HomeMy WebLinkAbout2013_1210 Planning_Minutes_ DRAFT KAUAI PLANNING COMMISSION
REGULAR MEETING
December 10, 2013
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair Katayama at 9:07 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room
2A-213. The following Commissioners were present:
Mr. Wayne Katayama
Mr. Jan Kimura
Mr. Hartwell Blake
Mr. John Isobe
Ms. Angela Anderson
Mr. Herman Texeira
Absent and Excused:
Ms. Amy Mendonca
The following staff members were present: Planning Department—Michael Dahilig, Dale Cua,
Ka'aina Hull, Jodi Galinato, Leslie Takasaki; Office of Boards and Commissions —Cherisse
Zaima, Deputy County Attorney Ian Jung
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Katayama called the meeting to order at 9:07 p.m.
ROLL CALL
Director Michael Dahilig noted that there were six Commissioners present.
APPROVAL OF THE AGENDA
Mr. Dahilig requested moving Item K. Subdivision after the Consent Calendar, followed by Item
L 1 relating to Green Energy, and Item M. for F.2.a and b relating to Barker, and Rice Camp
materials; executive session items to be handled during the lunch period.
On the motion by Herman Texeira and seconded by Angela Anderson to approve
the agenda as amended,the motion carried by unanimous voice vote.
MINUTES of the meetine(s) of the Planning Commission
Regular Meeting of November 12, 2013
On the motion by Herman Texeira and seconded by Jan Kimura to approve the
minutes of the November 12,2013 meeting, the motion carried by unanimous voice vote.
RECEIPT OF ITEMS FOR THE RECORD
On the motion by Herman Texeira and seconded by Jan Kimura to receive items for
the record, the motion carried by unanimous voice vote.
HEARINGS AND PUBLIC COMMENT
Continued Agencv Hearing(NONE)
New Agency Hearing
Class IV Zoning Permit Z-IV-2014-05 and Use Permit U-2014-05 to construct a farm
dwelling with garage, lanai and pool on Lot 13 of the Seacliff Plantation Subdivision in Kilauea,
further identified as Tax May Kev 5-2-004: 086 and containing a total area of approx. 5.082
acres =Kyle& Keate Barker. [Director's Report received 11/12/13.1
On the motion by Herman Texeira and seconded by Hartwell Blake to close agency
hearing, the motion carried by unanimous voice vote.
Project Development Use Permit PDU-2014-6 and Class N Zoning Permit Z-IV-2014-6
for construction of an affordable multi-family residential project for seniors on properties
situated in Lihu`e, along the southern side of Kalena Street and approx. 550 ft. southwest of the
Kalena Street/Rice Street intersection, further identified as Tax Man Kevs 3-6-004: 009 & 3-6-
009: 001 and containing a combined area of 5.198 acres =Rice Camp Partners, LP.
Mr. Dahilig noted written testimony was received from Allette Kanakaole for Dr. Burt
Sumikawa, and the Housing Director in support of this item.
On the motion by Herman Texeira and seconded by Angela Anderson to close
agency hearing,the motion carried by unanimous voice vote.
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Continued Public Hearing
Adoption of administrative rules interpreting provisions of Chapter 8, Kauai Countv
Code pertaining to the enforcement of Chapter 8, Article 17 (Single Familv Transient Vacation
Rentals) = County of Kauai, Plannin.0 Department. [Director's Report received and hearing
continued 11/12/13.1
Mr. Dahilig stated due to the public interest on this matter, the Department recommends
public hearing remain open for further discussion.
CONSENT CALENDAR
Status Report
Fifth Annual Status Report for Special Management Area Use Permit SMA(U)-2008-5,
Use Permit U-2008-4 and Class IV Zoning Permit Z-IV-2008-6, Tax Map Key (4) 5-2-012: 035,
Kilauea, Kauai = Charles Somers, as Trustee of the Charles Somers Living Trust dated
November 12, 2002 and West Sunset 32 Phase 1, LLC.
2013 Annual Status Report for Class IV Zoning Permit Z-N -2008-7, Use Permit U-2008-
5, Variance Permit V-2008-3 and Special Permit SP-2008-3, Tax Map Key 2-7-001: 001 (Por.),
Koloa, Kaua'i = Green Energy Team, LLC.
Director's Report(s)for Project(s) Scheduled for Agencv Hearing on 1/14/14
Class IV Zoning Permit Z-IV-2014-7 and Use Permit U-2014-7 for construction of an
affordable multi-familv residential project on a parcel located in Princeville, situated along the
makai side of Kuhi`o Highwav and approx. 250 ft. east of its intersection with Hanalei Plantation
Road, further identified as Tax Map Key 5-4-024: 020 and affecting a portion of a parcel
containing 19.204 acres =Kolopua Partners, LP
Shoreline Setback Activitv Determination
Shoreline Setback Commission Review SSCR-2014-42 and Shoreline Setback
Determination SSD-20 14-14 for a shoreline activity determination, Tax May Kev 2-8-017: 009,
Po'ipu, Kaua'i, for acceptance by the Commission=Jonathan Francis.
Jan Kimura requested that Item La. be moved to New Business for discussion,
seconded by Herman Texeira.
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On the motion by Herman Texeira and seconded by Jan Kimura to approve the
Consent Calendar as amended, the motion carried by unanimous voice vote.
COMMITTEE REPORTS
Subdivision
Subdivision Chair Jan Kimura read the Subdivision Report into the record.
The following tentative subdivision actions were approved 3-0:
S-2014-08 Department of Water Proposed 2-lot subdivision
S-2014-09 Brigitte M. Kuslo Proposed 2-lot boundary adjustment
The following final subdivision action was approved 3-0:
S-2012-10 Don Ho Enterprises, LLC ET. AL Proposed 2-lot boundary adjustment
On the motion by Herman Texeira and seconded by Hartwell Blake to accept the
Subdivision Committee report, the motion carried by unanimous voice vote.
GENERAL BUSINESS MATTERS
Request to amend Condition No. 22 to allow one (1) additional year to complete project
for Class IV Zoning Permit Z-IV-2008-7, Use Permit U-2008-5, Variance Permit V-2008-3 and
Special Permit SP-2008-3, Tax May Kev 2-7-001: 001 (Por.). Koloa, Kaua'i= Green Enemy
Team, LLC.
Staff Planner Dale Cua read the Director's Report into the record.
Eric Knudsen from Green Energy Team, LLC was present.
Mr. Kimura asked if this extension is granted, will it be the final extension to which Mr.
Knudsen replied he believes so, and that their internal goal is completion by August/September,
but they feel it is prudent to request an extension to December.
Mr. Blake asked if they are using water to cool anything to which Mr. Knudsen replied
they are using water for a cooling tower, which is circulated into percolation ponds; it is a closed
loop system which will not run into any streams.
Mr. Texeira commented that the current energy situation nationwide has changed. He
asked how that has impacted their bottom line going forward. Mr. Knudsen replied the current
energy situation reflects a need for firm power, noting that many photovoltaic intermittent
technologies work 22 to 24 percent of the time at the most for Kauai. The remaining 75 percent
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of the time requires stand-by power, which is being produced in two major locations: Port Allen
with diesel, and in Kapaia with naphtha fuel, and some hydro; a biomass plant will provide firm
power 24/7 which is critical for grid stability, and needs to be introduced. They are introducing
about 11.6 percent of the energy for Kauai with firm biomass power, which is an alternative to
diesel and naphtha, and reduces the cost to households between 5.5 to 20 million dollars per year
for the island as a whole.
Mr. Blake asked where the water for the cooling system comes from to which Mr.
Knudsen replied it comes from an on-site well system.
On the motion by Herman Texeira and seconded by Hartwell Blake to approve the
extension date of condition 22 to December 31, 2014,the motion carried by unanimous
voice vote.
Class IV Zoning Permit Z-IV-2014-05 and Use Permit U-2014-05 to construct a farm
dwelling with garage, lanai and pool on Lot 13 of the Seacliff Plantation Subdivision in Kilauea,
further identified as Tax May Kev 5-2-004: 086 and containing a total area of approx. 5.082
acres =Kyle& Keate Barker. [Director's Report received 11/12/13.1
Staff Planner Jody Galinato read the Director's report into the record.
Ms. Anderson asked if the Department has had discussions with the applicant on the farm
plan to which Ms. Galinato stated yes, and the applicant is prepared to answer those questions.
Mr. Blake asked to clarify if the plan has been submitted to which the applicant stated he
had a conceptual plan for the Commission's viewing, but has not officially submitted it.
In response to Mr. Blake's questions, Mr. Dahilig explained that at this stage, the
Commission will be taking action on this particular permit, and that the farm plan is asked to be
submitted prior to the applicant coming in for building approval. A consequence of the farm
plan is to ensure the final construction drawings match what they are proposing as part of the
agricultural infrastructure and activity. Mr. Blake asked if the farm plan impedes the issuance of
the building permit to which Mr. Dahilig stated it has always been a challenge to qualify what is
considered farming. If there is a concern on whether actual farming is taking place, it will be
raised at that time.
Mr. Kimura commented that the Commission has asked for the farm plan to be submitted
in the past prior to voting on it; have the rules changed? Mr. Dahilig replied there is no specific
rule; it is a condition of the application. If the Commission would like to see the farm plan
before taking action on this particular permit, they can do so. However, the current Department
recommendation is that it be submitted prior to building permit approval. Mr. Kimura noted that
there was another applicant before the Commission at Seacliff whose farm plan was to grow
grass. He asked if the Department has gone back to check if they are selling the grass to which
Mr. Dahilig stated it would be difficult for him to comment on another application measure. Mr.
Kimura stated that if a condition is included that the applicant must do a status report on their ag
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plan, he would like the condition to require a status report for the next five years after approval
of the application. Mr. Dahilig replied that is something they could institute, and is relevant for
discussion today.
Mr. Blake stated he thinks if an applicant is going to build on ag land they should, in
good faith, do some farming which encompasses more than just the landscaping of bamboo or
coconut trees here and there.
Ms. Galinato noted it has been the Department's policy to have applicants submit a form
stating that they will be farming, which is an agreement the applicant is bound to. Mr. Blake
asked what happens if they do not farm to which Ms. Galinato replied there are some penalties
involved. Mr. Dahilig added that a farm dwelling agreement is executed once a property is sold
or transferred, or when a dwelling is going to be established at the time of permitting. The
caveat is as much appearance given that it is enforceable, according to State law, any
encumbrance on a property such as a mortgage supersedes any enforcement authority on the
farm dwelling agreement.
There was further discussion on different types of farm dwellings and its requirements,
and real property tax benefits associated with ag parcels.
Mr. Blake expressed his concern that the lack of definition for what is considered farming
allows those who want to build million dollar homes on tiny parcels of ag land, with no intention
of farming to do so. He feels it is the Commission's responsibility to come up with a process or
parameters that define what farming is, and a way to enforce it. Mr. Dahilig explained some of
the complexities of dealing with a farm dwelling such as the one before the Commission that is
part of a larger subdivision or development project. Mr. Blake requested the Department do an
analysis on these types of farm dwellings as he predicts it will only get worse as time goes on.
Ms. Anderson commented that farm dwelling agreements are required by law, noting it is
a given that if there is a mortgage, any subsequent lien will be subordinate. However, the
subordination agreement can still be used by the Department to establish subsequent liens on
applicants not adhering to their farm dwelling agreement, preventing them from being able to
sell or requiring a fine be paid.
Mr. Kimura suggested instead of a lien, can a condition be included that states non-
compliance with the conditions of farming will result in fines of$1,000 per day to which Mr.
Dahilig stated due process must be given when entering the realm of civil penalties; he cannot
just issue a fine at his own discretion. He agreed that some of the situations they have come
across are absurd, but they must follow the letter of the law; from an evidentiary standpoint,the
phrase "compliance" is always an open-ended question.
Mr. Jung explained HRS 205, and the land use categories created in 1961 which lumped
anything not considered urban, rural, or conservation into the category of ag land;this makes it
very difficult to identify what is appropriate and good ag land. The State Division of Planning is
working on identifying good or bad ag lands, which may ultimately lead to a process of
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redesignation and redistricting. Mr. Jung noted there has been a conscious effort to try to deal
with this issue.
Mr. Texeira commented that Mr. Kimura mentioned an annual status report, and asked if
that was still on the table. He also asked whether a specific template for analysis could be
developed. Mr. Dahilig shared what had been done in the past with the TVR(Transient Vacation
Rental) special permit applications on agricultural land, and the possibility of using some of
those parameters to develop a system for analysis of farm dwellings.
Mr. Kimura asked what the County Attorney's office is doing to define the word
"farming". Mr. Jung explained that it becomes a State law issue as the State defines what is
considered agricultural activity. If the County tries to narrow what farming is, it will lead to
areas of preemption. He noted that farming itself is already defined. In response to Mr.
Kimura's question on what the Commission can do, Mr. Jung replied they can collectively make
a resolution to ask that Legislature look at redefining, and narrowing the scope of what farming
is. Mr. Kimura requested that an executive session be scheduled to discuss that.
The Commission received testimony from Santo Giorgio, agent for the applicant.
Mr. Giorgio commented on the discussion held by the Commissioners, noting that he is a
community member, and is well aware of the concerns that ag lands are being turned into
"gentlemen's farms". He made some suggestions on how some of those things could be
alleviated. Mr. Katayama noted what Mr. Giorgio has presented is a different issue than what is
currently before the Commission.
Ms. Anderson asked to hear the applicant's proposal for the farm plan. Mr. Giorgio
stated what he distributed to the Commission is a conceptual farm plan, but it has not yet been
reviewed by the Department. Mr. Katayama suggested the planner review it with the applicant,
and have this item deferred to the next meeting.
Ms. Anderson commented that the farm plan is something she would like to see before
voting on approving a particular use permit, and have it be part of the analysis before it comes to
the Commission.
On the motion by Herman Texeira and seconded by Jan Kimura to defer this item
to the January 14, 2014 meeting, the motion carried by unanimous voice vote.
Project Development Use Permit PDU-2014-6 and Class N Zoning Permit Z-IV-2014-6
for construction of an affordable multi-familv residential project for seniors on properties
situated in Lihu`e, along the southern side of Kalena Street and approx. 550 ft. southwest of the
Kalena Street/Rice Street intersection,further identified as Tax May Kevs 3-6-004: 009 & 3-6-
009: 001 and containing a combined area of 5.198 acres =Rice Camp Partners, LP.
Staff Planner Hull read the Director's report into the record. (On file)
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Makani Maeva of Vitus Development was present.
Mr. Kimura commented that he feels this is a great project, and he is impressed with it.
Mr. Katayama asked if funding for the project is in place and secured to which Ms.
Maeva replied yes, in September the State of Hawaii Housing, Finance and Development
Corporation ordered 9 percent tax credits, which will generate about 75 percent of the necessary
equity. Rent is set at approximately 40 percent of the area median income, and the County of
Kauai Housing office has allocated about $1.25 million in home funds to supply the gap
financing.
Mr. Kimura asked if they have received a lot of applications for this particular project to
which Ms. Maeva replied they have not begun the marketing for it yet, but they expect
substantial demand. Mr. Katayama asked what percentage of the estimated demand this project
will satisfy. Ms. Maeva replied that it will unfortunately only satisfy a small percentage. There
are approximately 8,100 seniors on Kauai that need affordable housing;this is only 60 units.
Staff planner Hull read the Department's recommendations into the record (On file),
highlighting Condition 2 which reads:
Prior to certificate of occupancy of any on-site improvements by the Department of
Public Works, the applicant shall obtain final subdivision approval of the consolidations of the
two subject lots into one single lot of record.
Referencing Condition 2, Mr. Kimura asked the applicant if that would be a problem.
County Housing Agency Director Kamuela Cobb-Adams stated that the land belongs to
the County, and will remain under the County's jurisdiction; the County will apply for that
consolidation. They would like to start construction in February,therefore, it is critical that the
developer submit building permits to ensure they remain on schedule. Mr. Katayama asked if
the timeline was reasonable for the Department. Mr. Hull stated being that it is only a
consolidation,there would not be too many exactions, and should allow for enough time.
Ms. Maeva stated that the financing will ask for confirmation that they will be able to
receive certificates of occupancy because the tax credits are driven by qualified individuals
occupying the units. She would really like to begin the subdivision approval as she highly
doubts they will fund in February to start construction unless the consolidation is well under
way. Mr. Katayama asked if there is a sunset on the tax credits to which Ms. Maeva replied yes,
they were awarded in September, and the property needs to be completed and fully occupied by
December 2014;they are able to get an extension to 2015.
Mr. Isobe asked to clarify whether or not it would be a problem to complete the
consolidation prior to the certificate of occupancy. Ms. Maeva replied it is a problem because it
is a condition that needs to be started right away before financing can close.
Mr. Dahilig stated the Department does not want to create conditions that place the
financing of the project at risk, and given the critical timing of the consolidation, the Department
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has had discussions with the applicant to impose some of the requirements as part of the zoning
permit approvals rather than the subdivision approvals. At the same time, requiring the
consolidation be handled subsequent to the certificate of occupancy will ensure the applicant is
able to fulfill the tax credit requirements.
Mr. Hull noted Condition 2 can be amended to read:
No more than one year after certificate of occupancy of any on-site improvements by the
Department of Public Works, the applicant shall obtain final subdivision approval for the
consolidation of the two subject lots into one single lot of record.
Ms. Maeva stated that condition is acceptable.
Mr. Hull stated the applicant has met with the Transportation Planner in the Office of
Public Works concerning pedestrian improvements associated with the project. When the
consolidation occurs,there will be certain pedestrian improvements that have been agreed to;
however, the Complete Streets policy condition can be utilized to allow some leeway. The new
Condition 3 would read:
The Complete Streets policy adopted by the County ofKaua`i under Resolution 210-48
shall be met. During building permit review the Planning Department shall ensure that
appropriate designs and infrastructure improvements are required, including but not limited to
pedestrian walkways
Mr. Cobb-Adams commented that the roads in that area do not have an appropriate right-
of-way, with many houses having eaves hanging over the roads. He is not sure they could agree
to Complete Streets, but they do agree to sidewalks in certain appropriate areas. Before they can
agree to that condition, they need a definition of the requirements of the Complete Streets policy.
Ms. Maeva added that the streets and drainage in that area are questionable, the
easements are not easily accessible because of adjacent properties, and they want to do what is
appropriate. She noted they will overburden the project with the extra costs of some roads with
sidewalks to only one house. They will meet Complete Streets as far as they can, but they have
to find a balance. Mr. Dahilig added that this type of condition and design requirement would be
a required element of subdivision approval, pointing out they have a Complete Streets law that
relates to how new construction in residential areas is defined. By clausing it as "Complete
Streets policy" as opposed to clausing it as "meeting the requirements of the ordinance" allows a
built-in flexibility. That is the trade-off they are trying to be sensitive to while also trying to
meet with the letter of the current law. He understands the concern the applicant may have with
the term "Complete Streets", but he wants to ensure the Commission that Complete Streets is a
flexible design practice. Mr. Dahilig added that the Department wants to work with the applicant
as part of the larger revitalization of Rice Street concept.
Mr. Cobb-Adams expressed his appreciation to the Planning Department for being
flexible. However, he stated that he has received numerous letters regarding the homeless, and
wants to point out the big picture in affordable housing. In order to build affordable housing for
60 elderly individuals,they will need to spend over $10 million. Those residents will pay $500
to $700 a month, or roughly 5 — 10 percent of that, and cannot carry that debt. Therefore,the
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County must come up with the balance to purchase the land, and find a willing partner. The
reason they want to do a consolidation is so that they can eventually do a Phase II. He noted
their goal is to put up actual houses as opposed to tents, and he questions how fancy a street
really needs to be in that sense. While Mr. Cobb-Adams feels the Complete Streets principles
are beneficial, he will seek exemptions in order to utilize as many funding dollars as they can for
much needed housing.
Mr. Katayama asked if Condition 3, as presented by the planner is acceptable to which
Ms. Maeva stated yes, as it seems to be the only option. She is unsure if Complete Streets will
affect the deal, but she will say yes with the hope she can do it. Mr. Cobb-Adams added that
they have worked with the developer on plans that give direct access to Rice Street, with a
possible bus stop, but those alternatives were not considered as sidewalks seemed to be the
priority.
Mr. Isobe asked if the Complete Streets policy/law can be exempt from 100 percent
affordable housing projects. Mr. Dahilig replied the actual subdivision law does not single out a
specific type of development for exemption. However, it provides some latitude in situations
where the terrain or urban form would not be conducive to the Complete Streets design
standards. Mr. Hull added the second condition was included to allow some leeway for the
applicant to work with the Transportation Planner, and that if the applicant feels the exactions
required in the Subdivision Ordinance are too much, they can make their case before the
Commission on how it is financially burdensome. Without that added condition, the
Transportation Planner cannot get involved.
Mr. Isobe stated the reason for his question is he feels the Complete Streets policy/law
should be completely waived for this particular project, and asked if that were possible. Mr. Hull
explained they could not waive the Subdivision Ordinance on the zoning approval, and when the
applicant comes before this body for the consolidation, it will be up to the Commission to decide
what exactions they want to waive, which could include the sidewalk improvements under the
Subdivision Ordinance. Mr. Jung further explained the Subdivision Ordinance contains a
specific provision regarding modification which would be more of a discussion point during the
consolidation process. A section in the new Complete Streets provision of the Subdivision
Ordinance addresses feasibility of improvements for a particular project.
Mr. Dahilig stated the consolidation action is required to free up the density issues being
proposed as part of the development, which is why the Department is offering a lag on it, as long
as it gets done. If a waiver were to be proposed by the Commission, the Department would take
a strong oppositional stance from the standpoint of adjacent residents who would benefit from
the Complete Streets policy. He explained that with the Complete Streets policy,the investment
of making minor infrastructure changes which enable people to be less reliant on automobiles,
and ultimately reduces homeowners' transportation maintenance, and operational costs.
Mr. Isobe reiterated his question of whether it is possible for the Commission to waive
the Complete Streets policy to which Mr. Jung replied yes, they can as long as they follow the
proper procedures. Mr. Isobe asked to clarify that at the time the applicant comes for the
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consolidation is when the waiver can be made to which Mr. Jung replied yes, explaining it is
because it's tied to a subdivision action in the Subdivision code.
In response to Mr. Kimura's request for clarification, Mr. Isobe stated he meant just this
particular application. The reason being he is concerned that open-ended conditions such as this
have a tendency to make financiers of the project uneasy because of the lack of clarity on what
exactly they are financing. He noted that he feels anything that compromises the ability to move
this project forward is going to be detrimental to the overall community. Because this is a
public/private partnership project between the County and the developer, he feels the Department
should not be imposing things that make it more difficult for the County to move the project
forward. Though he is hearing the intent is to provide maximum flexibility within the law, he is
still uneasy about whether or not that will be enough to secure the financing of this project. He
suggested a phrase be included in the condition to state the intent of the Department is to provide
maximum flexibility in implementing the policy to make it clear to the financiers.
Mr. Katayama requested a recess to allow the applicant to discuss with the Department
planner to determine what will work for both parties.
(The meeting recessed at 11:03 a.m.)
(The meeting reconvened at 11:20 a.m.)
Mr. Hull noted Condition 2 has been amended to read:
No more than one year from certificate of occupancy of any on-site improvements by the
Department of Public Works, the applicant shall obtain final subdivision approval for the
consolidation of the two subject lots into one single lot of record.
Mr. Hull noted new Condition 3 will read:
The Complete Streets policy adopted by the County ofKaua`i under Resolution 2010-48
shall be met. During building permit review the Planning Department shall ensure that
appropriate designs and infrastructure improvements are required, including but not limited to
pedestrian walkways.
Ms. Maeva stated they accept the conditions.
Mr. Isobe asked, given Condition 3, if the project financing can carry that condition
without any problems to which Ms. Maeva replied as long as they get the certificates of
occupancy, this phase is financeable.
On the motion by Herman Texeira and seconded by Jan Kimura to approve the
conditions as read,the motion carried by unanimous voice vote.
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NEW BUSINESS
Fifth Annual Status Report for Special Management Area Use Permit SMA(U)-2008-5,
Use Permit U-2008-4 and Class IV Zoning Permit Z-IV-2008-6. Tax May Kev (4) 5-2-012: 035,
Kilauea, Kauai= Charles Somers, as Trustee of the Charles Somers Living Trust dated
November 12, 2002 and West Sunset 32 Phase 1, LLC.
Mr. Kimura asked where they are as far as Condition 1 to which Ms. Galinato replied at
the time of the report the Department did not have the letter from the Kilauea Neighborhood
board withdrawing their intervener status. Therefore, this item will be back before the
Commission at the January 14, 2014 meeting.
Max Graham, representing the applicant was present.
Mr. Katayama asked how the Department was proceeding with the application to which
Mr. Dahilig replied both interveners to the amendment have withdrawn their request for
intervener status. Therefore,the Department will likely return the application to the Commission
for disposition.
The Commission received testimony from Bill Chase.
Mr. Chase stated he was working with the Kilauea Neighborhood Association, and
wished to acknowledge that they will be back to discuss the issue with the Commission. There is
a reason they had to withdraw their application for intervener status which he will explain later.
Mr. Chase asked to address Condition 18 which states access to the waterfall is left to the
discretion of the applicant. Mr. Chase stated the Kilauea Neighborhood Association strenuously
objects to his severe interpretation of that discretion, noting that there is no access to the
waterfall whatsoever.
Mr. Kimura asked if the Department has looked into that. Mr. Dahilig stated that what is
currently going on at the property is interpreted by the Department as being in compliance with
all terms of the permit. Discussions on whether there are access issues relative to the additional
development proposed by the applicant are better suited to be addressed when the permit
amendment is brought before the Commission.
Mr. Kimura asked to clarify that one of the conditions was that access to the waterfall be
provided, and that the applicant's interpretation of that is through the waterways. Mr. Jung
stated that was incorrect, explaining that because it is private property, access to the waterfall is
at the owner's discretion. Mr. Dahilig read Condition 18 of the approved permit by the
Commission which reads:
Access to the waterfall shall be permitted at the applicant's discretion.
Mr. Kimura commented that he knows for a fact access to the waterfall was provided at
the start of the construction of the house, and then the County went in and dredged the river;
following that,the applicant stopped all access. He asked why he allowed it before, but not
anymore. Mr. Dahilig replied that Condition 18 states "at the applicant's discretion", and does
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not state to any specific individuals, routes, or times. Mr. Kimura expressed frustration at how
the applicant interprets the language. He stated that the commissioners are not experts, and they
rely on the County Attorney to guide them in preventing the abuse of those interpretations. Mr.
Dahilig noted the Department interprets conditions implemented by the Commission as law, and
the language of that condition as written leaves it to the discretion of the owner.
There was discussion on the numerous differences in interpretations.
Mr. Dahilig stated it is difficult for the Department to read intent into permit
enforcement, and rely on the language of the permit; memorializing the language of the
conditions is critical.
Mr. Blake asked whether the waterfall itself is public property to which Mr. Dahilig
replied it is private. The land the water runs over is private; however the utilization of the water
is part of the public trust. Mr. Dahilig noted that much of what is being discussed now is more
pertinent to a discussion in the future when the permit amendments come up at the next meeting;
this is just a status report.
At the suggestion of Mr. Jung, Ms. Anderson requested briefing and discussion on
procedural mechanisms that can be utilized to obtain access during the permitting process be
included as afuture executive session item.
Mr. Dahilig noted that it is the Department's protocol that when dealing with sensitive
areas that have existing, or potential for public access, input from the Open Space Commission is
folded in as part of their permit considerations in looking for possible mitigation actions. Mr.
Jung noted that a fund exists that takes 1.5 percent of certified real property taxes, which the
County can utilize to purchase and acquire accesses based on advice and recommendation from
the Open Space Commission. Consideration must also be given to liabilities to the County that
can stem from that.
On the motion by Jan Kimura and seconded by Herman Texeira to accept the status
report, the motion carried by unanimous voice vote.
Mr. Chase expressed his apology that the community had to drop out of the contested
case hearing, and hopes it is not interpreted as a lack of passion, which remains.
UNFINISHED BUSINESS
Class IV Zoning Permit Z-IV-2013.17, Project Development Use Permit PDU2013-15,
Use Permit U-2013-14 and Special Permit SP-2013-5 to develop a research complex facilitating
research in various science practices that would include a research facilitv containing offices and
workshop areas, dormitory buildings, various accessory structures, and provision for off-street
parking on a parcel located along Kuawa Road, in Kilauea, approx. 850 ft. south of its
intersection with Kaumuali'i Highwav, further identified as Tax May Kev 5-2-013: 001, and
Page 1 13
containing a total area of 14.6 acres = The Resonance Proiect Foundation. [Director's Report
received 7/23/13, agency hearing closed 8/13/13, action deferred 11/12/13.]
Jonathan Chun, representing the applicant along with Greg Robison, was present.
Mr. Chun noted that at the last meeting there were some issues that the Commission
requested more information on one of which was whether or not there would be any hazardous
materials or hazardous activities on the property; the other had to do with the dome structure, and
what could be done to mitigate its impacts. In reference to the hazardous activities, Mr. Chun
explained they looked at rules and regulations that already govern the existing structures and
found that under the building code, the proposed structure is governed by the IBC(International
Building Code). Under the IBC, this use is classified as an Occupancy B (Business)which
includes educational facilities for 12a' grade and over, and laboratories. The IBC lists certain
hazardous materials, both used and/or stored, that would put the use into the Occupancy H
(Hazardous) category. The Science Officer of the Resonance Project has provided a statement to
verify that none of the items listed in the IBC under Occupancy H are going to be used, or stored
at the Resonance Project. In addition,they looked at the instruments to determine whether they
were out of the ordinary. The Science Officer indicated that he looked around the entire island
of Kauai, and found similar machines, and testing equipment at other institutions. He stated for
example KCC(Kaua`i Community College), and some of the high schools have some of the
same types of equipment in their labs. Mr. Chun stated the applicant is not asking for anything
unusual, or that is not already being used in existing educational facilities. Mr. Chun noted they
have statements from Mr. Brown who is the Technology Research Director.
Mr. Chun distributed to the Commission the relevant IBC provisions that deal with
business occupancy group B, and the entire list of hazardous materials and the amounts allowed
for storage. He reiterated that it has been determined the Resonance Project is not using or
storing any of those hazardous materials.
In reference to the comments made by both this Commission and the Historic
Preservation Commission on mitigating the effects of the dome structure, Mr. Chun reported that
they have been in contact with the company that manufactures the dome and were informed that
the dome could be colored in a shade of green that very closely matches the existing landscape.
Additionally, there will be landscaping directly in front of the dome with a type of bamboo that
had been brought to the Hawaiian islands by early Hawaiians, and will be kept at a height that
will completely shield the dome. The dome itself is 25 feet high, and sits at an elevation 18 feet
below the house. The elevation, along with the coloration will make it difficult, if not almost
impossible to see the dome from the house.
Mr. Kimura asked why this particular property was chosen for the project to which Mr.
Robison replied he wasn't present when the property was chosen, but it met the criteria that Dr.
Haramein needed for a research park; quiet, spacious, and equipped with facilities for research
and guest accommodations for visiting scientists. Mr. Kimura asked if the reason the property
was chosen was to accommodate the underground research laboratory to which Mr. Robison
replied he believes a lot goes into the purchasing decision for any piece of property. Mr. Kimura
asked if they had purchased the property as he was under the impression that they were on a 20-
Page 1 14
year lease. Mr. Robison replied their funder purchased the property, and funded the operations;
they have an option to purchase the property at any time during the 20 years.
Mr. Kimura commented he finds it unusual that they are seeking peace and quiet, yet the
property is located right next to a major highway. He again questioned why this property was
chosen as it doesn't offer the peace and quiet they claim to be seeking. Mr. Chun stated those
questions have already been asked, and answers were already provided at the previous meeting.
Mr. Kimura stated he would like to hear from the applicant, to which Mr. Katayama stated the
applicant can choose who they wish to address the questions. Mr. Chun restated that the
applicant had already testified that there were numerous factors that went into the selection of the
property, and doesn't think it is the Commission's decision to second-guess the perception of the
applicant. Mr. Chun stated it meets the criteria for the applicant, and what the Commission
needs to address is whether or not the use is consistent with the rest of the neighborhood which is
residential and agriculture.
Mr. Kimura asked how the use is compatible with the residential area to which Mr.
Dahilig reminded the Commission about the discussion at the last meeting involving the concern
with compatibility. He stated if something is claused simply as a research center, it can be many
things, and based on the Department's analysis and understanding of their mode of operation for
their scientific inquiry, it does not deviate from what you would normally see with gatherings
about political theory, etc. Mr. Kimura questioned this to which Mr. Dahilig stated it was asked
of the applicant to explain their research facility which involves collectively collaborating,
performing minimal, innate experiments in the spirit of scientific inquiry. The question of
compatibility is whether something like this will change the character of the community, and
while there may be disagreements on the Department's interpretation, their analysis determined
compatibility. The Department is satisfied that no type of activity that will be hazardous to the
health and safety of the community will be taking place.
Mr. Kimura pointed out that the statement submitted from Dr. Brown states they are not
currently using hazardous materials, noting that currently means what they are doing now, but
there is the possibility it might escalate. Mr. Chun replied that he doesn't think that is the
meaning of the statement. He further noted that should there be a change in use in the future, the
applicant would be required to comply with additional requirements of the building code, under
the guidance of Public Works, and also provide additional safeguards. He further suggested that
the Commission could include a condition that a change of use would require review by the
Planning Commission.
Mr. Kimura asked who regulates this type of research center in the United States to which
Mr. Chun replied the regulation of occupancy of use of buildings is regulated by the Department
of Public Works—Building Division;the regulation of occupational is with OSHA on the
Federal level. Mr. Kimura stated for clarification that he was referring to the particular type of
research they are conducting, asking whether there are any State agencies that regulate that. Mr.
Chun replied that if Mr. Kimura was referencing theoretical discussion between scientists, then
no, it is not a regulated activity by any Federal or State organization. Mr. Kimura clarified that
Mr. Chun is saying there are no regulations on the particular type of research the applicant
intends to do. Mr. Chun replied that is not what he is saying, and reiterated that the Building
Page 1 15
Division regulates all building uses, and will be in charge of looking at the occupancy and uses;
the State Department of Labor and Industrial Relations as well as OSHA are charged with the
safety of all employees regardless of what type of facility, including laboratories.
Mr. Katayama asked what the nature of the active experimentation would be as part of
the research or theoretical building, and what percent of the time would that activity take place as
opposed to theoretical discussion.
Mr. Robison stated he is not a scientist, but he is a witness to the operations, and
estimates that 90 percent involves conversation, discussion, and theory using computers and high
level mathematics, and 10 percent, at best, on physical experimentation. Mr. Katayama asked
what the nature of the 10 percent of experimentation would be to which Mr. Robison replied the
research director had already explained at the previous meeting, but he would do his best. He
explained the research will be based around the components of nature and the similar geometric
forms in an attempt to explain the interconnectedness of the universe and all its components.
The theory is called Unified Field Theory. The Director of Research of the Resonance
Foundation has published numerous scientific journals, which explains the mass of the universe
for which he has come up with a mathematical formula. Mr. Katayama asked what materials
would be utilized in applied research within the facility. Mr. Robison described an experiment
using neon tubes containing sealed gasses, which are used in proximity to each other that enable
the measurement of infinitesimally small energetic fields. Mr. Katayama asked what the gasses
would be considered to which Mr. Robison replied noble, or inert gasses; safe, non-hazardous,
non-explosive.
Mr. Blake stated relative to concerns about physical danger to the community, he would
like to see a condition included stating they will not use any equipment falling within the
hazardous category as listed in the IBC to ensure there is no question of whether it is or is not
hazardous. His understanding is that this is a research facility for any kind of research that isn't
hazardous, and deals with understanding the universe. He asked if anyone who would like to use
the research facility would apply through the foundation. Mr. Robison replied that they are a
publicly registered non-profit and are very visible. There are numerous ways for people to get in
touch with them, and to collaborate. Mr. Blake asked if they had a marketing arm to which Mr.
Robison stated they do not solicit people to come; it is by invitation only to those who have
something to contribute to the research. Mr. Blake stated if that is the case, as a member of the
community, he would feel better if he were able to find out who would be coming to the property
and when. Mr. Chun stated there is no goal; there is research and theory, and if people can
contribute to the realization or understanding of that theory, they can be invited. That does not
necessarily mean they are aware of who is out there, and a condition requiring them to disclose
invitees ahead of time would be unreasonable, and would be a condition that is not imposed on
other laboratories or educational facilities on the island. There was further discussion on how to
provide notification of who is going to be on the property. Mr. Chun stated the applicant
expressed concerns about privacy, and if there is no concern about a specific person being a
danger to the community, he doesn't see the issue. Mr. Blake replied the problem is they don't
know, therefore,they cannot make a judgment.
Page 1 16
Mr. Jung interjected to explain that the role of the Commission is not to micro-manage
projects in terms of identifying who will be staying at certain places. The Commission could ask
if these people are going to pay a fee because it would then be a TVR situation. Mr. Blake stated
all he is asking for is open information because this is an unusual use. There was further
speculation by Commission members on what exactly the facility is. Mr. Jung suggested a status
report that includes lists of guests, and the type of fields they are in rather than names. Mr. Blake
expressed his concern that a status report is after-the-fact, and that he has received several phone
calls asking questions about the facility that he could not answer.
Mr. Kimura stated his biggest fear is the unknown, and he does not have a 100 percent
guarantee that what the applicant is doing is not detrimental to the community, or the
environment. He stated it is the applicant's job to convince him that there will be no harm done
to the environment and to the people, and that there is no danger whatsoever; the applicant has
not done so.
Ms. Anderson stated her concern is with having the dormitory structure and the parking.
She referenced the definition of a dormitory as provided by the City and County of Honolulu
(CCH), and though the application before them states that it will not be used as a motel, she
wants to ensure that there is no confusion based on the CCH definition, and that no remuneration
will be part of the potential dormitory use. Mr. Chun reiterated as it states in the application
there will be no charge to any staff or researchers staying at the dormitory. To address an earlier
concern by Mr. Isobe on what happens to the dormitories should the use permit change, Mr.
Chun explained there is a condition proposed by the Department that states the dormitories need
to be converted, and considered dwelling units, which is acceptable. Mr. Blake asked to clarify
that the dormitories will be work-force housing provided as a benefit to the workers to which Mr.
Chun replied primarily for on-site researchers and staff.
Mr. Blake added that though they may not understand what the applicant is going to be
doing, it is still the Commission's responsibility to make a decision, noting when there is a lack
of understanding,the easiest thing to say is no. He wants to ensure there will be absolute safety
by way of materials and equipment for those working there, and for the surrounding community.
Mr. Texeira noted he has also received a number of calls regarding this project, and the
potential safety impacts to the community. One of the biggest concerns is who will be staying at
the dormitory. He has been asked if they will be inviting members of the international scientific
community, as well as scientists from third-world countries. Some possible solutions for being
open with the community would be to include the community in what they are doing, and invite
them to observe on a regular basis. Mr. Texeira would also recommend a status report at the
very minimum.
Referencing the two types of concerns raised by the Commission, one relating to safety
and the other relating to transparency, Mr. Dahilig noted the Department has come up with a
proposed condition that relates to safety. He commented that research is conducted on many
areas of the island, which are regulated by agencies beyond the Planning Department. As far as
transparency that can be characterized as just being good neighbors, and suggested the applicant
hold an annual open house where the property is open to the public for display of the scientific
Page 1 17
research going on there; a public symposium. He thinks that type of invitation to the community
would be a good neighborly thing to do, and would serve as an opportunity to share their ideas
and beliefs about physics.
Mr. Kimura stated that Mr. Dahilig stated other research facilities on the island are being
regulated to which Mr. Dahilig explained how materials and equipment are regulated across the
board, not just for one particular facility. Mr. Kimura expressed his concern for what has
happened in the past with other applicants who stated their intent and desire to go along with
conditions and laws, but ended up not doing so. Because there are no regulations on this facility,
Mr. Kimura feels he will never be at a level of comfort no matter what is explained to him; he
needs to be 100 percent sure there is nothing that will be detrimental to the environment or the
people. Mr. Dahilig expressed his disagreement based on the Department's analysis, noting
another aspect they look at is whether there is an added benefit to the community. He feels
exploration and innovation are what makes this country great, though it requires an element of
risk; nothing is guaranteed when exploring a new theory. Without science, exploration, and
innovation, many great things this country is known for would not exist. Whether we understand
it completely or not,the peripheral impacts of having learned minds on our island as a potential
educational resource is a benefit. Mr. Dahilig stated the Department has enough understanding
of the use to feel assured that there are sister agencies that can regulate certain uses, and in
addition, should the use change beyond the scope of the permit, the applicant would need to
come back to the Department to redefine the use. Mr. Kimura reiterated his point that there are
no regulations on what they do, which is a concern to him.
Mr. Cua read the following proposed amendments to the conditions into the record:
(amendments italicized)
1. The proposed research complex shall be developed as represented. Any changes to
said structures or facilities shall be reviewed by the Planning Department to
determine whether Planning Commission review and approval is warranted. If there
is a change in use or utilization of hazardous materials as regulated by the
International Building Code and the EPA, within the research complex, the applicant
shall appear before the Planning Commission to accommodate such uses and shall be
evaluated for consideration.
Mr. Kimura feels that still does not solve the problem as there is no one to regulate them,
which leaves the possibility that they may not comply with the conditions. Mr. Cua replied that
by not complying, the applicant will jeopardize their permit; a violation of a condition would be
a reason to revoke their permits. Mr. Kimura noted their location, and asked how anyone will
regulate them when the property is so isolated;they are not out in the open.
Mr. Katayama asked for the applicant's position on the conditions to which Mr. Chun
replied they are acceptable. Mr. Chun further commented that their funding source requires them
to comply with all laws, and in the event of a violation,they not only jeopardize the permit, but
their funding as well. Mr. Kimura asked if there is another agency regulating them to which Mr.
Dahilig clarified it is a contractual obligation, and prerequisite for obtaining funding for their
research.
Page 1 18
Mr. Chun stated they are also in agreement with Condition 2 relating to holding an open
house, noting they have recently started a community academy which invites the community to
participate as academy members. Mr. Dahilig commented that the home is a historic resource,
which lends to making the property somewhat available to the community.
Mr. Robison stated they have been working with the Kauai Historic Preservation Review
Commission as well as the State Historic Preservation Division, and have done extensive
research on the historical aspect of the property. They have also consulted the national standards
from the Department of Interior for the management, renovations, repair and maintenance of the
property. He noted that they conducted a tour just this past weekend for a member of the public,
Rick Shaw along with his father, who requested a tour. Mr. Shaw's father was a business
manager for the Kilauea Plantation in the 1950's, and during the tour,they videotaped the
conversation with Mr. Shaw in an attempt to piece together the history of the land and its
development. They have also offered the use of the property to the Kilauea Neighborhood
Association who asked that they host an event for the community related to the anniversary of
the founding of Kilauea town, and the lighthouse centennial, which they agreed to and look
forward to collaborating with them again. Mr. Robison added they have also hosted other tours
for their neighbors, noting that anybody who requests a tour will be invited in; they acknowledge
the importance of this community asset.
Mr. Robison stated today is the launch of the Resonance Project academy, which is an
online educational arm that offers lectures and curriculum internationally. Little to none of it
would happen on the actual property.
Mr. Dahilig read the following proposed condition into the record:
2. The applicant shall annually hold a public open house on property to showcase its
research.
Mr. Chun stated conceptually they do not have a problem with it, but they will need to
get a verbal approval of the Director first.
Ms. Anderson noted at the previous meeting, it was proposed that the underground
research lab would double as a hurricane shelter, and asked if there is any additional information
regarding occupancy, and whether it would be open to the public in the event of emergencies.
Mr. Robison stated the intention is to create a shelter for their residents and the community, and
in doing so, they may qualify for Federal funding, which would require it be available for public
use. They are unsure of what the requirements are, how it would look and function, the costs, or
the standards, but they are actively pursuing contact with FEMA.
Mr. Texeira asked how someone would request a tour of the property to which Mr.
Robison replied they would go through the contact section of their website; it will be an ongoing
thing. hi response to Mr. Texeira's question, Mr. Robison described the past events held on
property at the request of the Kilauea Neighborhood Association as well as other events KNA
has asked them to participate in. They have been working closely with KNA over the past year,
and feel there is no opposition from them. Mr. Texeira noted the conditions did not include
Page 1 19
anything about an annual status report, which he would like to recommend. Mr. Dahilig stated it
could be folded into the recommendations.
Mr. Blake asked if it would be appropriate to ask who they will be hosting to which Mr.
Dahilig replied there are some elements of rights to privacy that he is concerned about. From a
regulatory standpoint, it will be difficult to determine who they are inviting to just talk story as
opposed to conducting research; determining the accuracy of the list may also be problematic.
In response to Mr. Katayama, Mr. Robison stated they are in agreement with the
conditions read and amended by the Commission.
Mr. Isobe commented that discussion on this item has gone all over the place, and feels it
is important to offer clarity and understanding to the public on why a use permit is being
requested for this particular project, and what the responsibilities of the Commission are relative
to that specific request. Mr. Cua read the language as taken directly from the Director's Report
that was initially presented back in July. (On file) In response to Mr. Isobe, Mr. Cua explained
the use permit is being requested because the dormitory is not an outright permitted use in the
residential district. Mr. Isobe asked to clarify that the use permit is being requested specifically
for the dormitory to which Mr. Cua replied they are trying to bulk the entire development into it,
and listed the following various facilities included in the project as well as what is being applied
for:
• Research facility
• Dormitory
• Accessory agricultural buildings
• Lecture facility (dome)
Mr. Dahilig explained that because of the culmination of different uses, and the lack of
specific definitions for the dormitory in the residential use table, it was at his discretion that a use
permit be issued.
EXECUTIVE SESSION
Pursuant to Hawai'i Revised Statutes Sections 92-5(a)(2 and 4)the purpose of this
executive session is to discuss matters pertaining to the review of the Planning Director
pertaining to the Commission's FY 2014 work performance goals. Further, the discussion and
development of the Commission's work performance goals and objectives for the Planning
Director in FY 2015. This session pertains to the evaluation of the Planning Director's work
performance where consideration of matters affecting Privacv will be involved. Further,to
consult with legal counsel regarding powers, duties, privileges and/or liabilities of the Planning
Commission as it relates to the evaluation of the Planning Director.
Pursuant to Hawai'i Revised Statutes Sections 92-4 and 92-5(a)(4), and Kaua'i Countv
Charter Section 3.07(E), the Office of the Countv Attomev requests an executive session
with the Commission to provide a briefing and discuss legal issues concerning the disposal of
appeals pursuant to Chapter 9 of the Rules of Practice and Procedure of the Planning
Page 1 20
Commission as it relates to enforcement actions taken by the Department pursuant to Kauai
County Code Chapter 8, Article 17, specifically the sections enacted under Ordinances 864, 876
and 904. This briefing and consultation involves the consideration of the powers, duties,
privileges, immunities and/or liabilities of the Commission and the Countv as thev relate to this
agenda item.
On the motion by Herman Texeira and seconded by Angela Anderson to enter into
executive session, the motion carried by unanimous voice vote.
(The meeting moved into executive session at 1:00 p.m.)
(The meeting resumed in open session at 2:54 p.m.)
UNFINISHED BUSINESS (Cont.)
Mr. Cua stated for the Commission's reference that there are now 13 conditions for the
project; the underlined sections reflect the amendments to the conditions. (On file)
In response to Mr. Blake, Mr. Dahilig stated the Department does not wish to include a
condition requiring the applicant to provide a list of invitees as he has concerns about right to
privacy issues as well as implementation issues. Trying to determine who is there for research
purposes as opposed to a guest visiting a friend is a very gray area and will be very difficult to
verify. Mr. Blake stated the intent of his request is not enforcement, but transparency.
Mr. Texeira asked if the Planning Department receives a complaint from someone
expressing concern over what is going on at the property, is there a mechanism in place for the
Department to visit the site to address the complaint. Mr. Dahilig replied yes, and complaints
can be submitted via email or by telephone which will then prompt the Department to send an
inspector out to verify the complaint, and take appropriate action as necessary. Mr. Texeira
asked if it had to be complaint-triggered, or can the Department just do a random inspection. Mr.
Dahilig explained the Department's customary practice is generally complaint-triggered;
however there are circumstances where open and notorious practices may be witnessed by an
inspector as he is driving by, which would warrant an inspection.
Mr. Chun stated the applicant agrees to the conditions as proposed by the Planning
Department. He commented on the proposed amendment regarding hazardous equipment,
stating that there is no definition in either State or Federal law as to what constitutes hazardous
equipment,therefore, it becomes ambiguous as to what kinds of equipment needs to be reported.
He noted hazardous equipment could be something as simple as a chainsaw. Mr. Chun stated he
understands the Commission's concerns, but feels if they adequately want to address that,the
term hazardous equipment needs to be defined more clearly. Mr. Dahilig stated using the
qualifiers in the IBC and the EPA could help clarify what situations they are looking at, noting
that going through a litany of trying to describe exactly what that equipment is would be futile.
Page 1 21
At the suggestion of Mr. Blake, Mr. Dahilig proposed the language state "if there is a
change in use or utilization of hazardous materials or equipment requiring the use of hazardous
materials as regulated." Mr. Chun stated the applicant would be fine with that language.
Mr. Texeira expressed concern with Condition 13 which states the annual report will
conclude when all the conditions are met; however, he was expecting a longer term view to
continue until the Commission is satisfied. He requested striking the language "until project
completion". Mr. Texeira commented that he would like included in the annual report how the
applicant is interacting with the community, and what they are doing to be open with the
community; how are they addressing transparency. Mr. Blake suggested number of tours
conducted, and number of guests visiting.
Mr. Chun replied the applicant does not have a problem with the suggestion on removing
the language "until project completion". Mr. Chun stated he does not have problem with
reporting on community involvement, but suggested it be expanded to more than just number of
tours and guests, include involvement and activities with the community during the annual
reporting period such as support of science programs, tutoring, or work with schools. Mr. Cua
stated for clarification that the last sentence of Condition 13 would be stricken, and the second
sentence would be amended to read "the annual report shall include the progress and status of the
project, compliance with all conditions of approval, and its interactions/activities with the
community". Both the Commission and the applicant agreed to the amended language.
Mr. Isobe stated for clarification that the applicant will submit an annual report to the
Commission for review, and asked what happens if it is found to be unsatisfactory. Mr. Dahilig
replied the annual report is usually meant to provide a more public review of condition
compliance, and if it is found that representations of conditions being met are untrue, it can be
grounds for the Commission to modify the permit as an enforcement measure through Chapter
12 proceedings. Mr. Isobe asked what would happen if they revoke the permit, noting that there
would be a dormitory that is constructed on the property that is no longer a permitted use. Mr.
Jung explained if the Commission revokes the permit, the next step could possibly be going to
court to remove the dormitory, and other accessory structures tied to the permit; it depends on
the results of the revocation proceedings. Mr. Isobe asked for clarification on how that is read in
conjunction with Condition 6 to which Mr. Jung reiterated it would depend on the outcome of
the revocation proceedings. Mr. Dahilig explained the intent behind Condition 6 is to note that
because the property is available for more density than what is being constructed there, and the
Department wanted to make clear to the applicant that should the research project cease, that
does not give them a free pass to all of the available density based on the zoning code; the
dormitory counts toward density. Should they choose to remove the structure on their own
accord, Condition 6 does not come into effect. Mr. Isobe asked to clarify that should the
research facility's use be revoked,the dormitory would remain, and be converted to a single-
family dwelling to which Mr. Dahilig replied correct.
Mr. Kimura stated in that case, that gives the land owner a permitted house without going
through the proper channels. Mr. Dahilig replied the proper channel in such a circumstance
would be a non-commissioned permit to construct a residential dwelling which is outright
permitted in this zoning area.
Page 1 22
Mr. Kimura commented that he would not be supporting the application because neither
the Department nor the applicant has proven to him that it will not be detrimental to people or the
environment.
On the motion by Angela Anderson and seconded by Herman Texeira to approve
the Class IV use permit with the amended conditions, the motion carried by roll call vote:
4 Ayes (Isobe, Texeira, Anderson, Katayama); 2 Noes (Blake, Kimura)
Minutes of October 8, 2013 [Deferred 11/12/13]
On the motion by Herman Texeira and seconded by Hartwell Blake, the motion
carried 5:1 (Anderson—Abstain).
GENERAL BUSINESS MATTERS
Petition to Appeal the Decision of the Planning Director by Tomcik Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4287 (TMK No. 26011019)filed on
3/20/13 (Contested Case No. CC-2013-54).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4287 Tomcik, TMK Number 26011019 filed on 3/20/13 to a
Hearings Officer(Contested Case Hearing No. CC-2013-54) Request for Delegation
of Authority to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Wilson Concerning
Nonrenewal of Transient Vacation Rental Certificate TVNC-1322 (TMK No. 55004003)filed on
8/27/13 (Contested Case No. CC-2013-65)
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1322 Wilson, TMK Number 55004003 filed on 8/27/13 to a
Hearings Officer(Contested Case Hearing No. CC-2013-65) Request for Delegation
of Authoritv to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to. Appeal the Decision of the Planning Director by Ferreira Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4258 (TMK No. 49004009)filed on
8/29/13 (Contested Case No. CC-2013-66).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4258 Ferreira, TMK Number 49004009 filed on 8/29/13 to a
Page 1 23
Hearings Officer(Contested Case Hearing No. CC-2013-66) Request for Delegation
of Authority to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Driscoll Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-5030 (TMK No, 26006042)filed on
8/29/13 (Contested Case No, CC-2013-67).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5030 Driscoll, TMK Number 26006042 filed on 8/29/13 to a
Hearings Officer(Contested Case Hearing No, CC-2013-67) Request for Delegation
of Authoritv to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Troche Concerning
Nonrenewal of Transient Vacation Rental Certificate TVNC-5048 (TMK No. 28024006)filed on
8/29/13 (Contested Case No. CC-2013-68).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5048 Troche, TMK Number 28024006 filed on 8/29/13 to a
Hearings Officer(Contested Case Hearing No, CC-2013-68) Request for Delegation
of Authoritv to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Brownell Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-5064 (TMK No. 48007010)filed on
9/9/13 (Contested Case No. CC-2013-69).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5064 Brownell, TMK Number 48007010 filed on 9/9/13 to a
Hearings Officer(Contested Case Hearing, No. CC-2013-69) Request for Delegation
of Authority to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Hoerner Concerning
Transient Vacation Rental Certificate TVNC-1310 (TMK No. 45001002)filed on 9/16/13
(Contested Case No. CC-2013-71)
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-1310
Hoerner, TMK Number 45001002 filed on 9/16/13 to a Hearings Officer (Contested
Case Hearing No. CC-2013-71) Request for Delegation of Authoritv to the Clerk of
Page 1 24
the Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Hoerner Concerning
Transient Vacation Rental Certificate TVNC-1311 (TMK No. 45001002)filed on 9/16/13
(Contested Case No. CC-2013-72).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-1311
Hoerner, TMK Number 45001002 filed on 9/16/13 to a Hearings Officer (Contested
Case Hearing No. CC-2013-72) Request for Delegation of Authority to the Clerk of
the Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Vines Concerning Transient
Vacation Rental Certificate TVNC-1236 (TMK No. 49004011)filed on 10/11/13 (Contested
Case No. CC-2013-74).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-1236
Vines, TMK Number 49004011 filed on 10/11/13 to a Hearings Officer (Contested
Case Hearing No. CC-2013-74) Request for Delegation of Authoritv to the Clerk of
the Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Brosnan Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-5143 (TMK No. 58010014)filed on
10/21/13 (Contested Case No. CC-2013-76).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5143 Brosnan, TMK Number 58010014 filed on 10/21/13 to a
Hearings Officer(Contested Case Hearing No. CC-2013-76) Request for Delegation
of Authoritv to the Clerk of the Commission to Procure and Appoint a Hearings
Officer on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by McCarter Concerning
Transient Vacation Rental Certificate TVNC-1314 (TMK No. 43009028)filed on 7/14/10
(Contested Case No. CC-2013-80).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-1314
McCarter, TMK Number 43009028 filed on 7/14/10 to a Hearings Officer (Contested
Case Hearing No. CC-2013-80) Request for Delegation of Authoritv to the Clerk of
the Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal.
Page 1 25
Petition to Appeal the Decision of the Planning Director by 4421-A Aku Road, LLC
Concerning Transient Vacation Rental Certificate TVNC-5163 (TMK No. 55010023)filed on
7/30/09 (Contested Case No. CC-2013-81).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-5163
4421-A Aku Road, LLC, TMK Number 55010023 filed on 7/30/09 to a Hearings
Officer(Contested Case Hearing No. CC-2013-81) Request for Delegation of
Authority to the Clerk of the Commission to Procure and Appoint a Hearings Officer
on Behalf of the Commission for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Olsson Concerning Transient
Vacation Rental Certificate TVNC-5032 (TMK No. 26007007)filed on 11/16/10 (Contested
Case No. CC-2013-82).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-5032
TMK Number 26007007 filed on 11/16/10 to a Hearings Officer(Contested Case
Hearing No. CC-2013-82) Request for Delegation of Authoritv to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission
for the Instant Appeal.
Petition to Appeal the Decision of the Planning Director by Bardin Concerning Transient
Vacation Rental Certificate TVNC-1225 (TMK No. 55010039)filed on 8/22/11 (Contested Case
No. CC-2013-83).
b. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Transient Vacation Rental Certificate TVNC-1225
TMK Number 55010039 filed on 8/22/11 to a Hearings Officer(Contested Case
Hearing No. CC-2013-83) Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission
for the Instant Appeal.
On the motion by Hartwell Blake and seconded by Herman Texeira to refer Items I.
2-15 to a hearings officer,the motion carried by unanimous voice vote.
Update from the Director on Transient Vacation Rental Certificate Renewal and
Enforcement Efforts and Discussion on Disposal of TVR Related Appeals by the Director of
Planning.
Mr. Dahilig commented that this update can directly relate to the previous items 2-15 that
were referred to a hearings officer. He noted that in an effort to dispose of these appeals the
Department may engage in settlement discussions with the appellant should they agree to drop
the appeal based on agreed terms and conditions. If a settlement agreement can be reached, a
memorandum will be circulated to the Commissioners indicating what has been disposed of
administratively.
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Adoption of administrative rules interpreting provisions of Chapter 8, Kauai Countv
Code pertaining to the enforcement of Chapter 8, Article 17 (Single Family Transient Vacation
Rentals) = County of Kauai Planning Department. [Director's Report received and hearing
continued 11/12/13.1
Mr. Dahilig circulated testimony received after the last meeting from PONO (Protect Our
Neighborhood `Ohara)for the Commission's consideration. Mr. Dahilig provided an overview
of the Director's report, and draft version of the proposed rules. (On file)
Mr. Katayama referenced rule I.A.3.1, and asked if the Commission could require an
annual inspection to certify the facility is in compliance with accommodation by a third party;
similar to what hotels go through. He gave the example of migrant worker housing being
certified annually by a third party to ensure it meets certain standards and conditions. Mr.
Dahilig replied language could be added within this section of the rules to make it a compulsory
requirement of the Department to fulfill. Mr. Katayama stated it wouldn't necessarily have to be
the Department, but could be a third party; he would like to try to avoid creating more work for
the Department.
Mr. Blake asked if there is a point where there will be an opportunity for an applicant to
come back and submit missing information; what is the cut-off? Mr. Dahilig replied as listed in
Paragraph E. on Page 2,thirty days is the remediation period, anything beyond that will be
assumed as forfeiture of TVR use. Mr. Blake then asked if the applicant could come back 80
days later and justify why they failed to renew,to which Mr. Dahilig replied no, noting that
would require a full contested case hearing. Mr. Blake stated that should it become a contested
case, the applicant can still continue to operate illegally until the hearing takes place. Mr.
Dahilig explained that after the thirty days, because they forfeited the certificate,they will be
issued a Notice of Violation Cease and Desist Order and a fine; the procedure will remain the
same because of the due process requirements. Having the deadline, which forfeiture is
assumed, shifts the burden of proof to the applicant. Mr. Dahilig stated the thirty day window is
not a free pass; an applicant will have to pay double the administrative fee because it is late.
Mr. Isobe asked if the rules state that the County will inform the applicant or the operator
that the renewal is due to which Mr. Dahilig replied no, that has not been built in to the rules.
Mr. Dahilig further stated if the Commission wishes the Department to send out renewal notices,
a system would need to be established to prompt their staff to do so;there is no system currently
in place. There are a number of renewals that do not occur on the same day, and would need to
be continuously tracked; a monitoring and mail-out program would need to be implemented. Mr.
Isobe wondered whether or not notifying certificate holders will increase the probability of
timely renewals, which will eliminate the effort needed to follow up with a late renewal. Mr.
Dahilig will work on some language for the next meeting, and discuss the possibility with his
staff.
Mr. Kimura commented that in his opinion, TVRs are a privilege, not a right; something
illegal was made legal. Therefore, it should fall on the applicant to remember to renew their
permit. He expressed his frustration during this process from the beginning, and how it always
Page 1 27
falls on the County to provide reminders. He feels it should be the responsibility of the applicant
if they really want to continue that use.
Mr. Dahilig noted the Department does not have a predisposition either way on this issue
because there are logistical and manpower considerations they haven't taken into account yet.
The policy considerations must be weighed against the potential effects to staff man hours.
Mr. Blake stated should they start to send out notices, a caveat should be included to state
it is being done as a courtesy, and the applicant is still ultimately responsible.
Mr. Isobe stated for clarification that his intent is purely business-driven to determine if
proactively notifying TVR certificate holders will save the Department time and money. If the
potential for that is there, why wouldn't they? Additionally, it would be good customer service,
and they are ultimately a public service entity.
ANNOUNCEMENTS
Topics for future meetings
Mr. Isobe suggested a workshop to discuss budget priorities, as well as goals and
objectives.
Mr. Katayama noted this will be the last full meeting he will officially be conducting, and
expressed his thanks to the members of the Commission, the Department,the clerk,the Planners,
and support staff.
Mr. Dahilig thanked Chair Katayama on behalf of the Department.
The following scheduled Planning Commission meeting will be held at 9:00 a.m., or
shortly thereafter at the Lihue Civic Center, Mo'ikeha Building, Meeting Room 2A-213, 4444
Rice Street, Lrhu`e, HI 96766 on Tuesday, January 14, 2014.
ADJOURNMENT
The meeting adjourned at 3:47 p.m.
Page 1 28
Respectfully submitted by:
Cherisse Zaima
Commission Support Clerk
O Approved as circulated.
O Approved with amendments. See minutes of meeting.
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