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HomeMy WebLinkAboutpc 8-13-13 minutes KAUAI PLANNING COMMISSION REGULAR MEETING August 13, 2013 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Katayama at 9:35 a.m., at the Llhu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr.Wayne Katayama Mr. Jan Kimura Mr. John Isobe Ms. Amy Mendonca Mr. Herman Texeira Mr. Hartwell Blake Ms. Angela Anderson The following staff members were present: Planning Department—Michael Dahilig, Jody Galinato, 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 9:35 a.m. ROLL CALL Planning Director Michael Dahilig noted that there were seven Commissioners present. APPROVAL OF THE AGENDA Mr. Dahilig requested the following amendments to the agenda: • Item M.2.,which was circulated at the last meeting, refers to Item E.1. and should be placed under Approval of the Agenda • Item G.2.a. 1-3 be deferred until the October 8, 2013 meeting • Item G.2.b.be deferred until the September 10,2013 meeting • Item L.1. Subdivision Committee reports be moved immediately following the public comment period On the motion by Herman Texeira and seconded by Hartwell Blake to approve the agenda as amended, the motion carried by unanimous roll call vote. SEP 1 0 2013 SPECIAL ORDER OF THE DAY Motion to have the Commission be impaneled to sit and hear the permit Special Management Area Use 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 5-5-001: 004 & 011, an d containing a total land area of 6.19 acres=County ofKaua'i.Department of Parks and Recreation. Mr. Jung noted that Commissioners Kimura and Texeira are recused from this item. Mr. Dahilig reported that upon consulting with the Boards and Commissions Office, they are of the understanding that they can have the proceedings streamed live on the web via Granicus. He noted that the current motion on the floor is to have the Commission hear the matter versus appointing a hearings officer. The vote at the last meeting was 2 Ayes, 1 No and 1 Silent. Mr. Jung added that as a result of that vote, the item gets carried over to a Special Order of the Day, which they are presently at, further clarifying that without 4 votes,there can be no action. In response to a question by Mr. Blake, Mr. Jung provided the Commissioners with a recap of what was discussed at the last meeting and where they are currently at in the process of determining whether the Commission will hear the fall contested case or refer the matter to a hearings officer. Mr. Blake asked who is intervening to which Mr. Jung replied Limu Coalition and Mr. Sheehan, represented by Rich Wilson. Mr. Blake asked whether the interveners could be limited to the positions stated when their request to intervene was granted to ensure their testimony remains relevant to the issue. Mr. Jung explained the contested case hearing process, detailing all its parameters. He highlighted the evidentiary portion of the hearing where each party will be able to,provide documents as exhibits subject to certain parameters so that it is not overly burdensome, repetitious, or irrelevant material. He pointed out that during these contested case hearings, each parry is allowed to address issues raised by another parry and that goes back and forth; the hearings officer makes the ruling on whether it is included or not. Mr. Jung explained that the Planning Commission and its rules are not bound by the rules of evidence so there is some latitude as to what they can raise; however it is up to the hearings officer or the full Commission to identify where the boundaries may be. But each party must be given the opportunity to respond to those boundaries. Mr. Blake stated the parties have already asked for what the boundaries could be and the Commission agreed, stating the example of Limu Coalition's desire to have a complete record. He is all for that, but noted that this is a condemnation case of which the argument is over value, yet he is seeing issues raised about noise and other things he feels are not relevant. Page 1 2 Mr. Jung stated for clarification that this is not the condemnation case, which is currently pending for 5`h Circuit Court. This case involves the Parks Department applying for an SMA permit to regulate certain boating activities at Black Pot. Mr. Blake asked for clarification on what the Parks Department is specifically requesting from the Commission to which Mr. Jung explained they are asking to be consistent with the Peddlers and Concessionaires provision of the Ordinance passed by Council to set parameters on the boating activities, additional to the current State regulations. Mr. Blake asked what the County's concerns are to which Mr. Jung replied that before they get into the parties' positions,they need to allow each party to state what their respective positions are; he is not going to discuss that. In response to Mr. Isobe's questions, Mr. Katayama confirmed that there is a motion on the floor to approve that the Commission will hear the contested case, which will require 4 votes; without 4 votes, it will be carried on to the special order of the day at the next meeting. He explained that in the event you can never get 4 votes, the motion does not automatically die but will continue to go on; the Commission must actively rule on the motion. Mr. Isobe asked if the Commission cannot resolve a motion to either refer the case to a hearings officer or to have the Commission impaneled to hear it,what happens to the actual application to which Mr. Jung stated he will research it further. Mr. Blake stated he is not opposed to withdrawing his motion for the Commission to hear the case,but would like to be able to provide guidance to the hearings officer on what is relevant to the case. There was further discussion on whether it is possible to impose limits on the interveners. Mr. Jung pointed out that it is difficult to make a ruling to impose limits because they have to hear from the parties first before they can determine what the limits will be. Mr. Dahilig suggested that if there is a concern about the hearings officer potentially receiving motions that are straying away from the intended scope of the contested case hearing, instructions could be given to the hearings officer that when there is a question in his mind whether motions or types of actions proposed during the contested case hearing may expand the scope, those items could be referred directly to the Planning Commission for disposition. Hartwell Blake withdrew his motion from the previous meeting to have the Commission be impaneled to sit and hear the permit Special Management Area Use Permit SMA(U)-2014-2 Page 13 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 to procure and appoint the hearings officer. Mr. Dahilig requested two amendments be made to the written transmission and oral amendments to the memorandum on the floor: 1. The contested case hearing to be televised on Granicus 2. Instructions be given to the hearings officer that if any motions or other actions are proposed by any of the parties that seem to stray from the scope of the contested case hearing that those matters be referred, in his judgment, to the Planning Commission for disposition. Mr. Isobe moved to accept the amendments as read, seconded by Mr. Blake. Deputy County Attorney Mauna Kea Trask, representing the County of Kauai Department of Parks and Recreation, stated he has no objections regarding the broadcasting of the hearing on Granicus; however, he does have concerns regarding the mechanics of having a piecemeal hearing process. He stated that the rules of evidence are more relaxed in an administrative procedure, only bound by relevance and materiality. He noted that what is before the Planning Commission today is whether or not to grant an SMA permit to the Department of Parks and Recreation for implementation of a County ordinance; an ordinance that has already passed Council and lays out the process that needs to be followed, and rules that were promulgated pursuant to that ordinance and process. He reminded the Commission that the Department holds no opposition to Mr. Sheehan or Limu Coalition intervening and noted that he does not think it will be difficult, or have a lot of irrelevant evidence. When the recommendations from the hearings officer come before the Commission, they will have the opportunity to determine what to accept or reject. Mr. Dahilig explained that the added recommendation essentially states that the hearings officer will identify motions that potentially stray from the scope of the contested case hearing and allow the Commission to handle such motions. Mr. Trask explained that as an advocate and as someone who has participated in contested case hearings, he feels it makes absolutely no sense. The reason being that every parry is entitled to due process; clear procedures as laid out in rules do exist and should be followed. Regardless of whether the Commission votes to hear it or delegate it, they will have authority to review at the end, therefore,there's no need for a piecemeal procedure. Mr. Dahilig mentioned that at the court level there is a procedure called an interlocutory appeal which is done in circumstances where the courts are seeking guidance from a higher authority. The way the recommendation is being presented is similar to that where the Commission would not be making a disposition on the motion but rather disposing of a motion that may potentially be a red flag. Mr. Trask stated that municipalities have the power to make reasonable provision for the safety of persons or property within the jurisdiction,these restrictions include launching and Page 14 beaching of motorized water craft including personal water craft on a public beach. Interlocutory appeals are granted by permission of the circuit court, so who is going to grant the authority to refer this back to the Commission? In trying to ensure the balance between commercial use and public use, as contemplated in the General Plan and the North Shore Development Plan,they need due process and an understanding of the rules; it cannot be treated similar to other things without clear, definite parameters. He does not feel that the recommendation presented contains those parameters. In response to Mr. Blake's question on the rules of evidence,Mr. Jung explained that the rules basically state that the rules of evidence don't apply but you must avoid irrelevant, immaterial, or repetitious evidence. He suggests that the Commission hear from the other parties on this matter. Richard Wilson,representing Mike Sheehan, stated that he is disappointed that the option for the Commission to hear the case is off the table and stressed the importance of selecting a good, experienced hearings officer who will be able to adequately sort through the information. He agrees with the concerns brought forth by Mr. Trask and stated that he does not see it as an interlocutory appeal situation, noting that they are rarely granted. He does agree with a hybrid approach and stated that there are certain issues such as disposited issues,jurisdictional issues or issues where a permit may not be necessary that he feels the Commission should look at. He would recommend that rather than using the regular format,use someone from DPR(Dispute Prevention and Resolution)which consists of retired circuit court judges and would address Mr. Blake's discretionary concerns and provide them with someone who is neutral and experienced in trial and arbitration. Barbara Robeson and Makaala Kaaumoana on behalf of Lima Coalition were present. Ms. Robeson stated that their petition for intervention outlines the issues they want to bring up and they will continue to focus on that. Ms. Kaaumoana stated that they would like to adopt the statements of Mr. Trask. The Commission received testimony from Robert Butler. Mr. Butler stated that he does not have any say on this particular issue but he does suggest they get it as close to legal proceedings as they can. The Commission received testimony from Stephanie Butler. Ms. Butler asked for clarification on whether the decision for the Commission to hear the case or refer it to a hearings officer is still in question to which Mr. Katayama stated that is the motion that is currently on the floor. Ms. Butler stated that she would prefer to have the Commission hear the issue rather than a hearings officer. She noted that Limu Coalition had already clearly stated their public record and does not understand why that is still being considered. She also stated that the land owner's concern about land value does not need to be Page 15 determined by a hearings officer since they already have a land value for the adjacent property. She is concerned about access to the hearing via Granicus as well as losing the opportunity to provide public testimony. Ms. Butler feels the Commission is capable of determining what is relevant and what is not without having to isolate two parties; the boaters are the people that work there and are the people that really matter in determining these rules. She feels that the issues brought forth by the environmentalists are redundant as the Federal Court has already found them to be environmentally compliant and the focus should be on the 29 rules being imposed on the boaters. The Commission received testimony from John White,Na Pali Catamarans. Mr. White stated that he feels the State of Hawaii should handle the boating, noting that the County once handled boating,but gave it up. He commented that it has been said that the desire is to stop the commercial boating,yet they are not stopping any other boats so at any given time there may be 80 other boats; what good does it do to stop four boats, who are professionals? He feels that they are picking on a class of boats. The Commission received testimony from Brian Lansing,Na Pali Catamarans. Mr. Lansing raised the following concerns: 1. There has never been discussion with the boaters on the rules and no study of the effect of these rules on the boat companies. 2. There is no need to regulate boaters in the park,because they do not need the park. 3. They are being classified as vendors and peddlers in the park which they are not; they shuttle customers to the park where they walk on the public road straight to a canoe and get shuttled out to the bay. Large passenger boats are not brought in to load up on the beach. Mr. Lansing commented that since they do not need the park,they do not need the rules. He surmised that the County is trying to acquire land from Mr. Sheehan and turn it over to the State to manage a boat yard; why then does the County need rules if they are going to tarn it over to the State to manage. He asked that the intervener Lima Coalition provide a roster of members to determine who they are representing as the two or three people testifying and sending emails are not representing the entire community. He also noted that the information provided at the previous public testimony is no longer relevant, and does not reflect the amount of commercial tour boats currently in operation. Mr. Lansing stated that commercial fisherman do not have to abide by the same regulations as the tour boats; they cannot be discriminated against. He further stated that they are in a class above and beyond peddlers and beach concessionaires. They are federally documented vessels plying coastwise trade on navigable waters of the United States and have extra protections under those laws. Mr. Dahilig noted that he has no more registered speakers, but he received written testimony from Linda Marsh,Bubbles Below Scuba Charters,who is requesting an additional boating permit as part of her written testimony. Page 16 Ms. Anderson stated that she is concerned with the proposal to have a semi-interlocutory appeal process within the hearing. In her experience, she feels it would create confusion and there may be dispute on what is considered a dispositive matter, which could prolong the process further. She feels that they should just consider either hearing the contested case or review the recommendations of the hearings officer. Mr. Blake asked for clarification that the interlocutory appeal is there whether they use it or not to which Mr. Jung explained there is no true interlocutory type process within administrative litigation; however,upon referral to a hearings officer, if there is an issue with a dispositive motion or disagreement with the parties, the hearings officer can decide to have the Commission address it. A possible way to resolve this is to have the parties create a stipulation as to what can be referred back to the Commission. Mr. Blake asked whether there is a problem with the suggestion of hiring a retired judge to which Mr. Jung stated he could look into the procurement aspects of it and see if there is a way to procure from DPR(Dispute Prevention Resolution). Mr. Katayama reminded the Commission of the motion currently on the floor and that Mr. Blake withdrew his motion to have the Commission hear the contested case. Ms. Anderson requested clarification on how they delegate because her understanding is that a contested case is going to be triggered, and it is the Commission's authority to run the contested case. If they vote to delegate to a hearings officer and that fails, the status quo would be that the Commission hear the contested case. Mr. Katayama replied that he did not think that was true, and requested clarification that the motion has been withdrawn. Mr. Jung replied no, explaining that the memo sent by the clerk of the Commission requests that the matter be referred to the hearings officer. If this motion fails, the Planning Commission would hear the matter unless a separate motion is made to refer it to the hearings officer; this motion is specifically tailored as a motion to refer to the hearings officer with certain caveats. Mr. Jung referenced Chapter 6 of the Planning Commission Rules on the authority to refer the matter to the hearings officer. Mr. Katayama restated Mr. Jung's explanation, further stating that they need to clarify that point but they should first dispose of the motion currently before the body. Ms.Mendonca asked for clarification that if the motion fails, it goes back to the Commission to hear to which Mr. Jung replied no they would have the opportunity to make another motion to refer the matter to the hearings officer without the caveats. Ms. Mendonca asked to clarify that the current motion is to refer to the hearings officer with all the caveats, and whether that was what Ms. Anderson was concerned about. Page 7 Mr. Katayama replied yes, and noted it was also a concern to the interveners as well as the applicant. Ms. Mendonca stated that if the motion fails completely, they will have another opportunity to put out another motion to which Mr. Katayama asked if they could just amend the motion. Mr. Jung explained that it would be up to who made and seconded the motion. There is also the opportunity to look at the parties to see if there could be a stipulation on how to bring dispositive motions back to the Commission. Ms. Mendonca commented on what is currently before the Commission, stating her concern as a Commissioner is that if they do make a referral to a hearings officer who has the ability to separate some of the emotions that have come forward, if they keep adding more conditions on the hearings officer, it becomes muddled and causes confusion. Mr. Dahilig stated that the caveats were proposed as a means to move the process along, and were based on concerns raised during discussion of the previous item; however,he can withdraw his oral request for amendments to the memorandum. Ms. Mendonca asked if the case is referred to a hearings officer, is it not the job of the Commission to accept or deny the decision. Mr. Jung explained once the evidentiary portion of the case is closed, each party will submit proposed findings of facts and conclusions of law to the hearings officer who will then compile that into a report to the Commission. At that point, each parry has an opportunity to lodge objections to those proposals. The contested case evidentiary portion is open to the public and public testimony will be allowed under a specific portion of the hearing. The proposed report will come back to the Commission for evaluation. John Isobe withdrew his motion to accept the amendments to the memorandum of the Commission clerk. On the motion by John Isobe and seconded by Hartwell Blake to authorize this matter to be sent to a hearings officer and the proceedings be televised via Granicus,the motion carried by unanimous roll call vote. (The meeting recessed at 10:50 a.m. for caption break) (The meeting reconvened at 11:00 a.m.) (Commissioners Kimura and Texeira rejoined the meeting) Page 18 MINUTES of the meeting(s) of the Planning Commission Regular Meeting of July 9, 2013 On the motion by Herman Texeira and seconded by Jan Kimura to accept the minutes of July 9, 2013,the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (NONE) New Agency Hearing 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 approximately 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 Laud Company.Ltd. [Director's Report received 7/23/13.1 Mr. Dahilig reminded the Commission that this matter had been deferred to the regular meeting of October 8, 2013; however, there are members of the public wishing to testify on this item. Mr. Dahilig read into the record the written testimony in opposition from the following: • Robert Banach&Lisa Carlson • Jaslyn Ornellas • Carolyn Soares • Josie Echalar • Jean Akama • Shalea Simao • Mr. &Mrs. Paul and Sandy Rivera • Elizabeth Ebinger • Mr. &Mrs. Dennis and Beverley • Dawn Hernandez Fogarty • Bud Soria • Leroy Nikolaisen • Madeline Espinoza • Elaine Jones • Crystal Ho • Paul&Janet Porter • Keani Lopes • Darrel &Kathryn Sanders • Lauren Yama • Sierra Lagmay • Jim&Kay LaBau • Patricia Ornellas • JoAnn Heller • Priscilla Hepa • Bill &Nancy Hull • Noelani Palomares • Sheila&Robert Swanson • Tori Ramos • Andy&Laura Ruiz • Deborah Jaramillo • Wailua/Kapa`a Neighborhood • Jenalyn Bolosan Association Page 9 Mr. Blake commented that most of the letters of opposition were the same form letter signed by different people. He requested that in the future this type of response be treated like a petition,having one copy of the letter forwarded to the Commission with a list of names of others that have submitted the same letter. The Commission received testimony from Debra Nantais. Ms.Nantais stated she resides in K Building and is 1 of 160 owners at Plantation Hale. Although it is run as a resort, it is home-owner owned with full and part time residents. She is speaking on behalf of those owners who are currently not on island, but particularly for her building. Ms. Nantais stated that she resides in unit K-7 which is a ground floor unit that is less than 70 feet from the lot line of the proposed project. She feels she has the right to enjoy a quiet retirement in a nice resort area and was shocked to find out there would be a large,bustling, commercial building less than 100 feet from her lot line. Her personal concerns, as well as those of her neighbors, are more to do with the things brought in by a commercial building that are not common to a resort, such as: • Crime—people hanging around the building. As a ground floor tenant, crime can spill right over onto her property • Flooding • Traffic—the traffic alone for the project will be substantial and the noise aspect constant. This will impact the valuation of her property on websites such as TripAdvisor,which regards her building as the quietest. • Negative Historical Impacts—The coconut grove is part of our heritage, scenic corridor, and history. Although the developers plan to replace all the trees,which is absolutely necessary, she feels it needs to be questioned whether this is the right place to put a commercial activity. The Commission received testimony from John Duponce, representing OLS Hotels and Resorts. Mr. Duponce stated that his company has managed Plantation Hale Suites for 29 years. They are very much against this project which they feel will have a damaging affect on their property, its residents, and the resort area. A project of that size should not be built there. The Commission received testimony from Eric Napolean, General Manager of Plantation Hale. Mr. Napoleon stated that they are opposed to the project. He will hold the rest of his testimony for the October 8, 2013 meeting. The Commission received testimony from Margaret Palazzolo. Ms. Palazzolo stated she is a Plantation Hale owner and agrees with the previous testimony. She does not know where the proposed building will be located and how big of a project it will be. Kapa`a town has a massive traffic problem and many people cut through Plantation Hale's service drive to bypass the traffic on the main road;this will create problems for the residents. She feels that visitors want to relax in a beautiful environment and experience Kaua`i's natural resources;not more traffic jams. She would like to know the length of time it will take to complete this project and what the Council is considering on this matter. The Commission received testimony from Bob Bartolo of the Kapa`a Business Association. Mr.Bartolo read a resolution written by Neil Samms, Vice President of the Kapa`a Business Association, which stated their opposition to the project and the reasons for their position. He noted several ways in which he feels the applicant is trying to negate the intent of the resort zoning. He noted that a use permit may not be granted on the basis of financial hardship; and it is his understanding that Long's has a rent increase,which is the main reason they are trying to relocate. He feels the proposed development is not in tune with what the Eastside Development Committee had envisioned for that area, further noting the negative traffic impact to the area. There is concern that if Long's is allowed, other large retail businesses will want to do so as well; they do not want to set that precedence. The Commission received testimony from Rayne Regush; Chair of the Wailua/Kapa`a Neighborhood Association. Ms. Regush reported that a July 27 community meeting,hosted by the association to discuss this project, resulted in the prevailing sentiment of Long's is wrong in this location. A retail store is not appropriate for this zoning district,which is also home to the century-old coconut grove. Ms. Regush explained the four criteria in the CZO (Comprehensive Zoning Ordinance) that describe the intent and purpose of the resort district, and provided in great detail ways this project"misses the mark" for each one. This will change the resort atmosphere that makes the Royal Coconut Coast a destination for visitors, and also feels the nature of a commercial retail business will negatively impact the full-time residents there. She noted that the coconut grove is an Eastside landmark and a cultural asset, and has been recognized on the Kawaihau District Heritage Resource map as a natural, historic, cultural, scenic feature; she would like to ensure this issue comes before the Kauai Historic Preservation Review Commission for their input on this permit application. She stated the coconut grove gives the Eastside its sense of place and to alter it so dramatically would be a loss for the community. Ms. Regush pointed out the numerous problems that property has had with drainage and flooding; and she is concerned that the project plans do not provide a solution for the existing problems, further stating the increased runoff from the project should necessitate a comprehensive drainage plan. She feels the proposed project is not compatible to the area, there is no public interest for it retail is not a permitted use in that zoning district, and will be detrimental to the resort environment and its residents. Page 1 11 The Commission received testimony from Avery Youn. Mr. Youn stated that he would like to touch on the affidavit and the next meeting date. He realizes he is a parry and the hearing has been deferred. Mr. Katayama stated that if Mr. Youn would like to testify as a private citizen he may do so and to limit his remarks as such. Mr. Youn stated that due to an oversight on the affidavit they did not submit it on time, which caused the hearing to be cancelled. Speaking as a public representative he understands the concerns and stated that many of them are severe; however,they will be submitting a list of conditions that he hopes can be incorporated as part of the application for review at the next meeting. The conditions will mitigate many of the concerns brought forth and he offered to share with the Commission what those conditions are. Mr. Katayama asked Mr. Youn to reserve that for the next meeting. Mr. Blake asked when the original presentation by the applicant was made, how did they propose to get rid of the effluent created by the proposed development? Mr. Youn replied that sewage would go through the Wailua Treatment plant, and drainage would go into ponding basins as detailed in the engineering report submitted with the application. Mr. Blake asked if they foresee digging any injection wells to which Mr. Youn replied if the ponding basins are inadequate to accommodate the calculated runoff, injection wells would be a second option. ` Mr. Blake asked if he was aware of Maui's current problems with injection wells killing the reefs to which Mr. Youn replied no. Mr. Blake expressed his concerns about injection wells carrying off-shore effluent, such as fertilizer, out to the ocean killing the reef Another concern is non-point pollution. Mr. Katayama pointed out that Mr. Youn is there as a private citizen, and this matter has been deferred to the October 8 meeting. This courtesy was extended to Mr. Youn to limit his comments as a private citizen. If he, as a private citizen has access to this kind of knowledge that's fine; however he feels they may be crossing a line and receiving applicant testimony. Page 1 12 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 adjacent to the Department of Water office/basevard facilitv in Uihu'e, along its western boundary at the Hala Road/Kaumuali`i Highway intersection, further identified as Tax Map Key 3-8-005: Por., and containing a total area of 1.919 acres= County ofKaua'i, Department of Water. [Director's Report received 7/23/13.1 Mr. Dahilig noted that this item was deferred in earlier action to September 10. 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 Kev 5-2-013: 001, and containing a total area of 14.6 acres= The Resonance Project Foundation. [Director's Report received 7/23/13.1 The Commission received testimony from Peter King. Mr. King stated he is co-owner to the property directly west of the proposed project. He is opposed to granting this permit, noting the road condition along Kuawa Road is unable to handle the current traffic there, and is unsafe for cyclists and pedestrians as well as other drivers. No protection is afforded for the historic landscape the proposed project will be situated on; only the house and current historic structures. He believes the property itself is part of that landscape and should be protected. Mr. King noted that absent these permits, construction is already underway with a workshop/woodshoplocated directly behind his father's house, which is being used as the applicant's private residence during the week. The constant whir of a buzz saw has disturbed the rural nature of the King property. He reported that they recently had an encounter with an individual who had attempted to access a separate cottage they spend the weekends at, and feels increased traffic as a result of this activity will invite further encounters. Mr. King does not see how the Resonance Project's goals for research match the agriculture zoning of this area, and feels this project will change the nature of the King residence in particular. Due to a late application, Mr. King is unable to intervene based on the County's rules;however,he would like the Commission to consider an environmental assessment to see how this project affects the surrounding neighborhood and properties as well as other residences along Kuawa Road. The Commission received testimony from Bill Chase. Mr. Chase stated he lives in Kilauea, though not on Kuawa Road so he is not directly affected by this; however, he is disturbed that this is being applied for as a research facility. He is unsure if it is for physics or metaphysics; there is a big difference. Upon speaking with Page 1 13 legitimate scientists,he was able to ascertain that Naseem does not have much standing in the scientific community that he is aware of, and the reason this is important is thatthis project is being presented as a research facility in physics,which he feels is very questionable. He noted that research facilities generally include things like particle accelerators that involve large consortiums of government or universities that build multi-billion dollar facilities. This seems to him more like a research facility for metaphysics and the fundamental nature of reality,much like a church or school. This should be recognized for what it really is and while everyone is entitled to their own beliefs, he has a problem with the way it is being advertised. There needs to be a balance between the community benefits versus the impact of the people right around the facility. Mr. King referenced the Common Ground farm, noting that it has clear community benefits in terms of sustainable development, food independence, and developing a new business model so small farmers can make a living, which is pretty grounded. What this project is talking about seems like a nice, bucolic, beautiful, metaphysical research center for"a bunch of rich hippies" that can come here and stay. Demonstrating a solid community benefit will be a real stretch for this facility and questions whether Naseem is a pied piper or cult leader. Mr. King stressed that house has great historic value for the town of Kilauea and the island of Kauai, which he does not feel is being respected. He is concerned about the entitlements and development rights being given now that will carry over if the current owners should leave, leaving it open for new developers to take advantage of to increase the property value. On the motion by Herman Texeira and seconded by Angela Anderson to close agency hearing,the motion carried by unanimous roll call vote. COMMITTEE REPORTS Subdivision Subdivision Committee Chair Jan Kimura read the Subdivision Report into the record. The following tentative subdivision actions were approved 2-0: Mr. Kimura noted Mr. Blake was not yet present at the time of this vote. 5-2013-22=Cheryl Cowden Schenck,Proposed Kuleana Relocation The following tentative subdivision actions were approved 3-0: 5-2013-23 Roy K Morita, Marvin M Morita, Beverly S. Morita,Proposed 8-lot subdivision 5-2013-25=Jeffrey Lindner, Proposed 2-lot boundary adjustment Page 1 14 The following subdivision extension requests were approved 3-0: 5-2008-16=Melvin Soong/Clarence Soong,Proposed 2-lot subdivision S-2012-01=Togioka Trust,Proposed 2-lot subdivision 5-2012-14=Wailua Ranch LLC,Proposed 3-lot subdivision The following modification of requirement/condition action was approved 3-0: 5-2013-20=Kilauea Ventures LLC,Proposed 3-lot subdivision On the motion by Herman Texeira and seconded by Amy Mendonca to accept the Subdivision Committee Report as read,the motion carried by unanimous voice vote. CONSENT CALENDAR Status Reports (NONE) Director's Report(s) for Project(s) Scheduled for Agency Hearing on 9/10/13 Class IV Zoning Permit Z-IV-2014-1 and Use Permit U-2014-1 to operate a commercial kitchen within a portion of a residence on a parcel located along Olohena Road in Wailua Homesteads, approx. 650 ft. east of its intersection with Kamalu Road, further identified as Tax Map Key 4-4-005: 001, and affecting a portion of a parcel containing 4.76 acres=Katie Ranke (dba Lotus Fudke), Class IV Zoning Permit Z-IV-2014-2 and Use Permit U-2014-2 to operate an outdoor market involving retail sale of various commodities, located on the All Saints Church property in Kapaa, along the mauka side of Kuhio Highway and approx. 350 ft. north of its intersection with Kipuni Place, further identified as Tax May Key 4-5-004: 018, and containing a total area of 4.11 acres=All Saints Episcopal Church. Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2013-22 and Shoreline Setback Determination SSD-2013-53 for a shoreline activity determination, Tax Map Key 5-8-008: 037, Wainiha, Kaua'i, for acceptance by the Commission=Robert Rucker. Shoreline Setback Commission Review SSCR-2014-01 and Shoreline Setback Determination SSD-2014-01 for a shoreline activity determination, Tax Map Key 2-6-005. 014 Koloa, Kaua'i, for acceptance by the Commission=Polly Porter. Page 1 15 Shoreline Setback Commission Review SSCR-2014-2 and Shoreline Setback Determination SSD-2014-2 for a shoreline activity determination, Tax Map Key 4-3-006: 001, Ludgate Beach Park, Kaua'i, for acceptance by the Commission= County of%aua'i, Department of Parks and Recreation. Shoreline Setback Commission Review SSCR-2014-3 and Shoreline Setback Determination SSD-2014-4 for a shoreline activity determination, Tax Map Key 2-8-16: 03, Koloa, Kaua'i, for acceptance by the Commission=SVO Pacific,Inc. On the motion by Herman Texeira and seconded by Jan Kimura to approve the consent agenda items as read,the motion carried by unanimous voice vote. UNFINISHED BUSINESS Class IV Zoning Permit Z-IV-2013-2,Use Permit U-2013-2 and Special Management Area Use Permit SMA(U)-2013-1, to allow after-the-fact improvements involving Lot 6 of the Kahili Makai Subdivision,which includes construction of a concrete retaining wall, drainage sump, and extension of concrete driveways, on a parcel situated along the makai side of Kuhi`o Highway,near the terminus of Kahili Makai Road, further identified as Tax Map Key(4) 5-2- 021: 006, and affecting a portion of a 27.56-acre parcel=Lauren Nicole Spellman Smith and Brian John Smith. [Director's Report received 10/23/12, deferred 11/13/12, deferred 12/11/12.] Staff Planner Jody Galinato noted this was originally heard in November of last year, and provided a brief update, stating this was an after-the-fact permit to allow construction of some retaining walls, a sump pump, and a driveway. The applicants were not the ones that did the work; they purchased the property and have been in the process of resolving the violations. They have received comments from the State Historic Preservation Division(SHPD). Mr. Kimura asked whether the new owners knew of the unpermitted work that had been done to which Ms. Galinato replied she is not sure. Lorna Nishimitsu, representing the owners, stated that disclosure was made by the parry responsible for all the unpermitted work, and the Smith's agreed to purchase the property knowing they would need to get after-the-fact permits. Ms.Nishimitsu explained what measures her clients are taking to address the recommendations of the Kauai Historic Preservation Commission, as well as to deal with issues with the grading permits. Mr. Kimura stated that it seems the applicant thought this permit was a done deal when they purchased the property. Ms.Nishimitsu stated that the Smith's had an attorney from another firm advising them on the property acquisition, and they were aware that it was a discretionary permit from the Commission and that if it is denied everything constructed without the necessary permits would have to be removed. Page 116 Mr.Kimura asked the Director if there is any way possible for the prior owner to be cited for unpermitted work because they are responsible for the unpermitted work; and who knows what kind of damage they did to the property, or what historical sites they may have dug up,noting that particular area of Kilauea had a lot of old Hawaiian villages. Ms.Nishimitsu confirmed that the prior owners were cited after the work had been completed and had begun work on the after-the-fact application; however, in the interim, the property was sold to the Smith's. Mr. Kimura asked if the previous owners had damaged any historical sites on the property and if so, what can the County do about it? Mr. Jung stated it has to fast be determined whether or not there was an investigation and if there is enough evidence to bring forward, but the current owners are trying to get into compliance. If there is any damage to any historic sites, it would be the State Historic Preservation Division that would be the one levying a fine for destruction of historic sites. Mr. Kimura asked if SHPD has been called in. Ms. Galinato explained that in the attached letter from SHPD it states that the area where the driveway is did disturb some sites, and has recommended a preservation plan be submitted. Mr. Kimura asked whether it had been submitted to which Ms. Nishimitsu replied Cultural Surveys Hawaii is working on the preservation plan. Mr. Kimura asked whether this should be deferred until that is taken care of to which Ms. Galinato stated the submittal and approval of the preservation plan is included in a condition of the application. Mr. Dahilig added that it is usually a lengthy process and if they do not comply with that process, it gives the Department grounds to modify or revoke the permit. Mr. Katayama stated there are two parts to this, one being the remedy that the current owner is working on and, he assumes, has taken full responsibility for to which Ms.Nishimitsu confirmed that they are trying to resolve what was flagged as violations through this process. Mr. Katayama asked when there is a violation,before the remedy is undertaken,how was the property able to transfer and be sold when it is known to have an outstanding violation. Is there a criminal or civil act to cure violations? Mr. Dahilig stated that if there were any financial or permitting encumbrances on the property,it is a buyer beware situation. Standing violations on a property does not preclude a landowner from transferring property and the Department has no authority to intervene in private transactions. Page 1 17 Mr. Katayama asked if this is considered a civil violation or criminal violation to which Mr. Dahing explained with respect to Chapter 8 compliance it can be handled either way; however the actual destruction of historic areas is incumbent upon SHPD to handle as they see fit. Ms. Mendonca stated that it is a buyer beware situation; however, because it is a violation that the Commission did recognize would that not be a lien to the previous owners in the form of fines. Mr. Dahilig explained that it depends on how the Department chooses to enforce, either civilly or criminally. At this point, it would be a question of Statute of Limitations as to whether or not they can go after the previous owner. Mr. Kimura stated his main concern was for the historical sites there and the damage that occurred during the unpermitted act. Ms. Anderson asked whether the preservation plan is underway right now to which Ms. Nishimitsu replied Cultural Surveys has commenced working on the preservation plan. She had suggested to them that it may be prudent to flag whatever SHPD has recognized to make it obvious where specific historical areas are, which is often difficult to determine, to prevent inadvertent destruction. Ms. Anderson asked if the preservation plan would entail changes to what is currently on the ground to which Ms.Nishimitsu replied that because the preservation plan was required by SHPD whatever is submitted will require their approval. Ms. Galinato pointed out for clarification that Exhibit A of the Director's Supplemental Report shows the issues of the violations incurred by the former owner, and its adverse effect to the historic properties was requested to be assessed and mitigation measures were to be provided. The revisions to the documents sufficiently address the concerns and issues raised to SHPD. Mr. Jung stated for clarification that this project was reviewed by the State Historic Preservation Review Commission and it did follow the 6-step scenario of the historic review process. Mr. Kimura asked to clarify that it is the new owner who has to take care of this,not the previous owner to which Mr. Jung replied yes, to comply with what the Department had originally requested. Staff Planner Galinato read the recommendations into the record. (On file) Mr. Kimura commented that he appreciates that the new owners are trying to do their best to right the wrong. On the motion by John Isobe and seconded by Jan Kimura to accept the recommendations as read, the motion carried by unanimous voice vote. Page 118 NEW BUSINESS 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 K7lauea, approx. 850 ft. south of its intersection with Kaumuali`i Highway, further identified as Tax Map Key 5-2-013: 001 and containing a total area of 14.6 acres— The Resonance Project Foundation [Director's Report received 7/23/13.1 Mr. Dahilig noted that this matter was referred to the Kauai Historic Preservation Commission and he will be asking the Commission to defer the matter until KHPRC has completed their work. They have asked the applicant to come back to them with adjustments to their proposal. Jonathan Chun,representing the applicant, stated that at the last KHPRC meeting, some comments and concerns were raised. The applicant is working on redesigning some of the structures to address those concerns, and have agreed to a continuance of a hearing before the Planning Commission to allow KHPRC's review of the amended plans. At the request of Mr. Kimura,Mr. Chun stated they will try and obtain a better aerial photo of the property. Mr. Isobe requested that when this item comes back before this body, he would like some clarification on what exactly this project is about to which Mr. Chun stated he believes the project manager and architect will be present at the next meeting to explain some of the designs. Mr. Katayama asked if it were possible for the principals to submit a CV (Curriculum Vitale)which Mr. Chun replied he would ask them to provide one. Ms. Anderson referenced the dormitories, which will not require a fee for use and asked whether there will be other compensation provided to the project for use of the dormitories. Mr. Chun stated it is a legitimate question and that the intent is that it does not become a TVR; they are trying to avoid that at all costs and will address that concern further at the next meeting. Mr. Kimura asked if they could request an environmental assessment to which Mr. Jung explained there are certain triggers under HRS 343 which requires an environmental assessment; in this case, there is nothing to trigger that. Mr. Kimura asked if they could request one anyway to which Mr. Jung stated he had never heard of anyone requesting one without a trigger, and the applicant would more than likely oppose since it is quite costly to have one done. Mr. Kimura stated he will be requesting one and will be asking for a deferral until they receive one. Page 1 19 Mr. Jung stated that legally an EA is not required in this case to which Mr. Kimura replied he understands that and asked if it was legal for him to request one; does he have a right to do that as a Commissioner. Mr. Jung stated that it would depend on how it's phrased. Mr. Dabilig commented that if such a condition were to be presented,the Department would probably not incorporate that recommendation. Chapter 343 sets forth the parameters of when a higher level of scrutiny is required on particular government actions, which are the threshold the Department looks at. He noted there are other ways to conduct environmental due diligence such as traffic reports, etc. Mr. Kimura stated that is not what he is looking for; noting that this is a research center and being a resident of Kilauea he is concerned about health issues. He feels that is more than enough concern to have an EA. Mr. Dahilig stated they would need to clarify whether an actual EA is needed or just information on what the actual use is. If through the discussion, certain elements of the research seem to have broad ranges of human interaction and impact they may recommend including conditions for evaluation and disclosure of certain items; however,the Department would hesitate to concur with a recommendation to require an actual EA, which is an HRS 343 requirement,without a trigger. Chapter 343 outlines specific triggers for specific types of environmental disclosure and is a State mandate,not a voluntary mandate. They could, however, request information about the use and ask for more studies about the use; they would not necessarily need an EA to get environmental due diligence. Mr. Jung added that the permit gets routed to the Department of Health also. Mr. Kimura asked whether the Department of Health on Kauai has the expertise for reviewing this research center and the type of research they want to do considering Kauai does not have any research centers. Mr. Chun stated that places like NTBG (National Tropical Botanical Gardens)has research centers related to their operations, such as studies on plants. There is probably some research going on in Kekaha for the seed companies; there is research going on here. To address Mr. Kimura's concerns, Mr. Chun stated the applicant is very open and will be happy to explain what will be taking place and are willing to work with their neighbors to limit any research should there be any concerns. There is no intention of doing anything explosive or hazardous and they are willing to include that as a condition. He further noted that an EA does not look at that and feels that discussion with the applicant at the next meeting will give the Commission an opportunity to identify any concerns that may come up. Mr. Kimura requested that some type of expert from the State or Federal government come in and explain exactly what type of research is being done and if it is safe for the environment and the community. He expressed his concern about the research centers in Kekaha Page 1 20 and that people are getting sick out there. He does not want Kauai to be a magnet for unsupervised research centers. Mr. Katayama stated that when this matter comes before the Commission, they will flush out the paragraphs on research use and facilities. Mr. Kimura asked if it is at all possible to fulfill his request to have an expert here to which Mr. Katayama replied they should first hear what the use is going to be, have them submit CVs that will help them determine their area of focus, and allow them to articulate the kinds of projects they will be looking at; at that point they can make a better judgment. He feels that Jonathan has a sense of the Commission's concerns and what he needs to do to develop a more informative discussion. Ms. Anderson asked if a list of Federal, State, or local funding sources related to the project, if any, could be provided for the next meeting. On the motion by Herman Texeira and seconded by Angela Anderson to defer this item until after the Kauai Historic Preservation Review Commission has reviewed and commented on the application,the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS Update from the Director on Transient Vacation Rental Certificate Renewal and Enforcement Efforts Mr. Dahilig circulated copies of slides from the PowerPoint presentation he had given to the County Council. (On file) Mr. Texeira requested a timeline on the Department's plan to initiate follow-up inspections on 2012 non-renewals to which Mr. Dahilig explained that the timeline has been focused on getting the complex cases to some type of hearing. They have already moved through the bulk of the other non-renewals which have been forwarded to the hearings officer. After resources are freed up from filing the complex cases, they will be able to do more complex enforcement on the additional 35 for which cease and desist letters will be issued shortly for those that did not renew. Mr. Blake asked if this will address all the questions that were posed at the last Council meeting to which Mr. Dahilig replied no,not quite yet. He feels they are following through with getting organized, doing more enhanced enforcement and moving forward on bringing people to compliance but there are other past issues they are trying to formulate responses for. Mr. Blake brought up one of the statements made by Council regarding the empty lot that received a TVR permit and asked whether that was accurate. Page 1 21 Mr. Dahilig stated that is was not quite accurate, pointing out that there is an active investigation that was initiated immediately following the Council meeting. There was not a certificate issued, but there are TVR-like violations that could be identified or addressed through enforcement. He would like to hold off discussing it until he receives the final report from his staff, at which time he can provide some clarity to the Commissioners. Mr. Kimura asked if there is anything in the works to change the TVR bill to define the word"farm",which has been a problematic gray area, to assist the Department with enforcement. Mr. Jung explained that the State Legislature passed Act 329 that permits TVRs on agricultural land now with conditions that require they be in a County with three islands and has not adopted any ag tourism bill. Kauai has not drafted such a bill but the"three islands" issue is still being looked at. State law has made it a permissible use. There is nothing at the County level to define"farm". Mr. Kimura asked why the County has not adopted Act 329 to which Mr. Jung restated that it is dependent upon whether the County is going to affirmatively address the ag tourism issue which they have not done. Ms. Anderson asked if there is any timeline for owners to resolve their incomplete files and whether there are any repercussions if they do not submit their documents. Mr. Dahilig stated that they are still discussing repercussions with the attorney's office. A deadline was included on the letters to the owners, which he will double check and get back to her. Mr. Blake asked to clarify the reason that the County of Kauai does not have a definition of what a farm dwelling is. Mr. Jung explained that State law under HRS 205-4.5 defines what agricultural activity is and there has been push-back from the Farm Bureau to try and narrow the definition of a farm to only one type of farming activity because the word "farm" includes a whole host of activities. Because of that, the State defined it as agricultural activity which lumps them into everything from cattle grazing to aqua-culture to horticulture; if you fit into one of those categories, you could be a farm. However, the level of intensity is what the major issue is. Mr. Blake asked why we have not addressed that to which Mr. Jung stated that there is some debate on whether or not it should be a State issue because this is an across-the-board State law that would be addressed. Mr. Blake asked to clarify that the State has not co-opted their power to do that to which Mr. Jung stated no. What the State did was delegate authority to define accessory uses of ag use, further noting that as Planning Commissioners, they can put out bills to be entertained to which Mr. Blake stated the Commission has asked for this as long as he can remember,but was always told it was a State issue and they were precluded from doing anything. Page 122 Mr. Jung restated that the County can define accessory uses of the farming activities so it is not a definition of"farm",but if they choose to propose a bill for that it will need to be evaluated by the County Attorney's office as well as the Attorney General. Ms. Anderson asked if they could be provided with a list of the information provided in the files and pointed out that within the CPR process, if on ag land the applicants are required to sign a farm dwelling agreement which specifies the use of their property. She suggested that as a possible angle to look at for enforcement. Mr. Dahilig stated that he could provide a sample checklist at the next Commission meeting of what they have been using to audit the files so they can see what the staff has to look through when doing the hand audits. In regard to the farm dwelling agreement matter, those that are on ag land and are currently in the system have already received a special permit to operate a TVR. They can took at the farm dwelling agreement for enforcement of those that are not within the system. Ms. Anderson asked if people had a farm dwelling agreement and then were permitted for a TVR, what happened to their farm dwelling agreement. Mr. Dahilig stated there is no concession that these are or are not farm dwellings; however, HRS 205 law with respect to Special Permits negates that particular type of use. Mr. Isobe stated that based on what he has read and heard,the Department has some apparent problems with incomplete files that are missing documents as well as issues with enforcement. He is unsure of what that means and asked if the Department has any knowledge of how those things occurred. He understands they are working to rectify those issues, but something cannot be fixed until it is first understood how the problem occurred. He commented that he knows it is complicated and difficult,but there needs to be discussion on these very difficult issues that come before the Commission such as the defimition of agricultural use. These issues are coming up at almost every meeting,yet there is no understanding by the Commissioners on some of the things that are being signed off on;how can you sign off on a farm dwelling agreement when you don't know what farm use is? issues like this need to be brought forth now rather than just waiting for someone else to figure it out later, or the Commission as well as the County of Kauai will continue to be criticized for lack of doing anything. It does not appear that this TVR issue is going away and in fact, seems to be escalating. Mr. Isobe stated that rather than just receiving briefings on what the Department is doing they need to begin discussing this issue much more seriously. Mr. Katayama agreed that it is under the Commission's watch and they need to get ahead of it. Page 1 23 RECEIPT OF ITEMS FOR THE RECORD Mr. Dahilig noted that as an oversight,he failed to include two testimonies as received for the record regarding the Resonance Project. Written testimony in opposition was received for the following: • James T. King • Harvey Cohen, representing Jonathan&Heather Ive On the motion by John Isobe and seconded by Angela Anderson to receive the items for the record, the motion carried by unanimous voice vote. ANNOUNCEMENTS The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the U hu`e Civic Center,Mo'ikeha Building,Meeting Room 2A-2B, 4444 Rice Street, Ulhu`e, Kauai, Hawai'i 96766 on Tuesday, September 10,2013. ADJOURNMENT The meeting adjourned at 12:55 p.m. Respectfully submitted by: Cherisse Zaima Commission Support Clerk O Approved as circulated. O Approved with amendments. See minutes of meeting. Page 24