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HomeMy WebLinkAboutSUB Sept 13 2011 min KAUAI PLANNING COMMISSION SUBDIVISION COMMITTEE MEETING September 13, 2011 The regular meeting of the Planning Commission Subdivision Committee was called to order by Chair Jan Kimura, at 8:39 a.m. at the Lihue Civic Center, Mo'ikeha Building, in Meeting Room 2A-2B. The following Committee members were present: Ms. Camilla Matsumoto Mr. Jan Kimura Mr. Hartwell Blake Discussion of the meeting, in effect, ensued: APPROVAL OF THE AGENDA On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve the agenda, motion carried unanimously by voice vote. MINUTES On motion made by Camilla Matsumoto and seconded by Jan Kimura, to approve the meeting minutes of 7/12/11 and 7/26/11, motion carried unanimously by voice vote. GENERAL BUSINESS MATTERS There were no general business matters COMMUNICATIONS There were no communications. UNFINISHED BUSINESS Tentative Subdivision Extension Request, S-2006-44, George Hobfber 11-lot Subdivision, TMK: 4-3-003:004, Kapa`a, Kauai. Staff Planner Dale Cua: What you have before you is an extension request for a proposed 11-lot subdivision in the agricultural district. As noted in the staff report this is the fourth extension request of this application. As far as the progress with the project there actually hasn't been any in the last two years although the County Department of Public Works is trying to resolve the Dam requirements. As far as the extension request is concerned the other agencies Subdivision Committee Minutes September 13,2011 1 didn't have any issues with the extension request the Department of Public Works has actually requested that they needed another year to resolve the Dam issues. Based on that the department is recommending an extension to June 26, 2012 however because there hasn't been any progress per say with the actually subdivision it is the department's recommendation that we don't grant any more extension requests. If the property needs to be further developed they can come back and reapply. However we are recommending that the applicant cooperate with the County to resolve the issues relating to the Dam. Chair: Questions, seeing none is the applicant here? Mr. Greg Kamm: Aloha Commissioners, Greg Kamm representing Pacific Bank the owner of the property, the relatively recent owner of the property. Chair: When did the bank take back the property? Mr. Kamm: December 30th of 2010. And just one clarification on the staff report, there has in fact, the prior owner did some work on the subdivision but I agree with Dale did not do substantial work on the subdivision conditions. However we have been focused on the larger issue which involves the County, the neighbors, the State which both actually, the twin reservoirs which under State law or State regulation are joined together and must be resolved together. So we have been meeting with Public Works, the County Attorney's office, the neighbors, trying to resolve this Dam issue which is truly precedent to most of the subdivision conditions. Chair: But at the moment there is no water in the Dam. Mr. Kamm: Correct. There has not been any water in either Dam for about six years. I previously was consulting for the Midler Trust and was involved with draining both reservoirs. Chair: Let me ask, what are the bank's intentions with this extension request? Mr. Kamm: Well the bank is by Federal regulation discouraged from being a developer, quote/end quote, so the bank is trying to find the right party to take over and actually do the work. The bank is not, I don't know if prohibited is exactly the right word but the bank cannot act as a developer so it is aggressively pursuing potential clients and has one very interested at the moment who will be able to proceed with the subdivision. Chair: If the bank cannot act as a developer why is the bank coming in for an extension request? Mr. Kamm: The property is more attractive and more valuable with the tentative subdivision in place and we have a better chance of moving it on to the project it is supposed to be. Chair: Okay. I see here you have a master plan, agricultural master plan, what is it? Subdivision Committee Minutes September 13,2011 2 Mr. Kamm: I believe that the prior owner did an agricultural master plan. I would have to dig it out. I am not certain that it is still current. Chair: Does the bank have a new master plan? Mr. Kamm: No the bank does not have a new Ag. master plan. Chair: Will the bank provide one? Mr. Kamm: I think that we depend on the developer to provide one. Chair: Dale, so are we going to request an agricultural master plan before final subdivision approval? Staff. The condition was initially placed on the project at the time tentative approval as granted back in 07 so technically speaking the applicant has satisfied that particular requirement when they were pursuing the project. And in that agricultural master plan that they submitted several years ago I think the agricultural master plan noted just basically the permissible uses that is allowed by State law. But as far as identifying a specific agricultural use, that agricultural master plan didn't do it other than in that agricultural master plan it identified basically the areas that were slated for development, for residential development, and basically the surrounding areas was to be left for agricultural use. Chair: Weren't we trying to get away from that gentleman farmers thing? And if they submit an Ag. plan with the County's approval wouldn't we be getting away from those gentlemen farmers? Staff. That would be the intent of creating the Ag. master plan, that was the primary intent of creating this Ag. master plan just to alert the future homeowners that these properties are within the agricultural district and by law you should be subject to be in conformance with the State law which is Chapter 205. Chair: So can we or should we add some kind of condition where the homeowners or lot owners after they purchase it have to come up with an Ag. plan before they can build their house? Mr. Jung: Once they do build the house when they come in for the zoning permit they do have to do a farm dwelling agreement which an agreement that they will farm. The problem is if we do a condition in addition to the Ag. master plan then these individual lot owners can then farm how they want to farm. So we try and identify specific farming that would be applied to the particular lot then it is difficult because we can't stop other types of Ag. activities. So if they wanted to do specifically goats or specifically a tree farm... Subdivision Committee Minutes September 13,2011 3 Chair: Just as long as they do some kind of Ag. Mr. Jung: The farm dwelling agreement will cover their requirements because it has to be recorded. Chair: Will it be enforced? Mr. Jung: That is a whole separate matter. Chair: I just don't want to see any more gentlemen farmers coming up. On the North Shore we have more than enough, Kalihiwai Ridge is like nobody farms up there. Mr. Jung: It is certainly a difficult issue and when you look at the Ag. responsibility for SLUD Ag. through 205, they say you have to farm and they say you have to do agricultural activity but they don't identify the amount of ag. activity you have to do or the amount of income you have to make. So I think it will take a legislative act to really give this thing the potency to be able to go and enforce effectively. I think the legislature will be looking at that issue especially because several issues have arose on the Big Island regarding 205. Chair: So what do we do for now? Mr. Jung: Right now if Mike wants to step up his enforcement then that is his Kuleana so I you can pose that question to him. Just so you know in the State law there is a requirement that all new dwellings have to have a farm dwelling agreement which requires them to be on notice that there is 205 and the requirement that this is agricultural land which has to be farmed. There is a provision, in this case there is no farm dwelling yet but when banks get the property back there is a provision within 205 that allows the County's to enter into what we call subrogation agreements with the banks so technically the farm dwelling agreement would be on hold should there be a default by the mortgagee and the bank is owning the property. In this case it is a little different because there is no farm dwelling agreement yet, it is just in the process of going through. But there is that law or that provision in 205 that allows us to stay enforcement until the bank can get the property and resell it to a new owner because the bank owns the property by default so they don't intend to be the owner of that property they just get it because the mortgagee is in default. Mr. Blake: So we have Chapter 205 that puts the owner on notice that farming is expected to take place. What if they don't? What do we do about it? Mr. Jung: Under Chapter 205 the laws allows the Counties to be the enforcement agency to enforce the farm dwelling requirement and farm dwelling agreement but even if there is no farm dwelling there still has to be some kind of agricultural activity. Mr. Blake: So they don't farm, build a house and don't farm. That to me is the problem, they don't do anything. Subdivision Committee Minutes September 13,2011 4 Ms. Matsumoto: What are the consequences for not farming? Mr. Jung: Well if it gets to the point of revoking the Class I zoning permit that is attached to the house there is still opportunity to have the Director modify it to force them into farming. It is an issue that is a real issue that we are trying to deal with as these things come up more often than not, especially as we go through the Ag. TVR issues. Mr. Blake: So what is the practical effect of revoking the Class I permit? Mr. Jung: Well it wouldn't be before this body because it is a Class I permit that is issued by the Director. The power to revoke, modify, or amend remains with the Director so it never comes to you guys. Mr. Blake: What is the practical effect of revoking a Class I permit? Mr. Jung: It is a difficult task I will tell you that but before we get into...I would prefer if we are going to into enforcement powers and what the department is doing then that should be in executive session. Mr. Blake: I don't want to know about what they are doing, what is the effect of it if you revoke the Class I permit, then what? Mr. Jung: Then they could appeal that decision to the circuit court. Mr. Blake: And if they lose? Mr. Jung: And if they lose then it would be difficult to have the house torn down. I am sure court would just impose that requirement for Ag. activity. Mr. Blake: So that is the ultimate price or penalty that the house torn down or removed. Mr. Jung: Right. But that would be hard pressed to see that happen. There is a case that I don't know off the top of my head but it is difficult to have houses torn down. Chair: Can we put it on the applicant to come up with a plan that will have the homeowners follow some kind of rule? Mr. Jung: There is usually two layers to these things. You have the Ag. master plan that comes through and then you have the CC&Rs that allow for or the new CPRs, require the owners to farm. So you see a lot of the new CPR documents saying they have to farm just to cover that requirement in the second step. So if one unit owner is not farming then the other owner can force through a civil action that owner to do the farming rather than have the County come in and step in to enforce on the whole lot on all unit owners. The developers see the problem and they are doing their best to write it in it is just the unit owner or lot owner, the burden is on them to do Subdivision Committee Minutes September 13,2011 5 their farming. And what level of farming that is the million dollar question because farm hasn't really truly been defined yet in State law or County law. Ms. Matsumoto: But to do something is important. Chair: I just feel any new Ag. subdivision coming up should have some kind of regulation where they have to farm, enough with these gentlemen farmers. Mr. Jung: In this particular case I think they did an Ag. master plan, the original developer did so they have that Ag. plan in place. Whether or not if there is a new developer that comes up and picks up the subdivision, if they want to amendment that I am sure they would come before you guys to do that. Chair: And their Ag. plan is acceptable? Staff. It was accepted by this body several years back. Ms. Matsumoto: So right now Dam safety is the biggest issue. Staff. The priority right now. Mr. Jung: And just so you guys are aware the County is working with Mr. Kamm as the agent for this property as well as the adjacent landowners to try and resolve this issue that DLNR has put on us. Ms. Matsumoto: And then June 26th, that is because of the previous dates? Staff. Correct. Chair: Anymore questions for the applicant? Ms. Matsumoto: How far along have you gotten? Mr. Kamm: We are well along getting a new developer in place; I would put it that way. Ms. Matsumoto: How about the other part about the Dam? Mr. Kamm: The Dam is dependant in large part on the County's downstream flood study and originally that was scheduled to be completed late in 2012. I think the County has been able to move that date up considerably which will be very, very helpful. There are a lot of players in this. There are three or four neighbors, the State of Hawaii its self owns land in the area, the County owns the better part of one of the Dams. It needs to be a cooperative effort and we are trying to pull everybody together. I know it can be done. I assisted in the decommissioning of a Subdivision Committee Minutes September 13,2011 6 Dam in Kilauea and it worked well but it was a much simpler situation with only two owners, more assets available, and it got done. So it is possible. One of the positive things about keeping this alive is that in breeching the large reservoir which is the likely outcome instead of trucking all of the soil to another location we will be able to use it as fill in the existing subject property with scraper for example and that is huge money savings for everybody since we will all be sharing the cost, the County, the neighbors, the bank and so forth. Ms. Matsumoto: How big are those Dams or the reservoirs, excuse me. Mr. Kamm: The small twin is about five acres, the subject property is 27 acres which probably 15 can be inundated when it is full and I have seen it almost to that level years and years ago. But we certainly don't want either reservoir to carry any water in it at this point in time, we all learned our lesson. Chair: What does the Commission want to do? Ms. Matsumoto: So you are saying with this extension that is it. Staff. That is it and that is only because the future landowner whoever it may be can then reapply. Ms. Matsumoto: Yes, that is your last paragraph here on page 3. Move to approve tentative subdivision extension request for S-2006-44, George Hoffberg, TMK 4-3-003:004, Kapa`a, Kauai. Mr. Blake: Second. Chair: All in favor say aye, so moved. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to grant tentative subdivision extension request, motion carried unanimously by voice vote. Tentative Subdivision Extension Request, S-2009-01,Alexander& Baldwin Properties, Inc., 31-lot Subdivision, TMK: 2-1-001:003, 051, Port Allen, Kauai. Staff. Thank you Mr. Chair. What you have before you is an extension request for a 31- lot subdivision within the General Industrial District in Port Allen. This is the applicant's second extension request and the applicant has been working to comply with the requirements of the subdivision. For this particular project there are quite a bit of infrastructure requirements related to the project therefore we are recommending an extension to October 28, 2012. Chair: Any questions for the planner? Seeing none, is the applicant here? Subdivision Committee Minutes September 13,2011 7 Mr. Tom Shi eg moto: Good morning, for the record Tom Shigemoto representing A &B Properties. Please Kokua. Chair: Any questions for the applicant? Ms. Matsumoto: What are you working on now? What is the biggest task right now? Mr. Shi eg moto: Me personally or related to this subdivision? Ms. Matsumoto: Related to this because there are many pieces to it. Mr. Shi e� The biggest nut is fire flow for this subdivision. Believe me it is a lot harder than it sounds but in order for us to get adequate fire flow we would have to extend a transmission main about a mile to the existing water tanks that sit next to Kaumuali`i Highway plus maybe add another tank. So we have been working with the Water Department and for us to move forward now in this current market is not feasible so therefore we are not getting anywhere. It is just a matter of if we want to go in and do the subdivision and put in this transmission line and build a tank we could but then at what cost? At the risk of not being able to sell these industrial lots is the problem we have. I will tell you that this is the same site that we have our solar energy project on but you never know what may happen if the plans fall through so this may be the last extension depending on whether or not the solar project actually gets built. And it looks like it is going to get built but again we want the extension just in the event that the plans fall through. Chair: Hartwell, do you have any questions for the applicant, any more comments or questions for the applicant Cammie? Ms. Matsumoto: No. Chair: What does the Commission want to do? Mr. Blake: Move to approve. Ms. Matsumoto: Second. Chair: All in favor say aye. On motion made by Hartwell Blake and seconded by Camilla Matsumoto,to grant tentative subdivision extension request for 5-2009-01, motion carried unanimously by voice vote. NEW BUSINESS Subdivision Committee Minutes September 13,2011 8 Final Subdivision Action, 5-2011-18,Kukui`ula Development (Hawai`i) Company, LLC, 5-lot Subdivision, TMK: 2-6-015:010, 011; 2-6-006:002, Kukui`ula, Kauai. Staff: Thank you Mr. Chair. In this application that is coming in for final subdivision approval the subdivision report notes that it consolidates a total of three existing lots and then resubdivides to five lots. And the intent of the proposal is basically to create a larger parcel for the future expansion of the Prince Kuhi`6 Memorial Park and redefines the boundaries between the Kukui`ula Shopping Village with the property and then it also breaks down a larger parcel, a larger residentially zoned parcel so that the resulting lots can be developed independently. The final subdivision map has been routed to the various reviewing agencies for their approval. We have received all the approval letters. As a result the department is recommending final subdivision approval of this application. Chair: Any questions for the planner? Seeing none is the applicant here? Mr. Lindsey Crawford: Good morning, for the record Lindsey Crawford, Kukui`ula Development Company, Hawaii, LLC. Chair: Any questions for the applicant? Mr. Blake: How much more property is being acquired by the Prince Kuhi`6 Memorial Park? Mr. Crawford: 16, we have a 16 acre preserve that is being consolidated into the existing 5 acres that they own so for a total of 21 acres total. Mr. Blake: 21? Mr. Crawford: 16 acres coming from Kukui`ula added to their 5 for a total of 21. Chair: What does the Commission want to do? Ms. Matsumoto: Move to approve final subdivision action for 5-2011-18, Kukui`ula Development, Hawaii, Company, LLC, TMK: 2-6-015:010, 011; 2-6-006:002, Kukui`ula, Kauai. Mr. Blake: Second. Chair: All in favor say aye, so moved. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to grant finals subdivision approval for 5-2011-18, motion carried unanimously by voice vote. Tentative Subdivision Extension Request, 5-2008-01, Stanley B. Narramore, 3-lot Subdivision, TMK: 2-6-014:032, K61oa, Kauai. Subdivision Committee Minutes September 13,2011 9 Staff. Thank you Mr. Chair. As noted in the subdivision report the proposal involves a 3-lot subdivision in the Koloa Estate Subdivision, this is the applicant's third extension request. The delays in the project have mostly been attributed to the applicant preparing a drainage study as well as addressing the requirements by the Department of Public Works, Department of Water actually. Their construction plans have been prepared and approved so it is a matter of the applicant constructing the improvements. We are recommending an extension to September 11, 2012 however we are also requiring an updated status report for further extension requests. Chair: Any questions for the planner? Seeing none, is the applicant here? Staff. I did speak to the applicant's representative on Friday, we spoke on a separate subject but in regards to this subdivision report he didn't have any questions and I reminded him of the meeting coming up on Tuesday. Chair: And he felt if wasn't important enough to show up. Staff. Well the homeowner is actually on the mainland. Chair: But he has a representative, right? Staff. Yes. Chair: Who is the representative? Staff. Roger Caires. Ms. Matsumoto: So when it says applicant has shown some progress what does that mean? Staff. Basically the construction, the most important requirements were the infrastructure and the drainage, the construction plans have been completed so it is just a matter of whether the applicant is going to bond it or whether they are actually going to do it. They have made no indications as far as what they are looking to do. Ms. Matsumoto: What did they do so far? Staff. The construction plans which was the biggest requirement and they did complete their drainage study so as far as...I believe they have to install a couple water meters and I am not sure if they have to do some kind of drainage retention basin on the property. Ms. Matsumoto: So why has it take three extensions for that? Subdivision Committee Minutes September 13,2011 10 Staff. I think the delays have been the review of the drainage study and the preparation of the construction plans. The construction plan review takes some time, it is a back and forth between government agencies and the applicant's consultant or their engineer. Chair: Will they be able to finish this project? Staff. They should. It is a pretty straight forward project but they pretty much control their destiny as far as when they want to complete it. Chair: So why don't we say that there will be no more extensions? Staff. That would be your choice. Chair: I mean it is such a small project, it is only 3 lots. Staff. It should be completed, yes, but then we have been pretty lenient on individual homeowners. Ms. Matsumoto: So status report, what about that? Staff. So basically if they are going to need another extension request they definitely have to provide some kind of status report as far as what have they done since the time we have given them an extension and if they feel they can complete the subdivision in the required amount of time. And the purpose of the status report is for your review and if you feel they have demonstrated in good faith that they have been trying to comply with their requirements then you can incorporate that into your decision. Ms. Matsumoto: So you are saying that you want the status report 60 days before? Staff. Prior to the expiration date. That would be July 12, 2012. Mr. Blake: We asked for a status report 60 days from the final or the time that the extension expires. What is the purpose of that, they tell you they cannot and they are going to come in for another... Staff: And that is where in that 60 days the department can prepare a staff report to you folks and then you can render a decision at that point. If you feel the applicant hasn't done anything then you don't have to grant that extension. That is the significance of the status report is to show and demonstrate that they have been trying to meet the requirements. Chair: Personally I feel that we should defer this application. We have done it in the past with bigger developers for not showing up, what is good for them is good for the little guys too. That is the way I feel. Subdivision Committee Minutes September 13,2011 11 Mr. Blake: So what do you want to do, postpone it? Chair: Preferably, defer it. Mr. Blake: That is fair. Ms. Matsumoto: Move to defer the tentative subdivision extension request for S-2008- 01, Stanley B. Narramore, TMK: 2-6-014, 032, K61oa, Kauai. Mr. Blake: Second. Chair: All in favor say aye. On motion made by Camilla Matsumoto and seconded by Hartwell Blake, to defer action on S-2008-01, motion carried unanimously by voice vote. Staff. Just for clarification you are going to defer it to the next meeting on the 27th? Chair: Yes. ADJOURNMENT This portion ended at 9:17 a.m. Respectfully Submitted. Lani Agoot Commission Support Clerk Subdivision Committee Minutes September 13,2011 12