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HomeMy WebLinkAboutpc 9-10-13 minutes KAUAI PLANNING COMMISSION REGULAR MEETING September 10,2013 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Katayama at 9:25 a.m., at the L-thu`e Civic Center, Mo`ikeha Building, in meeting room 2A-2B. The following Commissioners were present: Mr. Wayne Katayama Mr. Jan Kimura Ms. Amy Mendonca Mr. Herman Texeira Mr. Hartwell Blake Ms. Angela Anderson Absent and Excused: Mr. John Isobe The following staff members were present: Planning Department—Michael Dahilig, Jody Galinato, Kaaina Hull, Leslie Takasaki; Office of Boards and Commissions—Cherisse Zaima; Deputy County Attorney Jodi Higuchi-Sayegusa Discussion of the meeting, in effect, ensued: CALL TO ORDER Vice Chair Kimura called the meeting to order at 9:25 a.m. ROLL CALL Planning Director Michael Dahilig noted that there were six Commissioners present. APPROVAL OF THE AGENDA Mr. Dahilig requested that Item K.1. Subdivision Committee Reports be moved to follow Item F. Hearings and Public Comment. On the motion by Jan Kimura and seconded by Herman Texeira to approve the agenda as amended,the motion carried by unanimous voice vote. CT 8 2013 Mr. Dahilig announced that Deputy County Attorney Jodi Higuchi-Sayegusa will be filling in for Deputy County Attorney Ian Jung,who is out on paternity leave. MINUTES of the meeting(s) of the Planning Commission Regular Meeting of July 23, 2013 On the motion by Jan Kimura and seconded by Herman Texeira to accept the minutes of July 23,2013,the motion carried by unanimous voice vote. Regular Meeting of August 13, 2013 On the motion by Jan Kimura and seconded by Herman Texeira to accept the minutes of August 13,2013,the motion carried by unanimous voice vote. RECEIPT OF ITEMS FOR THE RECORD On the motion by Herman Texeira and seconded by Jan Kimura to receive the items for the record,the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing Class IV Zoning Permit Z-IV-2013-20 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/baseyard facility in Lmu'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, hearing continued 8/13/13.1 Staff Planner Kaaina Hull read the Supplemental No. 1 Director's Report into the record. Representing the applicant were Department of Water Project Engineer Dustin Moises, Architects of Hawaii Project Architect Richard Borromeo, and Environmental Communications Planning Consultant Taeyong Kim. Mr. Moises pointed out an error in the Supplemental Director's report that states street frontage as Kuhi`d Highway; it should be Kaumuali`i Highway. Mr. Borromeo provided an overview of the proposed site plan schematics,noting a change to the plans to provide a pedestrian-friendly access road connecting Pua Loke to Kaumuali`i Highway. The site in general conforms to the recommendations enumerated in the Supplemental No. 1 Director's Report. Page 12 In response to Mr. Kimura's question on what will happen to the old building, Mr. Moises explained that currently the front office houses Engineering,Fiscal, and Administration, which will be relocated to the new building. They plan to renovate the existing building to be used for operational facilities, enabling the field crew to store their excavators,machines, materials, etc. in the next phase of the project,which is a few years out. Mr. Kimura asked if that is the case,why the proposed building is so big to which Mr. Moises replied that the existing building is only 7,000 square feet, with several offices in separate buildings. Public Relations and IT are located in the Microlab next to the Board Room; the Chief of Planning and Resources is located in their former Conference Room, leaving them without a Conference Room, and having to utilize the Board Room for meetings, training, etc. Initially the proposed building was at 17,000 square feet,but to reduce the budget they went down to 15,000 square feet. This will be an as-needed shell to accommodate projected staff to the year 2050. Additionally,the new building will allow the Operations staff to utilize the space of the existing building; right now, there are$100,000 machines exposed to the weather. The long-term plan is to accommodate all of that equipment as well as provide office space for the Operations staff Ms. Mendonca commented that it is a beautiful building, and asked if that affects the public with an increase in their Water bill. Mr. Moises stated that this building is very stripped down and noted that the Board and the customers have echoed Ms. Mendonca's concerns. They have reduced the size of the building, opted for a metal roof instead of a concrete roof, and have tried to cut all costs possible to reduce the cost to customers. As far as funding,they are looking at a combination of using water rates,possibly the Water Use Development fee, a Department of Health grant, etc. The project itself is included in Water Plan 2020 which was approved by the public, and is within the recent water rate increases that were approved by the Board and for which they received public testimony in 2010-2011. Ms. Mendonca expressed her concern that if the customers will be paying for this building, which is something that is needed for the future, does that mean there will be a nice, big building but no-one actually in the building because they are out servicing the customers. Mr. Moises stated that aside from meter readers and some of the engineers that go out to inspect projects, 90% of the staff in the front office are there every day. Mr. Blake asked for clarification that there is no building fund that the Department of Water(DOW) has already accumulated, and that they will be billing the customers to pay for it. Mr. Moises stated that DOW does not have a building fund, or a pipeline fund, or a tank fund. What they have is a FRC (Facilities Reserve Charge) fund, and a Water Utility fund. He explained the differences between the two, and how they are applied to different projects; they are currently working on the funding issue. Page 13 Ms. Anderson noted that one of the conditions for approval is that the building meets LEED (Leadership in Energy&Environmental Design) standards, and asked for more explanation on the plans to implement this. Mr. Borromeo stated this is not a LEED project,but they are using LEED principles in implementing the following sustainability features: • Photovoltaic panels • Electric Vehicle charging stations • Occupancy Sensors • Water saving toilets and urinals • Zoned HVAC (Heating,Ventilation&Air Conditioning) system with separate controls in different rooms • Low emissivity windows which allow sunlight in,but reduces heat • Insulation in roof and building Mr. Moises added that they are also doing a rain catchment demonstration garden,using natural light wherever possible, and have designed the lobby to be open-air to reduce Air Conditioning use, etc. Mr. Kimura asked what the cost of the entire project is, and what the estimated increase to the community will be. Mr. Moises stated that the current cost estimate is approximately $8 million; $6 million for the building itself, and$2 million for off-site improvements. He mentioned DOW's existing aerobic wastewater system,noting that as stewards of water a decision was made early on that if it was possible to connect to sewer, they would establish the infrastructure to do so even if the cost is higher than adding an additional aerobic system. Since Grove Farm and the Puhi Sewer &Water system have allowed them to connect, they will be installing a 1,200 foot sewer line to connect to the Grove Farm system, which will also allow their neighbors to connect to sewer should they choose to in the future. It will increase their budget by $750,000,but he feels it is well worth it as it will take people off of their individual systems at some point. Additionally, DOW will need to upgrade the water line to their facility to meet their needs, as well as repaving. In reference to the increase in cost to the customers, the rate increases that were already approved are now in their second year; an increase of 11%per year for four years. This building does not create any new increases to the customer, but is part of the rate increase that was already approved two years ago, which total approximately 44% over the course of 4 years. This project is a small part of the full CIP plan,which has averaged approximately $20 million between 2007 and 2011; since the inception of Water Plan 2020,they have done approximately $100 billion in CIP projects. Mr. Moises explained how projects are funded through various sources, such as loans, and the BAB (Build America Bond) funds which the water rates help pay for, and the Water Use &Development fee which subsidizes expansion. The public is already aware of the rate increases, and this project shouldn't affect anything that has already been approved. Mr. Blake asked how long the cost of this building is amortized for to which Mr. Moises stated it would depend on the funding. Page 14 Mr. Blake stated that once it is paid for, the money that was going into the building can be either given back to the rate payers or utilized for other improvements. He asked what point in time can the$8 million go somewhere else. Mr. Moises reiterated that it would depend on the funding, and currently they are looking at every option available. No matter the funding source, whatever is left in the account does get allocated to a different project. Every year,the Department reprioritizes projects from Water Plan 2020 based on need and progress; funds are reallocated based on priority. Mr. Blake asked when DOW plans to break ground, and whether or not it has gone out to bid to which Mr. Moises replied that if all goes well,they will break ground next summer; the project has not yet gone out to bid. Mr. Texeira commended the Department for the detailed report, and stated that he believes there is some frustration among the Commissioners about the water rates; however he does not think it is relevant to this project, and if they have concerns about cost that should be brought up to the Water Board. He feels it is a very efficient project,noting that DOW has needed a new building for years. On the motion by Herman Texeira and seconded by Hartwell Blake to accept the Department of Water's presentation,the motion carried by unanimous voice vote. Mr. Hull read the recommendations of the Director into the record. On the motion by Herman Texeira and seconded by Angela Anderson to close agency hearing,the motion carried by unanimous voice vote. On the motion by Herman Texeira and seconded by Amy Mendonca to approve the Class IV Zoning Permit Z-IV-2013-20 and Use Permit U-2013-18,the motion carried by unanimous roll call vote. New Agency Hearing 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, farther identified as Tax Map Key 4-4-005: 001, and affecting a portion of a parcel containing 4.76 acres=Katie Ranke (dba Lotus FudQe). [Director's Report received 8/13/13.1 The Commission received testimony from John Palmeira. Mr. Palmeira stated that he is opposed to a commercial kitchen being in a residential area. He feels that too many people want to operate commercial businesses in residential areas,which causes taxes to be raised for the people that live in that area, and feels the applicants could find a place to do business in a commercial area. Mr. Palmeira stated that he,personally, does not have anything from the County or the State. He does not have any public lights, and will never see Page 15 sewage up there; he gets nothing from the government. He reminded the Commission that they are paying for their houses, their termite treatment, and their insurance without any help from the government, yet the government continues to take more and more taxes. He has been retired from the military for 30 years, and has never had an increase in his paycheck. He stated that he cannot see this residential area going into business, and feels it is not a very good thing to do. On the motion by Herman Texeira and seconded by Angela Anderson to close agency hearing,the motion carried by voice vote: 4 Ayes; 2 Silent 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 Kam, along the mauka side of Kuhio Highway and approx. 350 ft. north of its intersection with Kiyuni Place, further identified as Tax Map Key 4-5-004: 018, and containing a total area of 4.11 acres=All Saints Episcopal Church. [Director's Report received 8/13/13.1 The Commission received written testimony from: Michael G. Ching (concerns) Carl F. Imparato (concerns) Debbie & Oren Dill (support) On the motion by Herman Texeira and seconded by Angela Anderson to close agency hearing,the motion carried by unanimous voice vote. Special Management Area Use Permit SMA(U)-2014-1, Class IV Zoning Permit Z-IV- 2014-3 and Use Permit U-2014-3 to construct a solar photovoltaic system in order to provide energy savings to the existing wastewater treatment plant servicing the Kauai Beach Resort, and Variance Permit V-2014-1 to deviate from the land coverage and setback requirements within the Resort(RR-20) zoning district, located along the makai side of Kuhio Highway in Hanamaulu and approx. 1,600 ft. east of the Kauai Beach Drive/Kuhio Highway intersection, further identified as Tax Map Key 3-7-003: 017, and affecting an area approx. 0.259 acre= Kauai Beach Resort Association. [WITHDRAWN.] Mr. Dahilig reported that this application has been withdrawn by the applicant based on further evaluation. COMMITTEE REPORTS Subdivision Subdivision Committee Chair Jan Kimura read the Subdivision Report into the record. Page 16 The following tentative subdivision actions were approved 3-0: S-2013-26 DWI Properties Family Ltd. Partnership, Proposed Mot subdivision S-2014-01=Tad T. Miura/Caroline C. Miura, Proposed 2-lot subdivision S-2014-02—HG Kaua`i Joint Ventures LLC,Proposed 6-lot subdivision S-2014-04=Jasper Properties LLC. Proposed 2-lot Consolidation The following final subdivision actions were approved 3-0: S-2013-19=County ofKaua`i, One Diva LLC, Avi Zadock,Proposed 2-lot subdivision Mr. Dahilig stated that in submitting the Subdivision Committee report, he inadvertently failed to include action taken on the following item: Letter(8/28/13) from Samuel W. Pratt, President,Niu Pia Land Company Ltd., referencing Tax Map Keys (4)-4-3-7-29 and 30, requesting the Planning Commission rescind or otherwise void a previous subdivision granted in 1980 for the above referenced parcels by way of a mutual agreement. a. Stipulated proposed Decision and Order. He noted that it has been approved to be forwarded to the full Commission by a vote of 3:0 and the report should be amended to reflect this. On the motion by Herman Texeira and seconded by Hartwell Blake to accept the Subdivision report as amended,the motion carried by unanimous voice vote. CONSENT CALENDAR Status Reports (NONE) Director's Report(s) for Project(s) Scheduled for Agency Hearing on 10/8/13 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 approximately 23,200 sg. 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 [Deferred 8/13/13 for republication.] The Commission received testimony from Debra Nantais. Page 7 Ms.Natais stated that she was the petitioner to intervene in this case; however,because of previously set plans, she will be unable to attend the October 8 meeting and continue with her intervention. She shared some information that she feels is critical to the Commission's greater understanding of the proposed project. Upon meeting Patrick Cox,the current owner/manager of the Safeway Shopping Village in Kapa`a where Long's is currently located, she was informed that Long's was never kicked out or asked to leave, but was actually in negotiations with the ' shopping center management; Long's decided that they wanted their own stand-alone building and ended negotiations with the management to pursue this current project at Aleka Loop. Ms. Nantais is vehemently opposed to the project as it is 50 feet from her condominium, and urged the Commission not to go through with any of the permits as she feels there is no reason to do so; the shopping center management had agreed to change the building construction, and implement and drive-through pharmacy, which is seemingly a priority for Long's. She was told that if Long's is not interested in negotiating, the shopping center will bring in a Walgreen's, or another retailer. Considering the potential destruction of the coconut grove and its living trees, and due to the strong issues with flooding in that area, Ms.Nantais suggested that the Commission seek out more information at the October 8 meeting. She feels the best solution for everyone would be for Long's to stay where they are. She further recommends not consolidating the two parcels until the Commission has seen a complete plan, as well as plans for flood management and traffic conditions. Ms.Nantais feels this new information gives new perspective on why Long's really wants to move to Aleka Loop; it does not offer the business community, the local community or the resort any advantages, and should stay in the commercial area where they currently are, and where people are very happy to have them. Ms. Mendonca stated that it seems the general consensus is to save the natural beauty around Plantation Hale, and asked what efforts the tenants are willing to make to upkeep the beauty of that area, or have there been discussions with the owner to make concessions to keep the natural beauty that is so important to them. Ms.Nantais stated that the issue with the historic coconut grove is that the trees are very tall and will be difficult, if not impossible, to move; once dug up,half of them will die. Another consideration is you go down three and a half feet and you hit seawater and marine debris; where is all of this water runoff going to go? All of this has to be addressed at the October meeting,but her feeling is that these two parcels should remain open space. Ms.Nantais stated that she will go to the Open Space Commission and ask to save the trees, further stating that even if they replace the trees they remove, it will no longer be as aesthetically pleasing as it is now. She added that the Safeway shopping center is less than a quarter of a mile up the street; people are happy to walk there, and it is not a problem for most of the guests. The new owners of the Safeway shopping village have said that they want to reconfigure the space to make Long's happy and give them what they want; therefore, they should leave the coconut grove alone. Page 18 Mr. Texeira asked,rhetorically, what is the useful life of that coconut grove? He stated that it is probably another 10-15 years for the existing trees, and what he feels is important is to have a plan for replanting those trees. He further stated that the zoning is RR20, and pointed out that even if you don't put Long's there, you could still put a condo there that would potentially be a two-story structure blocking the ocean view, etc. He is not suggesting that a shopping center is better,but he is pointing out that there is still going to be a problem with putting a condo on that parcel. He asked how that can be addressed, suggesting possible rezoning. Ms.Nantais stated that because the new tsunami maps have not come out yet, they may find that area is in an inundation zone. She further mentioned that due to the current flooding conditions, any project is going to have serious issues. She agrees that anybody can make the trees aesthetically pleasing,but the key is to ensure the drainage issue will be resolved. Class IV Zoning Permit Z-IV-2014-4 and Use Permit U-2014-4 to construct and operate a roadside fruit stand within a parcel located along the makai side of Kuhi`o Highway, situated immediately across the Kaua'i Mini Golf facility in Kilauea, further identified as Tax Map Kev 5-2-005: 023, and affecting a portion of a larger parcel containing 179.437 acres=Seacliff Beach Plantation,LLC. Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2014-04 and Shoreline Setback Determination SSD-2014-07 for a shoreline activity determination, Tax Map Key 2-8-019: 004, Koloa, Kaua'i, for acceptance by the Commission=Eric Schmidt. Shoreline Setback Commission Review SSCR-2014-05 and Shoreline Setback Determination SSD-2014-11 for a shoreline activity determination. Tax Map Key 5-4-005:032, Princeville, Kaua'i, for acceptance by the Commission=The Shearwater, Wyndham Vacation Ownership, Shoreline Setback Commission Review SSCR-2014-06 and Shoreline Setback Determination SSD-2014-14 for a shoreline activity determination, Tax Map Key 4-3-008: 001, Wailua, Kaua'i, for acceptance by the Commission=Haleakala Solar. Shoreline Setback Commission Review SSCR-2014-07 and Shoreline Setback Determination SSD-2014-15 for a shoreline activity determination, Tax Map Key 2-8-019:004, Koloa Kaua'i, for acceptance by the Commission=Joel Koede. Page 19 Mr. Blake asked if no further action is taken,what happens to the items to which Mr. Dahilig stated the items under Director's Reports and Agency Hearing will come back on the next agenda. On the motion by Herman Texeira and seconded by Amy Mendonca to approve the consent calendar items as read, the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS 1. Petition to Appeal the Decision of the Planning Director by Marten Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1328 (TMK No. 49009004,) filed on 7/17/13 (Contested Case No. CC-2013-44). 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-1328 Marten TMK Number 49009004 filed on 7/17/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-44) 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 Sienna LLC Concerning Non-renewal of Transient Vacation Rental Certificate TVNC-1071 (TMK No. 26012004) filed on 7/16/13 (Contested Case No. CC-2013-45). 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 1071 Sienna LLC TMK Number 26012004 fled on 7/16/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-45) Request for Dele ag_fion of Authority to the Clerk of the Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission for the Instant Appeal 3. Petition to Appeal the Decision of the Planning Director by Matthews Concerning Non- renewal of Transient Vacation'Rental Certificate TVNC-1184 (TMK No. 26007012,) filed on 7/16/13 (Contested Case No. CC-2013-46). 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 1184 Matthews TMK Number 26007012 filed on 7/16/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-46) Request for Delegation Page 1 10 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 JJFT LLC Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-5139 (TMK No. 58009037) filed on 7/16/13 (Contested Case No. CC-2013-47). 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 #5139 JJFT LLC TMK Number 58009037 filed on 7/16/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-47) 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 Giorgio Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1050 (TMK No. 28023044) filed on 7/19/13 (Contested Case No. CC-2013-48). 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 1050 Giorgio, TMK Number 28023044 filed on 7/19/2013 to a Hearings Officer(Contested Case Hearing No. CC-2013-48) 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 Seiple Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-4215 (TMK No. 58012018) filed on 7/1/13 (Contested Case No. CC-2013-49). 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 #4215 Seiple, TMK Number 58012018 filed on 7/1/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-49) Request for Dele ag tion 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 11 7. Petition to Appeal the Decision of the Planning Director by Fujimoto Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1232 (TMK No. 53005012) filed on 7/1/13 (,Contested Case No. CC-2013-50) 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 1232 Fujimoto, TMK Number 53005012 filed on 7/1/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-50) 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 8. Petition to Appeal the Decision of the Planning Director by Santelli Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-5020 (TMK No. 2500100 1) filed on 7/8/13 (Contested Case No. CC-2013-51). . 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 #5020 Santelli, TMK Number 25001001 filed on 7/8/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-51) Request for Dele ag tion 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 Bouchard Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-4235 (TMK No. 58008045) filed on 7/9/13 (Contested Case No. CC-2013-52). a. Cleric 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 #4235 Bouchard TMK Number 58008045 filed on 7/9/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-52) 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 Knaack Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1123 (TMK No. 45002015) filed on 7/15/13 (Contested Case No. CC-2013-55). 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 1123 Knaack TMK Number 45002015 filed on 7/15/2013 to a Page 1 12 Hearings Officer (Contested Case Hearing No. CC-2013-55) 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 11. Petition to Appeal the Decision of the Planning Director by Bunvan Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1367 (TMK No. 1) filed on 7/29/13 (Contested Case No. CC-2013-56). 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 #1367 Bunvan, TMK Number 58012001 filed on 7/29/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-56) 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 Bunvan Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1396 (TMK No. 5801200 1) filed on 7/29/13 (Contested Case No. CC-2013-57). 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 #1396 Bunvan, TMK Number 58012001 filed on 7/29/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-57) Request for Dele ag tion 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 Sambold Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1174 (TMK No. 480070060002) filed on 7/17/13 (Contested Case No. CC-2013-58). 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 1174 Sambold TMK Number 480070060002 filed on 7/17/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-58) 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 13 14. Petition to Appeal the Decision of the Planning Director by Kikiaola Construction Company Concerning Non-renewal of Transient Vacation Rental Certificate TVNC-1317 (TMK No. 12006014) filed on 2/26/13 (Contested Case No. CC-2013-59). 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 #1317 Kikiaola Construction Company, TMK Number 12006014 filed on 2/26/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-59) 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 15. Petition to Appeal the Decision of the Planning Director by Kikiaola Construction Company Concerning Non-renewal of Transient Vacation Rental Certificate TVNC-1316 (TMK No. 16007016) filed on 2/26/13 (Contested Case No. CC-2013-60) 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 #1316 Kikiaola Construction Company, TMK Number 16007016 filed on 2/26/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-60) 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 North Shore Development LLC Concerning Non-renewal of Transient Vacation Rental Certificate TVNC-1116 (TMK No. 58008038) filed on 8/2/13 (Contested Case No. CC-2013-61). 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 1116 North Shore Development LLC, TMK Number 58008038 filed on 8/2/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-61) 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 Cushnie Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1352 (TMK No. 55006024) filed on 8/7/13 (Contested Case No. CC-2013-62). 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 1352 Cushnie, TMK Number 55006024 filed on 8/7/2013 to a Page 1 14 Hearings Officer (Contested Case Hearing No. CC-2013-62) Request for Dele a tion 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 Otsuka Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1370 (TMK No.25008034) filed on 8/19/13 (Contested Case No. CC-2013-63). 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 #1370 Otsuka TMK Number 25008034 filed on 8/19/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-63) 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 19. Petition to Appeal the Decision of the Planning Director by Stice Concerning Non- renewal of Transient Vacation Rental Certificate TVNC-1061 (TMK No. 53005004) filed on 8/22/13 (Contested Case No. CC-2013-64). 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 #1061 Stice, TMK Number 53005004 filed on 8/22/2013 to a Hearings Officer (Contested Case Hearing No. CC-2013-64) Request for Delegation of Authority to the Clerk of the Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission for the Instant Appeal On the motion by Jan Kimura and seconded by Amy Mendonea to refer Items I. 1 through 1. 20 to a hearings officer, the motion carried by unanimous voice vote. 20. Update from the Director on Transient Vacation Rental Certificate Renewal and Enforcement Efforts. Mr. Dahilig requested this item be moved to the end of the agenda. COMMUNICATION(For Action) There were no communications. UNFINISHED BUSINESS There was no unfinished business. Page 1 15 NEW BUSINESS (For Action) 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, VTrox. 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 Fudge). [Director's Report received 8/13/13.1 Staff Planner Jody Galinato read the staff report into the record. (On file) (The meeting recessed at 10:32 a.m. for a caption break) (The meeting resumed at 10:47 a.m.) Katie Ranke and Jeffrey Lorimont, applicants, were present. Ms. Mendonca asked how long they have rented the house to which Mr. Lorimont replied 5 years. In response to Ms.Mendonca's question on whether they were operating at a different location, Ms. Ranke stated that they were operating out of a commercial kitchen in Kapa`a until recently. When asked why, Ms. Ranke explained that they do not hold the lease there; they were sub-leasing from another producer who wanted to expand her business and needed the whole space. Ms. Mendonca asked if there was a chance they could renegotiate that lease to which Ms. Ranke replied no. Ms. Mendonca asked whether their neighbors were owner occupants or renters to which Ms. Ranke replied some are owners and some are renters. She explained that the owners needed to sign off for them to apply for the use permit, and the renters signed off in support of the business. Ms. Mendonca stated for clarification that there are four units, and asked of the four, how many are renters? Mr. Lorimont replied two; the other two are owner occupants. Ms. Mendonca stated that they claim it is a simple process,and asked if they had looked elsewhere such as Coconut Marketplace and other areas in Kapa`a. Ms. Ranke explained that when they first began discussing moving out of that kitchen, they looked at a number of kitchens as well as shared kitchen spaces. Kitchen rental is very expensive, likely due to the fact that most kitchens are hot kitchens. Their process is simple and does not require all that space and equipment. They've looked online and talked to realtors, but have not been able to find one that is suitable; this endeavor is the last resort. Page 1 16 Ms. Mendonca asked what is the total expected volume produced per day to which Ms. Ranke replied roughly around 50 pounds a week at 2 ounces per item. Ms. Mendonca commented that is quite a bit of fudge going out each week. She stated the reason she is asking is because they are open from 11:00—5:00,which are great business hours,but in her opinion, their production is on a very high scale, and what they are doing is wholesale manufacturing. She further commented that in five years,they should have already set their marketing scale. Mr. Lorimont stated that they have not been in business for five years, and in response to Ms. Mendonca's question of how long they have been in business, he replied a little over a year; maybe a year and a half. Ms. Mendonca questioned that they have been in business for a year and a half and have already lost their lease to which Ms. Ranke replied that they were subleasing, and the business owner wanted to expand her business, no longer wanting to share the kitchen. Mr. Texeira asked if this is something that could be done after normal business hours, perhaps from 6:00 p.m.— 11:00 p.m.,which might enable them to find a commercial kitchen to which Ms. Ranke stated she thinks is possible,but that storage and refrigerator space also need to be considered. Mr. Texeira asked if they have plans to grow their business, and if they feel that this is a good place for them to do so. Ms. Ranke replied somewhat, commenting that it doesn't have to grow very much to sustain them; being on Kauai, she doesn't foresee that much growth. Their main goal is to just continue their business, and perhaps grow it a small amount. Mr. Texeira asked if they do any exporting to which Ms. Ranke replied no,not currently. Mr. Texeira asked if there is any competition on island, or anyone else doing the same thing to which Mr. Lorimont stated that there are a couple of chocolate companies on the island, but their product is different, so there is no direct competition. Mr. Texeira asked whether"different" meant"unique". Ms. Ranke replied that they make fudge, as opposed to other chocolate companies that make chocolate bars; the similarity is that it is chocolate made on the island, but it's a different end product. Ms. Anderson asked for a description on what is required for a cold kitchen to which Ms. Ranke stated a sink, a refrigerator,hot water, an area to sanitize, lighting, and ventilation are the main things. Since they have been through the certification process before, she is sure they have everything that is required. Ms. Anderson asked if a different sized sink is required, and whether there is a sink in the current location to which Ms. Ranke replied no, and that the kitchen they were operating out of Page 1 17 used a smaller sink than they currently have; a double sink, and an additional bin to create the third sink for sanitization. Ms. Anderson stated that she is aware this is a cold kitchen,but asked if there is a stove or any kind of heating element in the area to which Ms. Ranke replied no, it's not necessary. Mr. Kimura asked for clarification on whether or not there will be delivery to their property to which Mr. Lorimont replied no, and that they will only be making deliveries out. Ms. Mendonca stated that what she is concerned about is that they have been in business for a year and a half, and they must have seen some kind of marketable interest, which is prompting them to move forward. She asked if their lease was being cut, wasn't there any consideration to allow them time to get established elsewhere. Ms. Ranke explained that the other parry informed them that she would be expanding, and that they would need to move out. They found another kitchen right across the street that agreed to sublease to them in the evening,but that business ended up closing a week before they were set to move in; the new business did not want to rent them the space. After that,they were working with a group of people who planned to open a commercial kitchen in Wailua,where they were planning to sublease, but that ended up falling through. At that point,they spoke with their landlord. Ms. Mendonca commented that she's sure their product in interesting enough for the public; however, she would like to make it clear to her counterparts that she does have a problem with them being in a residential area and doing,in her opinion,manufacturing work. She stated she is sorry they lost their lease, and suggested they permit this for a short period of time which would allow the applicants an opportunity to seek another alternative in the meantime, instead of just saying no. She is against manufacturing in a residential area,pointing out that the CZO (Comprehensive Zoning Ordinance) explicitly states certain acceptable businesses,but in this instance they are manufacturing to sell. She reiterated her suggestion to allow them a timeframe to get settled elsewhere,which she feels would be more lucrative for their business where they could pick up more business from walk-ins,rather than to be isolated in the residential area. Mr. Texeira agreed with Ms. Mendonca, further stating that they would like to encourage single-family use in that zoning,rather than some manufacturing activity in a residential area. He likes the idea of granting an approval with a specific time frame,which would allow them to look for another commercial area; to make it permanent is not something he would personally support. He understands it is important as an island community to support small businesses, which they have been trying to do for years, and the applicant's efforts to pursue this is a good thing. Mr. Texeira commented that what he will also be looking at is whether the product is so unique that the Commission would want to support it in a residential area. He personally would like to see if there is the possibility for the business to expand and create more employment. Ms. Anderson agreed with Commissioners Mendonca and Texeira in terms of limiting the time frame in what she considers a special case. She noted that it is a cold kitchen with no evidence that there will be extensive use on the utilities, which is another issue of concern if Page 1 18 there is manufacturing in an area that is not zoned for that purpose. In addition to limiting the time frame, she also suggested limiting it to the applicants themselves, so that within the given timeframe, there would not be another business that could come in and use that space in the future. Mr. Blake asked for clarification that if this permit is granted outright, it is there forever. Mr.Dahilig replied that a tool the Commission has used in the past to limit the perpetual running of the land with these entitlements is, as mentioned by Commissioner Mendonca, creating time limits for the permits to be active. Mr. Kimura stated that they have had discussion with both the Planning Director and Mr. Jung on having standard conditions for this type of use permit saying that if it is not used in the same manner it was applied for,they will lose the permit. He asked if that has been discussed further, using the example of Kilauea Agronomics, and what Chris Jaeb used it for,which wasn't the same use originally applied for. Mr. Dahilig replied they have not talked about putting in a standard condition,but have discussed a condition that is utilized in situations like this. He does not have the language in front of him,but the Department has used the language in other applications where a time- limited approval is desired by the Commission. Mr. Dahilig stated there is nothing as far as standard conditions that are included automatically, but there is template language that they can use. Ms. Anderson noted that there is information regarding the electricity use, but not on water usage. She asked for a description of water use and the type of system the home is on. Ms. Ranke replied it is on a septic system, and that there is a recommendation by the Department of Water that they limit their use to 200 gallons per day; the whole house uses about 200 gallons a day, so there is no way the business will come close to that. The only water use would come from washing equipment before and after making the product, which probably totals to approximately 20 gallons per day. Mr. Katayama asked that when the Commission looks at Special Use Permits or any kind of exemption outside of the current zoning, what criteria should be used to ensure the permitted use they are applying for enhances rather than conflicts with the zoning? He feels that the concern raised by the Commissioners is to the linkage between commercial activity versus residential activity, and that when an applicant asks for certain uses that aren't described in the zoning, they as a Commission must determine its compatibility, feasibility and impact. Another concern is that when those permits are granted,historically it runs with the land. In this case,the applicant is a lessee, and should they vacate, the use permit would potentially remain with the facility. He asked if the Department was ready to create recommended conditions that address these issues. Ms. Mendonca mentioned that in this case, the applicant is the tenant; not the owner. She asked if they vacate, would it not end the use permit. Page 1 19 Mr. Dahilig explained that it has been the opinion of the Deputy County Attorney that conditions or permits on property or parcel of land cannot run with a person; it must run with the title. In this circumstance, they cannot assign permission of use to be automatically revoked once the applicant vacates. When there is a concern about whether the individuals operating the parcel are of the understanding of the Commission's expectations, the time limits and status reports can be implemented as a way to ensure compliance with the originally intended use, as well as determining continued operations. Ms. Mendonca expressed her confusion, stating that the permit goes with the owner,but the owner is not the one applying. The tenant is applying,but if they vacate,the owner gets to continue the use,which she feels does not make sense. Technically, keeping things in correct perspective,they cannot hear the application because it is not the owner that is applying. Mr. Dahilig explained that in looking at the application, the owner, Hobie Beck,has given the applicants permission to apply. It is a very common circumstance that you have lessors and lessees enter into arrangements that the lessee is responsible to assume the risk of going through the entitlement process on behalf of the land owner. Ms. Anderson asked if they do limit specific applicants as a condition to the permit, would that then function as a permit that is attached to the individuals. Deputy County Attorney Higuchi-Sayegusa explained that she is not sure if the permit could be limited to specific individuals by name; the approvals would go toward the use; however, it is within the purview of the Commission to limit the special use permit to no more than two users. Mr. Dahilig added that the Department has limited operations in the past to a certain amount of employees, or invitees to the property for a service; it is possible for the Commission to numerically limit the economic activities. Ms. Anderson asked if they could limit it to be the occupants of the property as well, to which Mr. Dahilig stated he would not have any objections to making that recommendation as part of his report. Mr. Kimura asked if the permit runs with the land, and the applicant is not the owner of the property, can the Commission request that the applicant give up the permit if and when they vacate the property. Mr. Dahilig replied that it may be more appropriate to have the usage of the cold kitchen limited to owner/occupants in the structure to which Mr. Kimura asked if his request would be uncommon to ask the applicant to give up their permit if they vacate. Mr. Dahilig stated that he would not necessarily hedge the forfeiture of the permit based on what is rightfully allowed. Different mechanisms such as expiration dates, and description of Page 120 type of usage are implemented, but to use that as a trigger to revoke a use permit which is tied to civil liberty action would be very difficult. Mr. Katayama asked if the Commission is comfortable in granting some form of manufacturing in a residential area, and if that is palatable, they can work on conditions that are imposed upon the applicant. Mr. Blake stated that this is not the run-of-the-mill commercial application, noting that the applicants tried to obtain manufacturing space in other areas, but have not been able to do so. He feels that this is distinguishable from the standard runs-with-the-land type situation and thinks they should be allowed to do this for one to two years, and if they decided to pursue something else that should leave the Commission with the option for revocation proceedings. Mr. Dahilig proposed two areas they could work to incorporate into the current conditions: 1. Clearly state the Commission's concern about permanent conversion of a single- family home to a commercial usage by the utilization of a cold kitchen. The applicant understands the permit will expire within two years of approval unless extended by Commission action. 2. The applicant would agree to a condition that approval is conditioned upon owner/occupant commercial activity, and no additional employees shall be hired without approval of the Commission. Mr. Dahilig added that this would cause the permit to lapse after the specified time limit, and that should it hit a contested case hearing, the findings of fact would be that there was no extension requested before the two-year deadline,therefore no extension is warranted. These conditions can be added to the Director's report should the Commission so desire. Mr. Blake noted that this circumstance is apart from the norm, and suggested that the Commission set forth findings based on the specific reasons these applicants have come before them today. He wants to ensure this does not become an automatic precedence for another applicant. Ms. Mendonca asked the applicants how much they were paying when they were subleasing the kitchen to which Ms. Ranke replied$400 per month. Ms. Mendonca asked what the applicant's current rent is at their residence, noting that the house is a three-bedroom and a studio with an additional bedroom, and asked if there had been other renters before them. Ms. Ranke replied they pay$1900 per month, noting that the studio does not have a bedroom and rents for$850 per month. With an additional tenant upstairs, the whole house rents for$2750 per month which is split among the tenants. Page 121 Ms. Mendonca asked to clarify that in their attempt to find another cold kitchen at the rate of$400 -$900 per month, they have been unsuccessful to which the applicants replied affirmatively. Ms. Mendonca commented that it is unfortunate that they were unable to find a rental space within their budget,but she is unsure about the two-year period, and suggested a 1-year period followed by reconsideration. The reason, she explained, is that the County has been proactive in their efforts to support small businesses. Perhaps in the next year, the Kapa`a area will have to have more small businesses and perhaps, from this meeting, someone in the public may offer something. Giving them the 1-year timeframe will give them time to find a place; the 2-year timeframe gives the impression that they are permitting the commercial kitchen to continue. Mr. Katayama requested that the Director and the Planner work on fine-tuning the language of the permit with the applicants, allow the attorney to review the language, and have the applicants return to the Commission once there is a better understanding of it. Mr. Dahilig concurred based on the concerns of the Commissioners,noting they are able to memorialize the potential findings by the Commission in findings of fact, conclusions of law, decision, and order. Rather than rush through a draft set of findings for the Commission, Mr. Dahilig can work with the Planner and come up with a more order-styled approval document that the Commission can review at the next meeting. Mr. Texeira asked the Director, in the staff report recommendations,would the Department be leaning towards approval with some kind of timeframe. Mr. Dahilig stated that all they can do at this point is present the options in a more clearly worded, written format; if a timeframe is suggested, it is up to the Commission to accept or change it. He is unsure what the timeframe will be,but he will discuss with the applicants and planner on an appropriate timeline for limited use. On the motion by Hartwell Blake and seconded by Herman Texeira to defer the matter to the October 8,2013 meeting to allow the Director, Planner, and applicants to fine-tune the recommendations,the motion carried by unanimous voice vote. 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 Map Key 4-5-004: 018, and containing a total area of 4.11 acres—All Saints Episcopal Church. [Director's Report received 8/13/13.1 Mr. Cua read a summary of the application into the record. (On file) Laurel Loo,representing the applicant, was present along with David Murray, Warden at All-Saints Episcopal Church. Page 122 Ms. Loo thanked the Commission for the opportunity to come before them, and stated that she thinks this a wonderful opportunity for tourists, residents, and vendors to experiment with the idea of a farmer's market at All-Saints Church. There is ample parking, more than required by the CZO (Comprehensive Zoning Ordinance), and is an opportunity for small businesses to get their foot in the door and to offer a variety of retail opportunities in that area. Mr. Kimura asked if this will take place at the same time as the Kapa`a First Saturday Art Walk to which Mr. Murray replied yes. Mr. Kimura stated he thinks it is a great idea as that event is becoming increasingly more popular, and is a great way to support small businesses. Mr. Blake asked if they have seen the testimony from Mike Ching to which Ms. Loo replied that they had, and that both Mr. Ching and Mr. Imparato expressed concerns about parking and traffic in Kapa`a; however, there is more parking than is required by the CZO, and there are two driveways that will be utilized. Traffic will be present there due to Art Night anyway, and this venue will try to veer some of that traffic away from the core of Kapa`a Town. Mr. Blake stated his concerns were regarding Mr. Ching's comment about farmer's markets, and how it seems to be diverging into a craft fair instead. There are farmer's market type outlets in Kapa`a Town currently, and in almost every community offering locally grown produce as well as arts and craft gift items, which aren't farmed; farmer's markets should be limited to produce. He understands Mr. Ching's concern with regard to the competitive advantage such an enterprise would have over a mom and pop store,unless they were to have a booth themselves. Mr. Murray stated that they could always apply for a booth,noting that there are 35 booths that are set up; four are set aside for non-profits to interact with the community, or to fundraise. They wanted a market that encouraged small businesses and small entrepreneurs who did not have the opportunity or ability to obtain a bricks and mortar store, and to encourage locally made products. They did run a market in November that had four farmers; the rest were diverse vendors. Mr. Blake asked for clarification on whether it was a farmer's market or a craft fair to which Mr. Murray replied neither; that it is more a combination of both. Mr. Blake asked if it is similar to the one held at the entrance to Kapa`a Town, across from Otsuka's. It was noted by several Commissioners that particular venue is a products fair. Mr. Kimura explained for clarification the Kapa`a First Saturday event, how it operates and its purpose; all Saint's Church is trying to tag onto that. It's notjust a farmer's market, it's also a way to promote the businesses in Kapa`a Town by having vendors set up booths fronting those stores. Ms. Mendonca commented that the popularity of the First Saturday event seems to be a great way to promote businesses in Kapa`a Town, which has lost its glamour over the years. Page 123 Now that this event is generating such crowds and bringing business back to the area, she questioned why they would want to take it away and set it up on the other side of town. Mr. Kimura stated that his understanding is that All Saints is just trying to provide more space for people to set up booths. Mr. Texeira commented that as a lifelong resident of the area,he thinks it is a great idea, and feels it is only fair that they be allowed to do this since the North end of Kapa`a Town has a craft fair, and the Central part of town has the Art Walk. He reiterated that he feels it is a great thing, and wishes they would do it more often, especially since the farmer's market held on Wednesdays in that area is extremely busy, and is not enough. Mr. Blake stated he likes the idea of combining it with the First Saturday event, but doesn't think he would favor that size operation occurring every week to which Mr. Texeira asked how, then, could they approve the north end craft fair which operates every day? He does not understand how they can permit that, yet not permit this;it's unfair. Mr. Blake stated he is unaware of what the conditions are for that particular approval, so he cannot address it. Ms. Mendonca asked for clarification on the road and how people can drive in and out without stopping traffic to which Mr. Murray explained that they have two driveways, one at the North end of the property, the other at the South end. Ms. Anderson asked how the proceeds will be collected by the church, and whether there will be a charge for each vendor. She also noted that it brings up some issues with the tax exempt status of the church, and if an on-going market has the feeling of commercial enterprise, it may bring up issues of concern. Ms. Loo replied the church anticipates receiving approximately$900 per month in fees; it is not claiming its religious exemption, and will be paying all appropriate taxes as this is not a religious endeavor. Ms. Anderson commented that they have received written testimony against the permit, but that both referenced that this would be a weekly event; for clarification, this will be a once a month event being held every first Saturday. Mr. Cua read the staff recommendations into the record. (On file) Ms. Mendonca asked what time the event would be taking place to which Mr. Cua stated it is just represented as the first Saturday of the month. Mr. Murray explained that the Saturday Art Walk is in the evening, and the Saturday market they are requesting will be from 9:00 a.m.— 1:00 or 3:00, depending upon how successful it is. Page 1 24 Ms. Mendonca stated that being the case, it does not conflict with the Saturday Art Walk, and asked if the hours of operation will be stated in the recommendations to which Mr. Cua stated Condition 2 could be amended to read as such; currently, it just specifies the first Saturday of each month,which was represented in the application. Mr. Katayama stated that he thinks specifying one Saturday a month is sufficient, and the applicant can determine their hours of operation. On the motion by Jan Kimura and seconded by Amy Mendonca to approve the Class IV Zoning Permit and Use Permit as recommended,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 presented a power point slideshow on the TVR Certificate Renewal and Enforcement efforts. (On file) Mr. Blake asked under tax filings,what kinds of things are allowed to be redacted. Mr. Dahilig stated anything that would be considered sensitive information such as SSN, addresses, and even certain income amounts; tax filings needs to reflect some type of use prior to March 7, 2008. If the tax filings are redacted to the point they do not reflect establishment of the use, it is of no help. Mr. Blake stated under Renewal Parameters it states that the Department does not have the authority to abstain from processing renewals with missing documents because prior Director's determinations have been issued. If there are missing documents, does the certificate still get processed? Mr. Dahilig explained that the missing document question was posed by Council Member Hooser who asked is a missing or incomplete file cause for a revocation or withholding of a certificate renewal. They first needed to determine whether there was enough cause to deny renewal, and posed those questions to the attorney's office. It was determined that if a file was missing documents, that cannot be used as a reason for non-renewal. Mr. Blake asked if an applicant files on time, and the application is incomplete,they can just keep operating to which Mr. Dahilig replied yes. Mr. Blake stated that it didn't make sense to him, and questioned why they even have these requirements if that is the case. Page 1 25 Mr. Katayama stated that there are two issues the Commission needs to deal with, the first being the 60 or so cases that will be coming back for disposal, the other being the on-going renewal program. He feels the deficiency portion of historical records can be addressed by requiring documentation that demonstrates current use during the renewal process; how they want to do that needs to be discussed. Going back to fortify or complete old files in which certificates have already been granted is something they cannot do. Mr. Dahilig explained that according to the determinations made by the former Planning Director there was sufficient evidence for non-conforming use that are still valid per the County Attorney's office. This particular issue is whether you can prohibit renewal going forward based on an incomplete file. Under Ordinance 904, there are prescribed elements by County Council that set forth what is required in the file in order to renew, which are TAT certificates and the renewal fee. They will need to look at how to better identify continuing use on the property, and potentially propose something to the Commission through Administrative Rules to further clarify and get more detailed information on confirming that non-conforming use has been maintained without abandonment. For clarification, Mr. Blake stated, hypothetically, if he was approved in the past, and now is applying for a renewal,if he doesn't have the essential documents,he can still continue to operate; that doesn't make sense to him. Mr. Dahing stated that the renewal requirements are different from the establishment requirements. Mr. Blake asked why they are giving breaks to those who have submitted incomplete applications to which Mr. Dahilig explained that these documents were not requested when the initial application was submitted, which is the reason deficiencies are seen in certain elements. Mr. Katayama asked to clarify that ultimately it was at the discretion of the Planning Director whether or not to approve;therefore, it wasn't saying here are the documents required for renewal, but rather here are the documents you SHOULD have, but it's up to the Planning Director to determine non-conforming use. Mr. Blake questioned the former Director's criteria for making that determination. Mr. Dahilig stated that all he has to look at from certificates that were granted between 2008 and 2009 is what is in the files, which were signed off by an authorized official, and the determination was made then that there was enough sufficient information to deem a non- conforming use appropriate for the property. He reiterated that the code requires only certain documentation for renewal. The missing documentation issues are related to the establishment of the permits only. If someone comes in with the proper renewal documentation then it gets renewed; if they don't, the renewal is denied. Mr. Katayama asked to clarify that they are not limited to what is covered in Statute to which Mr. Dahilig suggested the question be directed to the attorney's office as to the scope. Page 126 Mr. Katayama stated that as those two documents do not clearly establish use,he feels they could require additional documentation. Ms. Mendonca asked how often they have to renew to which Mr. Dahilig replied once every year. Ms. Mendonca stated she agreed with Hartwell,noting that here they have had major public inquiry on this TVR issue, and much like renewing your driver's license, if they don't have the required documentation by the one year renewal deadline, shouldn't the Commission have the right to not approve. Using the driver's license analogy, Mr. Dahilig explained that if an illegal immigrant comes in and presents a fake social security card, and fake birth certificate, and then is allowed to take the driver's test which they ultimately pass,they are issued their first license. Once that is issued,they are entitled to subsequent renewals. Should someone find out that they defrauded the government by using false documents,those are circumstances where the government can step in and revoke the license on the basis of fraud. The difference with that versus the current TVR renewal issue, according to the advice from the Attorney's Office, is unless they can prove there is an element of fraud—or intent to deceive the government—it is very difficult to overturn a Director determination. The question then is: are missing documents equal to fraud. The direction the Department is getting is no,because the information was not asked for in the first place. Ms. Mendonca stated that as far as renewals, the applicants are given enough time to get the documents and work toward consistency thereafter. Mr. Blake's concern is that the applicants don't have their renewals but continue to operate without it. Mr. Dahilig stated no, if they do not meet the renewal parameters, they cannot operate. He noted that they have had executive sessions with the County Attorney in the past to provide the Commission with information from a legal standpoint. He suggested that it is something they could schedule for a future meeting if the Commission desires. Mr. Katayama stated that they need to establish Administrative Rules on renewals to determine what documentation is required to establish continued use. They will also need to establish parameters on how this body wants to treat the findings of the 60 or so appeals that will be coming back to the Commission. He suggests the Director make a proposal on how he would like to categorize and treat the different applications that are coming back,which they will rule on and provide some latitude in negotiating a settlement. Mr. Dahilig stated that they will begin a Chapter 91 process to develop rules, and based on the discussion at this meeting, a draft set of rules can be provided at the next meeting. Mr. Katayama asked when it is anticipated the first contested case will be coming back to the Commission to which Mr. Dahilig replied they could potentially see some of those resolved as early as the October 8 meeting. Page 127 Mr. Blake asked if the report will address the concerns raised by Council to which Mr. Dahilig replied yes, and those of this body as well. ANNOUNCEMENTS The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the Ldm'e Civic Center,Mo`ikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihu`e,Kauai,Hawai'i 96766 on Tuesday, October 8,2013. ADJOURNMENT The meeting adjourned at 12:35 p.m. Respectfully submitted by: Cherisse Zaima Commission Support Clerk O Approved as circulated. O Approved with amendments. See minutes of meeting. Page 28