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HomeMy WebLinkAboutpc minutes 4-30-13 KAUAI PLANNING COMMISSION REGULAR MELTING April 30, 2013 The regular meeting of the Planning Commission of the County of Kauai was palled to order by Chair Katayama at 9:01 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A-213. The following Commissioners were present: Mr. Wayne Katayama Ms. Angela Anderson Mr. Hartwell Blake Mr. John Isobe Ms. Amy Mendonca Mr. Herman Texeira The following Commissioners were excused: Mr. Jan Kimura Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Katayama called the meeting to order at 9:01 a.m. Planning Director Michael Dahilig welcomed newly appointed Commissioner Angela Anderson. ROLL CALL Planning Director Michael Dahilig noted that there were six Commissioners present. APPROVAL OF AGENDA Mr. Dahilig suggested taking Item K and Item I.1. as the first items for business after Item E. On the motion by Herman Texeira and seconded by Amy Mendonca to approve the agenda as amended, the motion carried by unanimous voice vote. 1 V:A2013 Master FilesVCommissionsVPlwiningA Minutes\2013-4-30 Planning Commission Minutes JUN. 1 n_ / 2013 MINUTES of the meeting(s) of the Planning Commission (NONE) There were no minutes for approval. COMMITTEE REPORTS Subdivision Subdivision Committee Vice Chair Hartwell Blake reported that the following tentative subdivision action was approved, 2-0: S-2013-13 = James E. Nishida Jr., et.al., 2-lot Subdivision, TMK: 4-2-022:069, 070 The following final subdivision action was approved, 2-0: S-2009-08=KMN, LLC., 10-lot Subdivision, TMK: 4-1-006:107 The following tentative subdivision extension request was approved, 2-0: S-2011-21 =Kukuiula Development Company, 40-lot Subdivision, TMK: 2-6-016:022, 023, and 024. On the motion by Herman Texeira and seconded by Amy Mendonea to accept the subdivision report, the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS Special Management Area Permit SMA (U)-2005-1; Project Development Use Permit (PD) U-2005-4: Use Permit U-2005-6: Variance Permit V-2005-1 and Class IV Zoning Permit ermit Z-IV-2005-5. Proposed Hearings Officer's Findings of Fact, Conclusions of Law and Decision and Order dated April 12, 2013. Petitioner County of Kauai Planning Department's Motion to Adopt Hearings Officer's Findings of Fact Conclusions of Law, and Decision and Order dated April 23 2013 Letter from Coco Palms Ventures. LLC dated April 19, 2013 requesting the Commission extend the Hearings Officer's stay from aperiod of 30 days to one (1) year. PR IT Coco Palms, LLC's (wholly owned subsidiary of The Prudential Insurance Company of America)Petition to Intervene dated April 213 2013. 2 V:\2013 Master Files\Commissions\Plaiming\Minutes\2013-4-30 Plamiing Conunission Minutes Petitioner County of Kauai Planning Department's April 24, 2013 Memorandum in Opposition to PR 11 Coco Palms, LLC's Petition to Intervene dated April 23, 2013. Transcript of Contested Case Hearing and Memorialized Order Deng Prudential's Request for a Continuance and Intervention. On the motion by Herman Texeira and seconded by Hartwell Blake to receive Items listed under I.I.a.,b., c., d., e. and f., and the letter dated April 23 to Mauna Kea Trask, Esquire, from Richard Nakamura, the motion carried by unanimous voice vote. Deputy County Attorney Mauna Kea Trask stated that he was present on behalf of the petitioner, the County of Kauai Planning Department, and requested that three calls be made to the Developer, Coco Palms Ventures, LLC. There was no representative from Coco Palms, LLC present in the audience and three calls were made with no response. Chair Katayama stated that being that the developer did not appear in the contested case hearing held on March 28, 2013, and no exceptions to the Hearings Officer's recommendations have been filed, he called upon the petitioner, the Planning Department, on their motion to adopt the Hearings Officer's reconunendations. Deputy County Attorney Trask stated that their petition is based upon two issues; it is beyond January 25, 2013 and the project has not been completed. On or about January 26, 2005, the permits were issued to the developer, and they were granted a three year extension on or about April 20, 2009 to an explicit date of January 25, 2013. He noted that Coco Palms LLC was not present at the meeting,they were not present at the evidentiary portion of the contested case hearing, and they were not present at the original hearing for the Director's petition to issue an order to show cause on or about February 12, 2013, so it was an uncontested position. He noted the proposed findings of fact, conclusions of law and decision and order from the Hearings Officer which grants the petition in entirety. There were no representatives present from Coco Palms Ventures LLC. Doug Chin, the attorney for Prudential Insurance Company of America, stated that Prudential is not the applicant; they are an insurance company that makes investments. They have $29 million that has been secured by the property that is included in the Coco Palms sites. They have not received any payment on it and the developer has repeatedly said that they had a buyer. They don't represent the applicant, they don't speak for him, and they don't advocate for him. If they had no stake, they would agree that the permits should be revoked. The Commission kindly extended the permits in 2009. The reason they are asking to intervene in the case is that they have a stake in the amount of$29 million; they have a financial interest that is unique and different from the public's interest. The Commission can allow them to intervene for a good cause; there is a good opportunity to bring in someone who has the financial backing and interest in the property to be able to deal with it. Coco Palms Ventures and Prudential are in discussions on how Prudential can take the lead in being able to deal with the property. If 3 V:A2013 Master Pilos ACommissions\Ptaaning\MinutesA 2013-4-30 Planning Commission Minutes allowed to intervene they can engage in negotiations. Most of the time, lenders don't get involved,but they are at a critical stage where they could be involved and want to be. They are requesting that the Commission exercise the discretion it has and think strategically in terms of what is best for the island and the County of Kauai. Commissioner Texeira questioned the relevance of the ongoing discussions at this point when it has been going on for a while. He questioned what would change. Mr. Chin stated that the developer kept saying that he had a buyer,but they are seeing that it is not really what is taking place. They are asking for another 30 days for the Commission to defer the decisions,perhaps defer the petition to intervene, or allow them to intervene and they can proceed from there. There is a menu of options before the Commission and he encouraged the Commission to think strategically. Commissioner Mendonca asked for clarification that they did not receive payment since 2010. She questioned why action was not taken at that time. Mr. Chin stated people don't normally immediately foreclose after someone goes into default. It is harder to foreclose when there are statements made that they have something they can work out. Prudential was brought in on March 27. In the last 30 days there has been intensive involvement and a good momentum that would continue if they were allowed to intervene. Commissioner Blake questioned how much more leverage they think is needed. Mr. Chin stated that the leverage they need is until the May 28 meeting. Commissioner Isobe asked for clarification that they are asking the Commission to defer the decision until the May 28 and questioned why May 28 is critical. Mr. Chin stated that they think it is the last possible patience the Commission will extend after all the other kindness they have extended. They would prefer more time, but they understand the pressures and the community's feelings. A shorter time period will keep the momentum going with Prudential. Commissioner Blake stated that they have been experiencing a complete lack of momentum over the years. Along with the lack of momentum comes the concomitant request for more time. In the meantime, the project continues to deteriorate. The Commission appreciates the emotional underpinnings of these requests for more time where people are hoping for something to happen. It sounds good,but come May 14, they may have another request for an extension. Nothing prevents them from reapplying. The permits are so old that they have to be updated. He understood where Prudential is coming from, but he was not sure it was the best solution to the overall problem. 4 V:\2013 Master Piles\Commissions\Plmuiing\Minutes\2013-4-30 Planning Commission Minutes Mr. Chin stated that they are not the developer. They are someone with financial backing that is trying to resolve it. If the permits are revoked,the property has no entitlements. The difference is without the permits, it is harder to market the property. Commissioner Blake questioned the entitlements. He noted the cost and the conditions that have to be met. It would be nice to have the permits because it sounds good, but it really doesn't mean anything. Any developer would know that they have their work cut out for them. Mr. Chin stated that there is no question that any developer would have to come before the Commission if not the Council to approve their vision. It is the firm's position that a property with entitlements is very different from a property at square one. Commissioner Texeira stated that he understands that they are trying to get the most for their investment. The Commission's situation is different. Mr. Chin agreed that the Commission has a different agenda. His suggestion was that before they make their decision, that they consider whether there is something useful in the leverage versus having it revoked. Commissioner Blake stated that no matter what happens the $29 million still has to be settled by whoever takes over the property. Mr. Chin stated that his guess is that Prudential will still be the one coming to the table at some point. Chair Katayama requested a response from the petitioner. Deputy County Attorney Trask stated that the issue has already been visited. At the contested case hearing on February 12, the matter was delegated to a Hearings Officer who made his decision. Mr. Nakamura heard all of the argnuments from Mr. Chin and pursuant to the Chapter 4 of the Rules and Regulations, he found in his discretion to deny the request. They are not talking about the development; they are talking about mortgage back securities that go back to 2006. This project was originally applied for by non-developers. CPV was never a developer; they are a venture capitalist firm. They as much entitlements on the property as they could; 200 multi family dwelling condo units, 104 hotel units,retail shops, restaurants, property offices, assembly rooms, off street parking, driveway roadway and associated improvements to make it as valuable as possible so they could turn it over to someone who knew how to develop a hotel plus project. It never materialized; the market exploded. Prudential bought $28.9 and is trying to preserve their investment. They are an insurance, mortgage, company. Nothing has changed. CPV doesn't want the permits and Prudential is trying to stay in. They will not stop if they get to intervene. They are going to ask to reopen the evidentiary portion and make their record. If the Commission allows the intervention, they allow the extension. They are going to need to foreclose and they will ask for more time to allow the foreclosure to go through. The Director would say let it foreclose and let someone pick it up who can and wants to develop it. Essentially it is after January 25 and it is not developed. It has been denied correctly, the admission renders the proceedings inefficient and unmanageable, it will not aid in the 5 V:A2013 Master FilesV Commissions\Planning\Minutes\2013-4-30 Planning Commission Minutes development of a full record, and will overly broaden the issues. This is the second time for intervention. The first time was oral, which is not allowed by the rules. The proceeding is already unmanageable. The evidentiary portion is done. If they are intervened today and are allowed in,they haven't filed an opposition to the findings. They would ask to reopen the evidentiary or allow additional time to file their objections and it will have to be rolled back again. Nobody is a developer and the buyer is unknown. Those are the pertinent issues. He felt the intervention should be denied. They can go to Circuit Court tomorrow and start a foreclosure. Mr. Chin stated that it goes back to the incentive for the Commission to keep the proceeding alive. He agreed that the Commission has a different intention and motivation. One of the questions he would consider is whether or not the additional time would stop any of the plans or intentions that the rest of the public has. Granting an additional two or four weeks would not stop any plans,but there is an opportunity that could happen if the leverage remains on Prudential that would be lost if the Commission revokes the permits. The Commission received testimony from Bill Chase. Mr. Chase stated that he understands the Legislature earmarked$289,000 to support a public community design conversation. There can be substantive movement in that area. He felt it is relevant. The Commission received testimony from Steve Backenoff. Mr. Baekenoff stated that the Coco Palms area is historical and loved by everyone. It has been a long time since the hurricane and it seems like it is definitely time to make movement on creating something that is not an eye sore. Deputy County Attorney Jung stated that they are at the post hearing procedures for the contested case handled by the Hearings Officer. Under Rule 1-6-19, the Commission may reverse, modify or adopt the recommendation of the Hearings Officer. Also the Commission may reopen the document to take further evidence if they believe that they need more evidence, or they could look at deferring the matter. On the motion by Herman Texeira and seconded by Amy Mendonca to adopt the Hearings Officer's report and recommendations and revoke the subject permit, the motion carried by the following roll call vote: 6 ayes, 0 nos. Deputy County Attorney Jung stated that the Hearings Officer's report will be ratified through this action and a written record will be submitted. Deputy County Attorney Trask requested a point of order on the Commission's decision on Mr. Chin's motion to intervene. Deputy County Attorney Jung stated that there was an order submitted by Mr.Nakamura that was a part of the Hearings Officer's recommendation on the motion to intervene. It did not 6 V:A2013 Master FilesV Commissions\PlaimingVNbnutes\2013-4-30 Planning Commission Minutes seem that anyone wanted to take action on the motion to intervene. If the Hearings Officer's report is adopted, it is incorporated by reference into the report on the first motion to intervene. Deputy County Attorney Trask stated that he wanted to be clear that the adoption included the Hearings Officer's order denying the previous petition. Chair Katayama clarified that was the understanding of the body. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (NONE) New Agency Hearing Modification of Class TV Zoning Permit Z-IV-2008-6 Use Permit U-2008-4 and Special Management Area Use Permit SMA (U) 2008-5, to construct a manager's house and maintenance building on a parcel situated along the mauka side of Kahili Quarry Road in Kilauea, approx. 1 mile east of the Kilauea Road/Kahili Quarry Road intersection further identified as Tax Map Key 5-2-012:035, and containing a total area of approx. 161.88 acres= Charles M Somers/West Sunset 32 Phase I LLC Supplemental No. 1 Director's Report pertaining to this matter. Request for Standing (Undated Received 4/1/13) from Yoshi L'Hote President Kilauea Neighborhood Association applying for intervener status. Request to reassert intervener status and a contested case hearing(3/25/13) from Elizabeth Anne Freeman. Memorandum from Michael A. Dahilig, Director of Planning to Honorable Commissioners, Kauai Planning Commnssion re Intervention Requests and Recommendations for Proceedings. The Commission received testimony from Bill Chase. Mr. Chase stated that Jonathan Chun, one of Mr. Somers' attorneys, made a statement in the Garden Island questioning why there is an intervention now when nobody opposed it before. In light of the 2008 contested case hearing and the resulting decisions and orders, a more realistic question would be why the application is being taken seriously in the first place. The Community was clear. The President and the U.S. Fish and Wildlife Service were clear. Values in the Kilauea River Valley are of enduring scale in nature that normal development frmeframes and rules do not apply; it is not appropriate for development. This is a legacy property eminently deserving of its designation of a special treatment area and appropriate for bringing into the public domain for use and enjoyment for everyone forever. There was no perceived conflict between the biological, recreational, and scenic values. Access to the falls was a featured part of 7 V:A2013 Master FilesVCommissions\Plamiing\Minutes\2013-4-30 Plaiming Commission Minutes the fish and wildlife plan. The proposed scale of development was referred to as foreign and obscene so a scaled back version was approved and is nearing completion. During the last five years, nothing of an enduring nature has changed. It is still a legacy property, but it has a really big house on it now. He questioned how what was true five years ago is now up for revision as is no longer relevant. He questioned if a rebranding of additional buildings makes them acceptable. He felt lines need to be drawn and consistency fought for and maintained. Under discussion are the rights of private land owners to enjoy their property and use as they see fit. This is not about malting Mr. Somers wrong. He has legitimate management,privacy and security concerns. As far as he has been able to gather, nobody is looking for unfettered access to the falls or industrial drive-by tourism. There are models on this island for respectful and managed enjoyment of private places where large private landowners allow access to special places, and cooperation and mutual benefit accrue in both directions. They are requesting the Commission's consistency, strategic thinking, and support. The Commission received testimony from Yoshi L'hote,President of the Kilauea Neighborhood Association. Mr. L'hote stated that on behalf of the Kilauea Neighborhood Association, he is requesting to intervene on the matter of modification of permits that allow development of Charles Somers' parcel at the Kilauea River basin. The KNA is a 501(c)4 founded in 1984 to protect and enhance the rural and historic character of the Kilauea region; Moloaa to Wanini by monitoring and participating in land use decisions affecting the community and supporting activities that promote the health, well-being and connectiveness of the neighbors and families. From 2002 the KNA participated in planning towards an anticipated addition of a 161 acre parcel along with other adjacent parcels to the Kilauea Point National Wildlife Refuge. Unfortunately, Mr. Somers purchased the parcel in July 2004. In 2007 he applied for the SMA use permits. At the public hearing the KNA hied to intervene but were late in applying. This time the lawyers chose to present their development the day after the deadline for the intervention period which he felt was a deceiving practice. They joined in intervention with Somers' neighbor Elizabeth Freeman in 2007 and were represented by Attorney Peter Morirnoto. They presented ten expert witnesses over the three meeting course of intervention. Out of the process the Commission decided on 18 orders and recommendations, one of which was to allow only the single family dwelling, thereby denying the manager's house and barn due to the obscene nature of the dwelling which covers a 32,000 square foot print. The applicant should have appealed if they did not agree with the conditions of the permit. Because he did not, he accepted the terms of the permit. To allow the applicant to file for a modification that has already been denied as a condition of the permit can only undermine the integrity of the process. They ask for intervener status again. Mr. Dahilig clarified that there is a memorandum on the matter concerning interventions by the Kilauea Neighborhood Association and Ms. Freeman. He requested those matters be taken up after the agency hearings. The Commission received testimony from Hope Kallai. 8 V:A2013 Master FilesV Commissions\PlamlingVMinutesA2013-430 Planning Cmnmission MiaLitus Ms. Kallai requested that the Commission reject the permit to expand the building envelope; it is big enough already. She requested ensuring the conditions of the original SMA (U)2008-5, Use Permit(U)2008-4, and Z-17V-2008-6 are satisfied, especially Crush Coral on Kahili Quarry Road. She would really like to address implementation of conditions detailing mauka/makai public access in the Kilauea River corridor including Kilauea Falls. She requested inclusion of the Kilauea community in the annual status reviews of the project. Any expansion requires the preparation of an environmental impact assessment. They needed one originally and any expansion triggers the need for a cumulative impact assessment. She requested the requirement of implementation of visual buffers to the view plane intrusion. She stated that security guards stopped her grandson from fishing in a boat on the river. The community did not know they were going to lose recreational access to the Kilauea River corridor. It is the only place their children can fish in town. They are asking for implementation of additional conditions to the original SMA permit that specifies recreational access to the Kilauea River corridor. She did not believe it is legal for security guards to stop children from fishing. It seriously impacts the health, safety, peace,morals, comfort and general welfare of the community. The 2013 application states that there is a pedestrian trail and the development will not affect the ability of the public to use Kahili Quarry Road. She noted that it hasn't been maintained. It also states that the development will not have any negative impact on the public's right to use the trail or to exercise public rights of the navigable portions of Kilauea Stream. She noted that it is impacting their ability to use the navigable portions of the stream. Commissioner Blake asked for clarification that Ms. Kallai's grandchildren were kicked off the river. Ms. Kallai stated that they were kicked off the bank of the river. There is no definition of the stream. There is a log and a hole where the bass are that they have always fished. Commissioner Blake asked for clarification that access to the river and the falls have been disallowed. Ms. Kallai noted that the original permit states that access to the falls on the trail is up to the applicant's discretion. She stated that the discretion has been security guards in camouflage gear with motion detector caneras. They did not know they were going to lose access to the river with security stopping them from going to the falls. Commissioner Blake asked for clarification that nobody is allowed to the falls. Ms. Kallai stated people can film movies with permission,but they are not allowed to fish. They are requesting that the Commission clarifies access in the permit before anything else is considered. The original conditions were to crush coral, Kahili Quarry Road. Deputy County Attorney Trask advised the Commission that they are not yet in the evidentiary portion of the proceedings. Although they may have questions, they are at the threshold of whether to refer to a Hearings Officer. In order to preserve the record, he cautioned that the evidence should be presented at the appropriate time. The public will have another opportunity. 9 V:A2013 Master Files VCOmmissions\PiatmiugWinmtes\2013-4-30 Planting Commission Minutes The Commission received testimony from Tim Kallai. Mr. Kallai stated that the impact seems to be crucial at this point. Initially the applicant presented a conception to the Commission,but now that they have seen the progression of the project and what it is doing to the majority of the community. It is impacting them in a deleterious and devastating way. Now that it has been in the construction process for four or five years,they are feeling the effects of how it is impacting the community of Kilauea, culturally, recreationally, and to a sense morally. They feel that they are losing their identity in Kilauea because they have been restricted. They have to gain permission, if they are fortunate enough, to participate in the view planes or scenic elements that make Kauai what it is and why they decided to live here. He did not know how the applicant or representatives can state that there is minimal to no impact to the community when he is hearing the opposite. There is a great impact to the community and unfortunately it is not for the highest or the best. In consideration, he asked the Commission to take into effect how their decision will continue to impact the Kilauea community. The Commission received testimony from Felicia Cowden. Ms. Cowden stated that she lives close to this property and has watched it go through the process. She asked for this permit to be rejected. In the status report, the applicant basically says that they understand the application is to the main house. They continue to acknowledge the limitation concerning the scope of the project. Then they want to build the house and the barn that they committed to not building. She was at the initial Commission meeting when the applicant made a commitment that they wouldn't build the house and the barn and would keep access open to the river. They watched Kauapea Beach Road and Kauapea Beach become a rich person's playground. She spoke with the security guard and the land owner who promised that they would keep access open. Now they are not allowed into the area and they told her that it wasn't really a promise and it was contingent on liability insurance. She stated that they work with the land management people against the community. This area is like Kauapea; they will landscape the corridor like the adjacent neighbors that have put up fences and barbed wire. They are wearing the community down. She requested that their playground stays that way and asked that the road access will not be shut down. This permit request demonstrates that they are not trustable by their own word and their own status report. The Commission received testimony from Freedman 'Bender. Mr. Bender stated that the applicant has asked before and received a no. An underlying and obvious concern is the neglect of the historical aspects of the island. There should be a moratorium on archaeological sites. They are worth more than the money that others can pay. There has to be more of a concern with the cultural aspects that can be a commodity in the future. There are things like unforeseen negative consequences from the sale of these properties. 250 years ago this was a stone aged culture and is archaeologically interesting. It should be profiled for everybody's benefit. He thinks that the Commission has been in neglect for historical sites. 10 V:A2013 Master FilesV Commissions APlanning\Minutes\2013-4-30 Planning Conuuission MinLUS The Commissioner received testimony from Steve Backenoff. Mr. Backenoff stated that he bought his home in Kilauea in 1994. He can't see the river but he can hear it from his house. It was hard for him to understand that a river can be private property, but access was allowed. When the new owner came in, he was stopped by security 30 seconds after parking his kayak. Over the last couple of years, many people have had the same experience. Many Hawaiians have told him that they spent half a lifetime fishing and playing in that river. He is on the State Na Ala Hele and believes there should be access. Crater Hill is the main feature of Kilauea between two river valleys that was part of the National Wildlife refuge. It is considered the showcase of United States wildlife refuges. Mr. Somers built a little bit above the flood plain between a National Wildlife Refuge and the river. If the National Government thinks it is an environmental piece to protect, and there is a river, he believes the house should never have been there. Since it is unlikely that they will dismantle the house, he thinks there is an opportunity for the County to make a deal. The Commission received testimony from Ken Carlson. Mr. Carlson stated that he agreed with just about everything that was said in the testimonies. The whole picture has been refrained by the attorneys representing the application. Basically the application states that in the last four or five years,they have done everything right and should be able to amend their original building to add something new. He felt the point that hasn't been made clear enough is that it is the same barn and manager's house that was requested in the original application. The order in the original hearing was unambiguous. The house was allowed,it was scaled down. The same two things were applied and were denied. The Commission received testimony from Beryl Blaich. Ms. Blaich stated that she resides in Kilauea and humbly asked that the Commission deny the permits for the house and the barn and urged the Commission to require limited, managed, non-commercial, public access to the river on a small portion of the Somers' property and to the falls. The Planning Commission has the authority, the opportunity, and the reason. The open zone exists because it is publically significant for recreational purposes and they can provide accessible public access. The Planning Commission may require dedication of adequate public access ways, not less than 10 feet, to publically owned land and waters. She noted that the river is publically owned water. Conditions for the permit say that the Commission reserves the authority to impose additional conditions should unforeseen circumstance occur. From the public's thoughts, coming back for this is totally unforeseen circumstances. The purpose of the SMA is to protect and enhance public access to coastal and recreational areas. Public testimony has been given that something the public used to do can no longer occur. As far as she has heard, there have been no negative impacts from the public. This is an SMA special resource treatment area because it is of particular significance and value to the public because of the land forms, and biology, but also because of its recreational and aesthetic importance. She questioned why they place designations on land if it is impossible for the public to utilize them and experience them. They are never going to appreciate places if they cannot experience there respectfully. Something with public designation is exclusively used. She wants the public access to be established but it has to be done in a way that respects the land owner's privacy. 11 V:\2013 Master FilesV CouvnissionsTlamiing\Minutes\2013-4-30 Planning Commission Minutes There are ways that can be done by time limitations, guided tours,registration process. They can now go to the stone dam in Kilauea because generous land owners have opened up trail systems that allow them to walk and bike by registration. She referenced an organization on the Big Island called PATH whose mission is to establish access with kuleana. We can create those kinds of accesses but not unless the Commission requires public access on this parcel. The Commission received testimony from Catherine Castello. Ms. Castello stated that she has been a member of the community of Kilauea for over 10 years and her husband is a third generation resident of Kauai. She is a member of Halau Palaihiwa O Kaipuwai that perpetuates the Hawaiian traditions and culture. She volunteered at many events on the North Shore and she has never met Mr. Somers or his representatives participating or supporting any community events. Kahili Beach is the local beach for residents of Kilauea. The ahupuaa land division principle practice by native Hawaiians divides land in the pie slice shape from the mountains to the ocean. When Mr. Somers and his machines started their transformation of a sacred watershed,the separation began. Rock walls were constructed, the land was graded, huge land moving machines dominated the once country road. The structure is fit to house 100 people. He has carved and altered a place that has been sculpted by nature just to suit his desire. He does not need any more permits. He should be cited for lack of philanthropy. He has not carried through with his promise of allowing local residents access to the waterfall. If a tsunami were to affect Kahili Beach,the area would be polluted by Mr. Somers' structures. She implored the Commission to reject his permit. The Commission received testimony from Elli Ward. Ms. Ward requested that the Commission deny the application. Members of the community have shown their commitment to protect the site from further development, to preserve its natural beauty,to ensure that its scenic, historical and recreational value will remain intact for the enjoyment of this generation and the next to come. She believed we all have an obligation to preserve all the areas that make us thankful to live Kauai. There was a time when people of immense wealth built castles, monuments, and statues to secure their power, value and legacy. Some have sponsored charities, educational, medical, and scientific pursuits. Unfortunately for Kauai,the natural beauty entices many who come to exploit the beauty,the loopholes in the laws, obtain as many entitlements as possible, crate conflicts and upheavals in the community, only to turn around and sell for great profit to depart for another attractive location. Mr. Somers did establish a conservation easement that is certainly noteworthy, but she noted that developments are permanent and the views have been changed for everyone permanently. Now he wants more. She questioned why they would change now when he was denied five years ago. Many are aware of the abuses on ag land by TVR owners chronicled by a brave local journalist on her blog. The patter is the same; explore loopholes, secure the right connection and legal representation. Some have even submitted false documents. If at first you don't succeed, come back again and again. Then, when the market is right, sell for immense profit. Kauai is eroding from within from the practice of allowing chunks to be taken away again and again. The Kilauea community depends on the Commission to preserve a place that is loved for itself, not for the many ways it can be transformed. Damage has already been done by the 12 V A2013 Master FilesVCoixunissionsVPlanning\Minutes\2013-4-30 Planning Commission Minutes construction of a massive part time residence. She requested that the Commission not amend their original decision and to say no to the application. The Commission received testimony from Casey Rothstein. Mr. Rothstein stated that he has been a resident, property owner, and business owner on Kauai for almost 10 years. He sees two separate issues; the building of a care takers house and maintenance barn, and access to the waterfalls and rivers. He holds half a dozen certifications in property management and has been managing property for almost 20 years. From a management standpoint, the castle has been built. There is still a lot of land that goes with the castle that needs to be taken care of. He personally didn't see a problem with a small, reasonably built maintenance house and shed for the caretakers of the land so that it can be taken care of properly. On the issue of access to the waterfall, he is bewildered that everyone thinks of the river as the Kilauea River and has been going to the river for years. Apparently the river is classified as a stream which gives it private property rights. This river in places is 80 feet wide. The waterfall is 100 feet wide. He questioned how a waterfall and river that moves that much water can be classified as a stream and thus individual property. It makes no sense whatsoever. If it were reclassified as a river to at least a point above the falls, then it would be public land to the high water mark on both sides which would include the walkway that everyone has always used to go to the waterfall. The liability concerns of the land owner would go away because it would be public land. He is all for individual property rights and what you do with your property as long as you are not hurting others is your right. But how a river can be considered private property and a stream in a State where all rivers are public property is what he finds to be completely preposterous and unreasonable. It should be a river and they should all have the rights to use the river up and through the waterfall. Mr. Dahilig stated that they received a letter in opposition from Amt Uannu(sp?), an email in opposition dated April 29 from Carrie Rautmanm, an email in opposition dated April 30 from Jodie Thayer, an email in opposition dated April 30 from Koa, an email in opposition dated April 26 from Vicki Ramirez, an email in opposition dated April 26 from Shayla Ross, an email in opposition dated April 26 from Elli Ward, an email in opposition dated April 25 from David Dinner, an email and PowerPoint presentation in opposition dated April 19 from Hope Kallai and Malama Moloaa, an email in opposition dated April 25 from Teo Briseno, an email in opposition dated April 23 from John Allen, and an email in opposition dated April 29 from Paul Brooks. He noted that testimony can also be entered into the record seven days after the close of the hearing. Given the request for intervention, he read his memorandum into the record (on file). The Department has reviewed the request and does not have any objections by the two parties being admitted by the Commission as parties to the application modification. He recommended that the Commission appoint its Hearings Officer, Richard Nakamura,to conduct the contested case hearing. The Commission's authority should include but not be limited to conducting the hearing, disposing of all preheating notions, receive and record all evidence including subpoenaing any and all witnesses, and rendering recommended findings of facts, conclusions of law, and decision and order for the Commission's future action. Given the request to initiate a contested case hearing, the Department wishes to abstain from reading the Director's report into the record as part of initiating the proceeding. It would be prudent to close the agency hearing 13 V:\2013 Master Files\Commissions\Planning\Mimites\2013-4-30 Planning Commission Minutes and request that the agents for the applicant come forward to record their positions to the intervention request. The Commission received testimony from Scott Peppel. Mr. Peppel stated that he lives on the North Shore and has made 140 trips to this sacred spot. He is willing to take anyone down there to see what is no longer available to the people of the island and those visiting. The Commission received testimony from Mary D. Winters. Ms. Winters stated that she has only had two experiences with Mr. Somers and both were with tears seeing the demoralization of the residents of Kilauea; swimming in the river and being told not to go too far or they will be stopped. Her second experience is at Rock Quarry. Her friend burst into tears telling her that the trees used to be a forest and are being chopped down because they are blocking the mansion's view that aren't even on their property. There is an aggression and lack of caring for the people that brings her to tears. Her first experience is the demoralization of the people. She humbly asked for the rights to the beautiful waterfalls. On the motion by Herman Texeira and seconded by Amy Mendonca to close agency hearing, the motion carried by unanimous voice vote. Jonathan Chun on behalf of the applicant, Mr. Somers, stated that they have no opposition to the interventions request by the KNA. The intervention by Ms. Freeman was granted and he did not believe that additional orders need to be granted. They have no objection for their continued participation as intervener. Laurel Loo,representing Elizabeth Freeman, requested notation for the record that Ms. Freeman's intervention status remains unchanged. They appreciate the Director's memorandum and Mr. Somers' attorney's recognition of their status. On the motion by Angela Anderson and seconded by Herman Texeira to grant Kilauea Neighborhood Association status as intervener, the motion carried by unanimous voice vote. Mr. Dahilig requested that the Commission appoint its Hearings Officer, Richard Nakamura,to conduct the contested case hearing and the Hearings Officers' authority should include but not be limited to conducting the hearing, disposing of all preheating motions, receive and record all evidence including subpoenaing any and all witnesses, and rendering recommended findings of fact, conclusions of law, decision and order for the Commission's action. On the motion by Amy Mendonca and seconded by Angela Anderson to appoint its Hearings Officer, Richard Nakamura, to conduct the contested case hearing and the Hearings Officers' authority should include but not be limited to conducting the hearing, disposing of all prehearing motions, receive and record all evidence including subpoenaing 14 V:A2013 Master FilesV Commissions\PlauningVMiuutes\2013-4-30 Planning Connnission Minutes any and all witnesses, and rendering recommended findings of fact, conclusions of law, decision and order for the Commission's action, the motion carried by unanimous voice vote. Mr. Dahilig noted that because this matter has been referred to the Hearings Officer no further action on this item is necessary. Continued Agency Hearing (NONE) New Public Hearing Proposed Bill No. 2483 (ZA-2013-4), the amendment of provisions under Chapter 7 8 and 9 of the Kauai County Code 1987, as amended, relating to the adjustment of various permitted charges and fees levied by the Department of Planning=Kauai County Planning Department. There was no public testimony. On the motion by Herman Texeira and seconded by Angela Anderson to close the public hearing, the motion carried by unanimous voice vote. Proposed Bill No. 2464 (ZA-2013-3) for an ordinance to amend Section 8-3.4 of the Kauai County Code (1987) as amended to clarify the process increase the processing fee and extend the timeline for decision making by the Planning Commission and County Council for zoning amendment applications=Kauai County Council There was no public testimony. On the motion by Herman Texeira and seconded by Amy Mendonca to close the public hearing, the motion carried by unanimous voice vote. Amendment of Section 1-2-21 of the Rules of Practice and Procedure of the Kauai Planning Commission=Kauai Planning Commission. There was no public testimony. On the motion by Herman Texeira and seconded by Amy Mendonca to close the public hearing, the motion carried by unanimous voice vote. All public testimony pursuant to HRS 92 15 V A2013 Master FilesV Commissions VPlanning\Minutes\2013-430 Planning Commission Minutes I Memorandum (4/1/13) from Michael Dahilig, Director of Planning to the Honorable Commissioners of the Kauai Planning Commission recommending the Commission refer the following matters to the Commission's Hearings Officer. In the Matter of Petition to Appeal Decision of the Planning Director Denying Use of TVR-Non Conforming Use Certificate, Tax Map Key (4) 1-3-004:019, Walter Stocker TVNC- 1169. Mr. Dahilig noted that there was one individual signed up to testify under I.3.b., In the Matter of Petition to Appeal Decision of the Plam-ing Director Denying Use of the TVR-Non Conforming Use Certificate, Tax Map Key(4) 1-3-004:019, Walter Stocker. The Commission received testimony from Walter Stocker. Mr. Stocker stated that he received a letter to cease and desist using the TVR license for rent purposes, but he had not been using it at all. The issue was that he did not pay his annual fees for two years. He did not receive anything in the mail, otherwise he would have paid it. If the fees change or if they change the timeframe, he felt that he should be notified. He had the license for a long time,has complied with all of the requirements, and maintains the property in a nice manner. In the interim since obtaining the license, he became disabled permanently. He is not renting it out as a vacation rental,but he has been taxed at a higher rate because it is a TVR. People have called that want to rent it, but he does not have a website; only a registered name. He stated that he was not guilty of anything;he has not rented it, and has complied. He never received anything for renewal or he would have taken care of it immediately. He should be allowed to pay with a penalty. It cost him a lot to get it. His opinion was that it was an oversight. He noted that notice was sent out on Friday and the Kekaha Post Office is closed on Saturday. He got the certified letter on Monday and the meeting was on Tuesday. He noted that he never got notification that the meeting was postponed on the 23`d due to lack of quorum. Chair Katayama asked for clarification on the process and the letter. Mr. Dahilig stated that it was a cease and desist notice concerning lack of compliance with Chapter 8, specifically the TVR code, and a request to appeal the decision was filed. The Commission can take action on the Director's recommendation to refer to a Hearings Officer. All of the issues being presented are appropriate for the hearings officer should the Commission decide to refer it. Mr. Stocker stated that it kept getting delayed and sent back. He received an email because his brother passed away and he couldn't attend the funeral because he had to be at the meeting. He has tried to comply and do things right, donated time to the community, was one of the nine members of the community council appointed by the Mayor,but he became too Ill to continue. He felt he should have consideration because he didn't do anything wrong. He just didn't receive a notice to renew his license. He was told that they would send notifications in the mail for payment which is what he expected. 16 V12013 Master Files VCommissions\Planniug\Minutes @013-4-30 Plaoniug Conmission Minutes - Chair Katayama expressed condolences for the death of Mr. Stocker's brother. He stated that there is a process and the Commission is not making a decision today. There would be someone appointed to gather the facts and recommend an ultimate disposition of the situation. Mr. Stocker stated that he has never had any previous factions, has not caused any problems, and maintains his property. If he receives a bill he pays it. Chair Katayama stated that there will be a venue to vet the facts. The Commission wants to comprehend everything in the process. Mr. Stocker questioned where he would go from here. Mr. Dahilig stated that his recommendation is that if the matter is referred to a Hearings Officer, the Hearings Officer will contact Mr. Stocker and the Department to arrange pre-hearing procedures to go into what is essentially a contested case hearing. It is initiated at Mr. Stocker's request because he is appealing the decision to not renew the TVR certificate. Mr. Dahilig apologized for Mr. Stocker's loss. In the Matter of Petition to Appeal Decision of the Planning Director Denying Use se of TVR-Non Conforming Use Certificate,Tax Map Key (4) 1-3-005:030, Gerald Fischer TVNC- 2837-NCU. Jonathan Chun, representing Gerald Fischer, stated that Mr. Fischer has also filed an appeal through his agent. He represents both Mr. Fischer and his agent. He noted that they may have filed two appeals on the same property. They do not oppose the recommendation to refer the matter to a Hearings Officer. 17 V:\2013 Master Fifes\CorrunissionsTlanning\Minutes\2013-430 Planning Commission Minutes CONSENT CALENDAR Status Reports Annual Status Report 2012 (12/31/12) regarding Compliance with Permit Conditions and Request to amend Condition No 22 to allow one (1) additional year to complete project for Class IV Zoning Permit Z-IV-2008-7, Use Permit U-2008-5, Variance Permit V-2008-3 and Special Permit SP-2008-3, Tax Map Key 2-7-001:001 (Por.), Koloa, Kauai= Green Eneruv Team, LLC Director's Report pertaining to this matter. Withdrawal Request (4/8/13) from Eric Knutzen, Authorized Representative for the Applicant. Status Report (12/28/12) from Todd Domy, Manager, for Project Development Use Permit P.D. U-2009-9 and Class IV Zoning Permit Z-IV-2009-6, to develop a 220 unit residential condominium project within an existing Residential District R-20 zoned property, Map Key 3-8-5:22, Lihue, Kauai=Koamalu Plantation LLC Director's Report pertaining to this matter. Deputy County Attorney Jung clarified that if two Commissioners would like to pull items out of the consent calendar for discussion in General Business they can, otherwise the consent calendar gets approved at the end of the meeting. On the motion by Herman Texeira and seconded by Amy Mendonca to accept the consent calendar, the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS Memorandum (4/1/13) from Michael Dahilig, Director of Planning to the Honorable Commissioners of the Kauai Planning Commission recommending the Commission refer the following matters to the Commission's Hearings Officer. In the Matter of Petition to Appeal Decision of the Planning Director Den iinng Use of TVR-Non Conforming Use Certificate Tax Map Key (4) 1-3-005.030 Gerald Fischer TVNC- 2837-NCU. In the Matter of Petition to Appeal Decision of the Planning Director Denying Use of TVR-Non Conforming Use Certificate Tax Map Key(4) 1-3-004019 Walter Stocker TVNC- 1169. 18 V:A2013 Master NilesV Commissions\Plamsing\Minutes\2013-4-30 Planning Commission Minutes In the Matter of Petition to Appeal Decision of the Planning Director Deng Use of TVR-Non Conformin¢Use Certificate Tax Map Key (4) 2-3-015.025 S&STickle Trust TVNC-1242. In the Matter of Petition to Appeal Decision of the Planning Director Den i�ng Use of TVR-Non Conforming Use Certificate, Tax Map Key(4) 2-6-007:009 Richard Travers TVNC- 1255. Request(4/17/13) from Susie Travers to defer their agenda item until the Planninn Commission's May 2013 meeting. Mr. Dahilig noted that they received four appeals of his decision denying renewal of non- conforming use certificates for Tax Map Key (4) 1-3-005:030, Gerald Fischer, TVNC-2837- NCU, Tax Map Key(4) 1-3-004:019, Walter Stocker, TVNC-1169, (4) 2-3-015:025, S&S Tickle Trust, TVNC-1242-NCU, and(4)2-6-007:009, Richard Travers, TVNC-1255. It is his recommendation that the matters be referred to the Hearings Officer Richard Nakamura. They have done a conflict check and it would include the delegation of authority to dispose of all motions and stipulations between the parties, receive all evidence, evaluate, and propose a decision and order for the Commission's review. An email was received from Susie Travers requesting that the action be deferred to a May meeting. The Department takes no position on the request as they believe it is more of an administrative matter. Chair Katayama questioned how a referral to the Hearings Officer would impact the request for deferral. Deputy County Attorney Jung stated that they could procedurally refer it to the Hearings Officer and allow them to provide testimony to the Hearings Officer, but given the request for deferral they could split them up and take Item D at the May meeting. There wouldn't be harm in deferring it if it is the will of the body. Chair Katayama questioned how it would change the process if they were to defer the item. Deputy County Attorney Jung stated that the order to cease and desist is a request. By functional law they could make an argument that they don't need to stop because a Court Order would be required to force them to stop. There is a time frame of 60 days that the Plant-ring Department needs to refer the matter to the Commission. Procedurally the item was referred within the timeframe. It is up to the Commission to defer. They didn't indicate which meeting in May so he would suggest that the Department contact the appellant to identify the date and obtain a written statement that they waive the time. Commissioner Mendonca stated that they told Mr. Stocker to present his testimony to the Hearings Officer. She questioned if they could refer Ms. Travers to the Hearings Officer rather than deferring it. 19 V:A2013 Master FilesACommissions\Ptmming\Minutes\2013-4-30 Planning Commission Minutes Deputy County Attorney Jung stated that either way she will have her due process hearing. The idea is to allow the appellees to contest what the Department has recommended. The Hearings Officer will hold the hearing to look at the factual matters and the issues of law that are raised. Chair Katayama stated that the only reason for deferral would be to give up their rights to TVR and avoid having to go through a hearings process. If they contest, it would be referred to the Hearings Officer. In this case a deferral doesn't matter. Deputy County Attorney Jung stated that it doesn't matter. There was a request to defer, but ultimately they would get their due process hearing whether it is before the Hearings Officer or before the Commission. Commissioner Texeira clarified that it would automatically go to the hearings process. Deputy County Attorney Jung stated that it is possible that they didn't understand the process and were asking for a deferral, but they are not present to assert their challenge. Chair Katayama questioned the Department's position. Mr. Dahilig stated that they take no position on it. By providing a contested case hearing they will have their due process. It is more of a management issue for the timing of the Commission. Commissioner Isobe stated that given the testimony of Mr. Stocker in terms of confusion on the process, he suggested entertaining the request for deferral being that there are other TVRs coming before the body. He suggested the Department clarify the process. If there is a misunderstanding they wouldn't have to appear at the May meeting and they could refer it to Hearings Officer, or the individual could appear and explain the request for deferral if they are willing to relinquish the right to operate. Mr. Dahilig stated that pat of the difficulty when there is an inclination of an appeal is that communication with the applicant ends in terms of advice. If they end up in a contested case situation and the Department becomes an advisory. Providing advice on whether or not to appear becomes a tricky situation. Commissioner Isobe clarified that he is not suggesting advising them, but explaining the process so they can make reasonable decisions on how to proceed. Mr. Dahilig stated that they have explained that they have rights under the Rules of Practices and Procedure of the Planning Commission and have been referred to sections that relate to contested case hearings. To begin to get into what they should do or what they shouldn't do becomes an advisory capacity for the Department. They have tried their best to explain their rights, but they try to abstain from guiding them through the process because of the adversarial nature. They can try to explain the rights to Ms. Travers if it is deferred. 20 V:A2013 Master FilesV Commissions VPlanning\Minutes\2013-4-30 Planning Commission Minutes Commissioner Isobe stated that is his suggestion. On the motion by John Isobe and seconded by Herman Texeira to refer Items I3a, b, and c to the Commission's Hearings Officer and defer Item I3d, the motion carried by unanimous voice vote. Chair Katayama stated that Items a,b, and e will be referred to the Hearings Officer and item d, the Travers TVR, will be deferred to a May meeting. Memorandum (4/1/13) from Michael Dahilig, Director of Planning to the Honorable Commissioners of the Kauai Planning Commission regarding Appointment of Hearings Officer for Director Determination Appeals Enforcement Actions Taken Pursuant to Transient Vacation Rental Ordinance (FKA Ordinance 904) Mr. Dahilig stated that he is requesting that the Hearings Officer be blanketly appointed Pursuant to Chapter 9 of the Rules of Practices and Procedures to handle Director appeals relating to Ordinance 904 which are the TVR matters. As they went through the last renewal process,there was a bundle of certificates that were not renewed and they are receiving appeals from the land owners who want to hold on to their permits. He recommended that the Commission appoint a direct referral to the Hearings Officer for disposition with the same delegation as previously mentioned. Commissioner Blake asked for clarification that if anyone disagrees with the Hearings Officer that they would appeal to the Circuit Court. Mr. Dahilig stated that it would come back to the Commission for final approval first, and then they would have recourse to the Circuit Court if they do not agree with the ultimate decision by the Commission. Commissioner Anderson asked for clarification that if the Hearings Officer has a conflict then another Hearings Officer would be appointed for that case. Mr. Dahilig stated that part of his request in the memo is that in the event of a conflict, they are allowed to go through procurement to find another Hearings Officer. Chair Katayama asked for clarification that there would be no administrative intervention for any kind of issues regarding a cease and desist order. He questioned if there are levels of cease and desist. Mr. Dahilig stated that once the contested case is open there can be discussion about how to resolve the matter before it actually enters the adversarial portion of the hearing. If there are agreements on how to interpret the cease and desist order in the interim, it can be handled at the Director's level. 21 V:A2013 Master filesVCommissions\Planning\Minutes\2013-430 Plaivting Commission Minutes Deputy County Attorney Jung clarified that the Commissioners are the reviewer of the Planning Director's decision. If the Director makes a call on something, someone can appeal if it is subject to the applicability section of Chapter 9, and let them challenge either the interpretation or application of the facts of the law based on what they are asserting. If they do the blanket delegation,the Hearings Officer would hold the evidentiary hearing, look at that facts and the law, and make a recommendation to the Commission. Then the Commission would go through the process of looking at the proposed findings of fact and conclusions of law in a report as a decision and order, and they can reverse, modify, or adopt the report, or kick it back for more evidence. Commissioner Blake asked for clarification that the cease and desist orders are in place. Deputy County Attorney Jung stated that they are in place, but they don't have injunctive powers. Once they go through the contested case, when the Court affirms it, they will file a subsequent action and the Circuit Court will force them to stop if they don't stop. Commissioner Blake questioned recovery of the rental proceeds. Deputy County Attorney Jung stated that there is an administrative fine that can be levied and looked at by the Planning Department; it is another avenue of recourse that the Department can take. Commissioner Blake recommended that the administrative fine equal the rental proceeds during the cease and desist. Deputy County Attorney Jung clarified that they are due process hearings where the application can challenge the facts of law on the issue. Chair Katayama stated that the Commission needs to be aware of how they get to the Hearings Officer format. If there appears to be an infraction, he questioned the Department's procedure before it gets to the cease and desist and how they try to remedy violations. Mr. Dahilig stated that the cease and desist notices were initiated by the Department because of the failure to meet what they believe are certain code requirements. The triggering of the contested case hearing is a right of the individual receiving the notice from the Department to have a due process. The recommended action is to clarify and streamline the initiation of the due process rights for the individuals. There seems to be some confusion as to whether their attendance is mandatory at something that before the Commission can appear perfunctory. Commissioner Blake questioned the amount of time that has elapsed from the time the cease and desist orders were sent out. Mr. Dahilig stated that they waited for 21 days after receipt of the notice to determine whether a due process right has been initiated or not. It is a'timing issue prescribed under Chapter 9 of the Commission Rules. If they did not contest after 21 days of receipt of the notice 22 V:A2013 Master PilesV Commissions\PlanningVMinutes\2013.4-30 Planning Conmission Minutes they would be looking at moving into an Administrative fine phase. Because they are in the due process element, the individuals have the right to say that his decision was wrong. Deputy County Attorney Jung stated that there are procedural time frames within Chapter 9, unless one of the applicants waives the time requirements. The Department will bring it to the Commission for some type of action. If there is a blanket authority then it will automatically go straight to the Hearings Officer then the disposition will come ultimately back to the Commission in terms of looking at the Hearings Officer's report. On the motion by Herman Texeira and seconded by Hartwell Blake to appoint Hearings Officer for Director determination appeals enforcement action taken pursuant to Transient Vacation Rental Ordinance, the motion carried by unanimous voice vote. Request for extension(3/12/13) of Project Development Use Permit PDU-2008-11. Class IV Zoniny Z-IV-2008-12 and Use Permit U-2008-10, Tax Map Key 2-8-008:001 to allow an additional five (5) years to complete construction of the project in Koloa Town, Koloa Kauai= SREI Koloa LLC(fka Village at Koloa Town LLC. Staff Planner Dale Cua read the Director's Report into the record (on file). Mr. Cua stated that this is the vacant parcel situated directly across from the Koloa Neighborhood Center on the makai side of Koloa Town. It is recommended that the Commission approve the time extension to allow the applicant additional time to complete the construction of the project and Condition number 21 be amended to read as follows: The applicant shall substantially commence construction of the project development within one year from the date of building permit issuance and shall complete construction of the project development by June 10,2016. If the project is not completed by this date, the Planning Commission reserves the right to revoke the permits through proper procedures. Commissioner Texeira requested clarification on Condition 21. Mr. Cua stated that the current expiration date is June 10, 2013 and they would be moving it back three years to 2016. Commissioner Texeira clarified that the applicant was requesting 2018, but the Department is recommending three years instead of five years. Lorna Nishirnitsu representing the applicant stated that the party that received the permits back in 2008 was Village of Koloa Town, LLC, and title was actually in the entity called Historic Koloa Village LLC. On July 21, 2008, the property was conveyed to Koloa IV, LLC who borrowed money from SREL From January 16, 2009, Koloa IV LLC went into default. She filed a foreclosure action,but it took a while to complete because there were multiple defendants in the lawsuit and they had to serve by publication. At the auction, SREI was the high bidder and ended up with the property by way of credit bid. In the meantime the debt was about $6.8 million. The new owner tried to get the construction drawings, but previous 23 V:A2013 Master FilesV CommissionsTlannnlg\Minutes\2013-4-30 Planning Co mnission Minutes consultants refused to turn them over. Whoever develops will have to start from ground zero. They are requesting an extension so the approvals don't just disappear. The Department feels comfortable with a three year extension. She noted that at least the off-site water line has been constructed that will provide domestic water to the project. She noted that Mr. Keno,the representative was present for questions. Commissioner Blake questioned who is undertaking the present development. Ms.Nishimitsu stated that her client, the lender,is the owner, but they would like to sell it with development entitlements so they can recapture what they are out in their loan which is roughly $6.8 million. Commissioner Blake clarified that the entitlements are five years old. His concern is that something happens reasonably quickly given the five year hiatus. He recalled a bunch of community meetings and they would discuss off site effects of the project. The developer at the time acted as if their development was an island and they didn't have to worry about what was going on around them. He stated that he did not consider the five year old entitlements real because they will have to go back and update them. Ms. Nishimitsu stated that typical Planning Commission conditions require that they comply with specific requirements of various agencies that have commented. Then there is a catch all provision at the end of the approval where the applicant is required to comply with any additional agency comments or requirements to the extent that the Departments may reassess the project or the charges are going to be increased. Although the Commission may view them as land banking pen-nits,they don't necessarily work to the advantage of the developer. In this particular case, the developer is no longer in the picture, and her client that loaned funds for acquisition of the property and development would like to retain the value of the land. She did not think that it was unwarranted to allow an extension in this case. Mr. Dahilig stated that in this particular instance the judicial process to possess the property and get the lender to a point where they can push the project forward took a great deal of time through the Circuit Court process. They are trying to get to the position where they can act on the permits. It is the first request for extension and it was not a habitual or chronic request to keep it moving out. They did not feel comfortable with a five year extension because they wanted to keep on top of it to ensure that something is done. Ms. Nishimitsu stated that in consulting with the client they are willing to live with the Department's recommendation. It is not ideal,but is palatable. Commissioner Blake prefers the Department's recommendation because it seems that when there is five years, nothing happens until year 4.5 and then there is a scramble. He felt three years was reasonable under the circumstances. He also feels that the catch all provision should go up front so they are not at the end of the term stating that they were waiting on agencies. They should get on it from the beginning. 24 V:A2013 Master PilesA Commissions\PlanniugVvlinutes\2013-4-30 Planning Commission Minutes Ms. Nishimitsu stated that from what she has seen of Planning Commission conditions it doesn't matter whether it is condition number 1 or 26; it is effectively used by the agencies during the review process of the construction drawings or securing the necessary permits to move forward. She would not quarrel with renumbering of the conditions. Commissioner Blake stated that it is more for the developers to keep uppermost in their mind. Commissioner Anderson questioned when the foreclosure proceedings were initiated. Ms. Nishimitsu stated that she filed the action on June 10, 2010. Commissioner Isobe asked for clarification that three years would appear to be sufficient. He noted that three years isn't a lot of time having to start with construction drawings again. Ms.Nishimitsu agreed that three years isn't much time. She has seen construction drawings, grading plans, submitted and returned and the period before the approval can be a year to a year and a half,realistically. At this point, SREI is grateful for an extension so there is marketability. It will be the new owner's responsibility to contact the prior consultant who wants funds to release drawings that may have been done previously. They don't know the stage of completion. All they were able to find were generalized renderings that were submitted to the Commission. Chair Katayama asked for clarification that the applicant agrees with the Department's recommendation. Ms. Nishimitsu indicated agreement. On the motion by John Isobe and seconded by Hartwell Blake to approve the Department's recommendation,the motion carried by unanimous voice vote. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-5(a)(2 and 4) the purpose of this executive session is to discuss matters pertaining to the evaluation of the Planning Director. This session pertains to the Planning Director's evaluation where consideration of matters affecting privacy will be involved. Further, to consult with legal counsel reeardingpowers duties privileges and/or liabilities of the Planning Commission as it relates to the evaluation of the Planning Director. On the motion by Herman Texeira and seconded by Amy Mendonea to move into executive session, the motion carried by the following roll call vote: Ayes 6,Nos 0 The Commission moved into executive session at 12:21 p.m. 25 V:A2013 Master FilesV Commissions VPl=ingAMinutes\2013-4-30 Planning Couvnission Minutes - UNFINISHED 'BUSINESS (For Action) Pursuant to Section 91-3, Hawaii Revised Statutes, to consider the adoption of administrative rules under authority of Kauai County Charter Article XIV Section 14.03.E pertaining to the interpretation of Ordinance 894. The proposed adoption will specifically concern building paint colors allowable within the Lihue Town Core Special Planning Areas= County ofKauai. Supplemental No. 1 Director's Report Pertaining to this matter. Memorandum (3/25/13) from Chu Lan Shubert-Kwoek, Acting Chair, State of Hawaii, Small Business Regulatory Review Board. Staff Planner Marie Williams presented the Department's Rules for the Lihue Town Core Urban Design District and read the Director's Report into the record (on file). She noted that hey took the rules to the Small Business Regulatory Review Board on Oahu and they unanimously recommended that the proposed rules proceed to public hearing; they gave their okay to the rules. Chair Katayama questioned mechanisms for variations or deviations. Ms. Williams stated that they were built into the draft rules. Once the color pallet is established, should an applicant wish to propose a color that is not substantially similar to those on the approved color list, it is taken to the Planning Director to evaluate and make a decision that the proposed color is consistent with the respective special planning area. Commissioner Anderson questioned if there is a particular brand and how the advisory committee will establish and identify the colors. She noted that the color brown in one brand may be different than another brand. Ms. Williams stated that they researched enforced color lists of other cities. There are numbers beneath the colors that refer to a specific paint brand. Stores are able to match colors to any paint brand. Deputy County Attorney Jung stated that according to Section 1-4.1) of the Rules, the Planning Director has the authority to find that a proposed color significantly resembles any of the colors on the pallet. Ms. Williams noted that they would also like to amend the supplemental Director's Report. They are requesting Commission action. Mr. Dahilig clarified that the report has an errata stating that no action is required. He clarified that action is required. 26 VA2013 Master Files\Commissions\PlalulingNinutes\2013A-30 Planning Commission Minutes On the motion by Amy Mendonca and seconded by Herman Texeira to adopt the rules, the motion carried by unanimous voice vote. NEW BUSINESS (For Action) Proposed Bill No 2483 (ZA-2013-4) the amendment of provisions under Chapter 7 8 and 9 of the Kauai County Code 1987, as amended,relating to the adjustment of various permitting charges and fees levied by the Department of Planning=Kauai County Planning Department. Staff Planner Kaaina Hull read the Director's Report into the record (on file). Commissioner Isobe questioned consistency of the fees with the rest of the State. Mr. Hull stated that they are currently substantially lower than any other jurisdiction. With the increases they would be close to the other jurisdictions. They are well behind the building permit fees which are assessed more on the size of the project. Chair Katayama questioned the rationale of the adjustment and how it moves the needle in terms of overall collection of fees. Mr. Dahilig stated that the process they undertook used the Bureau of Labor Statistics information concerning consumer price index and the rate of inflation. Everything except for the TVR suggestion is an adjustment by keeping the same policy and inflating the original charges. The fee change for the TVRs is with anticipation that there could be an increased enforcement. Based on statistics, the potential yield would be between$120,000 and $160,000 in General Fund revenue for the County. Commissioner Mendonca questioned how the amount was determined for after the fact permits. Mr. Hull stated that there are currently no after the fact fees levied on the applicant. The $250 is an estimate for the processing, inspecting, and cross checking utilizing planners, technicians, and inspectors times. Commissioner Mendonca questioned if they feel it is fair. Mr. Dahilig stated that charges for application or processing fees cannot be cumulative in nature and cannot be done from a standpoint of yielding a windfall of revenue for the County. It has to be proportional to the effort that is expended by the various Departments for processing. The difference in an after the fact penri t is that an inspection is required to reconcile whether the as-built plans match what is on the ground. Based on the time in reconciling and doing the research based on hourly, plus benefits,it would take 6 to 8 hours of additional work. Commissioner Isobe questioned the time extensions. 27 V:A2013 Master Files VCominissions\Planning\Minutes\2013-4-30 Planning Commission Minutes Mr. Hull stated that they can clarify the time extensions under the next agenda item. There was no public testimony. On the motion by Herman Texeira and seconded by John Isobe to approve, the motion carried by unanimous voice vote. Proposed Bill No. 2464 (ZA-2013-3) for an ordinance to amend Section 8-3.4 of the Kauai County Code (1987) as amended to clarify the process increase the processing fee and extend the timeline for decision malting by the Planning Commission and County Council for zoning amendment applications=Kauai County Council Mr. Dahilig noted that this was a Bill sent by Councilwoman Nakamura. Mr. Hull read the Director's Report into the record (on file). He noted that the timeline extension is related to the handling and processing of transmitting the communication to the County Council and the Mayor's Office. I Ie noted that the previous amendment was the Department's proposal and recommendation. This amendment is being proposed by a Councilmember for the Commission's review and action. Generally the Department will take a position and recommend approval, denial, or approval with modifications. At this time, the Department hasn't yet taken a position on the 90 day time extension. Commissioner Isobe stated that on the one hand they are requesting that the public pay more and on the other hand they are saying that they are going to take longer to process. He stated that if he pays more he would expect same or better service. Mr. Hull stated that they can send a communication and have discussions with Councilwoman Nakamura. Deputy County Attorney Jung stated that in the past, there were issues in litigation about not honoring the time frames allotted in the CZO. In some cases it was a 60 day window to get a project out but there were still questions and more information needed. The idea was for an additional 30 days should more agency reviews need additional time to get all the information that is needed. It is not that in every case things would move at the 90 day pace. It could still move at a 30 day pace, but it is to avoid claims of automatic approval under HRS Chapter 91. They had issues with automatic approval on the Koloa Creek side case and the Koloa Marketplace case. They are trying to accommodate a wider timeframe given the expansive reviews that each Department has to do. There was also a question of when Council receives the communication from the Planning Department. When they receive it, there is a certain timeframe to act. There was a question on whether it is when the Council as a body receives it, or when the County Clerk receives it. It is more an issue when it is a private developer petitioning an amendment so they can't come back and assert an HRS Chapter 91 challenge to an approval. 28 V:A2013 Master FilesA Commissions\Pl=ilig\Minutes\2013-4-30 Planning Commission Minutes Commissioner Isobe stated that even if they extend it for 30 days, there could still be the same questions 30 days later. They are just allowing more time up front but they are not clarifying the issues. Deputy County Attorney Jung stated that more time would allow two additional meetings to take action. Commissioner Isobe stated that it doesn't clarify the question. If they haven't met the 30 day extended time frame the same questions are going to come up. Deputy County Attorney Jung stated that if there are persistent questions and whether or not more information is needed, the applicant can consent to delays. At times applicants want to move forward for a decision. Chair Katayama stated that the issue is inertia of paper moving through. It is felt that more days would address the inertia issues. Commissioner Isobe stated that his concern is that he motioned to increase the fees, but they are now saying they will wait longer to get things done. Mr. Dahilig stated that the first Bill is being initiated by the Department. The second Bill is being initiated by the Council. When they reviewed the changes as proposed, the lengthening of time is focusing generally around the Council process, not the Departmental process. He understands that certain developers would want to see an expeditious movement through the Legislative body. It would allow the Legislative body time to process what they need given their own publication requirements. There was no public testimony. Mr. Hull noted that it is not necessary for the Department to provide an official recommendation for the Commission to take action. Generally the Department gives an official recommendation at the close of the public hearing. If the Commission is leaning toward approval, he noted that the previous zoning amendment increased the zoning amendment fees to $300. This amendment is $150. Chair Katayama stated that both will resolve at Council. They should let the Council reconcile the difference. Deputy County Attorney Jung stated that the Council-initiated amendment came up first and the Department's second, so Council will have to reconcile it. Mr. Hull noted that Council is essentially looking to the Commission as guidance. When it comes to the fee, if the Commission approves the second proposal, they are essentially stating that they are fine with both numbers. 29 V12013 Master Files\Commissions\Ptanning\Minutes\2013-4-30 Planning Commission Minutes Chair Katayama stated that the issue on the Council position is more of increasing the time. In terms of the recommendation of the fees,they can adopt whatever structure they feel is appropriate. On the motion by Herman Texeira and seconded by Hartwell Blake to approve, the motion carried by unanimous voice vote. Amendment of Section 1-2-21 of the Rules of Practice and Procedure of the Kauai Planning Commission=Kauai Planning Commission Mr. Dahilig apologized that this item was not scanned into the pdf. He requested a deferral to the next meeting. Chair Katayama stated that this item is deferred. ANNOUNCEMENTS Planning Director Michael Dahilig announced that the following Planning Commission meeting will be held on Tuesday, May 14, 2013 at 9:00 a.m. at the Lihue Civic Center, Moikeha Building, Meeting Room 2A-213, 4444 Rice Street, Lihue,HI 96766. Chair Katayama adjourned the meeting at 2:20 p.m. Res lly submitted by: Duke Nakamatsu, Commission Support Clerk 30 V:\2013 Master 1°iles\Commissions\Plmuiing\Minutes\2013-4-30 Planning Conunission Minutes