HomeMy WebLinkAboutpc 7-23-13 minutes KAUAI PLANNING COMMISSION
REGULAR MEETING
July 23,2013
The regular meeting of the Planning Commission of the County of Kauai was called to
order by Chair Katayama at 9:07 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting
room 2A-2B. The following Commissioners were present:
Mr. Jan Kimura
Mr. John Isobe(entered at 9:16 a.m.)
Ms. Amy Mendonca
Mr. Herman Texeira
Mr. Hartwell Blake
Ms. Angela Anderson
Absent and Excused:
Mr. Wayne Katayama
The following staff members were present: Planning Department—Michael Dahilig,
Ka`aina Hull, Leslie Takasaki; Office of Boards and Commissions—Cherisse Zaima, Paula
Morikami; Deputy County Attorney Ian Jung
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Vice Chair Kimura called the meeting to order at 9:07 a.m.
ROLL CALL
Planning Director Michael Dahilig noted that there were five Commissioners present.
APPROVAL OF THE AGENDA
Mr. Dahilig recommended because of two members' recusal on item F.2., to postpone
that item until such time as quorum has been achieved, to move Subdivisions shortly after public
comment, and to hold executive sessions at the willingness of the Commission.
On the motion by Herman Texeira and seconded by Hartwell Blake to approve the
agenda as amended,the motion carried by unanimous voice vote.
SEP 1. 0 2013
MINUTES of the meeting(s) of the Planning Commission
Regular Meeting of June 12, 2013
On the motion by Herman Texeira and seconded by Amy Mendonca to accept the
minutes of June 12, 2013,the motion carried by unanimous voice vote.
RECEIPT OF ITEMS FOR THE RECORD
On the motion made by Herman Texeira and seconded by Amy Mendonca to
receive all documents and testimony for this meeting, the motion carried by unanimous
voice vote.
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing(NONE)
New Agency Hearing
Special Management Area Minor Permit SMA(M)-2013-22 to accommodate commercial
tour boat loading and unloading activities at Black Pot Beach Park in Hanalei (pursuant to the
"Peddlers and Concessionaires" ordinance), situated at the northern terminus of Weke Road,
finther identified as Tax Map Keys 5-5001:004 & 011, and containing a total land area of 6.19
acres= County ofKaua'i, Department ofParks and Recreation.
This item was deferred until quorum could be achieved.
Continued Public Hearing(NONE)
New Public Hearing (NONE)
All public testimony pursuant to HRS 92
Special Management Area Use Permit SMA(U)-2013-9, Class IV Zoning Permit
Z-IV-2013-19 and Project Development Use Permit PDU-2013-17 to construct a retail store
facility pproximately 23,200 sq. ft. and 97 off-street parking stalls and Variance Permit
V-2013-5 to deviate from the land coverage requirement within the Open (0)zoning district,
located on property along the makai side of Kuhi`o Highway in Waipouh, directly south of its
intersection with Aleka Loop, further identified as Tax Map Key 4-3-007: 029 & 030, an d
containing a total area of 3.571 acres =Niu Pia Land Company, Ltd.
Page 2
The Commission received testimony from Debra Nantais.
Ms. Nantais stated that she is a direct abutter to this proposed project and lives within 50
feet of its lot line. She feels that those two lots would qualify very highly for Open Space and
suggested they consider using it as such and moving this project to a more appropriate area along
the Kuhi`o Highway corridor which is already zoned commercial. As a resort, they really need
to consider their health, safety and welfare; she feels this project compromises all three of those
items.
Mr. Blake asked if she knows of anyone who is interested in purchasing the property in
order to maintain it as Open Space, to which Ms. Nantais replied that she was hoping it could be
purchased through the County; an idea she feels would garner much support. She further stated
that as they continue to look for open spaces to purchase, she feels this property would be
irreplaceable.
Mr. Isobe entered the meeting at 9:16 a.m.
The Commission received testimony from Larry Arruda.
Mr. Arruda stated he was representing Mrs. Fujimoto as she is hard of hearing. He
explained that Mrs. Fujimoto's family has had a home out at 'Anini Beach for the last 47 years,
which they now run as a vacation rental. They did receive their certificate for non-conforming
use, but they forgot to renew it this year. Mrs. Fujimoto, who is 85 years old,was the recipient
and forgot to tell her son about it. Mr. Arruda stated that he would think it common sense for the
County to call or send a letter to the certificate holder to remind them that it is past due; instead
they received a letter to cease and desist immediately. He feels it is a little drastic to go that far
and that all they are asking is for a little more time to come up with the money to pay for the
renewal. He asked, wouldn't it be better to send an overdue letter or even just charge a late
payment fine rather than an order to cease and desist.
New Agency Hearing
Special Management Area Minor Permit SMA(M)-2013-22 to accommodate commercial
tour boat loading and unloading activities at Black Pot Beach Park in Hanalei (pursuant to the
"Peddlers and Concessionaires" ordinance) situated at the northern terminus of Weke Road
further identified as Tax Map Keys 5-5001:004 & 011, and containing a total land area of 6.19
acres = County ofKaua'i, Department ofParks and Recreation.
Deputy County Attorney Jung explained that with regard to the new agency hearing for
Item F.2.a., it has been brought to the Commission's attention that there is a moderately related
lawsuit by Michael Sheehan against the County of Kauai naming several Commissioners in
their individual capacities as defendants. There was a recent ruling by the Board of Ethics based
on a similar situation involving some Liquor Commissioners resulting in the advisory opinion
Page 13
that there may be personal financial interest at stake should the Commissioners being sued sit on
the matter. For this reason, Mr. Jung recommended Mr. Texeira and Mr. Kimura recuse
themselves until they can to the Board of Ethics to obtain an advisory opinion, though it would
ultimately be their choice if they wished to do so.
Both Mr. Kimura and Mr. Texeira agreed to recuse themselves from this agenda item.
Mr. Jung noted that with the recusal of the Vice Chair, a Chair Pro Tem would be needed
and asked for volunteers; Ms. Anderson was granted the position of Chair Pro Tem.
Mr. Blake asked for clarification on the recusal, to which Mr. Jung explained that at this
point it is a temporary recusal until an advisory opinion from the Board of Ethics can be
obtained, which will determine whether or not there is a conflict of interest; however, the recusal
precludes them from participating and voting. Mr. Jung further noted that there are four
members present, which constitutes quorum,but to bear in mind that any valid action on the item
would require all four votes; if there is no consensus between the four Commissioners, there can
be no valid action and the item carries over to the next meeting as a special order of the day.
Mr. Blake asked if they do not get four votes today or at the subsequent meetings, what
happens to the time limits.
Mr. Jung explained that in the Federal Court case filed by Mr. Sheehan, there are only
two Commissioners being named in the suit, which leaves 5 Commissioners to vote;
Commissioner Katayama is not present today, therefore he cannot be counted in the vote.
Mr. Blake asked if they do not get four votes whether their position will fail for lack of
positive action, to which Mr. Jung stated they would cross that bridge if they get there as they
have never gotten to that point before.
Request from the Director to amend prior to opening public hearing the designation of the
matter from SMA(M )-2013-22 to SMA(U)-2014-2 and recodify all documents under the new
application designation.
Mr. Dahilig read the memorandum into the record. (On file)
On the motion by Hartwell Blake and seconded by Amy Mendonca to recodify all
documents under the new application designation, the motion carried by unanimous voice
vote.
Petition to Intervene by Lima Coalition and Barbara Robeson filed July 16, 2013.
Barbara Robeson and Makaala Kaaumoana, representing Limu Coalition were present.
Page 14
Mr. Dahilig stated that the petition to intervene was in proper form and the fees were
paid; the Planning Department takes no opposition to the intervention.
Mr. Blake addressed Ms. Robeson and Ms. Kaaumoana, stating that they have raised
several issues in their petition and asked why they need to intervene rather than just submit their
position in writing and testify on it.
Ms. Kaaumoana replied because they represent a unique constituency of the community,
they have different information than the public may have and have historical records that are not
part of the County file; therefore, it is more appropriately part of a contested case hearing to
ensure that the record is complete and accurate, which does not happen by testimony alone.
Mr. Blake asked what prevents them from submitting what they believe to be accurate, to
which Ms. Kaaumoana stated nothing prevents them, this is just a better remedy for them.
Ms. Robeson added that as mentioned in the petition, one of the remedies they are
seeking is that the application and the actual permit should be in compliance with 343, 205a and
the rules that relate to 343 HAR 200.
Mr. Blake stated that he believes he understands what they are trying to do,but does not
understand why intervener status is necessary to do that. He noted that they say they represent a
segment of the population that is unique, but people are either for or against it, and they are
against it.
Ms. Kaaumoana replied no, that it not what it is about, noting that when you petition to
intervene, you do so on behalf of specific information or specific constituencies to offer a unique
perspective that is not going to be included by public testimony. They are neither for nor against
it; they are completing the record and using the intervener petition to do so, which is a
completely different process from providing testimony.
Mr. Blake stated for clarification that they are interested in intervening to supplement the
record, to which Ms. Kaaumoana replied, to correct, complete, and provide specific information
for the record that would not otherwise be obtained by the general public.
Mr. Blake asked if they submit that to the Department, what prevents that from
happening.
Ms. Kauumoana stated their petition to intervene is their remedy to provide that complete
record, which is the legal process that is available to them; different from that of the general
public in testimony and is the reason interventions exist.
Mr. Jung stated for edification, Chapter 4 of the Rules of Practice and Procedure of the
Planning Commission does identify the standard of which intervention can be allowed.
Mr. Blake asked if it was expected that they vote on this today.
Page 5
Mr. Jung explained that when permits come before the Commission, sometimes there is
intervention. In those cases it moves it to a different standard of agency hearing, which is held
like a mini trial involving evidentiary-type testimony, and where the interveners can put a
position on the table that is different or unique from the general public to supplement the record
as they believe it should be.
Mr. Jung read Chapter 4 of the Rules of Practice and Procedure of the Planning
Commission section 1-4-2 Intervention Grounds for Denial into the record.
Mr. Dahilig elaborated on their statement of no opposition to the intervention, stating that
in circumstances where a quasi-judicial action is brought before a State agency, appellant courts
have found a very loose interpretation as to the nexus behind whether someone has a unique
interest in a particular quasi-judicial matter. Given the contents of the petition and the unique
nature of their position from an environmental and community sense, the department has taken
the position of no opposition in line with the general findings of the appellant court.
Deputy County Attorney Mauna Kea Trask, on behalf of the County of Kauai Parks and
Recreation, noted for the record that the applicant did not receive a copy of the request for
petition to intervene from the Limu Coalition until yesterday afternoon, so he did not have the
opportunity to prepare a written statement. The Department of Parks and Recreation would take
no opposition at this time on the request to intervene. The Department of Parks and Recreation
has been working with Ms. Robeson and Ms. Kaaumoana as well as their organizations to
develop the regulations they are currently seeking to implement. The Department of Parks and
Recreation does not mind if Limu Coalition is involved in it and appreciate what they can
contribute; they will not be taking a position on Mr. Sheehan's request either. What they are
seeking is reasonable regulation as contemplated under the General Plan, the North Shore
Development Plan and the Peddlers and Concessionaires Ordinance of the County of Kauai.
Mr. Trask noted that these 5 operators that do have State permits are allowed to run; it is not a
question of that, but rather to implement a regulatory scheme to best protect public health, safety,
and welfare which they have the legal authority to do.
Mr. Trask added that in regard to the issues raised regarding the EIS, the Department of
Parks and Recreation's Director determined that an exemption was appropriate and they have
taken the appropriate actions under HAR.
Chair Pro Tem Anderson requested a motion to approve the petition to intervene by Lima
Coalition and Barbara Robeson.
At the request of Mr. Isobe, the meeting recessed at 9:35 a.m.
(The meeting reconvened at 9:42 a.m.)
On the motion by Amy Mendonca and seconded by John Isobe to accept the petition
to intervene by Limu Coalition and Barbara Robeson, the motion carried by roll call vote:
3 Ayes (Mendonca, Isobe,Anderson); 1 Silent (Blake)
Page 16
Mr. Jung noted for clarification that the silent vote goes with the motion; therefore the
motion carries as 4 votes.
Mr. Blake asked for clarification on what the proper terminology would be if it's not
"pass".
Mr. Jung explained that you would have to vote either yes, no or silent; you can silent
vote but be aware that silent goes with the motion.
Mr. Blake stated then it would be like a"yes", to which Mr. Jung replied affirmatively.
(The meeting recessed at 9:45 a.m. due to technical issues with the Granicus web
streaming)
(The meeting reconvened at 9:50 a.m.)
Mr. Jung noted that there were still technical issues with the web streaming; however, the
meeting is still being recorded and the minutes will be available, once transcribed, for anyone
wishing to request a copy.
Petition to intervene by Michael G. Sheehan and Hanalei River Holding filed July 16
2013.
Richard Wilson, representing Michael G. Sheehan and Hanalei River Holdings was
present.
Mr. Dahilig stated that the petition was sufficient as to form and the fees for intervention
were paid; the Planning Department takes the position of no opposition to the intervention. He
further noted the Department is in receipt of a filing by the Department of Parks and Recreation,
also taking the position of no opposition to the intervention petition.
On the motion by John Isobe and seconded by Amy Mendonca to accept the
petition to intervene by Michael G. Sheehan and Hanalei River Holdings,the motion
carried by unanimous voice vote.
Memorandum from the Clerk of the Commission requesting the Commission refer the
matter to a Hearings Officer to conduct the contested case hearing, and delegate to the Clerk
authority procure and appoint the hearings officer.
Mr. Dahilig noted that the applications are now designated as SMA(U)2014-2
Page 17
Mr. Wilson stated that they would object to this matter being forwarded to a hearings
officer on several grounds. First, there is no indication as to how long these proceedings would
take and that they would be more willing to consider a hearings officer if the County offered a
reasonable time frame of 6-8 days, which does not appear to be the case. Second, this is too
important to delegate authority to a hearings officer. Though he realizes it is a public
proceeding, it will not be taped, viewed or streamed; he feels the public has a right to know and
that there should be questions and discussion by Commissioners. It shouldn't just be deferred to
a hearings officer who prepares proposed findings of facts, conclusions of laws, decisions and
orders which, based on his past experience with this Commission, are accepted without further.
discussion. In light of the County's paradigm shift on boating in Hanalei, he feels the people of
Kauai have a right to know and feels the Commission has an obligation to make this a public
hearing and to ask questions and be involved rather than just accepting what a hearings officer's
proposed findings are.
Deputy County Attorney Mauna Kea Trask stated that the Department of Parks and
Recreation does not have any opposition to this matter going to a hearings officer. He feels that
any argument that the findings of hearings officers are foregone conclusions is misplaced. In his
experience, this Commission diligently reviews everything that comes before them; any
insinuation other than that is unfair. He explained that what Parks and Recreation is doing is
trying to implement their peddlers and concessionaires program to regulate boating and
referenced Title 9, Chapter 23 of the Kauai County Code Regulation of Business and Trades,
further stating that they are trying to protect the public health, safety, and welfare in participating
in recreational activity. Currently there are permitted, operating commercial boaters in Hanalei
under the State and they are just looking to close the regulatory loopholes and resolve
jurisdictional issues in order to best protect the public and preserve public space as quickly as
possible. He reiterated that they take no opposition on the contested case and feels it may be
more economic and expeditious to do so.
Mr. Jung noted that the Commission has the option to hold the hearing themselves or to
have it referred to a hearings officer.
Mr. Blake stated that this matter and matters directly and very closely related to it have
been going on for 20 or 30 years and he would like to see it put to rest. He realizes it is a lot of
work,but he would prefer to have the Commission hear the case instead of assigning it to a
hearings officer because there can be a lot lost in translation. Despite having no opposition to the
appointment of a hearing officer, he moves that the Commission hear the case personally.
Mr. Isobe stated he would second it for the sake of discussion.
Mr. Dahilig stated that if the Commission is seeking to initiate a contested case hearing, a
hearing date would need to be set in order to begin the process of facilitating motions and filings
that will have to be processed by the Planning Department. He explained what having a
contested case hearing would entail, noting that it would likely be a multiple-day hearing,
possibly running from 8 a.m. to 4 p.m., for 2 to 3 consecutive days. The hearing, like a
Commission meeting, would involve motions and voting on evidentiary items, which poses a
time-element and is the reason for having multiple days.
Page 18
Mr. Dahilig stated that the Commission has the option to defer this matter until the next
meeting on August 13 in order to reconcile a date, noting that the setting of a hearing date must
be moved and voted on by the Commission.
At the request of Mr. Isobe, Chair Pro Tern Anderson called for a recess at 10:08 a.m.
(The meeting reconvened at 10:17 a.m.)
Mr. Blake stated that when he made the suggestion for the Commission hearing, he
realized that there may be some difficulty for certain members to attend due to other employment
obligations. Therefore, if there is any way to lighten the load on those members, he would be all
for it. He noted that in reading hearings officers' findings or recommendations in the past, if he
had any question about it, the options were to either open the hearing up again or just accept it at
face value; he would prefer to accept the least amount of things at face value.
Ms. Anderson commented that she will make herself available for contested case
hearings.
Mr. Isobe asked Mr. Blake if he would consider referring this item to a hearings officer if
they could have the hearings televised by Granicus so both the public and the Commission has an
opportunity to view what is going on, to which Mr. Blake replied no.
Mr. Jung added that there are certain protocols on how Granicus is utilized and currently,
the contract covers Planning Commission meetings only; however, he will check with the Office
of Boards and Commission on whether it can be done. He noted that contested case hearings are
not subject to Sunshine Law,but they can make it open and post an agenda for it if they wish.
Mr. Isobe stated that his understanding is that the Office of Boards and Commissions
does have the flexibility similar to when Council conducted the budget hearings and if it is
County related work, arrangements can be made with Granicus.
Mr. Jung stated that he would like to check with the Administrators just to be sure.
Mr. Dahilig noted that although this does not fall under the Sunshine Law the Rules of
Practice and Procedures do require public testimony as part of the proceedings; the Rules provide
more openness than the Sunshine Law provides.
On the motion by Hartwell Blake and seconded by John Isobe to have the
Commission hear the matter personally,the motion failed by roll call vote:
2 Ayes (Blake,Anderson); 1 No (Mendonca); 1 Silent (Isobe)
Mr. Jung noted that the matter will be carried over to the next meeting being held on
August 13 as a special order of the day.
Page 19
Special Management Area Minor Permit SMA(U)-2014-2 to accommodate commercial
tour boat loading and unloading activities at Black Pot Beach Park in Hanalei (pursuant to the
"Peddlers and Concessionaires" ordinance), situated at the northern terminus of Weke Road,
further identified as Tax Map Keys 5-5001:004 & 011, and containing a total land area of 6.19
acres = County ofKaua'i Department of Parks and Recreation.
The Commission received testimony from Brian Lansing of Na Pali Catamarans.
Mr. Lansing stated that a while back, he believes that every one of the Commissioners
stated they wanted nothing to do with boating and that it was the job of the State. The State
never enforced the rules resulting in many companies running without permits to this day. He
asked those Commissioners who own businesses, what if someone took one-seventh of their
customers and told them to go home? One-seventh is roughly fifteen percent, which constitutes
the net profit of his business. Mr. Lansing claimed that they are killing his by taking every
penny his company makes in profit and cancelling it by eliminating Sundays. He stated that he
was a winner in Federal Court and he will win again, only this time, instead of naming the
Governor and Chairman of DLNR, he will name the Planning Commissioners, the Mayor, the
head of Parks and anyone else responsible for ruining his ability to earn a living. He questioned
whether he will have to fire his employees and close the business because three or four people in
the room say no Sundays; the rest of the people say otherwise. He argued the unreasonableness
of the 30-minute load/unload time stating it could take upwards of 40 minutes for many reasons
out of his control, which could cause his permit to get pulled and rain his business. He feels they
do not need any park rules for boating, commenting that Mr. Sheehan has a perfect launch ramp
and if he were given an SMA permit to move the boating into his yard, it would happen.
However, Mr. Lansing surmised that the County wishes to obtain the land from Mr. Sheehan,
give it to the State to run it with State rules. He questioned why would there need to be County
rules if the plan is to turn it over to the State. He stated that, though not meant as a threat, they
would have to take it to Federal Court and put a TRO on the whole set of Rules. Mr. Lansing
stated the plans to eliminate Sundays and limit load/unload times to 30-minutes is not reasonable
regulations, which they are entitled to. He commented that boating is not the problem but rather
the other uses; boating only requires the loading and unloading of people and then they are gone;
boats don't spend much time in the park so why are the rules against them. He reiterated that if
this is implemented, they will go to court, noting that the State is protected against lawsuits, but
not the County and its employees.
Ms. Robeson asked if she could testify again to which Mr. Jung replied that due to the
unique situation of the possibility of a contested case hearing, which Ms. Robeson is now a party
to, the agency hearing will go on a separate track from the current public hearing notice that went
out for today's agency hearing. He noted that she can testify if she wishes with the
understanding that she is a party and will have to give Mr. Trask as well as Mr. Sheehan's
attorney Mr. Wilson the opportunity to respond. In addition, she will have to provide additional
testimony to the Commission should they handle the hearing.
The Commission received testimony from Barbara Robeson.
Page 110
Ms. Robeson stated that the main issue she has for compliance is consistency with HRS
343, HRS 200 and CZM 205a. She provided the following timeline:
• 1985-1988 —A series of SMA minor permits were issued by the County to DOT; it
was later determined by the Planning Department that they no longer qualified for
minor and had to have major SMA permits.
• 1985 —DLR was issued temporary, revocable permits to commercial vessels: 7
permits increased to 15 then to 23; in 1986 this increased to 47.
• 1987 —Two civil lawsuits were filed by Waiola against the Planning Commission.
• 1989—There was an Attorney General opinion from the State that said boating
activity was development.
• 1989—Letter from First Deputy Attorney Warren Perry to Wilson Okamoto who
prepared the draft EIS that was later withdrawn; the draft EIS was from the North
Shore Charter Boat Association.
• 1991-1992 —The Hanalei Estuary Management Plan process began. There were four
town meetings in Hanalei, which were all televised and facilitated, and attended by all
Planning Commissioners. Two public informational meetings were held—one in
Hanalei, one in Uhu`e.
• 1992—The final HEMP was unanimously adopted on September 10 by the Planning
Commission.
• 1993 —7 SMA use permits were issued and HEMP had recommended that a total of
204 persons per day, including passengers and crew, would be allowed for those
permits.
• 1995 —The Planning Commission met on January 6 and the staff report stated that the
total number of persons per day is 204; the 7 SMA use permits were extended for 5
years and expired on March 31, 2000.
• 1998 —The Planning Commission simplified Section 19.3 of the SMA Rules and
Regulations but HEMP remained intact. There was a letter from Governor Ben
Cayetano to Mayor Kusaka discussing the jurisdiction of the State and County over
the SMA area of the Hanalei River.
• 1998—On August 28, Governor Cayetano issued the ban on commercial boats in
Hanalei; permits were phased out.
• 2001 —There was a Civil Lawsuit—Ralph Young, etc.; the Gilmore opinion.
• 2011 —Consistent with the Gilmore opinion, HEMP, DLNR—DOBAR amends HAR
Section 13.25639 relating to Hanalei Bay ocean waters.
Page 1 11
• 1987-2010—Approximately 30 lawsuits related to this boating issue.
Ms. Robeson stated that in 2003 she provided additional information to the Planning
Department which included the following:
• A letter from Attorney General Warren Price to Deputy County Attorney Lorna
Nishimitsu regarding Chapter 205a and Development, which cited Mahuiki vs. the
Planning Commission.
• A letter from the Deputy County Attorney Warren Perry.
• A staff report and recommendations dated June 24, 1993, for the issuance of the SMA
use permits and Class 4 zoning permits for the boaters along with a sample letter with
the approval and conditions sent to one of the boating companies.
• A staff report regarding the request for the reissuance of those 7 original permits
where the boaters were listed.
The Commission received testimony from Makaala Kaaumoana on behalf of Limu
Coalition.
Ms. Kaaumoana stated that her current testimony is different from the contested case
intervention piece and that it relates specifically to the Director's Report for this agenda item.
She noted that her concern is for the following discrepancies and omissions in the Director's
Report:
• The permit number on the July 16, 2013, memo from the Director and that on the
Director's report written July 17, 2013, differ.
• Under additional findings, Item 4, "access loading and unloading operations will
primarily take place on this ramp."
Ms. Kaaumoana questioned, where else would these activities take place and stated that
all areas within the SMA related to this application should be identified.
• Under Item VII. Preliminary Evaluation 4.a.ii.3. "Allow for group use including
commercial tours and equipment rentals within conservation limits."
Ms. Kaaumoana requested a definition for"conservation limits".
• Item 4.b.iv. "The County DPW shall develop a comprehensive park permit system..."
Ms. Kaaumoana asked whether this is to be done by DPW or by the Department of Parks
and Recreation.
Page 112
Ms. Kaaumoana stated that she understands where this document was pulled from, but it
is really stale. Referencing the slippery slides in Kilauea, she commented that this is the
language we are using for the Director's Report for discussion of one of the most controversial
commercial uses of our public places in all of Hawaii; this report should be current and
pertinent. She further stated that they support the testimony of Ms. Robeson and ask that the
entire history of this commercial activity as provided by Ms. Robeson be made part of the record
for this item and provided in full to each Commissioner. They also concur that Chapter 343 and
HRS 200 CZM 205a apply. The Limit Coalition commits to full participation in this matter and
affirms their intention to intervene.
The Commission received testimony from Kevin Millet of Holo Holo Charters.
Mr. Millet stated he concurs with Ms. Kaaumoana's statement that much of the
information is stale and old and would like to point out what is currently going on. There are 5
boat companies operating out there and since there are currently no County rules they are
operating 7 days a week and have done so for 2 seasons. They have had absolutely no
complaints at the Parks level or the DLNR level and have had no conflicts of any kind during
that time. He noted that the information Ms. Robeson presented is in the past and feels they
should look at the issue as it currently exists.
The Commission received testimony from Stephanie Butler.
Ms. Butler stated that she and her husband own and operate Captain Sundown
Enterprises. She wished to express her gratitude to Mr. Blake for wanting to make this issue
public. She wanted to represent the two different things being seen today, one of which is the
environmentalist side of what happens in Hanalei and control over that; the other of which is the
capitalist viewpoint of being able to have free enterprise and operate as any normal business
would do under any given circumstance. This is a power struggle in her way of thinking, and
like an Oreo cookie, the environmentalists are to the right, the capitalists to the left and the
boaters are the"little white, squishy part in the middle". They are now being exposed to almost
29 new regulations in order to transition people from the beach to a little dinghy out to Hanalei
Bay and disappear for about 6 hours of the day. She does not understand the need for 29 new
regulations to oversee that as they have been doing that with the environment in mind for 40
years. She noted the Federal case brought about by a community who felt this would have a
negative impact on the environment, which was lost to the boaters in Federal Court; it has
already been determined that there was nothing they did to compromise the environment or the
safety of the community. They would just like to be able to run their businesses as they have
done all these years. The regulations should be kept simple and she does not want to be caught
in a power struggle over who should control Hanalei. She further noted that had Mr. Sheehan
followed due process, maybe he would have a legitimate tour boat operation, but because he
feels capitalism is his platform, there will be a struggle that has nothing to do with the boaters.
Mr. Wilson stated that one of the most important historical events is that Mr. Sheehan
obtained permits back in 1987 to take people off the beach because of the safety and health
Page 1 13
issues, not for environmental reasons. He stated that he does not think an SMA permit is
necessary because it is not a development and has not seen anything in the petition to say as
such. They do agree with the other interveners in that this is an EA/EIS issue, which must be
done because it is on State/County land. Compliance with terms and conditions is one thing,but
they must do an EA/EIS under State law. The Attorney General's opinion from 1989 is stale and
has no force and effect; we're in a different framework now. The same goes for HEMP which
was withdrawn 10 years ago; there is no enforceable County rule called HEMP. Mr. Wilson
urged the Commissioners who voted against it to reconsider as there is so much history and the
issue needs to be put to bed.
Deputy County Attorney Mauna Kea Trask, representing the Department of Parks and
Recreation, cited a section from McQuillin's Municipal Corporations Police Power. They have
heard both sides of the issue and have received reports of people currently running unregulated
and unpermitted by the State, people seen drinking, passengers with no life vests, operators
going too close to the Na Pali Coast, etc. The County is looking for the middle road and is
seeking reasonable regulation to ensure public safety. Hanalei Park has been in the news
recently with many people pointing out its shortcomings and its need to be better regulated and
more organized; the County's goal is to expand that park and create a better infrastructure in
Hanalei. He believes that all parties are united in that there does need to be some kind of
regulations, the argument is what those regulations will be.
The Commission received testimony from Bob Butler, owner of Captain Sundown
Enterprises.
Mr. Butler asked whether there will be more public testimony after today, considering the
petitions for intervener status, to which Mr. Jung replied yes.
Mr. Butler stated that every tourist that gets on his boat has their own mind, their own
way of thinking, and their own expectations. The park is an area where they need to bring the
tourists through and if the tourist needs to use the bathroom, for the County to not allow them to
use the bathroom and to force Mr. Butler to enforce that or risk losing his permit, is an
imposition on the tourists, the tourist trade, and on him. As they lead their customers to the boat
ramp along the access path being proposed by the Parks Department,if a customer stops to smell
a flower off that path, Mr. Butler will have to regulate that as well. He asked that in the process
of doing this, look at the rules seriously; they are representing the tourist industry for the State of
Hawaii in one of the finest places in the State and there needs to be some trust in the boaters.
Mr. Butler has seen a lot of crazy things at Black Pot Park since he started back in 1971 but none
of them from the boats; the boaters aren't the problem. He urged the Commission to allow the
Federal and State rules to guide them. He understands that they want to ensure the park is taken
care of and that they do not override the community, pointing out that the boaters have been
practicing that for over 30 years.
On a motion by Hartwell Blake and seconded by Amy Mendoca to close the agency
hearing, the motion carried by unanimous voice vote.
Page 1 14
Attorney Jung reminded the committee that the special order of the day that will come up
at the next meeting will be on whether or not the Commission will hear the matter themselves or
refer to a hearings officer.
COMMITTEE REPORTS
Subdivision
Subdivision Committee Vice Chair Herman Texeira read the Subdivision report into the
record.
The following tentative subdivision actions were approved 3-0:
5-2013-20=Kilauea Ventures, LLC, Proposed 3-lot Subdivision
S,2013-21=Ross L. And Cynthia K Link, Proposed 2-lot Consolidation
Mr. Texeira noted there was an amendment to Condition I.e. for 5-2013-20=Kilauea
Ventures, LLC, Proposed 3-lot Subdivision.
On the motion by Angela Anderson and seconded by Hartwell Blake to accept the
Subdivision Committee report, the motion carried by unanimous voice vote.
CONSENT CALENDAR
Status Reports (NONE)
Director's Report(s) for Project(s) Scheduled for Agency Hearing on 8/13/13
Special Management Area Use Permit SMA(U)-2013-9 Class IV Zoning Permit
Z-IV-2013-19 and Project Development Use Permit PDU-2013-17 to construct a retail store
facility pproximately 23,200 sq. ft. and 97 off-street parking stalls and Variance Permit
V-2013-5 to deviate from the land coverage requirement within the Open (0) zoning district
located on property along the makai side of Kuhi`o Highway in Waipouli directly south of its
intersection with Aleka Loop, further,identified as Tax Map Key 4-3-007: 029 & 030 and
containing a total area of 3.571 acres=Niu Pia Land Company Ltd.
Class IV Zoning Permit Z-IV-2013-20 and Use Permit U-2013-18 to construct a new 2-
story administration building approx. 15,000 sq ft in size and 54 off-street parking stalls
located immediately ad' t to the Department of Water office/basevard facility in Lihu`e
along its western boundary at the Hala Road/Kaumuali'i Highway intersection further identified
as Tax Map Key 3-8005: Por., and containing a total area of 1.919 acres = County ofKaua'i
Department of Water.
Page 1 15
Class IV Zoning Permit Z-IV-2013-17 Project Development Use Permit PDU-2013-15,
Use Permit U-2013-14 and Special Permit SP-2013-5 to develop a research complex facilitating
research in various science practices that would include a research facility containing offices and
workshop areas dormitory buildings various accessory structures and provision for off-street
parking on a parcel located along Kuawa Road in Kilauea approx. 850 ft. south of its
intersection with Kaumuali'i Highway, further identified as Tax Map Key 5-2013: 001, and
containing a total area of 14.6 acres= The Resonance Project Foundation.
On the motion by Hartwell Blake and seconded by Angela Anderson to accept the
consent calendar, the motion carried by unanimous voice vote.
Shoreline Setback Activity Determination(NONE)
GENERAL BUSINESS MATTERS
1. Petition to Appeal the Decision of the Planning Director by Morgan Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1127 (TMK No. 449004006)
filed on 6/6/2013 (Contested Case No. CC-2013-10).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1127 Morgan TMK No. 449004006 filed on 6/6/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission
for the Instant Appeal
2. Petition to Appeal the Decision of the Planning Director by Retzloff Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4268 (TMK No. 455002085)
filed on 6/10/2013 (Contested Case No. CC-2013-11).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4268 Retzloff TMK No. 455002085 filed on 6/10/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission
for the Instant Appeal
Page 1 16
3. Petition to Appeal the Decision of the Planning Director by Leadley Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1266 (TMK No. 4 5 8 006 022)
filed on 6/12/2013 (Contested Case No. CC-2013-12).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1266 Leadley TMK No. 458006022 filed on 6/12/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission
for the Instant Appeal
4. Petition to Appeal the Decision of the Planning Director by Dumon Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1130 (TMK No. 452020063)
filed on 7/1/2013 (Contested Case No. CC-2013-13).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1130 Dumon TMK No. 452020063 filed on 7/1/2013 to a Hearings
Officer; Request for Delegation of Authority to the Clerk of the Commission to
Procure and Appoint a Hearings Officer on Behalf of the Commission for the Instant
Appeal
5. Petition to Appeal the Decision of the Planning Director by Cox Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4232 (TMK No. 458010031)
filed on 7/2/2013 (Contested Case No. CC-2013-14).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4232 Cox TMK No. 458010031 filed on 7/2/2013 to a Hearings
Officer; Request for Delegation of Authority to the Clerk of the Commission to
Procure and Appoint a Hearings Officer on Behalf of the Commission for the Instant
Appeal
6. Petition to Appeal the Decision of the Planning Director by Andrighetto Concerning
Non-renewal of Transient Vacation Rental Certificate TVNC-5062 (TMK No.
448007004) filed on 7/2/2013 (Contested Case No. CC-2013-15).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5062 Andrighetto TMK No. 448007004 filed on 7/2/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission
for the Instant Appeal
Page ( 17
7. Petition to Appeal the Decision of the Planning Director by Holmes Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1227 (TMK No. 455010085)
filed on 7/2/2013 (Contested Case No. CC-2013-16).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1227 Holmes TMK No. 455010085 filed on 7/2/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
S. Petition to Appeal the Decision of the Planning Director by Igleheart Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1044 (TMK No. 458006032)
filed on 7/2/2013 (Contested Case No. CC-2013-17).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1044 Igleheart TMK No. 458006032 filed on 7/2/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
9. Petition to Appeal the Decision of the Planning Director by Reed Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1021 (TMK No. 455010035)
filed on 7/2/2013 (Contested Case No. CC-2013-18).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1021 Reed TMK No. 455010035 filed on 7/2/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
10. Petition to Appeal the Decision of the Planning Director by Weimar Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1093 (TMK No. 455010089)
filed on 7/2/2013 (Contested Case No. CC-2013-19).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1093 Weimar TMK No. 455010089 filed on 7/2/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 1 18
11. Petition to Appeal the Decision of the Planning Director by Gilhuly Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4237 (TMK No. 45 50021 1 2)
filed on 7/5/2013 (Contested Case No. CC-2013-20).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4237 Gilhuly TMK No. 455002112 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
12. Petition to Appeal the Decision of the Planning Director by Barkin Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4228 (TMK No. 416006006)
filed on 7/5/2013 (Contested Case No. CC-2013-21).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4228 Barkin TMK No. 416006006 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
13. Petition to Appeal the Decision of the Planning Director by Coffey Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-5029 (TMK No. 426006033)
filed on 7/5/2013 (Contested Case No. CC-2013-22).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5029 Coffey TMK No. 426006033 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
14. Petition to Appeal the Decision of the Planning Director by Silverman Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1080 (TMK No. 44201305 1)
filed on 7/5/2013 (Contested Case No. CC-2013-23).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1080 Silverman TMK No. 442013051 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 1 19
15. Petition to Appeal the Decision of the Planning Director by Ishii/Nafshun Concerning
Non-renewal of Transient Vacation Rental Certificate TVNC-5065 (TMK No.
448013002) filed on 7/5/2013 (Contested Case No. CC-2013-24).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5065 Ishii/Nafshun TMK No. 448013002 filed on 7/5/2013 to
a Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
16. Petition to Appeal the Decision of the Planning Director by Sutherland Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-5078 (TMK No. 453006018)
filed on 7/5/2013 (Contested Case No. CC-2013-25).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5078 Sutherland TMK No. 453006018 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
17. Petition to Appeal the Decision of the Planning Director by Daniells Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1109 (TMK No. 455004023)
filed on 7/5/2013 (Contested Case No. CC-2013-26).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1109 Daniells TMK No. 455004023 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
18. Petition to Appeal the Decision of the Planning Director by Miller Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1168 (TMK No. 455010055)
filed on 7/5/2013 (Contested Case No. CC-2013-27).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1168 Miller TMK No. 455010055 filed on 7/5/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 120
19. Petition to Appeal the Decision of the Planning Director by Fortune Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1060 (TMK No. 453006007)
filed on 7/8/2013 (Contested Case No. CC-2013-28).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1060 Fortune TMK No. 453006007 filed on 7/8/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
20. Petition to Appeal the Decision of the Planning Director by Horgan Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4250 (TMK No. 455001040)
filed on 7/9/2013 (Contested Case No. CC-2013-29).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4250 Horgan TMK No. 455001040 filed on 7/9/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
21. Petition to Appeal the Decision of the Planning Director by Kagimoto Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1167 (TMK No. 412006022)
filed on 7/9/2013 (Contested Case No. CC-2013-30).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1167 Kagimoto TMK No. 412006022 filed on 7/9/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
22. Petition to Appeal the Decision of the Planning Director by Phoenix Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1253 (TMK No. 423015107)
filed on 7/9/2013 (Contested Case No. CC-2013-31).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1253 Phoenix TMK No. 423015107 filed on 7/9/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 121
23. Petition to Appeal the Decision of the Planning Director by Phoenix Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1252 (TMK No. 423015107)
filed on 7/9/2013 (Contested Case No. CC-2013-32).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1252 Phoenix TMK No. 423015107 filed on 7/9/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
24. Petition to Appeal the Decision of the Planning Director by Holman Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1280 (TMK No. 455010024)
filed on 7/10/2013 (Contested Case No. CC-2013-33).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1280 Holman TMK No. 455010024 filed on 7/10/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
25. Petition to Appeal the Decision of the Planning Director by Barnes Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1231 (TMK No. 458005028)
filed on 7/10/2013 (Contested Case No. CC-2013-34).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1231 Barnes TMK No. 458005028 filed on 7/10/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
26. Petition to Appeal the Decision of the Planning Director by O'Reilly Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-5101 (TMK No. 455002088)
filed on 7/12/2013 (Contested Case No. CC-2013-35).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-5101 O'Reilly TMK No. 455002088 filed on 7/12/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 122
27. Petition to Appeal the Decision of the Planning Director by Paxson Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1243 (TMK No. 458006011)
filed on 7/12/2013 (Contested Case No. CC-2013-36).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1243 Paxson TMK No. 458006011 filed on 7/12/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
28. Petition to Appeal the Decision of the Planning Director by Webster Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1019 (TMK No. 458008043)
filed on 7/12/2013 (Contested Case No. CC-2013-37).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1019 Webster TMK No. 458008043 filed on 7/12/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
29. Petition to Appeal the Decision of the Planning Director by Bittner Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4216 (TMK No. 413004083)
filed on 7/15/2013 (Contested Case No. CC-2013-38).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4216 Bittner TMK No. 413004083 filed on 7/15/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
30. Petition to Appeal the Decision of the Planning Director by Knopf Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1090 (TMK No. 428010069)
filed on 7/15/2013 (Contested Case No. CC-2013-39).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
CertificateTVNC-1090 Knopf TMK No. 428010069 filed on 7/15/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 123
31. Petition to Appeal the Decision of the Planning Director by Smith Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-1294 (TMK No. 458011025)
filed on 7/15/2013 (Contested Case No. CC-2013-40).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-1294 Smith TMK No. 458011025 filed on 7/15/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
32. Petition to Appeal the Decision of the Planning Director by Dorgan Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-4205 (TMK No. 453004005)
filed on 7/15/2013 (Contested Case No. CC-2013-41).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4205 Dorgan TMK No. 453004005 filed on 7/15/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
33. Petition to Appeal the Decision of the Planning Director by Davis Concerning Non-
renewal of Transient Vacation Rental Certificate TVNC-.4209 (TMK No. 428023041)
filed on 7/16/2013 (Contested Case No. CC-2013-42).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4209 Davis TMK No. 428023041 filed on 7/16/2013 to a
Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
34. Petition to Appeal the Decision of the Planning Director by LMCD LLC Concerning
Non-renewal of Transient Vacation Rental Certificate TVNC-4240 (TMK No.
455003006) filed on 7/16/2013 (Contested Case No. CC-2013-43).
a. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning
Director's Decision Related to Non-Renewal of a Transient Vacation Rental
Certificate TVNC-4240 LMCD LLC TMK No. 455003006 filed on 7/16/2013 to
a Hearings Officer; Request for Delegation of Authority to the Clerk of the
Commission to Procure and Appoint a Hearings Officer on Behalf of the
Commission for the Instant Appeal
Page 124
The Commission received testimony from Glen Hale representing Mrs. O'Reilly.
Mr. Hale asked if the Planning Director has written a report that resulted in the
Commission's action to revoke the permit.
Mr. Dahilig explained that the action being appealed is Pursuant to Chapter 9 and is not
an action by the Commission; the Commission is the appeal body.
Mr. Hale stated the objection he wishes to lodge on behalf of the client is that Chapter 12
of the Rules of the Commission states "for any action taken by the Commission to revoke a
permit requires an order to show cause hearing"; therefore, the appeal route being taken by the
Commission is not the correct procedural way to do it. They object to this and request that the
Commission issue an order to show cause as to why a permit should be revoked, as required by
the Commission's own rules.
Mr. Isobe requested clarification on whether Mr. Hale's concern is valid or whether they
are procedurally correct.
(The meeting recessed at 11:00 for caption break)
(The meeting reconvened at 11:05)
Mr. Dahilig explained the reason why these are Chapter 9 appeals versus Chapter 12
appeals. The action that is being appealed is a refusal to renew a certificate; an action of the
Planning Director that falls under Chapter 9. It is not a revocation, which would fall under
Chapter 12. Whether or not there is a loss of due process can be addressed by the hearings
officer as well as whether or not the Director's action has severed a right. Mr. Dahilig maintains
that the procedures applied are in correct form and the action taken was a refusal to renew and
not a revocation.
On the motion made by Herman Texeira and seconded by Amy Mendonca to
receive the petitions to appeal, and to delegate authority to the clerk of the Commission to
procure and appoint a hearings officer over objection on Item 26, the motion carried by
unanimous roll call vote.
Request from William E. Robertson to request amendment of Use Permit U-2011-12;
Special Permit SP-2011-7 and Class IV Zoning Permit Z-IV-2011-12 at TMK(4)-5-3008:012 to
extend the period of time to conduct botanical garden tours on the subi ect rrooperty and to extend
the hours of operations, number of tours conducted and number of weekly guests permissible
received May 2, 2013.
Staff Planner Ka`aina Hull read the Director's Report into the record(on file).
Mr. Kimura asked for clarification on whether this was a non-paying tour by donations
only.
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Mr. Hull stated there is no restriction of"donations only under their conditions of
approval, noting that because the original permit is for a commercial operation, it was not
required to be by donation. There was a donation element to it prior to the receipt of their
permits, but even under that, the Planning Department had informed them that they must obtain a
use permit before conducting those tours on the site.
Mr. Kimura asked Mr. Hull if he was sure that there was not a condition for donations
only, to which Mr. Hull replied yes.
Mr. Blake asked what the date of the report is, to which Mr. Hull replied July 18, 2013.
Applicants William Robertson and Lucinda Robertson were present.
Mr. Kimura asked if the applicant could answer his question, to which Mr. Robertson
replied that they do charge a fee for taking the garden tour.
Mr. Kimura remembered a condition stating it would be by donation only, or that the
applicants suggested it was by donation only, asking if that was prior to the permits.
Mr. Hull stated that it could be looked into, but if he recalls correctly, the reason the
applicant came before the Commission was because the Department cited them for an illegal
operation of tours being conducted on the site. He also recalls the issue of donations coming up
and the possibility that they were operating under those parameters, though he cannot recall off
the cuff; however, it can be looked into.
Ms. Robertson stated that they were receiving donations prior to receiving their Special
Use permit,but one of the purposes of getting the permit was to get it legal so that they could
charge a fee to cover the expense of maintaining the gardens.
Ms. Robertson thanked the Commission for approving the renewal of their permit,
pointing out that their venture has been quite successful at all levels. The orchards and garden
are thriving, producing fruits, nuts, and vegetables on the agriculturally zoned area, and
botanicals and medicinals on the open zone area. They have been excellent stewards of the land,
farming and keeping away invasive species and using the steep, un-farmable land for the native
plants and botanicals. They have kept good relations with their neighbors and there has only
been one problem in the last two years relating to the name of the garden, which was quickly
resolved; the name was changed at the request of a neighbor from Ahunui Botanical Garden to
Princeville Botanical Garden. They believe that the small percentage of neighbors originally in
opposition have come to realize they are not impacted by the operation. They continue to
receive support from those who were always in favor of the garden. In the past two years they
have seen a steady increase in the number of visitors to the gardens and have received a high
raring of#9 of 149 attractions listed for the County of Kauai on the website TripAdvisor.com.
Ms. Robertson read several excerpts of customer reviews from the website. Even with the
increase in visitors, there hasn't been a noticeable increase in traffic, as confirmed by a neighbor
in a letter submitted two years ago. Ms. Robertson stated that because of their proven record as
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excellent stewards, their use of good business practices, and their good relations with their
neighbors, they would like the Commission to consider the changes to the permit that they have
proposed.
Mr. Robertson stated that when they first submitted their application, they wished to start
slowly in order to assess the impact on the neighborhood and determine how best to conduct the
operation. They themselves suggested only three days a week with hours from 9—5; they were
granted hours of 9:30—3:30. However, the afternoons are very hot and they are asking to extend
those hours until 5:00 p.m. and have regular scheduled hours of 9— 5. Currently, they can
operate on only two days during the work week and found that 50 percent of those interested in
taking the garden tour are unable to do so because of the restrictive times. They would like to
add one more day during the work week which, along with their Saturday tour, would bring it up
to only four days of operation. They would also like to increase the number of people on each
tour from 20—25. They have met all the conditions of their gift shop from which they do very
minimal business. They do not do weddings or receptions in the gardens, have no lighting
outside, and have not had any emergencies with the Fire or Police Departments. There is a lot of
open pasture land around them and at the original hearing they had at least 15-25 letters from
neighbors supporting them; the three or four people that were opposed were those who live
beyond the gardens and never experienced any traffic as a result of the business.
Mr. Robertson stated that it is a tremendous amount of work keeping invasive species out
and their botanical gardens are on very steep hillsides that had been overgrown by invasive
species; they take absolutely zero land away from farming. They urge the Commission to grant
their request in order for them to economically sustain their business and offer the garden tours
to the public.
Ms. Robertson added that Mr. Hull made the comment in the recommendation that there
was the concern that the tours would override the farming or gardening aspect of the land, which
she can understand; however, she would like to remind the Commission that if they didn't farm,
there wouldn't be any tours. They will definitely be continuing with their gardens and orchards
and the land will remain there for the next owners to pursue.
Mr. Robertson stated that he is a farmer and has a 10-acre certified organic farm in
Moloa'a that he actively farms and from which produce is taken to farmers markets, restaurants,
and health food stores. He also has tropical fruit orchards in Moloa'a that he farms as well. They
were originally asked to open up the botanical garden by someone in the tourism industry who
originally requested tours at their farm land in Moloa'a,but changed their mind once they saw
the Princeville garden. He advised the Commission to visit the TripAdvisor.com website and
read about how this is impacting the tourism industry.
Ms. Anderson asked what the demographics of the tour participants are, whether they are
primarily visitors to the island or is there a percentage of Kama`aina that visit or school groups.
Mr. Robertson stated that it is mostly visitor and feels that is because they charge $37 for
a two and one half hour tour and their three hour tour that includes fruit and chocolate is $47,
which most local people cannot afford. They do have a 20 percent Kama`aina discount and are
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always asking people to come in, usually having two or three people on the tour free of charge.
They have worked with Hanalei schools to bring classes in and want to do more of that as well as
having Kama`aina days, perhaps once a month for a very minimal fee.
Mr. Blake asked if they have come upon anything in their gardens that have commercial
potential.
Mr. Robertson replied, the chocolate, which grows very well on Kauai and especially in
their gardens which have deep valleys that offer protection from wind and over-story kukui trees
that protect from intense sunlight as well as an abundance of water from the North Shore. They
spend quite a bit of time nurturing them and feel the economic value of chocolate is growing on
Kaua`I, which many people are planting more of He needs more land and noted that there is a
2,000 acre parcel of land owned by Princeville Ranch that has a valley right next to their
property that is unusable for anything. He would love to obtain a long term lease on that or
purchase 2-5 acres for growing more cacao and has made offers to the land owner; however, they
are looking to sell the whole 2,000 acres.
Mr. Blake asked if in these valleys they terrace and plant trees, to which Mr. Robertson
stated that they have terraced a lot in order to provide access and pathways.
Mr. Blake asked how big the chocolate trees are.
Mr. Robertson stated that they prune theirs back and that the really healthy ones are about
12-15 feet; they would grow larger if they were not pruned. It is fairly easy to grow cacao and
once you have a pod that is fully developed, it will produce 30-35 seeds from which
approximately 80-90 percent will sprout and grow into a tree. The cacao has become one of their
calling cards to attract people to the garden, comparing it to wine tasting at a vineyard. He feels
it is a great industry for the island in the future.
Mr. Texeira commented that he was one of the Commissioners who voted on this issue
two years ago at which time conditions were included in order to provide a balance for that area
to ensure the neighborhood did not feel overly taxed by their operation. He questioned why
those conditions were imposed if they are just going to modify it? He can understand giving
them an additional day but continue to have the hours of operation from 9:30-3:30. Currently,
they are permitted for 6 tours with 120 guests per week and asked if they are reaching that
maximum.
Mr. Robertson replied that at 20 per tour, they are not reaching their maximum of 120 per
week, which he feels is due to the current days and hours. He noted that this past Saturday they
had a tour in the morning, but up until 3 or 3:30 in the afternoon they were still receiving calls
from people wanting to do a tour that afternoon; they were unable to accommodate them because
of the time. He feels they are greatly restricted by that time deadline in the afternoons, which
brings their numbers to about 80 people per week, and would probably bring in more if they
were allowed to do 8 tours with one extra day during the week.
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Mr. Texeira stated for clarification they are currently averaging two tours a day at three
days a week.
Mr. Robertson stated that this morning they had about 24 people plus a few children in
two separate tours. They like to do low impact and not have great crowds of people in any one
tour, which is why they keep it to 20 people but are asking to increase to 25.
Mr. Texeira asked that by increasing from 20 to 25, doesn't Mr. Robertson feel that is a
pretty large impact, to which Mr. Robertson replied not at all,no.
Mr. Texeira asked why they can't have the same amount of tours—six tours a week—at
25 people per tour.
Mr. Robertson explained that sometimes people can only schedule a tour on certain days
that may fall on a day they cannot operate; at least 50 percent of those that call to schedule a tour
are turned down for that reason.
Mr. Texeira expressed that he is looking for alternatives and clarified that if they were to
operate four days a week, it would make it more flexible for people to partake in the tour. He
asked whether Mr. Robertson could consider having 25 per tour, four days a week but limit the
number of tours to six per week.
Mr. Robertson stated that it doesn't give the option for people wanting to schedule
because should they reach their maximum allowed early in the week, even with the extra day
they would be unable to schedule more tours for the rest of that week.
Mr. Texeira noted that originally they were allowed 120 guests per week and now are
proposing 200 guests per week, which is almost a 100 percent increase.
Mr. Robertson stated that they initially suggested that number because they wanted to
familiarize themselves with the business and didn't want the operation to be taxing on
themselves as the owners or those in the neighborhood; he feels that now they can comfortably
handle this.
Mr. Texeira asked in regard to their proposal to amend the use permit, have the
Robertson's talked about their plans with their neighbors and what were their responses.
Mr. Robertson stated he did talk to some of them and the responses were basically
supportive and they stay in touch, especially with their neighbors to the west of them who are
impacted the most. They talk to them a few times a month on anything they are doing that would
infringe on them. No one has come to them with a complaint.
Ms. Robertson stated that two years ago it was an unknown to the neighborhood and
there was concern about how it would impact the neighborhood. No one has ever asked them to
stop and they haven't heard of any complaints. She noted that they held a land blessing this past
Saturday that brought together everyone in their 25 acre hui who are the most impacted by the
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operation. She feels they are doing their job, the neighbors are okay with it, and they would like
the opportunity to have more people enjoy it.
Ms. Anderson asked in terms of the purpose of the use permit, if they were not charging a
fee for tours would a use permit still be required or is it associated with a commercial business.
Mr. Jung explained that it depends on the intent and needs to be evaluated on a case by
case basis as to what is the type of donation, what kind of activity, and how it will impact the
surrounding neighborhood, which would be done through the use permit process. They have not
formalized any particular position on it,but it goes to intent.
Ms. Anderson asked for example if they were to do tours to school groups on a regular
basis and did not charge a fee would that require a use permit.
Mr. Hull stated for clarification that the distinguishing factor between donations and fees
being charged is a very gray area, but if there is no fee or donation associated with it then the
Department would not interpret that as a commercial use.
Ms. Anderson explained that she does want to encourage the owners of the land to
participate in educational activities with the local schools and have Kama`aina days; other
botanical gardens have one day a month that are open free of charge. In terms of the
interpretation, if they were to do days that were free of charge, would that need to be counted as
a tour day.
Mr. Kimura stated that it should be handled by the Department and one of the conditions
should be that if they do decide to implement free tours, the Department should be notified that
they are bringing schools or classes up to maintain some order. In the past, the applicants have
been cited for operating an illegal business so, for their sake, if they are taking those types of
tours out, they should notify the Department.
Ms. Anderson stated that the reason for her questions are primarily because she is a
parent and her children participate in field trips where they visit farms and she wouldn't want to
add additional regulations on farms to require them to notify Planning if they do tours for school
groups. She just wanted to encourage the opening up of the property to local folks to give them
the opportunity to see what is going on and to leans from it. The purpose of a botanical garden is
to promote conservation of certain species and she feels it would promote that goal to open it up
to people on the island.
Mr. Hull stated for clarification that there are no restrictions should any agriculture
operation decide to open it up to a school visit. Should they want to charge that school for that
visit, a whole barrage of regulations would kick in; however, should they open it up freely to an
individual or group of individuals, it functions no differently than you opening your house to an
individual or group of individuals. Regulations or specific mandates are not imposed on general
agriculture operations for that type of proposal.
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Mr. Kimura stated the reason for his suggestion was that if they do take a class out and it
is not on one of their tour days and one of the neighbors complain, it will save them time and
money by not having to send an inspector out there to check. He doesn't feel it is asking too
much to make a phone call, and further noted that it also opens it up to the kids on a non-tour day
so as not take a regular tour day away from the business. It will give them additional
opportunities if they wish to give back to the community.
Mr. Dahilig suggested an amendment to Condition 2 to state something to the effect of
allowing non-commercial tours to be offered to not for profit organizations beyond the
commercial tour operations, with the proviso that no donations shall be solicited for those types
of operations.
Mr. Robertson stated that this is something they already do and he does not want to be
required to call and get permission.
Mr. Kimura stated it's not to get permission, and they are not being regulated; it's just to
let the department know that you have a tour going out.
Mr. Robertson stated that it takes so much to put on a tour and have so many regulations
to abide by. They don't want to have another regulation requiring them to call in, noting that he
has tried calling the Planning Department and has waited three weeks for a response.
Mr. Kimura stated he did not believe that was true, to which Mr. Robertson stated that
has been his experience.
Mr. Robertson invited Ms. Anderson to contact him if she would like to bring any
children and he will fit them in for free, further noting that they love doing that sort of thing but
if they are going to be regulated on how they do it, it will be put on a back burner.
Ms. Anderson stated that her understanding of the Director's suggestion to the condition
was not additional regulation, but just clarification that such tours would not count against their
tour total.
Mr. Dahilig further clarified that the reason he is making that recommendation is that
they want to create a distinction, and make very clear that when these activities take place, which
he feels is a great benefit to the public, that no remuneration shall be solicited in exchange for
that.
Mr. Robertson stated that they do that out of the generosity of how they conduct business
but they are a commercial operation, and he is hearing is that there is now going to be some kind
of regulation on that.
Mr. Dahilig asked if he was hearing correctly that when not for profit organizations come
beyond the three days they are currently allotted, they are actively soliciting donations from
them, to which Mr. Robertson stated no, they have never done that.
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Mr. Hull explained for clarification that the Director is stating should Mr. Robertson have
a not for profit school or organization come to the farm, he cannot require them to pay a certain
fee for the tour and should he opt for them to pay that would count toward the amount allotted
under the 120. However, should he want to volunteer and take a not for profit group free of
charge, it would not count toward that allotted amount.
Mr. Dahilig stated that there is a difference between soliciting and receiving, which is
what they want to make the distinction on, that if they want to make a donation then that's fine.
However, holding a basket at the end of the tour and saying donations are freely accepted is
different and is essentially asking for remuneration.
Mr. Robertson stated that part of the problem in getting people out there is if he
distributes invitations to people to come for free, out of 100 people probably only 2 people take
them up on the offer. He has no problem comping people.
Mr. Dahilig stated that his understanding, after hearing Mr. Robertson's comments, was
that their recommendations were based off of the assumption that there was a large demand for
this and that is why the request was submitted for additional time to expand; however, he is now
hearing the opposite.
Mr. Robertson said he thinks the difficulty is coordinating the times they can offer and
having people fit in those times.
Mr. Dahilig stated that Mr. Robertson then wouldn't have an issue with just expanding
the time but keeping the maximum amount of guests the same.
Mr. Robertson replied that would be better than what they have now, but if there is a
compromise to maybe take the number up to 160.
Mr. Dahilig commented that what he heard is that there is a difficulty in getting people to
come see the gardens.
Ms. Robertson stated it's the local people, to which Mr. Robertson agreed that getting the
local people to come is difficult, even when they are offered a free visit.
Mr. Dahilig stated, noting the inconsistent statements as to the conditions there, the
Department would like to maintain its recommendations; this is an operation that needs to sort
out how it interfaces with the community. With respect to whether an expansion of the use or
additional time should be granted,he feels it still needs to be sorted out and that a simple two-
year extension of time and the additional proviso based on discussion with Ms. Anderson with
regard to donations would be his recommendation
Ms. Anderson stated that in her personal opinion, she does not have a problem with
expanding the timeframe as it seemed clear that the 3 days a week, with a requirement that one
of the tours be on Saturday, may be restrictive to the point that 50 percent of people cannot
schedule. She would like to recommend that an additional day be allowed.
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Mr. Blake asked for clarification that they would be afforded certain guaranteed days for
conducting tours and if a not for profit, charitable organization wanted to take the tour, that could
take place on one of the other days. Would it serve the Department's purposes if a report was
done afterwards rather than ahead of time?
Mr. Dahilig replied that given some of the outstanding issues that have arisen, the added
concern about how non-commercial, not for profit types of activities could be leveraged from the
standpoint of soliciting donations is something they want to monitor; not necessarily a daily or
weekly monitoring but letting the operation play out over the next two years and getting a status
report at the end at which time they will reevaluate if an extension is warranted.
Mr. Kimura commented that at the meeting two years ago, the neighbors were very vocal
about their operation, and he thinks about 80 percent were against it, to which Mr. Robertson
stated that was absolutely not true.
Ms. Robertson noted there were four neighbors that were definitely worried about it, but
there were 15-20 other neighbors that were for it and several that were neutral.
Mr. Kimura stated that there were a couple of adjoining properties that were in favor, to
which Mr. Robertson stated yes.
Mr. Kimura commented that he finds it difficult to understand that if they have talked to
their neighbors about this expansion why no one wrote a letter in support or against.
Mr. Robertson stated that he didn't know they would have to go through this whole
process again and thought it would be fairly simple. If the Commission wanted them to go out
and do a whole campaign, they were unaware that was being asked of them to do.
Mr. Kimura stated he doesn't think that's required but that he was curious, since last time
there were a whole bunch of letters, as to why this time there were none.
Mr. Robertson stated that they do talk to their neighbors all the time, but they thought
they were just coming in for a renewal and feels the results speak for themselves in that there
have been no complaints to the County or to the owners themselves.
Mr. Kimura stated that coming in for a renewal is one thing, requesting to extend
business hours is another.
Mr. Robertson stated that it is normal business hours of 9-5 that they are requesting and
rather than two days a week, they are requesting one more day. It's not really a big thing in his
mind as it's not as if any number of people could come all day long; every person that comes
calls and makes an appointment.
Mr. Kimura stated that he understood,but at the time they did issue the permit it was a
big concern to their neighbors, which is why they came up with the conditions, to which Mr.
Robertson replied it's not now.
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Mr. Kimura stated that is his word.
Mr. Robertson stated that they are trying to be cooperative and asked the Commission if
they would like them to go out and do a whole survey with the neighborhood. The whole thing
with the not for profit issue is starting to get too complicated. He is willing to do it,but does not
want to be regulated by the County on who he is and is not allowing in for free. They do a lot for
the community and give so much in terms of letting people come for free.
Mr. Kimura stated that he does not doubt that Mr. Robertson does a lot for the
community, but also noted that anytime you have a permit, you will be regulated.
Mr. Robertson expressed his concern about having to get permission to bring a school
group or other non-paying groups to the garden.
Mr. Isobe asked Mr. Hull how they track the current conditions of this business as far as
maintaining six tours and 120 guests.
Mr. Hull replied that in some instances they have gone out to check, but they have not
done so for this particular permit. Being that the applicant applied for the initial permit because
of a complaint, the Department was relying on some of the complainants in the area to ensure the
applicants are in compliance; to this day they have received no complaints on the operation.
Mr. Isobe restated for clarification that the Department is not enforcing the current
conditions of the permit by going out and checking, but rather on a complaint basis, which was
confirmed by Mr. Hull.
Mr. Isobe asked if it was safe to say then, that if they have no complaints from the
community and neighbors that they are operating within the confines of the permit, to which Mr.
Hull replied yes.
Mr. Dahilig added that self-reporting is also evaluated and relied upon when a request for
extension or expansion of use is submitted. When a recommendation is provided to the
Commission,the Department looks at the applicant's ability to consistently articulate the status
of their operation, whether the expansion is warranted based on demand, and whether or not
some type of monitoring needs to be allowed in order to reassess or reevaluate. With this current
permit, Mr. Dahilig stated there are inconsistencies in some of the oral testimony and
representations in the actual petition that are concerning to him, which prompts his suggestion to
allow the operation to continue as-is and let any request for expansion come up again in two
years.
Mr. Isobe stated he is looking for something in the middle. He agrees that two years is a
good period. Based on all the information presented, he would like to look at what is more
important, whether it is the number of tours or the total number of guests. If the Department is
not going out and checking, does it matter how many tours. He would like to balance it out so
the business has the flexibility to expand since they seem to have a really good track record,but
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do it very gradually; over-regulation is not a good thing and they need to determine whether the
concern is with the number of tours or the number of guests.
Mr. Dahilig commented that the conditions originally set forth in the permit are based on
issues brought up by members of the public at the time. The Department is not opposed to
loosening up some of those conditions.
Mr. Isobe stated because he does not have enough background on the issue, he would like
to have some discussion with the applicant and the department on ways to provide more
flexibility in a way that will not impact the neighbors to the point of starting to receive
complaints.
Mr. Dahilig suggested that the matter be deferred to give him an opportunity to provide a
briefing to the Commission on what the reasons for the conditions of the initial permit were and
the public concerns that prompted the implementation of those conditions; this would allow the
Commission to make a more informed decision.
Mr. Isobe stated that those were his personal views and if they do move for a deferral, he
would like the applicant to sit with the Planner to discuss how to get to the same place in a
simplified manner. He would like to see a two year review with some opportunity for expansion
and find a reasonable balance.
Ms. Robertson expressed her apology that there seems to be inconsistencies, but it does
seem that the business is growing with the increased number of calls they are receiving; they
would like to accommodate those people. They have not had any complaints, things seem to be
fine, and she feels it is safe to say that 4 days a week at the hours of 9-5 is okay. She does not
think what they are asking is going to be a problem.
Ms. Mendonca asked the applicants how many employees they currently have.
Ms. Robertson stated that since their son left, they have five tour guides that rotate, a
personal assistant, a book-keeper, a part-time reservafionist and a few people that work the
garden.
Mr. Robertson stated that they have five or six people that work the garden on different
days during the week. They employ a lot of people and stated that for every dollar that he brings
in at least$1.30 is spent on the garden, with he and his wife receiving nothing, zero. He feels
that they operate to give back to the community and stated that if he were to stop doing the
gardens, he would be better off financially and have more time to relax and travel. However, it
is a tremendous joy to him and their neighbors to share with visitors what a beautiful island we
have; it's joy that is beyond dollars as they do not make money from this.
Ms. Mendonca asked whether the visitors coming in are driving up by rental cars or if
they are bussing people in.
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Mr. Robertson stated that they currently do not bring in any busses and the visitors come
by rental car.
Ms. Robertson added that they usually come in groups so it's not just one person per car.
Ms. Anderson stated in reference to the timing of the tours the applicants had mentioned
because of the mid-day heat that they wish to extend their hours. Would they consider having a
maximum number of operation hours, such as 6 per day to allow them to hold tours at more
preferable times of day?
Mr. Robertson explained that each tour lasts around three hours and they usually go over
by 15 or 20 minutes, and they also have a registration period prior to the start of the tour. Two
sets of tours would be three hours each if they did them back to back.
Ms. Robertson added that they would still prefer the 9-5 hours to allow them flexibility
during those hours.
Mr. Robertson further stated that most people come within 15 minutes of one another so
there may be seven to nine cars that leave within 30 minutes after the tour.
Mr. Kimura stated that the Commission would be going into Executive Session and
reconvene at 1:45 p.m.
On the motion made by Herman Texeira and seconded by Hartwell Blake to enter
into executive session, the motion carried by unanimous voice vote.
(The Commission moved into executive session at 12:45 p.m.)
(The Commission resumed in open session at 2:10 p.m.)
Mr. Dahilig noted that they had incorporated the comments they received from the
Commissioners into an amended set of conditions that they would like to present as part of the
Director's report in amended form. Essentially, what is reflected is an increase in the operation
time from 9-5, tour amounts increase to eight with a total number of guests at 160 per week, four
days a week with the non-commercial proviso. They are still maintaining the two year trial
period given there is an increase in potential use.
Mr. Robertson commented on the 20 guests they currently have many times people will
come with families and it is not uncommon for them to bring two to four children; children under
7 are free and children between 7 and 12 are $15, the main guests are $47. If they get two or
three families, they could easily have three to nine kids and by going up to 25 per tour, it gives
them some play so they can afford not to charge these families $47 since they do count the kids
in their numbers. The applicants then thanked the Commission for the changes to the conditions.
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Mr. Dahilig stated the Department would not concur with the additional five individuals
per tour. They feel the changes made are appropriate given the fact that 20 guests x $47 per
guest x eight tours a week x four times a month=tens of thousands of dollars revenue a month.
Mr. Robertson stated that is what goes into keeping the gardens the way they are.
Mr. Dahilig continued by saying that at this point the Department stands on its
recommendation. He asked if Mr. Robertson is objecting to the current 20 versus the requested
25.
Mr. Robertson stated he would like to see how things go, and they will be back in two
years with the hope that things are running smoothly and they will have good things to report.
Mr. Kimura asked whether the Department will be dealing with any complaints should
they receive them or any reports of groups on non-tour days which may free tours, to which Mr.
Dahilig replied they will deal with complaints as they come in and there is a proviso in the
conditions to address not for profit tours.
Mr. Hull noted for clarification that under Condition 3, there should be a strikethrough on
3:30 p.m.
Mr. Isobe thanked the Department and its staff for putting together the changes to the
conditions on such short notice.
On the motion by Herman Texeira and seconded by Hartwell Blake to approve the
amendment of Use Permit U-2011-12; Special Permit SP-2011-7 and Class IV Zoning
Permit Z-IV-2011-12 as read in the amended Director's report, the motion carried by roll
call vote:
5 Ayes (Anderson,Blake, Isobe, Mendonca, Texeira) 1 No (Kimura)
Update from the Director on Transient Vacation Rental Certificate Renewal and
Enforcement Efforts.
Mr. Dahilig updated the Commission on the TVR enforcement efforts within the
Department, noting they have completed an audit of all the active files and have been able to
determine what documents are included or missing from the files. Approximately 90 cease and
desist letters have been issued and as seen in today's agenda, they are in the midst of receiving
appeals. A number of document requests are on-going and they are in the process of trying to
scan and categorize many of the requests for information from the public who wish to follow up
on TVR enforcement. A system for physical management of the files is in place and one of their
Commission Clerks has been assigned to be the point person responsible for intake, filing and
submittals, much like a court clerk. Mr. Dahilig further noted, as reflected in the agenda, unique
case numbers are now being assigned to each contested case, which will allow them to
communicate more freely with a hearings officer should one be assigned, and will also assist
with filing and identifying documents associated with those cases. They have been having
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weekly meetings with the Mayor and have sought guidance from the County Attorney's office on
how to address renewals. He explained that though there are files that may not be complete, at
this time and without initiating due process, they will be in a position to have to renew those
files. With the renewal deadline coming up on July 31, he is expecting a flood of renewals;
people have been coming in steadily for the past few weeks. He noted that they are ready and
able to implement the new fee schedule that comes into effect once the bill to raise Planning fees
is signed by the Mayor. If and when that it approved, they will be notifying those that are
coming in for renewals that the fee has gone up from $150 to $500. Mr. Dahilig noted that he is
currently working with Deputy County Attorney Mauna Kea Trask, who is representing the
Planning Department on some enforcement actions, on some of the more egregious cases.
Letter from Thomas E Bush stating a conflict with the Commission's appointed hearings
officer Richard Nakamura in the matter of a Petition for a Declaratory Ruling before this
commission in Jeffery S. Lindner and Ana Marie Lindner v. County of Kauai and requesting a
new hearings officer received June 19, 2013.
Mr. Dahilig stated as Director,he holds no opposition on the matter and in his capacity as
Clerk he is requesting authority to procure and appoint a replacement hearings officer in this
matter.
Mr. Kimura stated that he had earlier asked why another hearings officer was being
requested and asked Mr. Dahilig to elaborate.
Mr. Dahilig explained that on July 17 the Lindners submitted a letter stating a conflict.
Mr. Nakamura handles other cases and they are in an adversarial relationship on another case,
which prompted them to submit a request based on a perceived potential conflict of interest to
have this matter handled by someone else.
Mr. Kimura asked how long ago the Lindners discovered the conflict with Mr.
Nakamura, to which Mr. Dahilig replied that it was in May; only two months ago.
On the motion made by Herman Texeira and seconded by Amy Mendonea to
approve the request for a new hearings officer as recommended by the Clerk, the motion
carried by unanimous voice vote.
Discussion on Commission Policies and Practices as related to the Employment of the
Planning Director.
Establishment and appointment of members to a Select Committee on Employment
Policies and Practices pursuant to Section 92-2.5(b), Hawaii Revised Statutes and Sections 1-2-
10 and 1-2-12, Rules of the Planning Commission.
Mr. Isobe explained that the document presented is a request to establish a select
committee whose purpose would be to come up with procedures for the removal and/or
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appointment of the Planning Director. The Charter expressly states that one of the
responsibilities of this body is the removal and/or appointment and selection of a Planning
Director. To his knowledge, to date the Commission does not have set procedures on how to do
this. The proposal is to set up a select committee as a permitted interaction group under the HRS
to allow the Committee to work independently of the Commission, and upon conclusion of its
work, file a report of its recommendations to this body for review, discussion, and approval.
Mr. Kimura asked to clarify the number of Committee members, to which Mr. Dahilig
explained that in order to satisfy the requirements of HRS, it has to be three or less.
Mr. Texeira asked whether there is a time frame in which to complete this and report
back to the body, or is it open-ended.
Mr. Isobe replied under the statute and the Commission rules there is no time frame
unless the Commission chooses to impose a time frame. He further noted that his stance is to
work post-haste,but at this point it time it would be difficult to establish a time frame in that they
do not yet know how much work is involved.
Mr. Kimura asked if a certain time will be set aside for them to go over this.
Mr. Dahilig explained that as an exception to the Sunshine Law, the reason the
Committee must consist of less than quorum is to allow Committee members to meet on their
own time without having to go through the process of posting a meeting. However, along with
that freedom to interact, there is a two-step process to act on any recommendations by the
Committee in which a presentation or report of recommendations is made to the Commission in
a"sunshine-able" session, but action cannot be taken on that report until the following meeting.
Mr. Kimura asked to clarify that the Committee comes up with the recommendations and
the Commission votes on that; it's not a done deal based on the Committee's report.
Mr. Dahilig verified his statements as correct.
Mr. Isobe stated if Mr. Texeira is in agreement, he would like to nominate him for Chair
of the select committee.
Mr. Kimura asked if that would be at the discretion of the Committee members, to which
Mr. Dahilig replied it would actually be the decision of the Commission Chair.
Mr. Kimura asked if the Commission will need to request a budget for this, to which Mr.
Dahilig replied the Department will provide support for this Committee as needed.
Mr. Kimura asked if there will be a budget increase as he is thinking about his fellow
Commissioners who will need to participate in additional meetings other than the regular
meetings.
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Mr. Dahilig-noted that the Department has a budget to support Commission activities,
and will ask for more resources if the need arises.
Mr. Texeira commented that he thinks the only real assistance they will need would be
some clerical assistance in preparing the report, to which Mr. Dahilig stated it will be made
available.
On the motion by Angela Anderson and seconded by Amy Mendonca to establish a
select committee on employment pursuant to HRS 92-2.5 and 1-2-9, 1-2-10 and 1-2-12 of
the Rules of Practice and Procedures of the Commission with the appointment of Herman
Texeira as Chair of the Committee along with Commissioners Isobe and Blake, the motion
carried by unanimous voice vote.
COMMUNICATIONS
There were no communications.
UNFINISHED BUSINESS
There was no unfinished business.
NEW BUSINESS
Special Management Area Minor Permit SMA(M)-2013-22 to accommodate commercial
tour boat loading and unloading activities at Black Pot Beach Park in Hanalei (pursuant to the
"Peddlers and Concessionaires" ordinance) situated at the northern terminus of Weke Road,
further identified as Tax Map Keys 5-5001:004 & 011, and containing a total land area of 6.19
acres= County ofKaua'i Department of Parks and Recreation.
This item has been deferred due to previous Commission action.
ANNOUNCEMENTS
The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly
thereafter at the Lihu`e Civic Center,Moikeha Building, Meeting Room 2A-2B, 4444 Rice Street,
Lihu`e,Kaua'i, Hawai'i 96766 on Tuesday,August 13,2013.
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ADJOURNMENT
The meeting adjourned at 2:45 p.m.
Respectfully submitted by:
IT�
Cherisse Zaima
Commission Support Clerk
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