would trigger the condition. Mr. Bush stated that they would probably apply for them as one package. They could feasibly apply for a grading permit as a separate permit, but it wouldn't necessarily include the installation of site utilities and drainage. Commissioner Raco stated that it was his understanding that a grading permit will be issued from engineering, and then a building permit would be issued for any foundations which would trigger the condition. Mr. Bush stated that there is a site grading permit that has to be issued by engineering that includes the drainage analysis for the site and the civil infrastructure. The building permit would include the development of the common entrance and the parking areas. They want to be able to proceed with the least economic impact to both components but in minimizing the impact on the affordable housing side because the development and grading of the entire site will reduce the overall cost of having to do one part and then come back to do the rest of it. Chair Kimura stated that there are already foundations on the property with three split levels. Mr. Bush stated that there is an old foundation that would have to be taken out because it doesn't fit the development currently being planned. He was not familiar with the layout in the previous iteration of the plan. He stated that the expanded footprint for the grocery store would be in a different location than the current foundation will accommodate. Commissioner Texeira questioned the Housing Director's evaluation and his input on the project and the proposed 42 units. Housing Director Kamuela Cobb-Adams stated that they looked at the history of the parcel and Princeville learning from the previous issues. They decided to go with the financing package as the trigger versus foundations, because the foundations that exist there were there were done but they didn't end up doing anything else, so they didn't feel like that was good enough. He stated that the financial package needs to be submitted or reviewed by the Housing Agency because affordable housing has unique finances. In most cases once they close on the deal for affordable housing, they would have to move forward because there are a variety of investors putting money into escrow. They want to be sure that the finances are not just for foundations,but for the whole package. They tied it to permitting to ensure that affordable housing will move forward. He was unaware of the plans to do the grading but it can still be tied to the vertical permit. Their main intent is to ensure that affordable housing is built, not just a 16 VA2012 Master Files\Commissions\Planning\Minutcs\2012-8-14 Planning Commission Minutes foundation. Regarding the 42 units, they have seen developers come in, reduce the amount of units, and then sell the property. They felt that if the intention is to build at the lower income level, they should leave the same and take apply Ordinance 860. They would either need to target the lower income to get the incentive. Chair Kimura thanked the Housing Director for attending the hearing. Commissioner Texeira asked for clarification that the developer could sell the project, so the intent was to ensure that the developer will develop the low income units. Mr. Cobb-Adams stated that they could still change and sell it, but it provides an option for the developer to actually produce affordable housing units as they are presenting. He said this provides a much stronger possibility that affordable housing will be built. Chair Kimura allowed public testimony from Susan Wilson. Ms. Wilson stated that there seems to be sincerely in trying to figure out how to meet a need. She questioned if there has been an establishment of need. She understands that Foodland wants to expand and that there is a parking need, but she hasn't heard specificity as to the shopping center expansion fulfilling the need requirement. There has been a genuine attempt to define the developer's commitment to fulfilling a project other than pouring the slab. Mr. Dahilig stated that what the developers are asking for is the first step in leading to what would be approved by the Council; a permit application whereby the issues of mitigation or evaluation would be entertained through another hearing by this Commission. Commissioner Texeira asked for clarification that it would be referred to the Council and then it would come back to the Commission. Mr. Dahilig stated that once they decide on an up/down vote to approve, deny or change, then it becomes the law upon which they are entitled to determine how they want to proceed with the appropriate permits from the Planning Department. He stated that the public comments concerning the need are more pertinent for discussion if and when an application for permit is presented. Chair Kimura questioned if it would be referred to the current Council or the Council that may change after the November elections. Mr. Dahilig stated that if the Commission takes action today, it would be forwarded to the Council and it will probably take about 30 days to arrange a public hearing for a Bill on first reading, upon which it would be referred to committee. It would depend on the Council's internal clock once it is received. He noted that the new Council would be seated on the first business day in December. Commissioner Blake stated that it appears that they will be sending it to Council the way it is being recommended. He questioned Ms. Loo if there was anything that was a major issue 17 V12412 Master Files\Commissions iPlanningNMinutes\2012-8-14 Planning Commission Minutes because it would prepare him for action by the Council that may be different from what the Commission recommends. Ms. Loo stated that she would request a change to page 9 in the middle of the page regarding building permit. She stated that if it is changed to certificate of occupancy it would allow them to proceed much quicker and would satisfy the issue of the shopping center not being able to operate until the affordable housing project is substantially completed with the financing and foundations. Chair Kimura stated that it is in there to ensure that the project would be built. Ms. Loo stated that their point is that if they are tied down with building permit approval at that stage, it doesn't allow them to build the projects in tandem. One would have to wait for the other. It would be less expensive to build both projects at the same time. If the concern is that they want he affordable housing done before the shopping center,then changing building permit to certificate of occupancy would do the same thing. They wouldn't be able to operate the shopping center without the certificate of occupancy and all the other conditions would have to be met for the affordable housing. It would just allow them to build it at the same time. Commissioner Raco stated that he is okay with the building occupancy. He stated that it does justice that they would not be able to receive the certificate of occupancy even if they build the store first. The bottom line is that the project would be built. The certificate of occupancy would allow them to build both projects at the same time. Commissioner Texeira requested comments from the Housing Agency on the proposed condition. Mr. Cobb-Adams stated that their concern is that Planning or Housing Agency has no participation in issuing certificates of occupancy and there might be some legal restraint where they won't be able to hold it back. Commissioner Raco noted that they have no influence at the Building Division of Public Works anyway so they wouldn't have clout in either a building permit or a certificate of occupancy. Mr. Cobb-Adams noted that in permits, the Planning Department would have to sign off on the permits. Commissioner Raco clarified that the Housing Agency is working with the Planning Department for assurance that the Housing project is built. Mr. Cobb-Adams stated that they work with Planning and when the Housing Agency reviews the financial plan, then the permit would be triggered at Planning. They would be open to other possibilities but they did not have enough time to speak with the applicant. 18 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes Commissioner Raco stated that the developer would need to get a building permit to build the project first anyway. All they are asking is to build both projects at the same time. He stated that the Planning Department is going to give them their permit anyway, because they will need a building permit to build their project. Deputy County Attorney Jung stated if you eliminate building permit with certificate of occupancy it won't flow legally because the Department does not issue the certificates of occupancy. The condition would need a lot of work in terms of scoping out how to effectuate what the developers are asking. The Planning Department is the signator on the building permit, so there would be a Planning Department approval, but in trying to tie it to a certificate of occupancy in a performance condition, you would have to look at time implications within a certain number of years. Commissioner Raco stated that would work too. Mr. Dahilig stated that it becomes a judgment call concerning how much oversight the Commission is comfortable with and weighing it with the understanding of expediency and viability of the project. The Department still stands by their recommendation modeled off of the Housing Agency's comments, but they can understand the desire to change it. There are two rational arguments that are best weighed by Commission's entertainment. Chair Kimura stated that what he has been hearing is that the Commission wants to have the affordable housing built no matter what. Deputy County Attorney Jung noted that this ZA is separate from the actual expansion that will be coming before the Commission because it will have to conform to the CZO. He stated that they are looking at how to change the zone and ensuring that they fulfill a condition imposed in the past. Commissioner Raco stated that he will not be requesting a condition to the recommendation. Mr. Hull noted a floor amendment to the final recommendation section under 2(D) (v). He noted that "Section 2(d)" in the statement"If the employee housing units are built on the subject parcel, a Low Income Rental Units alternative as detailed in Section 2.2(d) of Ordinance No. 860 may be used to meet the requirement of Section 2(d)", should be "Section 2(d)(ii)". On the motion by Caven Raco and seconded by Herman Texeira to approve Zoning Amendment ZA-88-7=Princeville SC Development,LLC, as read, the motion carried by unanimous voice vote. ANNOUNCEMENTS Chair Kimura announced that the following Planning Commission meeting will be held at 9:00 a.m. or shortly thereafter at the Lihue Civic Center, Tuesday, August 28, 2012. 19 VA2012 Master Files\Commissions\Planning\Minutes\2012-8-14 Planning Commission Minutes ADJOURNMENT The Commission adjourned the meeting at 11:25 a.m. Respectfully submitted by: l Duke Nakamatsu, Commission Support Clerk 20 VA2012 Master Piles\Commissions\Planning\Minates\2012-8-14 Planning Commission Minutes