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Home My WebLink Aboutpc 2-26-13 reg mtng minutes KAUAI PLANNING COMMISSION REGULAR MEETING February 26, 2013 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Katayama at 9:10 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Wayne Katayama Mr. John Isobe Mr. Jan Kimura Ms. Amy Mendonca Mr. Herman Texeira Absent and excused: Mr. Hartwell Blake Discussion of the meetingti in effect, ensued: CALL TO ORDER Chair Katayama called the meeting to order at 9:10 a.m. ROLL CALL Planning Director Michael Dabilig noted that there were five members present. Chair Katayama recessed the meeting to go into the Special Meeting for presentation of budget by Mayor Bernard P. Carvalho, Jr., Steve Hunt, Director of Finance, and Ernest Barreira, Budget Administrator. The Commission returned to the regular meeting at 9:36 a.m. APPROVAL OF AGENDA Mr. Dahilig recommended moving item L.1. to the end of the agenda and moving item H.L, Executive Session, following item L.1. On the motion by Jan Kimura and seconded by Herman Texeira to approve the agenda as amended, the motion carried by unanimous voice vote. 1 V:A2013 Master FilesV Commissions\PlanningAMinutes\2013-2-26 Planning Commission Minutes MAR 2, 12013 MINUTES of the meeting(s) of the Planning Commission Regular Meeting of January 22, 2013 On the motion by Herman Texeira and seconded by Jan Kimura to approve the minutes of January 22, 2013,the motion carried by unanimous voice vote. RECEIPT OF ITEMS FOR THE RECORD On the motion by Jan Kimura and seconded by Herman Texeira to accept the items for the record, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing Class IV Zoning Permit Z-IV-2013-7 Use Permit U-2013-7 and Special Permit SP-2013- 2 to allow establishment of a group child care home facility parcel located within the Wailapa Subdivision along the western side of Wailapa Road situated approx. 1,700 ft makai of the Kuhi`o Highway/Wailapa Road intersection further identified as Tax Map Key 5-1-005• 015 1 and affecting a portion of approx. 22 10 acres=Brianna & Cynthia Fehrim Letter(1/31/13) from Brianna& Cynthia Fehring requesting withdrawal of subject permits. Mr. Dahilig noted that they were in receipt of letter from the applicants on February 5 withdrawing the application. It is an after the fact permit and the Department will be issuing a cease and desist notice to require winding down of the school operations at the end of the scheduled school year or June 15, whichever is earlier, as a means to not disrupt the current operations and to not create a burden for families relying on the service. Chair Katayama clarified that the Director is recommending a stipulation on the unwinding of the activity. Commissioner Mendonca questioned if there will be a penalty imposed. Mr. Dahilig stated that they are choosing to disclose the course of action ahead of time to provide enough notice to find alternatives and wind down the operation so it would minimize disruption to members of the public using the service. Commissioner Mendonca questioned the current considerations if the applicant applies in the future. Mr. Dahilig stated that it would be a new application based on the withdrawal. 2 V:\2013 Master Files\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes On the motion by Herman Texeira and seconded by Jan Kimura to accept the withdrawal letter, the motion carried by unanimous voice vote. New Agency Hearin e (NONE) Continued Public Hearine To consider the adoption of administrative rules under authority of Kaua'i County Charter Article XIV Section 14.03E, interpretation of Ordinance 935, pertaining to the interpretation and enforcement of Kauai County Code Section 8-1.5 concerning the definition of"Kitchen." Barbara Pendragon, Planner for the Housing Agency, asked for clarification of Ordinance 935. Mr. Dahilig clarified that Ordinance 935 is the re-codified version of the full Comprehensive Zoning Ordinance. On the motion by Jan Kimura and seconded by Herman Texeira to close public hearing, the motion carried by unanimous voice vote. To consider the adoption of administrative rules under authority of Kaua'i County Charter Article XIV Section 14.03E, interpretation of Ordinance 935, pertaining to the interpretation and enforcement of Kauai County Code Section 8-1.5 concerning the definition of "Dwelling Unit" and"Dwelling Multiple Family." Mr. Dahilig noted that this was a hearing that was continued from January 22, 2013 and there was a supplemental to the Director's Report. There was no public testimony. On the motion by Jan Kimura and seconded by Herman Texeira to close public hearing, the motion carried by unanimous voice vote. New Public Hearine (NONE) All Public Testimony Pursuant to HRS 92 The Commission received testimony from Carl Imparato regarding agenda item Z.1. 3 VA2013 Master Piles\Commissions\Planning\Minutcs\2013-2-26 Planning Commission Minutes Mr. Imparato stated that the Hanalei to Haena Community Association in May 2012 and January 2013 presented testimony to the Commission supporting the applicant's proposal to locate the office building toward the rear of the lot with the parking area in the front of the lot that would be shielded from public view by substantial vegetation. Supplement 2 of the Director's report mischaracterizes the recommendations of the Community Association and implies that members of the public obi ected to the building near the highway because it would in effect require a two story building. He attested that the subject of a two story building never arose and never influenced those recommendations. The community believes that having the proposed building set back from the road in that location would be much more in keeping with the openness that characterizes rural Hanalei. The supplement states that the applicant's proposal would create a sea of visual blight in a virtual sea of parking. He felt it ignores the community association's conclusions that the existing trees that would be removed under the Planning Department's recommendation would shield the parking lot as it has done elsewhere on Kuhio Highway and that the applicant's proposal is preferable to keeping Hanalei, Hanalei. He felt that it boils down to the Department believing that it knows better than the local community how Hanalei should evolve when the Department's model for rural town is Koloa which is not what is wanted in Hanalei. The Council made it clear with the Resolution for multi-modal transportation and Complete Streets that substantial difference should be given to the community input and amended the proposed Resolution. He felt the Council made those changes because they were concerned about the Complete Streets program which is an urban vision that needs to be modified for rural environments. Ironically, the developer and the community have reached an agreement, but it's the Planning Department that has refused to engage with the community and instead have its own views. He noted that the General Plan envisions that Kauai will be an island of distinctly individual towns and communities each with its own unique history and character, but he felt the Koloa model is being imposed on Hanalei. He requested acknowledgement of and commended Keola Sheehan for working with the community. Members of the community look forward to developing a rural type pedestrian walkway fronting the property, not the kind that is mentioned in the Complete Streets vision of 8' wide concrete walkways. He requested that the Commissions give serious consideration to the community's recommendations and desires. Commissioner Kimura questioned who Mr. Imparato was referring to by"we" when referring to the community. Mr. hnparato stated that he was speaking for himself today, but the"we" in the testimony submitted in May and January was the Hanalei to I-Iaena Community Association and the members of the Board that voted on providing that testimony. He noted that the association does not represent all of Hanalei, but it is an open organization and always solicits people to attend meetings and participate. The Commission received testimony from Makaala Ka'aurnoana on item K.1. Ms. Ka'aumoana stated that she was appearing on behalf of Hui Ho'omalu i ka `Aina. She testified earlier at the Subdivision Committee meeting. She read her written testimony into the record (on file). She stated that they are very concerned regarding the segmented application 4 VA2013 Master Files\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes process and noted that the usual process for consolidation includes a subdivision application. This last place of green on this hill, place of storied kilo i'a, access and respite for fisherman and cultural practitioners, this place that provides the spectacular view of Makana across Hanalei Bay deserves the best and she felt the application does not provide the information needed to do the best. She believes the correct name of the stream to be Waileia and not Wailea. They believe the consolidation will increase the value of the developer's property and limit the County's future options to address some of the serious issues. She requested that the Commission denies the application and invite the applicant to submit a complete and accurate application, and recirculate it for agency review and back to the Commission. The Commission received testimony from Makaala Ka'aumoana regarding item L.1. Ms. Ka'aumoana did not have written testimony on this agenda item. She stated that Hui Ho'omalu is very concerned about the process that is taking place. Hanalei and the North Shore has a 40 year history about caring for its historic places and values, being proactive planners for the community, and working collaboratively with the varied interests and stakeholders. They are often commended for being the model for other communities. This process of trying to move the building to suit false values from other locations is not appropriate for Hanalei. She has concerns about driving into Hanalei and seeing parking lots, They will not have that if there is parking in front of this building. There are buildings on either side and there are trees mauka and trees to the side. She is concerned about the big brother nature of having the Planning Department tell the community what is good for them. It is not okay with most of the people of Hanalei. She has always been open to working with the Department, but they are fiddling with the process that is pone, open, and available to all members of the community. Hui Ho'omalu urged the Commission to respect the pono process they have undergone for 40 years and not support the imposition of other values on Hanalei. CONSENT CALENDAR Status Reports (NONE) Director's Report(s) for Project(s) Scheduled for Agency Hearing on 3/12/13 Class IV Zoning Permit Z-IV-2013-11, Use Permit U-2013-10 and Special Permit SP- 2013-4 to construct a church facility that includes a meeting hall (worship space), two (2) meeting rooms, restrooms, office and a pastor's living quarters, on a parcel located in Poipu, along the western side of Ala Kinoiki (Poipu Bypass Road) and immediately across its intersection with Poipu Aina Place, further identified as Tax Map Key 2-8-022: 015, and containing a total area of 2.946 acres =Koloa Congregation o0ehovah's Witness. Class IV Zoning Permit Z-IV-2013-12, Use Permit U-2013-11 and Variance Permit V- 2013-4 to allow installation and height variance for an 80 ft. high monopine tower that includes twelve (12) panel antennas on a parcel situated in Kilauea, along the western side of Kilauea Lighthouse Road, immediately adjacent to the Kaua'i Christian Academy facility, further identified as Tax Map Key 5-2-004: 102, and affecting a portion of a larger parcel approx. 13.203 acres in size=New Cingular Wireless PCS LLC AT&T). 5 V:\2013 Master Pilcs\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2013-14 and Shoreline Setback Determination SSD-2013-30 for a shoreline activity determination, Tax Map Key 4-3-009: 003, Kapaa, Kaua'i, for acceptance by the Commission=Jim Molz Shoreline Setback Commission Review SSCR-2013-16 and Shoreline Setback Determination SSD-2013-35 for a shoreline activity determination, Tax Map Key 2-6-005: 014, Poipu, Kauai, for acceptance by the Commission=.Kuhi`o Shores at Poipu Unit 209 Shoreline Setback Commission Review SSCR-2013-17 and Shoreline Setback Determination SSD-2013-36 for a shoreline activity determination, Tax Map Key 2-6-005: 014, Poipu, Kauai, for acceptance by the Commission=Kuhi`o Shores at Poipu Unit 206 Shoreline Setback Commission Review SSCR-2013-18 and Shoreline Setback Determination SSD-2013-37 for a shoreline activity determination, Tax Map Key 2-6-005:.014, Poipu, Kauai, for acceptance by the Commission=Kuhi`o Shores at Poipu Unit 208. The Commission received testimony from Tessie Kimlaman regarding items G.3.c, d, and e. Tessie Kinnaman requested that the Commission delay decision on items G.3.c, d, and e. After the hurricane, the applicant applied for a retaining wall on the shoreline and one of the conditions was for a public access along the wall to connect with the Beach House walkway and it has not been fulfilled. There is a paved portion from Lawai Beach Road to the grassy area onto their property, but there is no delineation or signage designating it as a public walkway. She spoke with Inspector Les Milnes and Planner Jody Galinato was going to follow up. She did not feel the Commission should approve the application until the previous conditions have been fulfilled. She requested that the walkway be built. Mr. Dahilig recommended that he Commission consent to moving items G.3.c, d, and e to New Business item M.1. Deputy County Attorney Jung stated that two Commissioners can request that any of the items be moved to new business matters so it can be fully discussed. It was moved by Herman Texeira and seconded by Jan Kimura to move items G.3.c, d, and a to new business under item M.I. Commissioner Texeira requested taking item G.3.a. out of the consent calendar for further discussion. It was moved by Herman Texeira and seconded by Amy Mendonca to move item G.3.a. to new business under M.I. On the motion by Herman Texeira and seconded by Amy Mendonca to accept the consent calendar items as modified, the motion carried by unanimous voice vote. 6 VA2013 Master Piles\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes GENERAL 13USINESS MATTERS Request for extension of Class IV Zoning Permit Z-IV-2008-5 Use Permit U-2008-3 and Special Permit SP-2008-2, Tax Map Key 1-8-001: 001, for an additional three (3) years to permit helicopter landings at Manawaiopuna Falls, Hanapepe Valley, Kauai =Island Helicopters. Staff Planner Kaaina Hull read the Director's report into the record (on file). Commissioner Mendonca noted that the permit is allowing 10 landings per day. She asked for clarification on whether only this company is allowed to land at that site or any other helicopter company. Mr. Hull stated that technically, the use permit runs with the land, so it would be for the ability to land there. Within the private agreement and the land owner, only this particular company can land at the site. It would be up to the land owner as to which companies they allow. It appears that they will only allow this company to use the site. Commissioner Mendonca clarified that some other company could land. Mr. hull noted that should another company secure that right through the land owner they could land, but it would still be restricted to the 10 landings per day. Commissioner Mendonca noted that there are 12 daylight hours per day. If 10 landings stay there for 40 minutes, It would be one every hour which would be a constant landing. In her opinion, if there are any awapani birds, they will not be there if there is a helicopter landing every hour. Walton Hong representing the applicant and Kurt Lofstedt, owner of Island Helicopters Kauai, were available for comment. Mr. Hong noted that under the current permits, they are allowed up to 10 landings per day five days a week, but they do not always make 10 landings a day depending on demand. They have filed reports with the Commission and over the past four years have shown that there have not been any impacts in the area from the landings. He read written testimony into the record(on file). On December 26, 2012, they submitted a request for a three year extension on existing permits allowing the applicant to land at the base of Manawaiopuna Falls. Originally granted by the Commission in 2008 for a two year period, they were extended in 2011 and they lengthened the time the aircraft could be on the ground from 20 minutes to 40 minutes to allow more time for the physically impaired to be able to enjoy the tour including the short hike to the waterfall. He noted that former Arizona Senator Gabrielle Gifford was able to partake in the tour because of the extended time period of 40 minutes. There was thought of possibly changing the County's policy towards helicopter landing sites in the future. As a consequence, the extension was approved subject to a condition stating that additional extensions may be granted for a longer period of time by the Planning Commission provided adverse impacts are not generated that affect the public health, safety and welfare, as well as the surrounding environment, and conditions of approval are complied with and there is no change in public policy regarding helicopter landings of this nature. In the event the applicant applies for an extension the applicant shall conduct an updated flora and fauna study and present their findings to the Planning Commission. He noted that the activity has not generated any adverse impacts affecting the public health, safety, and welfare as well as the surrounding environment and there has been no evidence of adverse environmental or ecological effects from the landings conducted over the past four years. As long as mitigative measures and conditions are continued such as mandated wearing of booties to prevent unwanted seeds from being introduced into the area, and not picnicking and swimming at the waterfall, there is no reason to expect any change in the 7 V:\2013 Master Files\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes environment and ecology over the next several years. The applicant has been in strict compliance with all conditions of approval and to the best of their knowledge there has not been a single complaint or violation against the applicant. There has been no change in policy regarding helicopter landings of this nature. The required updated flora and fauna study was conducted in November 2012 and the resulting report dated December 14, 2012 was attached to the December 26, 2012 letter. The report recommended that the mitigative measures currently in place as conditions of approval be continued which the applicant is more than willing to accept. The report concluded that there was no evidence that helicopter operations are causing adverse effects on the environment at the project site. The applicant is requesting a three year extension of the permit. Advertising contracts are usually placed one year in advance and it is difficult without knowing if the permits are going to be extended or not. They are requesting a modification to Condition number 10 to delete the requirement of an updated flora and fauna study with each extension. They believe that an updated study would reach the same conclusion of no impact. The undertaking is costly and disruptive to operations. They can allow only one helicopter at the site at any given time. The consultant would need to be flown in to conduct the study and they would not be able to conduct any other tours during the time. They are asking for consideration to delete the condition under the circumstances and given the past history of no impacts environmentally or ecologically. They submitted testimony from Charles Okamoto from Gay & Robinson, Inc. in support of the application. Curt Lofstedt, owner operator of Island Helicopters, thanked the Commission for the hearing and welcomed the new members of the Commission. He noted that they will be coming up on four years since the original landing permit was granted in March of 2009. The permit consists of 2,000 square feet of landing area on ag land near the base of Manawaiopuna Falls on private land, deep in Hanapepe Valley, 3.5 miles from the nearest resident. Prior to approval of the landing, Island Helicopters were allowed 16 flights around the island each day, and they have reduced that amount by 25% due to the extra time during the landings. They have not increased their fleet of 2 helicopters. They have increased the number of employees by 3 since they have started the landings. In the last 4 years,they have never received a complaint from Kauai residents concerning the landings or any other tour flight and they do not fly over any other part of the island they do not otherwise fly over on a regular tour. They have been abiding by all rules set forth by the Planning Commission. The landing area and trail to the falls is in beautiful condition, free of all debris. The area is completely in a natural state, no structures were built; only the grass is cut when needed. No food, beverage, or swimming is allowed. The Robinson family land owners and the Kauai Visitors' Bureau also support the landings. Island Helicopters has flown hundreds of local residents at either complementary or at discounted rates into the waterfall. This is a tool for the island to bring people over. It's something different and new. Along with his wife, Bonnie, and 19 local employees, they ask that the Commission renew the request to allow Island Helicopters' landing permit at Manawaiopuna Falls. Commissioner Mendonca questioned whether the power wash of the helicopters is done on site. Mr. Lofstedt stated that they wash their helicopters at the airport in Lihue. Commissioner Mendonca asked for clarification that they were requesting three years instead of two years for marketing purposes. Mr. Hong stated that it would be to reduce the hassle for advertising. For a two year permit, they would have to enter into the advertising permits one year in advance. If the permit ends in 2015, they would have to decide in 2014 if they are going to advertise the waterfall landings or not. A three year cycle would mitigate or help reduce the impact. If for some reason the permits would not be extended, they wouldn't be able to fulfill the advertising promises. If they don't advertise, it would also have an impact. They are requesting a three year cycle to mitigate the hassle of the advertising. 8 V:A2013 Master FilesV Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Commissioner Mendonca noted that it would be an inconvenience on the part of the applicant. Mr. Lofstedt stated that the advertising would be mainly for cruise ships. They can't bid on a cruise ship to take people because it takes a year and a half to get them the information, and sign the contracts. It prevents them from bidding on the ships. Commissioner Mendonca noted that they have had permits for four years and they are asking for three more years. Before they obtained their first permit, they would have had to preplan the advertising not knowing whether or not the Commission would grant the first permit. She asked for clarification that they have had four years and they want three more years to take care of the advertising. Mr. Lofstedt clarified that it would be mostly for the cruise ships. They haven't been able to use the cruise ships at all on their tours. They have had a lot of cruise ship operators that want to do the tour and have asked, but they aren't able to put it in the brochures. Commissioner Mendonca questioned their request that the Commission consider no further environmental studies be required due to the good results over the last couple of years. Mr. Hong stated that they believe that even if they do another study, because of the minimum impact over the past four years, they think they will have the same result with no impact. However, if the Commission wants an updated study, they will abide by it. Commissioner Mendonca felt a study is most important. Mr. Hong stated that they will abide by the decision of the Commission. They just raised it for consideration. Commissioner Mendonca stated that there was reference to the foraging of possible birds. She has heard about the apapane but has not seen that bird in all her life. If the study indicates the possibility of that type of bird foraging in that area, it is very important to have a continuance of keeping the environment safe. The Commission received testimony from Carl Imparato. Mr. Imparato stated that it is appropriate that the extension be temporary and one that can be terminated if the County establishes policies for regulating helicopter tours. It is very important that the condition remains because there is still no comprehensive County plan for managing the growth and impact of the helicopter tour industry. There is still no policy for addressing future applications for additional landing sites. Currently there are about 10,000 vacation units on Kauai, and given the grandfathering of units that can be built that number can go up to 13,000. There will be an increase of helicopter tours in the future and there will probably be an increase in applications for remote landing sites. I Ie asked the Commission to make it a priority for the County to work with the community to develop policies for regulating the tour industry before more applications come in and the Commission feels they can't disapprove because there is precedence. He noted the Mr. Lofstedt and Island Helicopters are one of the companies that have the fewest complaints and he has respect for the way they run the operation. The issue is makiing sure the Commission keeps the extension temporary so that they are not hamstrung if and when there is a policy. Commissioner Mendonca stated that she was unclear about the number of landings allowed during the day. 9 VA2013 Master Files\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Mr. Lofstedt stated that they are allowed a maximum of 10 landings per day, 5 days a week. It averages out to a little more than 5 per day over the year. Commissioner Mendonca noted that the peak season is generally from July through September and questioned if they max out during that time. Mr. Lofstedt stated that he did not have the numbers in front of him, but he has submitted a landing report. In the summer there are more tourists and better weather, but sometimes it is too windy to fly in. There were 3 or 4 days last week that they couldn't fly at all. Commissioner Mendonca stated that Island Helicopters is currently the only company that lands at the site. She questioned if he plans to subcontract. Mr. Lofstedt indicated that he does not intend to subcontract and the Robinson family that owns the property doesn't either. Commissioner Mendonca asked for clarification that each Landing is 45 minutes long. Mr. Loft stead stated that it was originally 25 minutes, and 99.99% of the flights are within 25 minutes. They requested the 45 minutes for the rare occasions that they have persons with disabilities. They don't want to rusts the trip to and from. It happens only a few times. Commissioner Kimura questioned if they have ever landed 10 times in a day. Mr. Lofstedt replied that they have. Commissioner Kimura stated that he would like to keep the extension as 2 years in the event of any policy change. That was the reason they originally went with 2 years instead of 3 years. He felt it was also very important to continue the studies. It is the price they pay for having the permit. He felt that landing there 10 times a day was too much.. Commissioner Mendonca questioned the frequency of the weed whacking. Mr. Lofstedt noted that grass sometimes grows faster but usually once every three to four months. Commissioner Mendonca clarified that the helicopter brings the equipment in, does the work, then leaves. She felt that the sound from the helicopters as well as the weed whacking can be detrimental. It could affect the animals or birds not being in that area. half. Mr. Lofstedt stated that they go in with 4 people that are in and out within an hour and a Commissioner Mendonca asked for clarification that the study is submitted prior to reapplying. She questioned if Commissioners have been offered an opportunity between the two years to view the site. Mr. Hull noted that the Commission can exercise that condition. The Department has gone out to verify that what is on the ground is what is presented in that location. Mr. Lofstedt assured the Commission that it looks identical to the day they took the Director in as it does half way through the year. It is completely cleaned up and there are no debris. 10 V12013 Master Pilcs\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Commissioner Mendonca stated that she was not disputing that they are doing their best. Her concern was that even if there have been no complaints, the ordinary person cannot go up in their car to take a look. She was concerned as part of being responsible for the aina and the surrounding places, that it is kept as pristine as possible. She can see that they have put in a lot of time putting it together and she commended them for that, but the Commission has to look at both sides. Mr. Lofstedt stated that they would be happy to put any Commissioner on a seat in a helicopter to go out and look at it. Commissioner Kimura asked for clarification that it would have to be the full Commission. Deputy County Attorney Jung stated that they can establish permitted interaction groups to go out. If they are going to have an evaluation of a permit, though, they would want the Department to determine if they are complying with the conditions, then the matter would be brought up before the Commission. The Commission acts in a quasi-judicial function to evaluate what the Department is recommending. For the Commission to do a site visit would be difficult given the context. They would probably want the fact finding between the Department and the applicant and then brought to a forum for discussion. Commissioner Kimura stated that there have been times when the Commission disagrees with the Department's recommendations. He did not see a problem with a Commissioner wanting to look at the site. Deputy County Attorney Jung suggested a video presentation in conjunction with the annual status report being that it takes a helicopter to get there. He would need to research how to craft a condition to effectuate. Commissioner Kimura asked for clarification that it is possible. Deputy County Attorney Jung stated that it is a possibility, but there would be difficult. Commissioner Kimura questioned if the whole Commission would have to attend if one Commissioner wanted to examine the site. Mr. Dahilig stated that if the Commission wants to schedule a site visit, they would also have to make available helicopter transit to the public. They would have to convene a meeting in the room, put everyone in helicopters including Commissioners and anyone from the public that wants to go along to visit and observe the site visit. They would have to entail some kind of liability and waivers and all of the people would have to indemnify the County and the helicopter company from any liability as well as any of the Commissioners that would have to be there all at once. To say that it is not possible is not true, but the logistical issues with accompanying site visits, given the interface with the Sunshine Law,poses logistical difficulties. Commissioner Kimura questioned if a Commissioner could make their own arrangements with the applicant to go out to the site. Mr. Dahilig stated that because Commissioners are supposed to be doing fact finding in terms of what is presented on the floor, individual site visits are not recommended by the Department. I£Commissioner Mendonca would like to see the site, they would have to recommend that the whole Commission schedule a workshop to do some type of site visit so that all Commissioners receive the same information at the same time. II V:A2013 Master FilesV Commissions VPlanning\Minutes\2013-2-26 Planning Commission Minutes Chair Katayama requested tabling the discussion to focus on the applicant. If there is follow-up for validation of what the Department is recommending then.they can discuss it in that venue. Before the Commission is a recommendation by the Department. Mr. Hong responded to Mr. Imparato's statement that the permit should be temporary. They realize that it is riot a permanent permit, but to say that it is going to be temporary and lapses any time the County adopts a policy puts the applicant in an awkward position. If they advertised today for a two year ad, and 60 clays from now the County adopts a policy change, they would have locked in advertising commitments. He did not mind the language in the conditions "should the County adopt a policy, then when the permits expire, they automatically lapse and cannot be extended", but to say that it would automatically terminate if and when the County adopts a policy, would place the applicant in a precarious position. Mr. Hull noted that should the application be approved either as being requested or as the Department is recommending, and subsequently a policy adopted, being that the application was already approved it would establish a grandfathering clause. Deputy County Attorney Jung suggested making time constraints as clear as possible. It is better to have a timeframe than to have it rely on some policy or Ordinance because the applicant could come in and challenge the policy or the Ordinance. There are grandfathering and vested right arguments that the applicant can raise. Commissioner Mendonca stated that they keep referencing it to be a financial difficulty for marketing, but she questioned if it would affect the entire business revenue if they didn't have the landing. Mr. Lofstedt stated that they have been trying to come up with a way to still make money and reduce the effect on the island. If they did not have the landing, they would be put in a position like every other company to fly more and charge less. They would like to make enough to support their employees and themselves. If they can fly less around the island it would be best for everybody. Otherwise he would have to cut prices and try to compete with the large companies that can fly for half the price and fly 50 more times around the island. The Commission received testimony from Makaala Ka'aumoana. Ms. Ka'aumoana stated that there is an organization on Kauai called Stop DAT, Disrespectful Air Tourism, and she is the one to whom complaint calls are forwarded. She noted that Island Helicopters flies complaint free. Those flights are on an agreed tour path around Kauai. People living in that path are familiar with the activity in that area. Someone would have to be flying off of the path to generate a complaint. Manawaiopuna reflects the songs of the three birds and the apapane is one of them. She reminded the Commission that the reason for the concern originally was for the birds and also the native gobi or o'opu. Whether to say that dust settlement on the surface or the water can be measured in the same way as bottom of the river sediment is news to her. They are two completely different impacts. She requested a copy of the report that she has not yet seen. She suggested a two year extension. If considering apapane or o'opu, it is not just the impact on that area, it may be impact that is occurring somewhere else and this area may be their refuge. It could be that this is the only place that they are. She noted that there wasn't any mention of containment of the cuttings from the weed whacking. The site inspections are cumbersome, but it is an important feature and she hopes it can be worked out. The Commission received testimony from Wilma Holli, longtime resident of Hanapepe Valley. Ms. Holli noted that the valley from the ocean to the mountain was their playground, but girls were not allowed to go to the falls. She had an opportunity to hike to the falls in the 80s. 12 V12013 Master Piles\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes She expressed concern about the geological features of the waterfalls and the impact from the rotor. It is a contained spot with a very small pool. She noted other areas of Hawaii where vibrations will cause rock slides. She also expressed concern for the cultural impact of the site. She noted that it has been called many names. During the time of the camps, the Native Hawaiian Indians lived in the upper parts of Wahiawa Valley on the top of the waterfall looking inward to the Bast, which is the Wahiawa Reserve now. The Native Hawaiian Indians from Minnesota and Virginia called it mini Ha ha. She has heard it called Manawaiopuna by kumu hulas. She noted that the correct name is Manowaiopuna and the meaning is in the name which is sacred. She noted that she and the family that she comes from have cultural kuleanas and they are the keepers of that knowledge. She noted that there is o'opu in the lower part of the valley only when there is big water that comes over the waterfall. Otherwise they will go into the overflow that goes into the ditch to Makaweli. This is the site of the McBryde versus State water case. Water is diverted from the pool to Makaweli. The water in the valley is a dry stream. She would think that the bird population would be thriving in the forested area which is in close proximity with very little human contact. If the birds are making a comeback, these are the places they would thrive. She recently saw a trailer of Jurassic Park that shows a good view of the waterfall, the pool, and the landing site. It is a really good marketing tool. Another Helicopter operator out of Burns Field took many couples to the waterfall on Valentine's Day to get married. It was done without permits. She did not have a problem with people trying to make money, but it would certainly give this operator an advantage over all other operators. She would not want to see an increase in the number of flights in and out of that opening. When the Commissioners visit, they will see how small the opening is and perhaps the Commission will consider some of the comments in her testimony. She thanked the Commission for the opportunity. Chair Katayama thanked Ms. Holli for the historical perspective. Mr. Hull read the following amendment in to the recommendations: The use of the helicopter landing site shall be allowed for an additional three years expiring on March 10, 2016. Additional extensions may be granted for longer periods of time by the Plamling Commission provided adverse impacts would not generate and affect the public health, safety and welfare, as well as the surrounding environment and conditions of approval are complied with and there is no change in public policy regarding helicopter landings of this nature. In the event that the applicant applies for an extension, the applicant shall conduct an updated floral and faunal study and present their findings to the Planning Commission. He noted that given Commission's testimony, the Department would be ready to amend the recommendation to institute or keep the two year time extension. Mr. Dahilig stated that the Department stands on their report. They would recommend that given the testimony and the discussion with the Commission, the Department would also support a two year extension, should that be the will of the Commission, and they would incorporate it into the report. Chair Katayama noted that the two year extension will stand and the expiration date will be March 10, 2015. Commissioner Isobe asked for clarification that as it stands, the Commission will grant a two year extension with the flora and fauna studies required. He also asked for clarification that the 10 landings run with the land and not with the tour company and cannot be increased regardless of the number of companies that land there. Mr. Dahilig stated that because the conditions run with the land it is a function of how the Gay & Robinson Company wants to permit other companies to fly in and out. He was not purvey to the nature of the agreement between the land owner and the applicant as to how many 13 V:A2013 Master PilesV Commissions\Planning\MinutesA2013-2-26 Planning Cmnmission Minutes landings the land owner has permitted the company to use. Based on the joint nature of the application, it seems that all 10 allocated slots are designated specifically to this company. Commissioner Isobe clarified that any additional companies that the land owner choses to enter into agreement with would have to abide by the conditions. Mr. Dahilig stated that is correct and that is how they would enforce it. Commissioner Isobe noted that Mr. Hong pointed out that the need to conduct the studies may impact the operations in terms of taking away a flight that can be used to carry paying passengers. He questioned if the Commission would consider allowing the consultants to fly once on a non-business day so it doesn't impact the business which would mean an additional flight, but he didn't believe it would create an improper impact. He felt the studies were important, but he could understand the need to try to mitigate the business impact by allowing them to fly on a non-business day. Mr. Dahilig stated that they could entertain some type of amendment to Condition number 5 relating to the limitation on 10 landings per day and possibly adding language for flights for research or maintenance by conditions of the permit shall not be considered within the permitted landings indicated only with prior notice to the department. Commissioner Isobe noted that it would ensure that those kinds of things are being done because the department would receive notice. Commissioner Mendonca stated that the applicant has already stated that there are down times. They fly less than 10 times a day during down times. They could do the study during slow periods. Commissioner Isobe understood that down times to be primarily weather driven. Mr. Hong stated that the question was whether or not they could provide time for the consultants and maintenance of the site during down time when they are not using all 10 flights a day. He stated that the down time is primarily because of weather. If there are not enough people to take the tour, they are still only allowed one aircraft to land at the site at a time. Whether 10 landings a day or 4 landings a day, it still wouldn't allow the consultants the full time they need to fly in, land, do their work and fly back out. They are in support of Commissioner Isobe's concerns and suggested language by the Director. If it is used for flying consultants, it wouldn't count against the 10 flights a day, 5 days a week. He noted that the 5 days are not faxed. It depends on a lot of factors. They do not fly on Sunday, but the other day depends on the cruise ships and weather. If they are unable to fly because of weather, they will try to make it up on the other;days. Commissioner Mendonca stated that there are 10 available times to land per day. Given a perfect day or a week of perfect days, they are landing one helicopter almost every hour. There are a lot of landings given a perfect day. Mr. Lofstedt noted that they also fly a regular tour also. They only have two helicopters so if they flew 10 flights a day, they would only have room for 2 regular flights without a landing. They have never in 4 years had several days in a row of 10 flights. It doesn't work out. One day may have 10 and the next day 4. They have demand for a regular tour and have to do that tour for the cruise ships too. Commissioner Mendonca noted that in an ideal situation each helicopter could stop 5 times, but asked for clarification that it never really happens. 14 V:A2013 Master PilesA Commissions\PianningWinuyas\2013-2-26 Planning Commission Minutes Mr. Lofstedt stated that occasionally they do have 10 flights in a day, but he noted this past week there was bad weather and they didn't fly the landings for 3 days. The next day there may be 5 regular tours so they can only do maybe 4 waterfall landings. Commissioner Mendonca noted that within the 10 flights there is sufficient time to do the repairs or the environmental studies. Mr. Lofstedt noted that if the weather is bad they wouldn't be able to fly maintenance crew in. On the days they have 4 or 5 flights on the landing, the other flights would be taken up on regular tours. It's possible to work out but it is not known how many flights per day they will have. Commissioner Texeira stated that he felt it is a privilege for the applicant to land at the waterfall and he has an exclusive contract. He did not feel it was asking too much to send someone in there and lose some business. He did not think it was unreasonable. Commissioner Isobe expressed concern that if there is a way to mitigate business loss and loss in revenues to support the success of the business. If they can come up with a solution that serves both the business and the environmental concerns, he felt it was important that they try to do that. On the motion by Jan Kimura and seconded by John Isobe to amend Condition number 5 to add at the end of the paragraph "flights for research or maintenance as required by the terms and conditions of this permit shall not be considered within the permitted landings allocated only with prior notice to the Department", the motion did not pass by the following roll call vote: 3 Ayes: Kimura, Texeira, Isobe—2 Nos: Texeira, Mendonca Deputy County Attorney Jung noted that the motion to amend fails. There is no action. Mr. Dahilig noted that the Department has incorporated an adjustment as part of their recommendation to read: "The use of the subject helicopter landing site shall be allowed for an additional two years only expiring on March 10, 2015." On the motion by Jan Kimura and seconded by Amy Mendonca to amend Use Permit U-2008-3, Special Permit SP-2008-2, and Class IV Zoning Permit ZIV-2008-5 as presented and orally amended by the Department, the motion carried by unanimous roll call vote. Stipulated Decision and Order between Kealia Properties, LLC and the County of Kauai Rescinding Final Subdivision Approvals for 5-2006-45 and 5-2006-46. Mr. Dahilig stated that this agenda item was not passed out of Subdivision Committee and was deferred so there is no action necessary on this agenda item. COMMUNICATION Wor Action) (NONE) COMMITTEE REPORTS Subdivision 15 V:A2013 Master FilesV Commissions\PlanningAMinutes\2013-2-26 Planning Commission Minutes Subdivision Chair Jan Kimura reported that under General Business Matters, Stipulated Decision and Order between Kealia Properties, LLC and the County of Kauai Rescinding Final Subdivision Approvals for 5-2006-45 and 5-2006-46 was deferred. He and Commissioner Texeira were present. Commissioner Blake was absent. The following Tentative Subdivision Action was approved, 2-0: 5-2013-09, R3ST, LLC., "fMK: 4-4-006:002, 012, 013. The following Tentative Subdivision Action was approved 2-0: 5-2013-11, `Ghana Hanalei, LLC., TMK: 5-4-004:001, 013 On the motion by Herman Texeira and seconded by Amy Mendonca to accept the Subdivision Report as presented, the motion carried by unanimous voice vote. Mr. Dahilig stated that written testimony was received by Hui FIo'omalu o ka `Aina from Malmala Ka'aumoana as well as written testimony from Carl Imparato requesting that the agenda item be denied. The Commission received testimony from Carl Imparato. Mr. Imparato stated that he was speaking on his own behalf. He stated that he urged the Subdivision Committee and now the Planning Commission to reject the application to merge parcels 13 and 1 because the information in the application was incorrect, incomplete and inadequate. Parcel 13 is the most visually sensitive parcel of land probably on the island. There is no condition imposed stating that the density on parcel 1 cannot be moved over and put on to parcel 13. Without conditions like this, the developer could chose to put more density on parcel 13 which has all the visual impacts. There needs to be more conditions in the Subdivision application for consolidation. There are conditions mitigating the impacts of future development on the nearby stream by requiring buildings be setback. Similarly, there could be conditions mitigating impacts on the view plane by requiring setbacks to keep buildings away from the view plane. There is no information regarding the fact that this is only stage one of a segmented project. It is consolidation with an anticipated large development. Segmenting of projects is inappropriate in environmental assessments because it doesn't lead to informed decision making. The application also does not mention that the zoning is RR10 and Open in some areas. He urged that the tentative approval not be granted and instead that the application be re-worked, made correct, made complete, and then given consideration to everything that needs to be considered. Mr. Dahilig stated that it may be appropriate to re-consider the matter and re-do the motion as presented by the Subdivision Chair. 16 V:\2013 Master Piles\Commissions\Pianning\Minutes\2013-2-26 Planning Commission Minutes Deputy County Attorney Jung noted that procedurally action has been taken. Public testimony was allowed through Chapter 92 at the outset. If the Commission wants to consider the testimony despite the fact that action has been taken; someone can entertain a motion for re- consideration because someone wanted to testify at this specific item versus the Chapter 92 testimony. The standard for reconsideration is ill-advised, hasty or added new information. If the Commission wants to deliberate and discuss the new information, they can through a motion to reconsider. Commissioner Kimura stated that the testimony was received and testimony was given during the morning Subdivision Committee meeting. Chair Katayama stated that procedurally they want the full Commission to consider that action. He questioned if there was a motion for reconsideration. There was no motion for reconsideration. Deputy County Attorney Jung noted that this is a tentative approval so it will come back for final approval. UNFINISHED BUSINESS (For Action) Class IV Zoning Permit Z-IV-2013-10, Use Permit U-2013-9 and Special Permit SP- 2013-3 to allow a storage operation involving various uses including construction and stockpile material, recycled metals, shipping goods and containers, and heavy equipment/trailers on property situated immediately west of Puhi Town, along the south side of Kaunmalii Highway, approx. 1/2 mile west of its intersection with Anonui Street, further identified as Tax Map Key 3- 3-002: 011, and approx. 8.129 acres in size =Kauai Veteran's Express Comp ny Ltd. Staff Planner Dale Cua read the Supplemental No. 2, Director's Report(on file). Lorna Nishimitsu representing Kauai Veteran's Express stated that at the last meeting there was an inquiry regarding violations and she stated to her knowledge it was issued to a predecessor. At the time, she was not informed that there was a notice of violation issued to PRC Corporation that Kauai Veteran's Express had allowed to enter on to the site. In late 2011 she was retained to prepare a petition to expand on the uses to include used oil,tire, and metals recycling that included automobiles and she met with the representatives of PRC to obtain information about preparing the petition. In the interim, they already set up shop and there was notice of violation issued. Kauai Veteran's had PRC vacate the premises and there was litigation between Kauai Veterans and PRC. There are still some DOH impositions that haven't been completed. PRC left behind used barrels and tires that are located within a warehouse, not on the ground. Kauai Veteran's obtained a quote that it would cost$6,000 to haul out. Attorneys representing PRC and Kauai Veteran's are trying to resolve the cleanup and Kauai Veteran's understands that if PRC does not proceed with the cleanup, it falls upon them to incur the expenses to restore the site to a condition that is acceptable to the Department of Health. Mr. Tressler raised an issue that the TIAR may have been before metals recycling was being discussed, but their application covers metal storage. When the TIAR assessment was being done, Kauai Veteran's was hauling tires, oil and metals for PRC. That was noted in the TIAR that was completed in July 2012. They submitted an application for consideration in January 2012. She reiterated that it is not clear whether Mr. Morinaka understood 17 V12013 Master Piles\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes that when the letter of violation was sent to PRC it also drug in Kauai Veteran's. She apologized for the misunderstanding. She noted that Haku Rivera was present to address any questions. Commissioner Kimura questioned if they would be continuing to recycle with companies on Oahu. Mr. Rivera stated that they would only be doing their own,with their own trucks, and they would not be doing recycling of cars. Ms. Nishimitsu stated that they described rebar and metal roofs,not dismantled automobiles. Commissioner Kimura asked for clarification that there would not be any petroleum. Mr. Rivera stated that other than their trucks,notlring from the outside; no scrap metals with oils. Commissioner Kimura questioned the mitigations for the environmental impact on the stream. Mr. Cua stated that the applicant will be working with the Department of Health and Public Works. Corn missioner Kimura questioned if it would have the same type of mitigations as any other recycling plants. Mr. Cua replied that it would,but this particular property is unique in that there is a stream that borders the property. Commissioner Kimura asked for clarification that all of the recycling would be stored in containers. Mr. Rivera stated that if they do pick up any metals they would be stored inside the warehouse. From there they would be loaded into bins. Commissioner Kimura stated that it would be costly to redo the roads,but he recommended that signs be installed at the bottom of the hill on both sides with a caution light informing motorists of the truck crossing. Mr. Rivera stated that he would need to work with the Department of Transportation on the requirements. 18 V:A2013 Master Files\Commissions\Planning\MimitesA2013-2-26 Planning Commission Minutes Commissioner Mendonca asked for clarification that only Kauai Veteran's would be driving back and forth and none of the contractors would be coming directly to the facilities to pick up equipment. Mr. Rivera stated that they would be doing the bulk of the driving. Ms. Nishimitsu clarified that there is a shared driveway requirement and everyone has to enter through a common driveway that serves Kauai Nursery, Brewer and because Kauai Nursery has green waste operations,the County brings in green waste. There are customers that would be paying bills at Kauai Veteran's but they are not driving big rigs. They would be there to remit on invoices. The delivery and removal of materials that are stored for customers would have to be done only through Kauai Veteran's rigs. Chair Katayama questioned the owner of the entranceway. Ms.Nishimitsu noted that it is owned by Grove Farm but it is a shared driveway for the two properties. It is part of the area leased by Kauai Nursery but is an easement in favor of Kauai Veteran's. Chair Katayama questioned the obligation in the event that there would need to be improvements to handle the traffic according to the highway plan. Ms. Nishimitsu stated that her understanding is that the State has their own development plan for improving Kaumualii Highway and the cost of those improvements will be through tax dollars. If the condition were to be imposed that Kauai Veterans has to do an improvement on Kaumualii Highway to benefit all the users of that access point,they will probably not be able to proceed with expansion of the uses because the cost would outweigh the benefit of the customer rental of space. Mr. Dahilig stated that the Department would orally modify the report to include language at the end of paragraph 5 to state"The applicant shall also propose and work with DOT to explore possibly installing site warning signals or signs to alert motorists of heavy truck movement in and out of the site." On the motion by Amy Mendonca and seconded by Jan Kimura to approve Class IV Zoning Permit Z-IV-2013-10,Use Permit U-2013-9,and Special Permit SP-2013-3 as read, the motion carried by unanimous voice vote. 19 V 12013 Master Piles\Commissions\Planning\Miiwles\2013-2-26 Planning Commission Minutes NEW BUSINESS (For Action) To consider the adoption of administrative rules under authority of Kaua'i County Charter Article XIV Section 14.03E, interpretation of Ordinance 935, pertaining to the interpretation and enforcement of Kauai County Code Section 8-1.5 concerning the definition of"Dwelling Unit„ and"Dwelling, Multiple Family Mr. Dahilig proposed that the Commission utilize the Charter authority to aid the Department in interpreting certain definitions within the County Code. Part of the difficulty in enforcement is that density and units are hinging upon the definition of kitchen as stated in the Code. There are concerns regarding having no clarity as to how to interpret those definitions as laid out in the definitions section. The proposal is with respect to the phrase"installed equipment". One proposal is regarding the definition of kitchen and the other is the interpretation of dwelling and the phrase"dwelling multiple family". Commissioner Kimura questioned if they can include gas stove line installed. Mr. Dahilig stated that the presence of a socket or gas line in and of itself doesn't provide enough evidence of intent that there is actually a kitchen. They tried to look at connections to a fuel source. Commissioner Texeira questioned existing residences. Mr. Dahilig stated that if there are any new designs, rules pertaining to kitchens would be applicable. As-built plans that show a designed kitchen previously would not have this applicable. Commissioner Texeira questioned a wet bar. Mr. Dahilig stated that they are clarifying the phrase"any building or portion thereof' which is an enclosed portion of the residential structure. Frying fish outdoors is not interpreted as necessarily a kitchen because of the open nature of the patio. Commissioner Kimura questioned how they would determine that a cut-out for a stove and a stub for a gas line is not a kitchen. Mr. Dahilig stated that from a legal context, the law requires appliance and installation. Commissioner Kimura questioned if they could change the definition. Mr. Dahilig stated that they would have to change the County Code. Given the lengthy issues on how to change the Code, it may be best to have that discussion as part of the CZO update. 20 V:A2013 Master Files VCommissions\PlanningAMinutes\2013-2-26 Planning Commission Minutes The inspectors are requiring guidance in the meantime, and they looked at the rules as an opportunity. Commissioner Kimura clarified that this is temporary until the CZO update. On the motion by Jan Kimura and seconded by Herman Texeira to bundle both items as one approval, the motion carried by unanimous voice vote. Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2013-14 and Shoreline Setback Determination SSD-2013-30 for a shoreline activity determination, Tax Map Key 4-3-009: 003, &a aa, Kauai, for acceptance by the Commission=Jim Molz Chair Katayama noted that there were concerns raised earlier. Staff Planner Jody Galinato noted that the applicant's representative was present for questions. Commissioner Texeira stated that his concern was that Waipouli is a very special area and an older community with a lot of historic homes'. When new homes come up, some of them are very large and take away from the existing units. He questioned if the applicant was considering a very large home. Mr. Ron Agor, representing the applicant, stated that the proposed home is comparable to a couple of homes in the area. His client would like to have the benefit of the use of the property as others have in the area and noted that it meets the current regulations. Commissioner Texeira questioned the size of the lot and proposed footprint. Ms. Galinato stated that the lot is 10,427 square feet and the proposed footprint is a little less than 5,000 with both dwellings. This dwelling is about 1,400 square feet. Due to the amount of renovations that were needed it had to comply with the flood requirements and needed to be raised. Commissioner Kimura questioned the second dwelling. Mr. Agor stated that there is an existing dwelling towards the ocean where the daughter lives. The roadside dwelling will be demolished and rebuilt. 21 V:\2013 Master Files\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Commissioner Kimura asked for clarification that it will not be rented out as a vacation rental. Mr. Agor acluiowledged that it will not. Commissioner Texeira stated that is a special area and questioned if the Department has any plans of looking at the entire site and considering special treatment. Mr. Dahilig stated that he was not aware of this area having a designation from the Kauai Historic Preservation Commission or State Historic Preservation Division. They could through correspondence work on communicating on whether it is something that could be looked at as a potential candidacy area. At this point, there is no additional zoning or protection that necessarily applies to this area. Ms. Galinato stated that they are processing a Special Management Area permit, so other agencies will have comments that will probably address some of the Commission's concerns. Deputy County Attorney Jung noted that the Commission would procedurally just have to accept the Director's report since it is a Shoreline Setback Determination. On the motion by Herman Texeira and seconded by Jan Kimura to accept the Director's report,the motion carried by unanimous voice vote. Shoreline Setback Commission Review SSCR-2013-16 and Shoreline Setback Determination SSD-2013-35 for a shoreline activity determination, Tax Map Key 2-6-005: 014, Poipu, Kaua'i, for acceptance by the Commission=Kuhi`o Shores at Poipu Unit 209. Shoreline Setback Commission Review SSCR-2013-17 and Shoreline Setback Determination SSD-2013-36 for a shoreline activity determination, Tax_Map Key 2-6-005: 014, Poipu, Kauai, for acceptance by the Commission=Kuhi`o Shores at Poipu, Unit 206 Shoreline Setback Commission Review SSCR-2013-18 and Shoreline Setback Determination SSD-2013-37 for a shoreline activity determination, Tax Map Key 2-6-005: 014 Poipu, Kaua'i, for acceptance by the Commission =Kuhi`o Shores at Poipu Unit 208. Ms. Galinato noted that the three shoreline setback determinations were for interior renovations within Kuhio Shores. One is for complete interior renovation, one is for a partition wall, and one is to replace a leaking bath tub. She was aware of the concerns and referred them to enforcement. She noted they are on the Shoreline Setback Variance and can go back on that application. Chair Katayama questioned the date of the initial complaint and investigation. 22 V:A2013 Master PilesV Commissions VPlanning\Minutcs\2013-2-26 Planiiing Convnission Minutes Ms. Galinato stated that the original complaint was filed in 2010. She was made aware of the concerns about 8 months ago atld referred it to Inspector Les Milnes for follow up. Deputy County Attorney Jung stated that the issue is primarily signage to indicate the access. He would need to go back and determine if the easements were recorded,but it is a separate process in terms of reviewing the setback determinations for the interior renovations. If it is an enforcement issue, it would be a separate matter, from the setback determination. They would have to enforce on the 2001 amendment to art original permit from 1987 for the revetment. Commissioner Kimura questioned the follow-up. Deputy County Attorney Jung noted that the Open Space Commission is looking at how to better provide signage for public access ways and are discussing ideas to formulate a plan for signage for all County controlled easements, or fee simple lost for rights of way. Commmissioner Kimura stated that the testimony referred to a pathway paved a portion of the way. He requested follow-up. Deputy County Attorney Jung stated that certain resorts put in pathways to a certain distance. Even though the pathways end,there is still an undeveloped.trail that may lead to the beach. He needs to look at the documents and determine if there is anything else that the County Attorney's office needs to do. Commissioner Texeira questioned if there would be a report back to the Commission. Deputy County Attorney Jung stated that he could report back to the Commission. He will work with the Planning Department to make sure all the documents were recorded. The Commission received testimony from Tessie Kinnaman. Ms. Kinnaman stated that following her earlier testimony she was given paperwork from Inspector Les Mihles showing condition number 6 for the pathway. The first paragraph refers to a grass-paved, geo-webbed surface. To her knowledge there is just a grassy area for the lawn. Mr. Dahilig noted that geo-web is a hexagonal mesh. Ms. Kimlaman noted that there is no delineation or signage. The easement is to serve as a connection between the adjacent property; the Beach House. She noted that you would need to walk through plantings to get to the Beach House. She was not sure the walkway complies with ADA. They were supposed to work with the neighboring Beach House property to remove existing landscaping to allow for continuous access. At the moment, it does not connect to the concrete walkway of the Beach House. The connection from Lawai Beach Road that goes onto the 23 v:\2013 Master Files\Commissions\Planning\Mitwtes\2013-2-26 Planning Commission Minutes property has a naupaka hedge and a potted palm tree in the center of the walkway. There used to be signagc,but it is gone. Commissioner Kimura noted that the Deputy County Attorney will be looking into it. Deputy County Attorney Jung stated that they are two separate issues. The 2001 amendment to the 1987 permit will be an enforcement issue. The permit that is pending before the Commission now are shoreline setback determinations that the Department looks to as a calculation based on where the State certifies the shoreline. Given the complaint,he will work with Inspector Milnes and report to the Commission as to whether all the access ways have been dedicated and the easements recorded. Ms. Kinnaman stated that irrespective of two separate matters, she questioned if the conditions run with the land. Deputy County Attorney Jung stated that the permit runs with the land as do the conditions. Any type of enforcement would be what is referred to as Chapter 12, order to show cause proceedings, as to whether or not they are in violation by not complying with one of those conditions. Ms. Kinnaman questioned whether that activity would not be part of the shoreline setback determination. Deputy County Attorney Jung noted that the shoreline setback determination is for interior renovations. If they were building a new structure and there is a potential violation,there could be an issue of whether the variance should be withdrawn based on non-compliance with the permit, but for interior renovations the structure already exists. He will look into the recording issues. Commissioner Mendonca questioned if there are repercussions that go to the owner if there are violations after they have already made the renovations. Deputy County Attorney Jung stated that the owners would have to comply with the condition to require access. It would come down to a hearing whether to amend, revoke, or modify the permit. You would force them to comply first. Mr. Dahilig noted that because this is an acceptance,not necessarily approval, it is possible to take items G.3. e, d, and e as one motion. On the motion by Herman Texeira and seconded by John Isobe to accept the Director's report,the motion carried by unanimous voice vote (4-0) Mr. Dahilig noted that Commissioner Kimura was not present for the above vote. 24 V:A2013 Master PilesVCoivmissions\Planning\Minutes\2013-2-26 Planning Commission Minutes EXECUTIVE SESSION Chair Katayaina stated that the Commission will go into executive session at 1:00 p.m. and reconvene the regular meeting after lunch at around 2:00 p.m. 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 evaluation of the Planning Director. This session pertains to the Planning Director's evaluation where consideration of matters affecting privacy 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. On the motion by Herman Texeira and seconded by John Isobe to move into executive session, the motion carried by unanimous voice vote. The Commission moved into executive session. The Commission reconvened the regular meeting at 2:08 p.m. UNFINISHED BUSINESS (Continued) Special Management Area Use Permit SMA (U)-2013-3 to construct a new commercial office building and parking for 13 stalls on a parcel situated along Kuhi`o Highway in Hanalei Town approx. 700 ft east of the Aku Road/Kuhio Highway intersection further identified as Tax Map Key 5-5-010: 079, and containing a total area of approx. 10,977 sq. ft. =Halelea Investment Company, Staff Planner Kaaina Hull read the Supplemental No. 2 Director's Report into the record (on file). Commissioner Texeira noted that creating a sea of parking stalls was one of the recommended reasons not to have the parking up front, but questioned a sea of buildings up front and how one can be weighed against the other. Mr. Hull stated that as the Commission begins reviewing applications particularly in the town cores, they need to look at the paradigm and how it affects the entire town core. The question is whether the Commission wants a landscaped parking lot or a landscaped street scape. In looking at the policy initiatives that have been implemented in the Multimodal Plan, the Complete Streets Resolution, or General Plan that specifically mentions Hanalei has having commercial buildings located in the street front is how the Department is making their recommendation. Commissioner Texeira stated that he understood the recommendation, but he did not want to see a cookie cutter community. He felt that every community should be unique and different. If residents of Hanalei want their community to look a certain fashion, he did not see why every community needs to be the same. Mr. Hull stated that the debate comes down to what is rural and what is historic for Hanalei. In looking at the way towns throughout Hawaii and the country have developed in the 25 V:A2013 Master Files VCommissionsAPlanningAMinutes\2013-2-26 Planning Convnission Minutes past 30 or 40 years, they have somewhat accommodated strip mall type of development; locating them further away from the roadside. Ultimately the parking lot and the accompanying surrounding parking lots become a visual blight upon'the historic aspect of a community. In recommending that the building be placed at the sheet frontage, the Department would look at and encourage the applicant to incorporate the historic design elements that are specific to Hanalei. The Department does not see having the parking lot up front as unique to Hanalei, but will create something that is a cookie cutter development approach that has spanned suburban sprawl throughout Hawaii. Commissioner Texeira questioned why it would be difficult for the Department to recommend to the applicant that they design a building that is historically compatible to Hanalei because it is set in the back. He did not see a problem. Mr. Hull noted if the building is moved to the back, there is no design element. It is essentially a parking lot. There is no historic or rural value in locating a parking lot at the forefront, particularly in town cores. Mr. Dahilig stated that the parking lot is a synthesis of the vehicular traffic that we have become accustomed. Historic movements throughout urban centers or smaller towns have traditionally been by foot. What was conducive to the ability to move through the town in a historic manner by walking is by having the shops within lines of sight, close together, in a pedestrian friendly location. They also look at historic character as being how people move. Each of the smaller plantation towns or urban centers that grew as a consequence of trading or commerce, the uniform element is structures that promoted walking. When they discuss multi modal transportation, facilitating pedestrian friendly environments in the urban form, as well as in the street scape, is appropriate given the preservation of historic character but also the need for less energy intense types of transportation. Commissioner Kimura stated that if parking is in the back, people won't know it is there. He questioned how there would be foot traffic if there is no place to park. There is no parking in Hanalei. He asked for clarification that the building is for office space and not retail. Mr. Hull noted that within the commercial district there are several uses that are allowable outright; office, retail, and restaurant. Commissioner Kimura stated that if it will be used for office space, he did not see a problem with the building in the back because foot traffic doesn't really work with office spaces. For retail, you want foot traffic in the front with a sign indicating parking in back, but he would not want to put a sign out front for people to use the parking lot if it is just for an office. Mr. Dahilig stated that the thought process behind what is walkable and what is safe for walking is almost counter intuitive. From an urban formscape standpoint, you would think that by having a broader area with grassy medians on both sides would actually be more conducive to walling, but it's actually the contrary which is the paradigm shift. When you have the buildings lined up within the lines of sight, regardless of the use, the area as a whole starts to look more walkable. The application can be looked at in a singular context, where office space is the only use identified, but it becomes an issue of exceptions to the urban form where they are trying to shift that is supported in policies dated back to 2000. By creating more historic and walkable areas, the urban form has to match regardless of the use. Commissioner Kimura stated that he understands, but there is an ice epidemic on the north shore. I-Ie would not want to leave his car in the back overnight. Having parking in front is more visible for the police and everyone else that drives past. He was concerned about theft. It would be more practical and safe to have parking in front. 26 V:\2013 Master Files\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Mr. Dahilig stated that many of the policies that have come up and the reason for public attention is an inflection point of how we perceive the way people move around the island. It is clear from the recent policies that multi modal transportation tends to be the preferred route versus something vehicular. Decisions have to be in the context of how in the vehicle is placed as a priority in plaiming. from recent policies, there is a clear shift to go from a vehicle centric design to something more multi modal. Commissioner Kimura noted that Kauai is unique and different and he did not feel they should follow the trend of other islands. Mr. Dahilig agreed that Kauai is different, but we are experiencing the growing pains associated with urban sprawl. The planning science behind mitigating urban sprawl has been how they view the car. Commissioner Kimura stated that he understands, but Kauai has always been unique and different and we are a lot slower than everywhere else. To follow a trend from elsewhere is wrong. It might work in some places, but each community is different. Mr. Hull agreed that each town core on the island has its own unique perspective, but there are common features within the town cores that are shared. Hanalei was historically developed with street frontage properties. In pushing it back away from what is recommended in the General Plan as to maintain the historic rural character, they would be pushing it back to something that is predominant throughout the rest of Hawaii and America with the parking lot and the shop not having the interface. There can always be a debate on historic and rural but they can always rely on the policy documents stating the historic trajectory. Keola Sheehan representing the applicant apologized if at the last meeting their representation of a two story building at the front was an ultimatum structure. It wasn't meant to be an all or nothing deal, but due to the design constraints, it's not an exact trade from the rear to the front of the site with a single story building. Since the last meeting they have had time to refine it. He noted that moving from the back to the front changes the desired use because of the location of the building. Mark Ventura, the architect representing the applicant stated that the initial sketches represent the original proposal for an office building at the back of the site. He referenced a Google image of Hanalei town and pointed out the wide variety of parking conditions in the town core with buildings in the back, buildings in the front, parking in the back, parking at the front, and parking at the side. To the west of their site is a building at the front and just to the east is an office building at the back similar in size to their proposal. The original concept showed a site plan of the original building, roughly 3,000 square feet and 13 stalls of parking. The final page is the current concept with the building up front. They have introduced a retail component to 2/3 of the building with 1/3 office in the back. They lose a couple of stalls with the front entry and ADA ramps to the front and back. The lot tapers from front to back and the setbacks tighten up by a couple of feet. The old scheme was strictly office use, appropriately sited at the back. The applicant is proposing an energy efficient structure. The original design included 22 panels. The latest design was reduced to 16 panels. The original scheme saved or moved a couple of mature trees on property, but with the building in the front, they would not be able to save the trees. On the revised newer scheme, they lose about 100 square feet in gross area. They are proposing a mixed use more appropriate for a front sided building with retail off of the front. There are existing signs on each of the adjacent parcels. Part of the locating of the building is to maintain the view planes of the signs. They also aligned the lanai with the adjacent building. Any setback within 10 feet of the property line gives only 10% of window usage on the sides. The commercial zoning allows them to go up to zero lot line on the property, but they wouldn't be allowed any,windows and given the nature of the buildings they want to allow light in and air flow. 27 V:A2013 Master PilesV Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Ms. Nishimitsu, representing the applicant stated that the Sheehan family began meeting with the community about a year ago on the development. The community liked the idea as presented and was therefore surprising when the Planning Department presented its staff report at the Last meeting that the building should be moved to the front. Without much time to regroup, they felt that in order to make up for the lost leasable area the building might have to go up two stories. Because the lot narrows at the front, they can't flip flop the parking and the building and have the same amount of commercial use necessary to make the project economically viable. In meeting with the staff it was reiterated that the Department felt strongly that the Complete Streets policy dictate the placement of the building to the front of the lot and parking at the rear. She circulated copies of the Complete Streets Resolution which states first that roadway projects including design planning, construction, etc., has to be balanced and equitable in accommodating and encouraging travel by bicyclists. The Resolution also specifies that the county is to plan for, design, and construct County transportation improvement projects to accommodate the multi modal source of transportation. The last part of the Resolution states that the County should include Complete Streets principles. She is not able to find that the agencies in the County have adopted any rules or regulations that incorporate the Complete Streets policy, one of which provisions states putting buildings toward the front. It does not seem that it is the law of the land. The setback from Kuhio Highway will have to be greater than with the building up front. More ADA ramps are required with people parking in the back wanting to get to the storefronts fronting the building and office space in the back. That will affect setbacks and the net leasable area. The property is zoned neighborhood commercial which means a variety of uses can be involved. It will be tenant driven by who is willing to rent the space. Another point that the Department made was that parking can be on another parcel. It is not the parcel for consideration and future plans for the adjoining parcel which would be encumbered by parking is something the applicant does not want to impose. Although they have worked very hard and long to build consensus with the community, they understand that it is the Commission's call as to where the building will be best suited, but there will be a diminishment of leasable area. Commissioner Texeira questioned if the community meetings were well attended. Mr. Sheehan noted that he and members of the zoning and development committee of the Hanalei Haena Community Association met a few times to go over various options. Commissioner Mendonca noted that they have less square footage, but are now putting in retail and office. Mr. Sheehan stated that originally their proposal was for two office suites and a storage _ unit at the back of the building. Given the desire by the Department for the building at the front and given the less square footage, it forces them to morph the use and the frontage to become more retail in nature. It lends itself more to a mixed use. The office space would be for himself and his management company. The location drives the user of the space. Commissioner Isobe questioned if they would have a problem limiting the use to office space and storage, if the building were in the back, or if they want the flexibility to convert to commercial or any permitted uses. Mr. Sheehan stated that his preference would be to have it at the back of the property and be allowed any use that is allowable under the neighborhood commercial. He did not have the intent in the near future to use it for anything other than office and storage, but he did not know if he would be comfortable with an office use in perpetuity situation. He would be okay with a certain time frame but wouldn't want to hamper his family in the future should they not be in an owner operated office situation. 28 VA2013 Master Piles\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes The Commission received testimony from Carl hnparato. Mr. Imparato stated that he spoke on his own behalf this morning at the Subdivision Committee, but was now testifying as Vice President of the Hanalei to Haena Community Association. He quoted from the Community Association's May 21 letter to the Kauai County Planning Department. "We generally support the idea that parking lots should be located out of site behind commercial buildings, however in this case, locating the building away from the highway could be beneficial by breaking up the line of buildings that exist/are planned for that stretch of Kuhio Highway in the future. If landscaping of that parcel is designed, installed and maintained as has been done at the nearby Hanalei Center on the mauka side of Kuhio Highway, the negative visual impacts of the parking lot could be eliminated." He emphasized that the County, regarding the multi modal land transportation plan, said the input of the local community shall be solicited and given strong consideration Regarding Complete Streets, it is a priority whose application must however take into account the vision and desires of the affected local communities. It is difficult to say who represents a community, but the Hanalei to Haena Community Association has always been open and always embraced people since the 1980s Mr. Dahilig noted that the Planning Department does not come up with the policies when they develop a report. They look at the General Plan, the Multi Modal Transportation Plan, and the Complete Streets Resolution and it is incumbent upon the Planning Department to figure out the how to apply it. They strive for consistency with the plans that come forward by the policy makers and are what they recommend as the guide posts for decisions of the Commission. Section 6.1 1 talks about the North Shore and preserving the small town, rural, intimate, environment that is historic to the area. The difficulty is that the Department is also looking at other policy guideposts such as the Complete Streets policy. Complete Streets refers to the physical infrastructure, but also the broader urban form context like mixed use which supports urban form; services that are put together that are mixed and close to ingress and egress points and close to pedestrian elements. Policy calls within the past 13 years seem to point in the direction of a total implementation of something that is more urban form and pedestrian friendly. If the community feels strongly about whether it is in line with the historic nature of the area, the proposal has not been vetted by the Kauai Historic Preservation Review Commission. It may be the Commission's desire to refer it to the KHPRC for feedback regarding what is historic and what is in conformance. He clarified that the Department is not trying to suburbanize Hanalei. They all have the same goal in mind, but they have different opinions on where they want to go. They believe that traditional suburban style development with a parking lot in front and store in back tends to be the cookie cutter process that essentially transforms communities into cumulatively and collectively a sea of parking. They are not ignoring the specific vision for Hanalei but when looking at the Multimodal Transportation Plan which consulted with the Hanalei community, they were looking at it from an island wide standpoint in that there is a transportation vision for the island in terms of mobility and walkability through pedestrian means and biking. Commissioner Kimura stated that his concerns were that having parking in the back would be detrimental to guests parking in the back, especially at night. His concern is safety first, but they did compromise and come up with a retail store in the front. He was okay with that. Commissioner Texeira understands the need for a Complete Streets policy, but would like to know if some of the communities on Kauai did not fall into the Complete Streets concept by the nature of the community. He also questioned if the long range planners identified which communities would fit into the Complete Streets program. Mr. Dahilig stated that the Complete Streets policy specifically lays out six circumstances for exceptions. They did not apply in this case. 29 VA2013 Master Piles\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes Chair Katayama questioned if the General Plan is consistent with the Hanalei Development Plan. Mr. Dahilig stated that the Hanalei Development Plan was passed in 1980. The General Plan supersedes everything. If there is a shift in the General Plan, there is a shift in the entire island. Section 6.1 1 talks about a greater emphasis in the commercial centers to have something that is intimate,rural, and historic. It is interpretive, but is the most recent policy guidance that they have. Staff Planner Marie Williams stated that she agreed with the Director's description of the plan as pointing us down a path where we have to do all we can to protect our small towns. Last month the County adopted the Multi Modal transportation plan that helped refine the other long range plans, but it called for a bold goal of moving away from cars; not just expanding the roads, but also supporting a new type of permits where they consider not only the actual proposal but how it affects whether people walk, whether they can bike, and cars as well. It seems that all of the Long range plans are pointing in this direction. Commissioner Texeira questioned the physical constraints of a community. If a community is stretched out, sometimes this does not really apply. He was not sure that every community fits this mode. Ms. Williams stated that it definitely applies to the town cores. They are pretty small and she would imagine that they would want to keep them that way. Perhaps they would want to look at the fringes of towns differently. Commissioner Kimura noted that on the Google map image, the majority of buildings are street front. His concern was safety. Commissioner Texeira questioned if there would be a problem in seeing the Historic Preservation Review Commission's opinion. Mr. Hull noted that projects that are referred to the Kauai Historic Preservation Review Commission deal with buildings over 50 years in age. He noted that this would be a new building because it is a vacant property. Submitting it to the KHPRC, given the historic and rural concerns of the application, could be prudent, however this is the last meeting that can be taken pursuant to the Rules and Regulations of the Planning Commission so the Commission would need a time extension from the applicant concerning action on the application. Mr. Sheehan stated that he could live with the recommendations of the Department with the modification to recommendation number 1. If it will be recommended that the building be at the front of the lot, he requested being allowed any uses generally promoted in a commercial zone, and not limited to office use only. Mr. Dahilig noted that the Department would interpret any usage that is on the list of uses generally permitted as being permissible within the structure. Mr. Sheehan requested that the language be written in. Mr. Dahilig stated that the Department will amend the report to add the additional language stating that all uses allowed under the CN zone shall be permissible use in this structure. Mr. Sheehan stated that he would agree to that revision. 30 V:A2013 Master Piles\Connnissions\Planning\Minutes\2013-2-26 Planning Commission Minutes On the motion by Jan Kimura and seconded by John Isobe to approve Special Management Area Use Permit SMA(V) 2013-3 as read by the Planner and orally amended by the Director and concurred to by the applicant, the motion carried by unanimous roll call vote, ANNOUCEMENTS Mr. Dahilig announced that the next Planning Commission meeting will be held at 9:00 a.m. or shortly thereafter at the Lihue Civic Center, Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street, Lihue, Kauai, Hawaii 96766, on Tuesday, March 12, 2013. ADJOURNMENT Chair Katayama adjourned the meeting at 3:17 p.m. speet lly s tted by: _\ uke Nakamatsu, Commission Support Clerk 31 V12013 Master Piles\Commissions\Planning\Minutes\2013-2-26 Planning Commission Minutes