HomeMy WebLinkAboutpc 7-9-13 minutes KAUAI PLANNING COMMISSION
REGULAR MEETING
July 9, 2013
The regular meeting of the Planning Commission of the County of Kauai was called to
order by Chair Katayama at 9:07 a.m., at the L-u`e Civic Center, Mo`ikeha Building, in meeting
room 2A-2B. The following Commissioners were present:
Mr. Wayne Katayama
Mr. Jan Kimura
Mr. John Isobe
Ms.Amy Mendonca
Mr. Herman Texeira
Mr. Hartwell Blake
Ms. Angela Anderson
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Katayama called the meeting to order at 9:07 a.m.
ROLL CALL
Planning Director Michael Dahilig noted that there were seven Commissioners present.
APPROVAL OF THE AGENDA
Mr. Kimura requested that item K.1 on Subdivision be moved up to be fast on the agenda
upon the start of the meeting.
On the motion by Jan Kimura and seconded by Herman Texeira to approve the
agenda as amended, the motion carried by unanimous voice vote.
Mr. Dahilig asked for a moment to introduce some new faces in the room prior to the
start of business. Cherisse Zaima of the Office of Boards and Commissions will be present at all
meetings, every second and fourth Tuesday, to take open and executive session minutes. Due to
the unique situation of the Planning Director reporting directly to the Commission, arrangements
were made to help maintain a firewall between the Planning Department staff and the duties of
the Commission. The Office of Boards and Commissions, which is a separate agency created by
AUG 1, 3 2013
Charter, will be handling the minute-taking from this point forward. Ferdinand Mariano is the
Planning Department's CZM Account Clerk and will be responsible for accounting for all the
time the Commission spends for in-kind matching of the Coastal Zone Management grant
administered by the National Oceanographic and Atmospheric Administration(NOAA). Three
summer intems are onboard, Brimi Ludington-Braun, Benji Bersamira, Jr., and Brandon Kaleo
Brede who have been assisting with the TVR programs.
Mr. Katayama asked what changes can be expected in the recording or presentation of the
minutes.
Mr. Dahilig explained that in the past verbatim minutes used to be done,but under the
Sunshine Law only memorialization of the actions of the Commission is required, which
prompted the department to switch to summary minutes. However, in the event of contested
case hearings, minutes will be transcribed verbatim; the Commission has a contracted hearings
officer on staff that will contract out a court reporter for that purpose. There will not be much
change as far as summary format.
At the request of Mr. Blake, Mr. Dahilig reminded anyone providing testimony to please
speak directly into the microphone.
MINUTES of the meeting(s) of the Planning Commission
Regular Meeting of May 14, 2013
On the motion by Herman Texeira and seconded by Jan Kimura to approve the
minutes of May 14, 2013,the motion carried by unanimous voice vote.
COMMITTEE REPORTS
Subdivision
Vice Chair Jan Kimura read the report into the record.
The following final subdivision action was approved 2-0:
S-2012-15 State DLNR/State DOT/COK DOW, TMK: 1-2-006:018
On the motion by Herman Texeira and seconded by Amy Mendonca to accept the
Subdivision Committee report,the motion carried by unanimous voice vote.
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing (NONE)
New Agency Hearing
Class IV Zoning Permit Z-IV-2013-18 to erect a solar powered wind turbine, Use Permit
U-2013-16 to deviate from Section 10-2.4(e)(1) of the Kauai County Code (1987) as amended,
relating to the height standard within the North Shore Development Plan and Variance Permit V-
2013-4 to deviate from the maximum height requirement within the Agriculture District, on a
parcel located along the eastern side of Waiakalua Street, in Waiakalua, approx. 1,300 ft. south
of its intersection with Kuhi`o Highway, further identified as Tax Map Kev 5-1-005: 028, Unit 4
and affecting a portion of a larger parcel approx. 10 acres in size=Steve Hunt.
There was no public testimony.
On the motion by Herman Texeira and seconded by Jan Kimura to close agency
hearing, the motion carried by unanimous voice vote.
Continued Public Hearing(NONE)
New Public Hearing
Zoning Amendment ZA-2013-5 to consider a bill for an ordinance to repeal Ordinance
716 relating to standards, permits and fees for work on buildings, structures and property
damaged by Hurricane Iniki= County ofKaua`i.
There was no public testimony.
On the motion by Herman Texeira and seconded by Amy Mendonca to close public
hearing, the motion was carried by unanimous voice vote.
All public testimony pursuant to HRS 92
There was no public testimony.
CONSENT CALENDAR
Status Reports (NONE)
Director's Report(s)for Project(s) Scheduled for Agencv Hearing on 7/23/13 (NONE)
Shoreline Setback Activity Determination
Shoreline Setback Commission Review SSCR-2013-20 and Shoreline Determination
SSD-2013-46 for a shoreline activity determination, Tax Map Key 3-5-002: 002,Nawiliwili,
Kauai, for acceptance by the Commission=Marriott International Vacation Club.
Shoreline Setback Commission Review SSCR-2013-21 and Shoreline Determination
SSD-2013-47 for a shoreline activity determination, Tax May Key 1-2-002: 036 and 040,
Kekaha, Kauai, for acceptance by the Commission=State ofHawai`i, Department ofLand and
Natural Resources
On the motion by Jan Kimura and seconded by Amy Mendonca to accept the
consent calendar items as presented,the motion carried by unanimous voice vote.
Mr. Dahilig proceeded to Item M.
NEW BUSINESS (For action)
Class IV Zoning Permit Z-IV-2013-18 to erect a solar powered wind turbine, Use Permit
U-2013-16 to deviate from Section 10-2.4(e)(1) of the Kauai County Code (1987) as amended,
relating to the height standard within the North Shore Development Plan and Variance Permit V-
2013-4 to deviate from the maximum height requirement within the Agriculture District, on a
parcel located along the eastern side of Waiakalua Street,in Waiakalua, approx. 1,300 ft. south
of its intersection with Kuhi`o Highway, further identified as Tax Map Key 5-1-005: 028,Unit 4,
and affecting a portion of a larger parcel approx. 10 acres in size=Steve Hunt.
Staff Planner Kaaina Hull read the Director's report into the record (on file).
Steve Hunt,applicant, introduced himself along with his electrical contractor Michael
Cox who,he stated, has successfully installed 10 wind turbines on the island of Kauai over the
last six years with no problems, complaints or issues. He expressed his gratitude to Kaaina Hull
for his patience and assistance over the last two years in researching this project and is in 100
percent agreement with his reports. Mr. Hunt stated that they were the first farmers at Kilauea
farms, a small operation starting back in 1980,which included a small nursery where they
propagated ornamentals that they rented out to hotels and restaurants. Over the last 30 years,
their number one goal is to be a zero carbon neutral, fully sustainable property; during this time,
they've installed wells and different types of solar panels. For the last 2 years, Governor
Abercrombie's Green Business Program has come out to their property, completing a lengthy
checklist and conducting a detailed inspection. Mr. Hunt is proud to share that they have
achieved the highest honors with the Green Business Program and they are the only private
property in Hawaii, excluding hotels and large establishments, that has achieved the State of
Hawai`i's highest green certification. They are a 501c3 non-profit and all proceeds from their
farm have been donated with their belief in stewardship of the land and for Kauai; they also
work with the Kauai Visitors Bureau. Most importantly, as shown in the report, their property
is located in Kilauea farms and has a 360 degree wraparound of trees, many of which are well
over 100 feet high,making them virtually invisible to the community. Additionally, they have
talked to all of their neighbors as well as the Kilauea Neighborhood Association, who are all
fully in approval and encouraged the Hunt's to try and get more people involved in sustainable
energy proj ects.
Ms. Anderson asked in reference to the surrounding vegetation, how close are the
neighboring trees to the location?
Mr. Hunt replied that there is a 20 acre reservoir that wraps around and they don't have
many neighbors, the closest of which are about a half a mile away; they do have adjoining
neighbors about a quarter mile away but they will not be able to see the turbine. As shown in the
report, the trees,many of which are Java plum and kukui nut, are all around the reservoir. Behind
them are twenty-five different types of hardwoods, many of them well over one 100 feet; on the
other side is a hedge of bamboo which is well over 80-90 feet.
Ms. Anderson stated that her concern was regarding the potential issues with bird
collisions which would make the exposure of the turbine a factor, and that if there is vegetation
within the height of the turbine, it could minimize that.
Mr. Hunt agreed and confirmed with Mr. Cox that of the 10 turbines already installed,
there have not been any issues. He stated that this turbine is solar powered with plastic-type
blades that,based upon their extensive research, they found were a lot safer than the older metal
farm ones from the past; it is also much lower than the surrounding trees.
Ms. Anderson stated for clarification that many of the trees are located on Mr. Hunt's
property and asked whether he would be willing to maintain the height of the vegetation in the
surrounding areas.
Mr. Hunt replied absolutely, further stating that they planted the hardwood trees and
though some may need to be harvested at some point in order to generate income, for any tree
that they take down they plant 5. They have recently planted another 200 Tongan trees and
another 50 lychee trees and feel that part of being zero carbon neutral is not only generating
renewable energy,but also planting trees.
Mr. Texeira asked whether the turbine Mr. Hunt is proposing to construct is different
from the others on the island and if so,how?
Mr. Hunt replied that it is the same as the other 10 that were installed,but the difference
is that it has solar panels down low that track the sun through GPS, which will keep the system
going when the wind isn't good.
Mr. Kimura requested clarification on the 10 existing turbines, stating that he only recalls
approving I and asked whether there were any others prior to that.
Mr. Hull explained that the Commission has reviewed 2 turbines,both of which needed a
variance permit to exceed a specific height limit. As long as a turbine meets the existing height
limits or setbacks required under the Kauai County Code, they are considered an over-the-
counter permissible structure. The main problem why there aren't a lot of turbines on Kauai is
they need to get higher up than the existing building envelope in order to access a steady stream
of wind; those that are going to be higher up need to get a variance permit. There have been
more than the 2 previously permitted by the Commission because they are able to access winds
to efficiently operate the turbine while still maintaining the height requirements.
Mr. Kimura asked whether turbine applicants are required to pay a fee for bird takes.
Mr. Hull replied no but they advise applicants that they should be in contact with U.S.
Fish and Wildlife and the Department of Land and Natural Resources DOFAW(Division of
Forestry and Wildlife)to see what, if anything, will be required of them. There have been
discussions during the wind turbine ordinance proposal that the County partake in a takings
permit in a Habitat Conservation Plan but,to his knowledge, no individual turbine has been
required to apply for a takings permit.
Mr. Kimura stated for clarification that there is no supervision from DLNR.
Mr. Hull responded that he is unsure about their permitting mechanisms, and though
some offices have recommended it, at this point he doesn't think they are required. He further
stated that he believes the only time the taking permit gets triggered is when actual takings have
been demonstrated, in which case they would work with the U.S. Department of Justice to obtain
a takings permit.
Mr. Kimura asked if they have sent in their comments yet.
Mr. Hull replied no and although they advise the applicant to go into discussions with
DLNR DOFAW and U.S. Fish and Wildlife, only if the turbine is in or in close proximity to
wetland or conservation lands would Planning specifically solicit comments from those agencies.
Ms. Mendonca stated that this is for one turbine and asked if it was possible that Mr.
Hunt would be looking into adding another one in the future.
Mr. Hunt stated that the possibility is there since many people at the Kilauea
Neighborhood Association seemed interested in doing similar projects, and if it works as they
hope it does and everyone in the area is happy with it,it is a possibility to have another one on
another farm or on neighboring properties.
Ms. Mendonca asked if this current turbine is capable of adding another one side-by-side
or would he be looking at another part of his property.
Mr. Hunt stated that he hasn't considered that, but he supposes it could be side-by-side
although they currently do not have a plan to add a second at this point at all.
Ms. Mendonca asked for clarification on whether the unit is built so that it can be
extended with another unit right next to it.
Michael Cox,Project Manager for Kilohana Electric, explained that site placement is the
ultimate thing to look for with wind turbines and many variances must be considered, such as
obstruction of winds,prevailing of winds, etc. Putting a turbine next to another turbine has to be
specifically engineered that way in order to reduce wind interference and turbulent air,which
prevents the turbine from operating properly.
Mr. Texeira asked in terms of the County's ordinance, is there a limitation on the number
of wind turbines? Is there anything that discusses that?
Mr. Hull replied that the Comprehensive Zoning Ordinance does not specifically address
wind turbines; there was a time that the County did pursue passing Legislation that would
regulate turbines,which ultimately fell through at the Council level. Absent any specific
regulations on wind turbines or wind mills,they are treated as any other structure. Though it has
been pointed out that they generate power, solar panels also generate power,just in a much less
obtrusive way. He reiterated that if they meet all other standards that are posed upon structures,
they can be permitted over-the-counter. In this situation, the applicant is requesting that it go
above the allowable North Shore area height limit; therefore he is requesting approval from the
Commission.
Mr. Texeira asked Mr. Dahilig for the Planning Department's view on wind turbines and
their placement on the island.
Mr. Dahilig replied that as part of the analysis of some of the General Plan principles
with respect to energy conservation, not having some type of wind element puts the County at a
disadvantage in being able to generate renewable resources. Wind turbines can be characterized
in 2 classes, 1 being commercial electricity generating such as those seen on the north shore of
Oahu, south point on the Big Island or along the west Maui mountains. Those types are
approximately 450—500 feet in height. The Maui project was one where they had gone through
an internal take permit and consulted with U.S. Fish and Wildlife as well as DLNR,which is the
best way to marry renewable wind resources with the protection of the environment. What is
before the Commission today is a residential-type use that is much smaller in scale, generate a lot
less power and is meant for singular use versus general commercial power. So far, in permitting
these turbines there hasn't been a lot of attention from the regulatory agencies as far as turbines
being a height nuisance or having such pronounced use that it needs to be mitigated through any
further regulations. A General Plan update is coming up that will address Kaua`i's renewable
future at which time he feels there should be discussion on whether there should be a limitation
on environmental issues versus being more energy independent. At this time there is no
departmental principle on specifically how many things should be out there but the department is
generally very supportive of renewable resource type measures.
Mr. Katayama asked what carbon source this wind turbine would be displacing on Mr.
Hunt's property.
Mr. Hunt explained that some of their power is generated through traditional sources
because they do not have efficient or enough solar power back-up. Though they have installed 2
different types of panels, the trees prevent them from putting in more solar panels. The energy
from the wind turbine would be replacing the back-up energy they are currently utilizing through
KIUC.
Mr. Katayama asked if this was for some kind of production or processing.
Mr. Hunt replied no; it would be for normal generation of power, though some of it will
generate the power that runs their well and normal farm operations,but basically for normal
electricity to effectively go "off the grid".
Mr. Katayama asked what processing is done on the farm.
Mr. Hunt stated that they occasionally make dried bananas and dried mango through a
small dehydrator. They do not sell to anyone.
Staff Planner Kaaina Hull read the department recommendations into the record(on file).
Mr. Dahilig requested the addition of 2 more conditions into the recommendation:
11. Surrounding trees shall generally be maintained at a height of approximately
60 feet or higher to mitigate potential collisions with birds. Should trees be
harvested or removed due to health,new saplings shall be planted.
12. Applicant is aware that this permit does not reflect compliance with the
Endangered Species Act and other laws related to the protection of birds and
he shall bear all legal responsibility of operating the wind turbine including
self-reporting requirements.
There were no objections to the additional conditions.
Ms. Anderson suggested that rather than specifying birds, it should state"wildlife"
because it may be bats or other endangered species that are affected.
There were no objections to changing"birds"to "wildlife".
The applicant understood and agreed with the 12 conditions as read.
On the motion by Herman Texeira and seconded by Amy Mendonca to approve Class IV
Zoning Permit Z-IV-2013-18 and Variance Permit V-2013-4, the motion carried by
unanimous voice vote.
Zoning Amendment ZA-2013-5 to consider a bill for an ordinance to repeal Ordinance
716 relating to standards,permits and fees for work on buildings, structures and property
damaged by Hurricane Iniki= County ofKaua`i
Mr. Dahilig noted that after the public hearing was closed there was a request for
additional public testimony.
The Commission received testimony from Ron Agor.
Mr. Agor requested clarification on the item asking if the Planning Commission approves
this recommendation and it goes to County Council, during that time if an applicant applies for a
building permit under the hriki rules,will the Planning Department review the plans?
Mr. Dahilig replied that the Iniki ordinance is still considered good law and as with any
law,the requirements of all that is listed in Ordinance 716 needs to be met,which will require
certain permits to be received prior to even receiving Planning Department review.
Mr. Agor suggested a possible amendment to the ordinance to allow projects that are
going through the process and have been signed off by the Planning Department be exempt from
the repeal of the bill, which could include a time limit.
Mr. Katayama asked for clarification of Mr. Agor's suggestion.
Mr. Agor stated for example if the Commission passes the recommendation and submits
it to County Council and in the meantime, he comes in for a building permit under the lniki
ordinance,which then goes through the process and is signed by the Planning Department, would
he be exempt from the County Council's approval of repealing the bill since it's already been
signed off by Planning.
Mr. Katayama asked whether the Planning Director has answered the question.
Mr. Agor stated that he had and that he just made a recommendation for the Commission
to consider.
Ms. Mendonca restated for clarification that if he is already in progress, then it should be
honored.
Mr. Dahilig stated that right now there is just a proposal on the table and the ordinance is
still good law and that one would need to meet the requirements of Ordinance 716 to fall into
compliance to construct anything. There are a number of pre-requirements along with Planning
Department sign-off so it would be his burden in representing his client to meet those
requirements along with the departmental review.
Mr. Kimura asked if there are still applications out there for Iniki after 21 years.
Mr. Dahilig responded that he would characterize this as a clean-up process and there are
building permits in stasis that have not been further acted on and are still open. There are things
that could be grandfathered for construction under the Iniki ordinance if this law isn't passed.
The request for this zoning amendment application came directly from the Mayor's Office noting
that 21 years has passed as well as 2 construction booms, which gave ample opportunity for
applicants to execute on those intentions. There are health and safety concerns because many of
these structures could be non-compliant with the evolution of zoning and health and safety
codes; we are no longer in an urgency situation to provide immediate shelter and housing
because of the hurricane.
Mr. Kimura asked if with this ordinance any structure that is considered a temporary
structure since the hurricane will need to be taken down.
Mr. Dahilig stated that it would depend on whether or not they have received certain
approvals and requirements.
Mr. Kimura questioned structures that are not up to County standards.
Mr. Dahilig replied those are already grandfathered in if they have the required
permitting that was set forth by Ordinance 716 and its previous iterations. The Iniki ordinance
was focused on allowing people to put up structures and shelters as quickly as possible.
Therefore, those that may be characterized as temporary but have the required permitting with no
conditions for removal by a certain amount of time will not be affected by this legislation.
Mr. Kimura stated that a temporary structure is not really a temporary structure in that
case.
Mr. Dahilig stated there is no definition of temporary structures and reiterated that if they
have the permits, they are legal unless there is a condition otherwise stating it has to be taken
down by a certain amount of time.
Mr. Kimura asked whether that would affect the amount of so-called temporary dwelling
units on the property.
Mr. Dahilig stated that he is unsure of the breadth of potential Iniki construction out
there; the last one they can ascertain as an Iniki ordinance construction project was the
reconstruction of the Ko`a Kea Hotel &Resort which was over 5 years ago.
Mr. Texeira asked for clarification on those homes and garages that were affected by the
hurricane and haven't been replaced for whatever reason and are still on the property. Does this
ordinance affect those buildings that are damaged and is there a timeline to remove those
buildings for health or any other reason?
Mr. Dahilig explained that Planning is not a health and safety agency to require
demolitions. Whether it becomes a health issue or a fire hazard, it needs to be addressed by
those respective agencies to require removal of dilapidated structures. As for reconstruction of
those structures,if the ordinance should pass,they would need to comply with the current zoning
codes and health and safety laws.
On the motion made by Jan Kimura and seconded by Amy Mendonca to approve
Zoning Amendment ZA-2013-5, the motion carried by unanimous roll call vote.
Deputy.County Attorney Jung stated for clarification that the bill would now go back to
County Council for a second reading.
At the request of Mr. Dahilig, Chair Katayama recessed the meeting to set up power point
presentation related to the next agenda item.
The meeting resumed at 10:14 a.m.
GENERAL BUSINESS MATTERS
Update from the Director on Transient Vacation Rental Certificate Renewal and Enforcement
Efforts.
Mr. Dahilig presented his power point overview for the record (on file). During the
presentation the following discussion ensued:
Mr. Texeira asked whether County Council made the additional provisions to Ordinance
876 after the 2 new TVR Inspectors were hired and whether these provisions were supplemental
duties they have to perform in the course of their duty.
Mr. Dahilig replied yes to both questions.
Mr. Blake stated that they have been hearing from Council how they consistently
provided money for new inspectors and that now they have added more work for those
inspectors.
Mr. Dahilig stated that was correct and as he goes into the presentation he will discuss
what the inspectors' role was and where there may have been gaps in Human Resource elements
or difficulty in the ability to enforce the law at that time.
Mr. Kimura asked what the department can do in regard to entering a property
unannounced or without giving 24-hour notice.
Mr. Dahilig replied that their obligation under the U.S. Constitution is to require due
process. Whenever someone is accused of something illegal, there are certain things the
inspector needs to do to enter the property to ascertain whether there is a violation. The only
situation where they can immediately enter the property is in a health and safety type of
situation.
Mr. Kimura asked if they are working on changing that.
Mr. Dahilig stated that many of these principles are set in stone with respect to what
needs to be done to ensure due process. They have tried in the past to include pre-approval of
entry into a property as one of the conditions for approval; however, as noted by the attorney,
even those types of waivers ahead of time are not constitutionally sufficient. Without probable
cause, it is a difficult thing to do.
Mr. Kimura asked, in reference to allowing use permits for TVRs on ag land, can they
change the recommendations on the conditions to state that if use of the permit is to continue,
they must give the County access to the property. If they are following the rules, they shouldn't
have a problem with it.
Mr. Dahilig stated that when they do receive a complaint, they must do their due
diligence to try and determine probable cause to enter the property. They will inform the
property owner that they have received a complaint and ask to inspect their property.
Mr. Kimura stated that it wouldn't necessarily be due to a complaint, but just to see that
they are complying with the conditions put upon them. If they are given ample notice, anyone
can change the books.
Mr. Dahilig stated that those issues are what the inspectors have to contend with, with
respect to sufficient enforcement.
Mr.Kimura questioned if there is anything in the works to change that.
Mr. Dahilig stated that at this point no because of the numerous Constitutional parameters
that they must abide by. He further stated that those who purposely try to circumvent or violate
the law to obtain more profit are very sophisticated in these crimes and the Constitutional
requirements that must be met require evidence that the department has never had to provide on a
routine basis. These two inspectors,who never had to engage in vice-type operations, are now
being asked to step up their game in ways they have never been asked to do before.
Mr. Kimura expressed his understanding of the frustration of not being able to do what
they wish to do because of the law, especially considering what is being demanded of the
department to get it done.
Mr. Dahilig stated that despite the frustrations, their goal is to do the best they can to
enforce it and try and build an infrastructure that can meet some of the expectations.
Mr. Blake asked if the 24-hour notice can be changed to 6 or even 4 hours.
Deputy County Attorney Jung explained that they are dealing with the Constitutional
right to your property. The Fourth Amendment states that you cannot have unreasonable
searches and seizures, therefore you must have an administrative warrant if there is a possibility
that it will lead to some potential criminal action. He gave an example of case law in Ohio that
tried to deal with the issue of getting onto someone's property through a permit condition; it was
struck down by Ohio Supreme Court. Hawaii does not have any specific case law on the issue,
but they must follow secondary law in terms of what other jurisdictions are doing. Because the
TVR program deals with many legal issues,Attorney Jung is willing to discuss those issues with
the Commission in an executive session if they wish.
Mr. Blake stated that if you are serving an arrest warrant where harm is on-going, you
cannot show up at midnight and harass the person.
Attorney Jung stated that when the judge issues the search warrant, there are parameters
that the judge sets on when you can go.
In reference to the County Policy and Zoning Regulations, Mr. Blake commented that we
are opening ourselves up to a proliferation of Bed and Breakfasts, much like TVRs on ag land.
Mr. Dahilig stated that the department's position on Bed&Breakfasts is that a use permit
is required because it is viewed as a commercial use. If an owner is in the home and charging
guests for commercial use of that room versus a typical rental defined otherwise in Supreme
Court Law, that transient nature is enough to require a use permit if they are not within a
commercially zoned area.
Mr. Blake asked whether there are motels passing themselves off as bed and breakfasts.
Mr. Dahilig stated that he is not aware of any at the moment and that there is a separate
definition for motels in the code.
Mr. Blake asked if he has a house with eight bedrooms and he states it is because he
plans to have a bed and breakfast, is there a problem with that as far as Planning is concerned?
Mr.Dahilig explained that Planning would require that he come in for a use permit.
Mr. Blake asked why he would need one because if he had a family with that many kids,
he wouldn't need one. Will the Planning Department be going through birth certificate records?
Mr. Dahilig noted that the Constitutional decrees that have come down from the Supreme
Court state that you have the right to live with so many unrelated people in your home, though
there is a threshold to that. He can see an 8-bedroom house being permissive from a structural
standpoint as long as it meets setbacks, heights, etc. However, how you're using those 8
bedrooms would determine whether a separate set of regulatory mechanisms come into play.
The difficulty in enforcing land use law is the distinction between what is structural and how
you're using it. For instance, you can have 8 bedrooms used as office space in a residential area
for a chicken farm. Our code regulates the amount of chickens you can have on the property
which is 4; anything beyond that is considered poultry raising. When looking at use, there's a
limitation of looking at lists and applying those lists to how a structure looks. That distinction is
what causes many of the problems for Planning because there are things that don't meet
structural requirements,but whether the use was proper prior to March 2008 still has to be
considered. Many people have stated that the TVR certificates should not have been issued
because of structural violations. He used the example of a single-family transient vacation rental
use that was not regulated prior to March 2008 yet they have built a house in the flood district
that does not meet FEMA flood requirements or setback requirements under the CZO. There
was a desire to have that be the gate to say whether someone was entitled to a non-conforming
use certificate or not and that gate had structural requirements that had nothing to do with use
requirements. There was the provision added by Council that required prior compliance with
205, 205a, the CZO and the flood zone; some of those elements are structural and not use related.
Because of that, some of the TVR use is considered grandfathered as long as the owner can show
evidence of it regardless of how the structure looks.
Mr. Blake asked what if it was unsafe.
Mr. Dahilig stated that things like fire, flood or inadequate septic systems are
jurisdictional regimes that are outside of the Planning Department's realm of authority and
would need to be addressed by the respective health and safety agencies. Planning would receive
from those agencies the health and safety concerns and translate them into conditions and
permits,but those things cannot come into play when identifying whether a use was legal or not
prior to March 2008.
Mr. Blake asked that if you have a house on the Hanalei beach plain with walls that are
not break-away and prior to 2008 it was a TVR, is the Department precluded from saying sorry,
not anymore? He further commented that all we are doing is allowing them to endanger the
public.
Mr. Dahilig replied that much of the concern of the Council has been directed to that
issue and he does not discount or disagree with those assertions that if you are renting out the
bottom portion of your vacation rental that is within a tsunami zone, that is inappropriate.
However,Planning cannot prohibit grandfathering of a use based on violations of structural laws.
Mr. Blake states)that in the meantime we are being threatened by FEMA to either get
compliant or they will cancel our insurance.
Mr. Dahilig explained that it has made the situation more complex having a Federal
agency that is looking at the TVR program as a vehicle to more tightly enforce what is a
structural code element. Traditionally,Planning has not had the job of enforcing the flood
ordinance but because of the complaints lodged on the TVR program, FEMA has tried to latch
on enforcement, which is generally a Public Works element, to the issuance of non-conforming
use certificate.
Mr. Blake asked whether our inspectors work in conjunction with Public Works.
Mr. Dahilig stated that is one of the weaknesses that he will be talking about further in
the presentation in terms of how they can better interface with sister agencies on these issues.
Mr. Kimura stated for clarification that State law trumps County law; does Federal law
trump State law to which Mr. Dahilig replied yes.
Mr. Kimura asked if FEMA can step in and say that what they(TVR operators) are doing
is illegal; can we use them to regulate the use permits?
Mr. Dahilig responded that has been the strategy that people have been trying to use to
shut down TVRs but the difficulty in FEMA's jurisdiction is that they are responsible for
oversight of the flood ordinance that is implemented by County law. FEMA does have a vested
interest to ensure the integrity of the flood program; they saw some bad things going on with
these TVRs and wanted to use this as a vessel to further tighten down on that. However,the
flood ordinance cannot be used to say someone is not entitled to have this grandfathered use. For
the sake of comparison, this is the difference between use related and structure related and when
looking at non-compliance with structural elements, they have to be looked at separately from
the TVR program. However, the new proviso in Ordinance 904 allows for withholding renewal
to compel compliance with other laws.
Mr. Blake asked whether a time limit could be placed on it.
Attorney Jung stated that given the context of the questions relating to complex land use
issues that may differ on a case-by-case basis,he feels an executive session should be held so
that the Commission can get a better understanding of all the legal parameters.
In reference to the proposed solutions, Mr. Texeira asked whether there will be a timeline
to these proposed solutions and how does training for the enforcement aspect tie in?
Mr. Dahilig replied that they are partnering with the Office of the Prosecuting Attorney
and that training will have to apply to more than just the inspectors, especially considering the
evidence packets that will need to be put together for action. From a criminal standpoint, the
inspectors will be functioning in a role equivalent to line police officers in that they will need to
gather and submit information that will be compiled into an evidence packet for the prosecutor to
review and possibly take the case to court; this is really not in the job description of inspectors.
Those types of skill sets are not available in-house and though they could try to provide training
to beef up the line staff,the amount of sophistication and understanding of the law from a
contested case standpoint is not generally what they look for when hiring inspectors. It is a gap
that they have been able to address temporarily, which will be discussed further into the
presentation.
Mr. Blake asked whether anyone has paid a fine yet.
Mr. Dahilig replied that they have received fines but not specifically related to TVRs; the
fines collected were for SMA and CZO violations. There is one TVR related fine that is
currently being negotiated.
Mr. Blake asked whether you're either going to get fined or have your application
revoked.
Mr. Dahilig stated that it could be both.
Mr. Blake questioned the possibility of probation.
Mr. Dahilig explained that having worked at the court, he understands how big of a task it
is to even engage in a criminal probation program and that the human resources requirements
would probably be very significant to do that.
Mr. Texeira asked for clarification on whether they are in the process of turning over
some of these cases to the Prosecutor's Office.
Mr. Dahilig explained that the agreement they have with the Prosecutor's Office is that if
Planning ask affirmatively for some type of criminal enforcement they will go ahead and do that;
otherwise,it is left to their discretion on what they'd like to do with it. The training partnership
with the Prosecuting Attorney's Office is important because in the situation where the Prosecutor
doesn't want to enforce on their own prosecutorial discretion, Planning's evidence in-house must
meet their standards or they will not have sufficient evidence to proceed with their case.
Mr. Texeira asked at what point they will be ready to go.
Mr. Dahilig stated that they're going; because it's a multi-issue thing, some things are
moving faster than others. What is critical from a timeline standpoint is reporting back to
Council on a monthly basis and what they want to show Council is how enforcement works from
a more complex standpoint. They are already doing things that relate to non-renewals such as
revocations and contested case hearing initiations for enforcement purposes. The more complex
cases, such as those in Wainiha, Ha'ena and Hanalei, are cases where they have to pull evidence.
Mr. Texeira asked what the Planning Commission can do in their efforts to assist.
Mr. Dahilig stated that the discussion they are currently having as a sounding board is
great since the Commission does have a role in enforcement. Giving suggestions and feedback,
having dialogue and offering support will be a great help.
Mr. Blake asked that in the interest of efficiency, can they hire hearings officers from
Kauai.
Mr. Dahilig stated that hearings officers are hired based on Requests for Proposals and of
those that responded, none were from Kauai. They can only solicit based on that list; they
cannot just choose someone, they must go through the procurement process.
Mr. Blake asked how the recruitment process for inspectors is handled and if they will be
dealing with law enforcement type activity, would it be better to train brand new people or get
retired police officers?
Mr. Dahilig stated that the two individuals that they have in-house do have a role to play,
but the more expansive requirements are not within what they were originally hired to do; that
may need to be addressed by additional staff or by farming out that role.
Mr. Blake commented that if cases are to be presented to the public after applications are
reviewed or if they are going to inspect and enforce, that requires a certain attitude which is not
to say that we shouldn't be as helpful as we can be but not to the point that we are taken
advantage of as has been happening for years.
Mr. Dahilig stated that is the reason for putting together this multi-department team to
work through the challenges of what they want to accomplish and create a sample case to show
that they are moving forward with enforcement strategies.
Mr. Dahilig reported that at the next meeting he will be providing statistics on what they
are finding in the files as to how many have the required documentation and initial approval,
how many have and have not renewed, etc.; they are currently working on actual auditing of
files.
Mr. Isobe stated the following things he would like to know as they move forward:
1. Given the complexity of the law and the overlapping requirements of the law, is
there a way-and what would the department recommend—to simplify the
process and more clearly articulate what are the issues in the law that need to be
changed or revised to eliminate perceived problems.
2. If enforcement and inspection are a problem and the law as being proposed by the
department outdates or requires a higher technical capability in your
inspectors/enforcement people,we really need to look at revising the existing job
description and look at potentially securing qualified inspectors. If someone has
been hired to do a job that is no longer relevant or valid today, good management
would adjust staffing to meet the new requirements and not keep people on just
because. If the budgetary limitations described by Mr. Dahilig in the past are that
serious, it is really difficult to justify carrying people just because.
3. Relative to the need for supervision, what are the duties and responsibilities of all
top level management supervisory planners, what are their qualifications, and the
role of the director and deputy in terms of supervision and oversight of the
department?
Mr. Katayama stated that this will be a regular agenda item going forward and stressed
the importance of addressing this issue professionally and the need for developing a process that
would withstand the test of logic as well as appeal. The agricultural TVRs were framed very
nicely and the same needs to be done for these violations that come before the Commission to
ensure a lot more adjudication from this Commission than there was before.
Ms. Mendonca mentioned that earlier in the meeting Deputy County Attorney Jung stated
that based on some of Mr. Blake's questions, the Commission should go into executive session
to be more informed of what is going on and asked if that could be done.
Mr. Katayama stated that once they have the framework built and they have very specific
questions for the County Attorney, that would be appropriate as well as the approach of how they
develop the firewalls needed between the different County Attorneys that serve them since the
same attorney often represents both the County and the Commission at any given time; there
needs to be more clarity and consistency on that.
Mr. Dahilig stated that the only item left is the executive session item Hl and suggested
that announcement be done and that there be a motion to adjourn the meeting upon conclusion of
the executive session.
ANNOUNCEMENTS
The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly
thereafter at the L-thu`e Civic Center, Mo`ikeha Building, Meeting Room 2A-2B, 4444 Rice
Street, LYhu`e, Kauai, Hawaii 96766 on Tuesday, July 23, 2013.
On the motion by Herman Texeira and seconded by Amy Mendonca to adjourn the
meeting upon conclusion of the executive session,the motion carried by unanimous voice
vote.
EXECUTIVE SESSION
Pursuant to Hawaii 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 Amy Mendonca to move into
executive session, the motion carried by unanimous voice vote.
F (The Commission moved into executive session at 11:45 a.m.)
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ADJOURNMENT
Open Session meeting adjourned at 11:45 a.m.
Respectfully submitted by:
Cherisse Zaima
Commission Support Clerk