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HomeMy WebLinkAboutsd 11-13-12 min KAUAI PLANNING COMMISSION SUBDIVISION COMMITTEE MEETING November 13, 2012 The regular meeting of the Planning Commission Subdivision Committee of the County of Kauai was called to order by Chair Herman Texeira, at 8:15 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A-213. The following Commissioners were present: Mr. Herman Texeira Mr. Hartwell Blake Ms. Camilla Matsumoto Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Texeira called the meeting to order at 8:15 a.m. APPROVAL OF AGENDA On the motion by Camilla Matsumoto and seconded by Hartwell Blake to approve the agenda, the motion carried by unanimous voice vote. MINUTES—Meeting of October 9, 2012 On the motion by Camilla Matsumoto and seconded by Hartwell Blake to approve the Subdivision Committee meeting minutes of October 9,2012,the motion carried by unanimous voice vote. PUBLIC COMMENT FOR LISTED AGENDA ITEMS Planning Director Michael Dahilig stated that they received a written testimony from Judie Lundborg Hoeppner in opposition to the extension of the permit for the Kealia project. An email was also received via the County Clerk's office from Bonnie Earls-Solari also in opposition to the extension for the Kealia project. On the motion by Camilla Matsumoto and seconded by Hartwell Blake to receive the items for the record, the motion carried by unanimous voice vote. 1 VA20I2 Master Filcs\Commissions\Subdivisions\2012-11-1 3 Subdivision Committee Minutes DEC 112012 Mr. Dahilig noted that there was another written testimony from the Wailua-Kapaa Neighborhood Association in opposition of the Kealia project extension. On the motion by Camilla Matsumoto and seconded by Hartwell Blake to receive the item for the record,the motion carried by unanimous voice vote. Mr. Dahilig stated that there were five individuals signed up to testify on Item C.La., related to Kealiakealanani. Gabriela Taylor urged the Planning Commission to deny the developer's request to extend the expired permit for the Kealia project. If the extension is granted they would not have to comply with any chlinges in laws passed since 2007. If the permit is extended subdivision would croale a total of 76 lots which would be further divided into 188 condominium property units, each with farm dwelling allowed. However if the new Ordinance is applied the number of farm dwellings would be reduced to 115. A 2010 law would require them to build 56 affordable homes. An extension should be denied for the following reasons: This agricultur=al 2,000 plus acres should be used to feed the island not serve as the playground for gentlemen farmers that have proposed only to grow tea. Scores of additional vehicles pouring onto Kuhio Highway would create disaster in already stressed.Kapaa town. It is essential that upgraded laws on land density and affordable housing requirements are honored. She asked the Commission to consider how the project would cause potential problems in the future, and she asked the Commission to preserve the agriculture lands and make decisions that will enhance the quality of life for Kauaians. Rich Hoeppner stated that the current infrastructure will not handle what is being proposed if the permit is extended. The Kapaa town infrastructure is loaded to its maximum and this permit should be denied. Councilmember Tim Bynum stated that he was testifying as an individual member of the Kauai County Council and he stands by his previously submitted testimony. The question before the Commission is extraordinary and unprecedented and raises layers of legal questions and potential liabilities for the County. He is concerned about the process and the precedence that might be set and he did not know how they could extend something when the deal has changed from what was originally presented. There are new elements and questions of ethics on making commitments to improve private property that benefits private individuals. The idea of accepting a mortgage as surety is unprecedented in Kauai County. While it may be legal,they need to think about the consequences. It saves the developers potentially millions of dollars in bonding and/or surety of the normal type that is requested. This subdivision expired on Septemberl 1, 2012. Subdivisions like this are contrary to, stated public policy in the 2000 General Plan. If this subdivision were to reapply, it would be under different parameters. The extension should be denied. Councilmember Joann Yukimura stated that she was testifying as an individual member of the Kauai County Council. She slated that the case involves 2,000 acres of valuable agricultural land. A project of this.size can have large and long range impacts on the character of Kauai. The purpose of the ag subdivision law is to provide land to farmers within a reasonable 2 W2012 Master Fiiesl Commissions\Subdivisions\2012-11-13 subdivision Committee Minutes time. The purpose has been argu bly thwarted given the fact that an extension has been requested. Ifthe deadline under the old law has not been met, the developer at minimum should bo held to the i•equirernents of the new law currently in,effect which lessens the density allowed on open zoned land in ag districts. The Commission has the obligation to protect the public. interest by requiring the developer to reduce.density on ag lands per the existing law thereby lessoning the fragmentation of ag lands which State law affirms is a threat to the preservation of ag land. This would require a reconfiguration of the subdivision and depending on legal advice, either a new application should be required or a formal amendment to the existing subdivision application be made without which the extension should not be granted. She did not believe that a first mortgage satisfies the requirements of the law because she believed the intention was to require securities of high liquidity and a mortgage does riot meet such a requirement. She believed the proposed arrangement would establish a multi-year liability for the County which under the Charter requires County Council approval. If all of the concerns can be adequately addressed, she supports the proposed community benefits as long as there are safeguards to ensure that benefits accrued to the public are in perpetuity. She strenuously objects to any affordable housing other than farm worker housing be located on the ag subdivision. Smart growth principles would suggest that non-farm affordable housing be best located within Kapaa town property. If in doubt,keep the County's options open and do not bind the County the people of Kauai to irreversible conditions. Chair Texeira requested a written copy of the testimony. Mr. Dahilig noted that written copies have been circulated and is on file. Rayne Regush;Chair of the Wailua-Kapaa Neighborhood Association, stated that the Association endorses and supports the findings of the Planning Director in opposition to the applicant's request for a subdivision extension. The Director's supplemental report documents several important facts; 1)The failure of the developers to conclude construction plans within the allotted time,2)The uncertainty of sufficiency of the current bond amount to cover expenses related to infrastructure improvements, 3)The inadvisability of the County approving the applicant's request to substitute a surety for the project with a County held mortgage which may still require and environmental assessment and entail undue liability to the County,and 4)The undecided outcome of the properties tax status. It is likely that the request for extension really represents an eight year land banking attempt which should not be supported by the County. The Association feels the Commission is spending excessive time on this process of evaluating a potentially unprecedented and illegal exception that may grant this investor/land owner an extended subdivision request. Marj Dente stated that she did not believe this developer should be allotted any exceptions or concessions such as store upgrades or rodeo grounds as payoff for getting this extension. They must comply with all the new, laws. The land is suitable to raise crops and feed Kauai,not just to go into something convenient like tea. The land is suitable to raise cattle, sheep and goats to feed Kauai and all of the Hawaiian islands particularly with a slaughter house facility being discussed for Kauai. She asked the Commission to deny the extension request for all the reasons that have been presented. 3 VA2012 Master FileslCommissions\Subdivisions 12012-1I-13 Subdivision Committee Minutes Ken Taylor stated that he agrees with all of the earlier testimonies and reminded the Commission that their decision making process should be what is best for the community. The original staff report was to deny and allow it to be resubmitted. He thinks that would be the best for the common good of the community and hopes that the Commission will do whit is right for everyone on the island,not just the few. UNFINISHED BUSINESS (Far Action) Tentative Subdivision Extension Requests S-2006-45=Kealia Properties LLC. (LormgUl�Plantation Partners Kauai, LLC/Kealiakealanani), 24-lot Subdivision,TMK: 4-7-003:002, Kealia, Kauai. S-2006-46=Kealia Properties LLC ormerly Plantation Partners Kauai, LLC/Kealiakealanani,?,.48-lot Subdivision TMK- 4-7-004:001 Kealia Kauai. Andy Friend representing the applicant, Kealia Properties,requested that the Commission grant the deferral. They need more time. There are complicated issues with the staff's letter that was received a couple of weeks ago and there are still tax issues being worked out. Regarding the agricultural integrity, he requested that the Commission refer to the project documents that were reviewed and approved in 2007. There were extensive time and conditions put in to protect the integrity of the agricultural aspect of the properly. As a condition of the approval they had the staff of the Land Use Commission comment on the subdivision aftdr reviewing the documents. Not only does the developer intake agricultural activity,but it is required of every individual through submittal of agricultural plans,Agricultural Review Committee,to ensure that it is not just a residential community, but an agricultural residential community. Through the documents,the homeowner's association is vested the right to impose financial fines on homeowners that do not comply with documents. Chair Texelra stated that there are other factors they are considering in addition to the integrity. Commissioner Blake questioned if there will be real farmers on the separate lots. Mr. Friend stated that they are farm dwellings with conditions that require the submittal of an agricultural plan prior to the approval of a dwelling. The plan will be reviewed by an agricultural committee for implementation. There will be farming going on. Each dwelling owner does not have to farm. It can be leased out and they can hire labor to corrie in to manage and operate that activity. Commissioner Blake questioned if the project; as presently conceived, attempts to create conditions that make farming efficient or if there would be a hundred different lots that harvest three banana trees on each plot. 4 VA2012 Master Files\Commissions\Subdivisions\2012-11-13 Subdivision Committee Minutes Mr. Friend stated that they do everything they can to get past enhanced landscaping or passive hobbies. The reason for an outside agricultural review committee is to ensure agricultural activity with the purpose of creating income. There should be a marketing plan so there is small scale niche agriculture. Commissioner Blake noted that this is a 2,000 acre niche. Mr. Friend stated that it would be by 1.90 individuals. Commissioner Blake stated that the margins are very small and labor is high. It seems that it would be difficult to impossible to run a farming operation that is not going to be a losing proposition. When it is a losing proposition,people start doing everything they can to get around it. Irrespective to the grand scheme, it makes it less plausible. That is his main concern. He questioned if they will have to cross fences or if it will be left open if the lands are leased out to be farmed. Mr. Friend stated that they would have to stay within their own CPR unit. CPR owners that share a common boundary could share some type of co-farming activity. The smallest of the CPR units is around 3 acres and goes all the way up to 100 acres. His understanding is that over 80 of the Farm Bureau's members farm on 2 acres or less. Commissioner Blake noted that most of those people have always intended to farm. Farming isn't being imposed on them so that they can live on that parcel. He noted that cattle require at least an acre per animal. Mr. Friend stated that livestock would be a challenge on the smaller units. It would be more of a cultivated activity than livestock. At great expense, there is a potable water system as well as a pipe pressurized ag water system to the boundary of every lot. Every CPR unit will have pressurized ag water for agricultural activity. Commissioner Blake questioned if they have their own reservoir system. Mr. Friend stated that there is a ditch agreement with the mauka owner as well as this property to share a ditch system. To pipe the ditch water to each CPR unit is quite expensive. It is in the construction drawings as part of the infrastructure. Chair Texeira questioned if all of the documents are on file. Mr. Dahilig stated that their evaluation has been based on what was submitted back in 2007. The only supplemental information that was received was a four page letter back in July. The details concerning the further commitments and further adjustments have been limited to that four page letter. He referenced a letter that was received by email after the agenda was posted on Wednesday. He received a call from Ms. Sharkey, representing the applicant, seeking a further deferral of the item. He explained that the agenda had already been posted, but that the Department would not be opposed to the request because they do not want to prejudice the 5 VA2012 Mnster 1;Itms Contruissions\Subdivisions\2012-11-13 Subdivisiolt COM111111CC Mimics applicant if they are saying they need more time. They are specifically requesting a deferral based on the tax issues that they would like to resolve. Chair Texeira requested that the letter be reed. Mr. Dahilig read the deferral request letter into the record requesting a deferral to December 11, 2012. He stated that the Department has submitted a supplemental report based on information received subsequent to the September 11 meeting including advice from the County Attorney's office concerning some of the public benefits that were proposed. The Department is ready to move,but they would not oppose a motion should the Commission decide to move forward with granting the deferral request. Chair Texeira questioned if deferring to December 11 would jeopardize any deadlines. Mr. Dahilig stated that because this is a request subsequent to a subdivision already approved it does not impinge upon any mandatory deadlines that he Department would have to work with,however they would anticipate the December 11. meeting would be very heavy should this item be deferred. Chair Texeira questioned the November 27 meeting. Mr. Dahilig stated that he has no explanation beyond the November 7 correspondence as to why they are requesting December 11. The Department could be ready on the 27"',but it was not listed in the applicant's letter. Chair Texeira asked for clarification from the applicant that they are targeting December 11 to hopefully resolve the tax issue by that date. He also clarified that there is no guarantee that it will be resolved.by December 11. Mr. Friend stated that he could not guarantee that it would be resolved by December 11. Chair Texeira stated that the Commission would most likely not entertain another deferral after December 11. He clarified that the applicant is being hopeful that the issues will be resolved. Commissioner Blake questioned if the applicant is referring to new issues in their request letter. M r. l),.ihilig stetted that they have drafted the supplemental report including a bulleted list of items on page 4 and 5 based on the public testimony as well as the Committee's discussion concerning items they felt the applicant needed to address. The bullet points were transmitted to Ms. Sharkey on October 16 and at the October 23 meeting the Department requested driother deferral to November 13 because of legal reasons that the list couldn't be transmitted sooner. There was a gap of about 3 weeks since the issues list was transmitted and receipt of the correspondence, but no response was received. 6 VA2012 Master Files\Commissions\Subdivisions\20I2-11-13 Subdivision Committee Minutes Commissioner Blake stated that cumulatively this will be a three month extension. He believes all of the issues could have or should have been part of the whole planning process that the applicant undertook when they decided they would need an extension. Having entertained several extensions already and not being any closer to resolving the issues that are basic issues that would be covered by any applicant on any project on this size, he is not inclined to grant any further extensions after December 11. On the motion by Hartwell Blake and seconded by Camilla Matsumoto to defer this agenda item one more time until December 11, the motion carried by unanimous voice vote. Chair Texeira questioned if the public will be able to resubmit their proposals or if the Commission will take the proposals and incorporate them into an updated Director's report. Mr. Dahilig stated that they will take today's proposals and update the report. The Commission should anticipate a supplemental report before the meeting and he advised the applicant that the report is drafted well in advance of six days prior to the required posting date. If they receive something at the 11t1' hour it may not provide staff enough time to provide a proper analysis. Commissioner Blake underscored Mr. Dahilig's statement. He felt that they are often taken advantage of. Gabriela Taylor stated that the idea of getting people to promise that they are going to grow crops and come up with a plan sounds good, but she questioned who would enforce it. She staffed that it is unrealistic and there is no way to enforce that kind of agreement. Chalr Texeira seated that perhaps the applicant can address that at the December 1.1 meeting, NEW BUSINESS (For Action) Tentative Subdivision.Action: S-2013-04=Kukuiula Development Company (Havi,aii) LLC. 2-lot Subdivision, TMK: 2- 6-015.014 Kukuiula Kauai. Staff Planner Kenneth Estes read the staff report into the record. (Ora file) Lindsay Crawford representing the applicant stated that regarding Condition 4.A. concerning wastewater treatment,they communicated with the Department of Health and explained that this particular lot is a far reach from any existing sewer infrastructure the Kukuiula has currently built, so they requested the use of a septic system until they are able to extend the wastewater system to this lot. The Department of Health agreed in that earlier communication and there is supposed to be a subsequent communication indicating that they are 7 VA2012 Master Files\Commissions\Subdivisions12012-1143 Subdivision Committee Minutes acceptable. He requested that the condition be altered to indicate that all wastewater shall be disposed of in the Poipu Reclamation Sewer System or by other means subsequently approved by the Department of Health. Chair Texeira questioned how they would indicate that this is only temporary. Mr. Crawford stated that they can state"that is it approved as a temporary septic system" or as he suggested"or by other means subsequently approved by the Department of Health"with a clarification. Chair Texeira stated that he would prefer to have the language included. Mr. Crawford suggested that the condition state "All wastewater shall be disposed of into a temporary sewer septic system which will ultimately be converted to the Poipu Waste water Reclamation Sewer System." Staff Planner Dale Cua stated that the previous language that was mentioned was acceptable, Ultimately the decision matter should be the Department of Health. In revising the sece,>ml soi-itence in Condition 4.A., the second sentence would read "All wastewater shall be disivsed Into the Poipu Water Reclamation Seaver System or by other means subsequently approved by the Department of health." He noted that when they develop the property, it would require approval by the Department of Health anyway. Chair Texeira stated that he wanted to be sure they chid not have the option of sticking with the temporary system. He clarified that the Department of Health will review it and makes the decision. Mr. Crawford stated that the letter is forthcoming and should clarify. He stated that all other conditions were fine. Mr. Cua stated that he received the email from Tom Shigemoto of Kukuiula Development late yesterday. He stated that he would assume at some point the Department of Health will be coming in with revisions to the original.requirements. Chair Texeira questioned if they can approve the tentative subdivision action prior to receipt of the former letter from the Department of Health. Mr. Cua stated that if the Committee approves the staff report with the revised language to Condition 4.A. it would suffice. Commissioner Matsumoto referenced the drainage and Easement D-1. She stated that it is obvious that there is a lot of water that is collected in that area. Mr. Cua stated that because it is identified as a requirement of Public Works,the applicant would have to resolve this particular condition, 2.A., prior to final subdivision approval. 8 V A2012 Master Piles\Commissions\Subdivisions\2012-11-13 Subdivision Committee Minutes Chair Texeira stated that the Committee is entertaining approval of the application with a condition. He questioned if they would make a motion to approve and then discuss the modification. Deputy County Attorney Jung stated that they can make the motion to approve and then snake a second motion to amend the condition based on the approval of the Director's repot before they take action on the motion to approve, unless staff would like to amend the colidit otis, Mr. Cua stated recommendation would be for a notion to approve as amended. On the motion by Camilla Matsumoto to approve tentative subdivision action for S- 2013-04,Kukuiula Development Company (Hawaii) LLC,TMK: 2-6-015:014, Kukuiula, Kauai with the changes made to the Director's report, the motion carried by unanimous voice vote. Final Subdivision Action: S-2012-08=Princeville Prince Golf Course, 2-lot BoundaryAdjustment, TMK: 5-3- 006:041, 014 Princeville Kauai, Mr. Cua stated that he spoke with the authorized agent for the applicant. Although the Department has received all of the approvals from the necessary approving agencies, the applicant is requesting to defer action on this application to resolve some mapping issues. He stated that there was no time specified. The surveyor acting on behalf of the applicant is trying to resolve the mapping issues directly with the applicant. On the motion by Camilla Matsumoto and seconded by Hartwell Blake to defer S- 2012-08, Princeville Prince Golf Course, TMK: 5-3-006:001, 014,Princeville, Kauai,the motion carried by unanimous voice vote. ADJOURNMENT Chair Texeira adjourned the Committee meeting at 9:26 a.m. Respectfully submitted by: i Duke Nakamatsu, Commission Support Clerk 9 VA2012 Master Fites\Commissio33s 1Subdivisions12012-11-13 Subdivision Committee Minutes