HomeMy WebLinkAboutpc minutes 5-14-13 KAUAI PLANNING COMMISSION
REGULAR MEETING
May 14, 2013
The regular meeting of the Planning Commission of the County of Kauai was called to
order by Vice Chair Kimura at 9:22 a.m., at the Lihue Civic Center, Moikeha Building, in
meeting room 2A-213. The following Commissioners were present:
Mr. Jan Kimura
Ms. Angela Anderson
Mr. Hartwell Blake
Mr. John Isobe
Ms. Amy Mendonca
Mr. Herman Texeira
The following Commissioners were excused:
Mr. Wayne Katayama
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Vice Chair Kimura called the meeting to order at 9:22 a.m.
ROLL CALL
Planning Director Michael Dahilig noted that there were six Commissioners present.
APPROVAL OF AGENDA
Mr. Dahilig suggested taking public testimony on Items I.4.a. and b., and L5.a., first and
then taking action to accommodate the split in legal representation. He suggested Item H.l.,
executive session, be taken as available by the Commission.
On the motion by Herman Texeira and seconded by Hartwell Blake to approve the
agenda as amended, the motion carried by unanimous voice vote.
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GERAL BUSINESS MATTERS
In the Matter of Petition to Appeal Decision of the Planning Director Denying Kauai
Beach Villas Phase 11, LLC's Request for an Exemption Pursuant to Ordinance No. 912 (Chaff
8 Article 28 Sec 28.5 of the Kauai County Code as amended 1987), Tax Map Key (4) 3-7-
003:007,Kauai Beach Villas Phase 11 LLC.
Proposed Hearings Officer's Findings of Fact, Conclusions of Law, and Decision and
Order, dated March 28, 2013.
Appellee Planning Department County of Kauai Motion to Adopt Hearings Officer's
Findings of Fact, Conclusion of Law and Decision and Order, dated March 28. 2013 (with
attached exhibits)
There was no public testimony.
Gregg Markham stated he was representing the appellant Kauai Beach Villas Phase II,
LLC.
Deputy County Attorney Ian Jung stated he was representing the Planning Department.
On the motion by Herman Texeira and seconded by Angela Anderson to receive the
proposed Hearing Officer's findings of fact, conclusions of law, and decision and order,
dated march 28, 2013, and the appellee Planning Department County of Kauai motion to
adopt Hearings Officer's findings of fact, conclusion of law and decision and order, dated
March 28, 2013 with attached exhibits, the motion carried by unanimous voice vote.
Deputy County Attorney Jung stated the appellant's attorney and he discussed the matter
and agreed to rest on their submittals. Given the legal nature, and that the matter is pending in
Federal Court, they are okay with not asking for argument. The Commission referred it to
Hearings Officer who made a determination and it is back for the Commission's acceptance or
denial.
Deputy County Attorney Mauna Kea Trask stated Pursuant to Rule 1-6-19, Paragraph E
of the Rules of Practice and Procedure of the Planning Commission, the Commission may
reverse, modify or adopt the recommendations of the Hearings Officer. The Commission may
reopen the docket to take further evidence or other such action that is necessary under the
circumstances.
On the motion by Hartwell Blake and seconded by Herman Texeira to adopt the
Hearings Officer's findings of fact, conclusion of law, and decision and order dated March
28, 2013, the motion carried by the following roll call vote: Ayes: 6 Nos: 0
Petition for Declaratory Ruling In the Matter of Tax Map Keys (TMKs) (4)-4-9-05.014
and (4)-4-9-09.033 dleffrey S Linder and Ana Marie Lindner v County of Kaua`i dated April 17
2013.
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Memorandum from Michael A. Dahilig Director of Planning to the Honorable
Commissioners of the Kauai Planning Commission acknowledging receipt of Petition for
Declaratory Ruling in the Matter of Tax Map Keys TMKs) (4)-4-9-05.014 and (4)-4-9-09.033
Jeffrev S Linder and Ana Marie Lindner v County of Kaua`i and request to refer the matter to
Hearing Officer Richard F. Nakamura. Esq., dated May 1 2013
There was no public testimony.
Mr. Dahilig recommended the Commission formally receive the items for the record and
refer the matter to the Corrnnission's Hearings Officer, Richard Nakamura. He further
recommended the Commission delegate authority to Mr. Nakamura to dispose of all preheating,
motions, and matters, swear in witnesses, receive evidence and provide a recommended findings
of fact, conclusions of law, decision and order to the Commission for its deliberation.
On the motion by Herman Texeira and seconded by Hartwell Blake to approve as
read and stated by the Planning Director, the motion carried by unanimous voice vote.
MINUTES of the meetinii(s) of the Planning Commission
Executive Session of February 12 2013 Executive Session of February 26 2013 Revular
Meeting of March 27 2012 Regular Meeting of April 9 2013 and Regular Meeting of April 23
2013.
On the motion by Amy Mendonca and seconded by Hartwell Blake to approve the
minutes of the executive session of February 12,2013, executive session of February 26,
2013, regular meeting of March 27,2013, regular meeting of April 9, 2013, and regular
meeting of April 9,2013, the motion carried by unanimous voice vote.
Mr. Dahilig suggested handling the subdivision committee report, the consent agenda,
and then public hearing in order to accommodate the presentation by Michael Moule under
agenda item I.1.
COMMITTEE RF,PORTS
Subdivision
Vice Chair Kimura questioned if public testimony was necessary since testimony was
taken during the Subdivision committee meeting.
Deputy County Attorney Jung noted the Committee meeting is separate from the
Commission meeting. Testimony has to be allowed during the Commission meeting as well.
Essentially it is a ratification of the Committee's action.
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There was no public testimony.
Subdivision Committee Vice Chair Herman Texeira read the report into the record.
The following tentative subdivision actions were approved, 3-0:
5-2013-15, County of Kauai, Department of Water, TMK: 3-8-005
5-2013-16, Kukuiula Development Company (Hawaii) LLC, 2-6-015:014
The following tentative subdivision extension requests were approved, 3-0:
S-2011-16, Cameron K. Burgess, Et.Al., 4-1-008:013
5-2011-20, Kukniula Development Company (Hawaii)LLC, 2-6-016:026, 029
5-2011-06, Kulcuiula Development Company (Hawaii) LLC, 2-6-014:026;2-6-015:005
He noted Lindsay Crawford clarified that 5-2011-06 is his residential lot.
On the motion by Amy Mendonea and seconded by Angela Anderson to accept the
Subdivision Committee report, the motion carried by unanimous voice vote.
CONSENT CALENDAR
Status Reports
2012 Annual Status Report for Special Management Area Use Permit SMA (U)-2006-05
Project Development Use Permit PDU-2006-7 and Class IV Zonis Permit Z-IV-2006-10 Tax
Map Key: 4-3-007:027, Waipouli, Kauai=Coconut Plantation Holdings LLC
Director's Report(s) for Project(s) Scheduled for Agency Hearing on 6/12/13
Class IV Zoning Permit(Z-IV-2013-15) and Use Permit(U-2013-13)to permit the
construction and operation of a solar power facili on a parcel irmnediately adiacent to the
Koloa Mill site, alone the eastern side of Ala Kinoiki in Koloa further identified as Tax Map
Key: 2-8-002:002 (Portion), and containing a total area of 67.24 acres =Kauai Island Utility
Cooperative.
Special Management Area Use Permit SMA(U)-2013-8) Class IV Zoning Permit(Z-IV-
2013-16) and Use Permit(U-2013 44)to accommodate the conversion of the existing Hanalei
Court House facility into a multi-purpose neighborhood community center, located on property
along the makai side of Kuhio Highway in Hanalei Town, situated at its intersection with
Mahimahi Road, further identified as Tax Map Key: (4) 5-5-003:002 and containing a total area
of 2.499 acres= County ofKauai Department ofPublic Works and Counlyof Kauai
Department ofParks and Recreation.
Mr. Dahilig noted an erratum to the date in item G.2.a. He clarified the agency hearing will
be scheduled on 6/12/13 which is a Wednesday due to the King Kamehameha Day holiday on
Tuesday.
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On the motion by Herman Texeira and seconded by Hartwell Blake to accept the
consent calendar, the motion carried by unanimous voice vote.
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing(NONE)
New Agency Hearing
Special Management Area Use Permit SMA(U)-2013-7 to construct a single-family
residence on a parcel located along the makai side of Kuono Road in Moloaa situated approx.
300 ft. east of its intersection with Moloaa Road further identified as Tax Map Key 4-9-014.008
and containing a total area of.816 acres =Michael Wells
There was no public testimony.
On the motion by Herman Texeira and seconded by Hartwell Blake to close agency
hearing, the motion carried by unanimous voice vote.
Continued Agency Hearing(NONE)
New Public Hearing (NONE)
All public testimony pursuant to HRS 92
Request to Amend Special Permit SP-88-3 Use Permit U-88-23 and Class IV Zoning
Pen-nit Z-IV-88-28 to expand hours of operation of food service.to continue to hold special
events and to construct buildings reviouslyapproved under the subject permits Tax Map Key
(4) 5-2-013:012 (formerly 5-2-017:014) and affecting a Portion of a 46.587 acre parcel = Living
Farms LLC.
Chair Kimura announced the Commission will take a break at 9:55 a.m. to accommodate
the presentation for agenda item I.1.
Mr. Dahilig noted letters, petitions, and emails, in support and in opposition, that were
received by the Department(on file).
The Commission received testimony from Ken Taylor.
Mr. Taylor stated be was in opposition to approval of the request. In 1988 an agriculture
operation of over 400 acres requested a special permit. The decision and order was for a snack
bar that shall be restricted to guava, guava byproduct, and other tropical fruits. He questioned if
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the existing special permit has been enforced. The restriction has now grown into a 230 seat, full
service restaurant serving everything other than guava. It is not an agriculture operation. His
concern is approval will open the door for anybody that has a few acres to plant a few vegetables
and build a restaurant and store. It is not the kind of planning that they want for the island.
TVRs on ag lands have proliferated. He hopes the Commission will do what is right for the
island and good planning, and let agriculture be agriculture. 2 acres out of 46 is not an
agriculture operation. With the lack of an ag operation, the Commission should not under any
circumstance issue this special permit and should enforce completely the existing special use
permit.
The Commission received testimony from Tek Nickerson from Wailua Homesteads.
Mr. Nickerson stated several decades ago the owner of Dove chocolate had a
conversation about chocolatiers on the radio stating that Lindt personally selects the pastures for
his cows to graze for milk chocolates and that Lindt cares. A couple of months ago, the master
gardener at Common Ground told him that Chris Jaeb insisted the fertilizer on the grounds to
grow food for the restaurant must be organic. They are bringing in chickens to make organic
chicken fertilizer. Chris Jaeb cares. He believes this island should be encouraging this kind of
excellence and integrity and was in favor of the petition to expand the operation.
The Commission received testimony from Elli Ward.
Ms. Ward stated she had more signatures and petitions. They did not know about the
recommendation until late Friday afternoon.
Vice Chair Kimura stated they will make copies and distribute them to the
Commissioners.
Ms. Ward stated she had 21 signatures from residents on Kuawa Road and was angry
with the Department's recommendation. After 2 '/z years of expressing concerns to the Planner
and Director,nothing entered into their decisions. A rich developer comes to the island and the
Department hands over all the entitlements that run with the land; an even longer fist now that
would make the parcel attractive to the next developer. Not only is Mr. Jaeb applying for after
the fact permits,but in the Department's rush to pave the way for commercialization of his acres
located in the heart of their residential ag neighborhood, they are willing to throw the neighbors
under the bus. She felt the Department has treated the neighbors as collateral damage in their
desire to give Mr. Jaeb what he wants. Mr. Jaeb is not going to expand his business for it to fail.
For the neighbors,the success of the restaurant means the deterioration of the quality of their
lives. A successful restaurant needs customers brought in by any means available; ads, social
media, live entertainment, liquor. His employees and customers get to go home elsewhere. The
neighbors chose to live there because of the private, rural quality of the area. Many resisted the
guava development and the same neighbor's resist the projects even more. Over a third of the
residents are age 60 and above. Several have been farming over 30 years and continue to farm,
surviving two hurricanes. They have taken more recent farmers under their wings. They
complain about the road conditions and safety issues all the time. Various classes are held when
the restaurant is supposed to be closed bringing in speeding cars rushing to the classes. Two
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residents were not able to testify due to prior medical appointments. She submitted their letters
with a signed petition from others on Kuawa Road. They share the same concerns about
sustainability and the joy of sharing their harvest with family and the community. Because they
tend to the farms themselves they look forward to being able to enjoy the peace, safety and
comfort of their homes. The seniors have been contributing and law abiding citizens who
continue to work hard on the land because they love it and wish to contribute to society. In
return they wish only to be acknowledged, respected, and be allowed to enter their homes in
peace, comfort and safety.
Vice Chair Kimura recessed this agenda item at 10:00 a.m.
GENERAL BUSINESS MATTERS
Presentation from Michael Monte, PE, TE, PTOE,Nelson\Nygaard Consulting
Associates Inc., to brief the Commission on multimodal transportation planning g oncepts
(information only
Mr. Dahilig stated Chair Katayama requested briefing the new Commissioners on the
Complete Streets initiatives that the County has been implementing over the past couple of years
since the Resolution was passed by the Council. This past weekend they were involved in a
design charrett workshop for Koloa and Poipu Road, attended by a number of people. They were
fortunate to have Michael Moule and Dan Burden, an expert in Complete Streets design, assist
the Department in not only conducting the charrett and walking audit but to also train the staff so
they have the capacity to engage in this manner. He thanked Mr. Monte and Mr. Burden and
also thanked Lee Steinmetz, Transportation Planner and Lyle Tabata, Deputy Engineer for their
assistance and leadership on the workshop.
Transportation Planner Lee Steinmetz stated it was an intense process and the idea was to
condense the design process from what might normally take several months to a few days. Some
of the elements were focus group meetings with groups that may have special interests in the
Poipu Road area. They started with the Poipu Beach Resort Association, Koloa Town group,
Hawaiian cultural issues, and property owners. They did walls audits along the street and viewed
the conditions; one in the Poipu resort area and one in Koloa town. They both have distinct
character and distinct purposes. The design outcome was different for the two sections. He
noted a photo of a car parked next to a crosswalk making it difficult for people crossing the
street. They held three community workshops where everyone was brought together to work
together. The first focused on issues, concerns, goals and provided a background of the toolbox
available to solve some of the design issues. They looked at issues and stared to prioritize. The
next workshop worked in groups and the community did their own design of Poipu Road and
everyone had an opportunity to comment. At the last workshop on Monday night they presented
a design back to the community for more input. Mr. Moule as an engineer was involved in the
specific design and helped the community to come up with design solutions.
Mr. Moule stated this was the fourth trip to Kauai. His activities were funded by Bev
Brody through Get Fit Kauai and the University of Hawaii to work with the County on many
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issues related to Complete Streets and walking and biking transportation. He reviewed a
PowerPoint presentation (on file) on general planning issues that relate to Complete Streets and
the benefits.
Mr. Steinmetz acknowledged Bev Brody from Get Fit Kauai who funded the workshop in
Poipu and brought Dan Burden and Michael Moule to help. It is a fantastic partnership the
County has with Get Fit Kauai. Staff Planner, Marie Williams Chairs the 'Built Environment
Task Force of Get Fit Kauai and it is because of these kinds of partnerships that they are able to
build their capacity, and build the knowledge base on the issues that were presented.
Commissioner Blake questioned if the hotels participated in the workshop.
Mr. Moule stated the first focus group was the Poipu Beach Resort Association, so most
of the hotels and large property owners were represented. Some of the representatives came to
some of the public workshops where they were asked specifically for their thoughts.
Commissioner Blake questioned if there was any opposition.
Mr. Monte stated when they presented their concepts last night there were a number of
comments from the public related to parking. They were not really addressing parking
operationally or management wise; they were mostly focusing on the design aspect of the street.
They did not see any significant opposition to the concepts of adding walking facilities along the
sheet, or taking the existing shoulders and marking them as bike lanes, or adding green medians
and better ways to cross the street. The controversial issues were more related to parking and if
parking is moved, which wasn't really proposed, or to operationally change anything as far as
what is stripped today. They suggested a few areas to think about regarding designated parking
locations, but beyond that it is a matter of policy management and Ordinance changes. Many
people either said get rid of the park in front of their house, or if parking is removed from an
area, they questioned where they would they park. It wasn't really their purview as much as it
was a general issue that will be dealt with by the County.
Commissioner Blake asked for clarification that everybody is on board.
Mr. Steinmetz stated he would say so. The other controversy was connectivity issues that
were in the previous plan and brought up again. Depending upon where you live, there are some
who support the connections and some who don't. That is another area they need to work on to
resolve some of the issues. They had some people who attended the first meetings who were
skeptical and concerned about the process, but after the last meeting they made a point of saying
they really like what was showed and wanted to know how to empower the County to make sure
it is done. By the end he felt they had a strong level of support with a few details that need to be
worked out. The general principles were strongly supported.
Commissioner Blake questioned the connectivity developments.
Mr. Moule stated they did not go into a lot of recommendations on how to connect. They
referenced the previous work on the circulation plan,but in general they recognized the fact the
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relative lack of connectivity results in more traffic on some streets that will result in more traffic
if development occurs. They looked at the study that predicted volumes for the future and
showed what it would be like if all the possible development occurred on the existing network
and how much less it would be if some of the connections were made, including the connection
from the western bypass connecting to the eastern bypass. The work was more conceptual in
design. In some places they noted where connections would be either a road connection or just a
bike/walk connection to provide more connectivity for walking and biking but not necessarily
cars,because sometimes there were sensitive areas from an archaeological point of view or
through a park or residential area. It was areas mauha of Poipu Road generally where the
connectivity was lacking the most. As that develops, looking at those connections is an
important piece of providing options for all modes of travel.
Commissioner Blalte stated the issue came up five years ago and developers didn't like
connectivity because they wanted exclusivity. They didn't want people running through their
streets and malting it less desirable to their residents. They were willing to have the traffic dump
onto .Poipu Road and make it inconvenient for the rest of the public. They were not open to
connecting the separate private developments. He never really thought about it until it was
brought to their attention. He felt it is an important concept to institute and enforce.
Mr. Morale stated it is a challenge anywhere. Every developer, especially high-end
residential, is going to resist connectivity, but it is not good for any community overall to have
poorly connected street systems. Some communities have realized that and made those
connections. 20 years ago or longer, the connectivity was there. Poipu Road through Koloa
Town didn't have as much traffic and traveling along that road was much easier. Residents have
stated they could easily bike around and walk around when they were younger. If you don't add
connectivity, you load up the existing streets and they become very unfriendly. Adding
sidewalks makes it even better,but it is important to keep the connectivity and not have
developers overload the few roads that exist. It will be challenging in some areas, but as much as
possible allowing those connections is really important.
Commissioner Blake noted the main roads are straight which means there will be
speeding. In the old days, roads curved around the hills and it wasn't as easy to exceed the speed
limit. Public Works wanted to shorten the arnount of time on the road by straightening all the
curbs which works against the concept of walkability and biking. It is something that has to be
balanced out.
Mr. Moule agreed. The Commission will see more results from the work over the
weekend. They looked at speed reductions such as raised medians or segments of medians that
don't make it look as long and germinate the vista. Roundabouts were suggested by the public.
They also reduce speeds while still moving traffic. They have been talking about design aspects
to continue to move motor vehicle traffic as needed but still make it good for walking and biking
including the speed issue.
Mr. Steinmetz stated by adding bike lanes it narrows the travel lane which leads to slower
traffic. By coloring the bike lane a different color it adds more of a perceptual change. The
perceived travel lanes are narrower which tends to slow traffic. There is a pilot project next to
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Koloa School adding lighted crosswalks; rapid flashing beaconed crosswalks that flash when
someone is in the crosswalk that helps to slow down traffic, adding bike lanes and pedestrian
walkways that is stripped in the shoulder. They want to extend it. They have received a lot of
comments on how people have really slowed down just from those little improvements.
HEARINGS AND PUBLIC COMMENT (Continued)
All public testimony pursuant to ARS 92 (Continued)
Request to Amend Special Permit SP-88-3, Use Permit U-88-23, and Class IV Zoning
Permit Z-IV-88-28 to expand hours of operation of food service to continue to hold special
events and to construct buildin"s previously pproved under the subject permits Tax Map Key
(4) 5-2-013:012 (formerly 5-2-017:014) and affecting a Portion of a 46.587 acre parcel = Living
Farms LLC
The Commission received testimony from A. Michelle Martinez.
Ms. Martinez stated she was in opposition to the Common Grounds application to amend
its special use permit. She lived directly adjacent to Common Grounds for eight years and has
experienced the real and significant impact that has occurred with Common Ground becoming
the owner of the old Guava Kai plantation. They experienced a great increase in pedestrian and
vehicular traffic because of the non-agricultural events that occur throughout the day and a lot of
evening events. There is a lot of amplified music during the evening that happens regularly
throughout the month. During the day the increase of traffic has increased the noise that begins
before 8am and goes well into the evening. Guava Kai plantation had a gate that controlled the
traffic. That is not the case anymore. There is traffic at all hours. During special events,
intruders have come onto their property and their safety and privacy has been compromised with
the changes and events happening next door. They are not in opposition to a farm to table
restaurant or sustainable fanning; it is the location that is of great concern. With all the changes
already occurring in Kilauea with the cell tower, the new commercial development, and the
Somers permit issue, they want the Commission to take permits like this very cautiously,
approach it with circumspect, and to take into consideration the people who live on the road
experiencing it 24/7. She requested directing commercial ventures to a more centralized location
in town that is commercially zoned and that their neighborhood maintain an ag residential area
and the issues not become more of a problem.
The Commission received testimony from David Ward.
Mr. Ward stated he resides and farms on Kuawa Road in Kilauea. With this application
the Planning Director is asking the Commission to open a very large can of wonns. The Director
is saying he has no problem allowing the applicant or any other applicants to operate a restaurant
and a store as long as the zoning is ag and there is a vegetable garden out back. The hours of
operation can be whatever the applicant wants;they can use the after-hours entitlement to cover
the rest of the day. They already have a defacto events entitlement. The 1988 permit stated
occasional after-hours functions. In 2013 the Department means to increase the hours of
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operations 75%, seven days a week. They can sell anything they want; no restrictions, no
controls. The applicant is asking for what they have already been doing since 2010. He
questioned if the Commissioners want to allow an after the fact permit. The 1988 pen-nit to
Guava Kai had limits and restrictions, none of which this applicant has complied with nor has the
Department enforced. The 1988 decision and order states the snack bar shall be restricted to
guava byproducts and other tropical fruits. It has morphed into a 230 seat, full service restaurant
serving anything other than guava. There were restrictions in 1988 on what could be sold in the
marketing pavilion. Anything but guava is sold there now. The conditions in 2013 are bound to
be unenforceable. He asked the Commission to review the Department's defacto interpretation
of the application. The applicant has a history of abusing the 1988 permit and is now offering
what is advertised to accommodate up to 1000 guests. There have been beer gardens on this ag
zoned land, courtesy of one day liquor licenses. There are exercise classes up to 100 people.
The band on the outdoor stage is loud and none of the party goers live in the area. Everyone gets
to leave and go home, except the neighbors. Some of the vegetables grown on their 2 acre
kitchen garden are served on their 230 seat tables. They have 46 acres of ag zoned land and they
farm only 2 acres. It is an auxiliary to the restaurant and store and is very different from the
when it was a 40,000 tree plantation. The Department should be able to distinguish between
farming and gardening.
The Commission received testimony from Tom Huffman.
Mr. Huffman purchased 10 acres of land in Kilauea to faun and learn how to be self-
sustainable. He is in full support of Common Grounds expanding their hours and use pemait. It
is beyond the restaurant. It is about healthy living, eating right, and educating people about those
things. He believes in what they are trying to do. They are hying to let people know about what
is important for their health and what they eat. It isn't the typical restaurant. They are walking
the walk. They sell local products in their market. It is a local business supporting local vendors
and promoting health and diet.
The Commission received testimony from Parker Croft.
Mr. Croft disclosed that he served as the President of the Board of Directors of Kalihiwai
Ridge, Vice Chair of Aina Ho, and serves on the North Shore Council but was not speaking in
any of those capacities. He was speaking as a neighbor who lives upstream and has worked with
Common Ground in cleaning the invasive species and helped to make the land more accessible
to the people of Kilauea. He farms 20 acres with his wife. He finds that the people come to
Kauai for health and are interested in agriculture,not Waikiki or Maui. They need to support the
community. Nobody wants the community to suffer as a result of Common Ground. They are
good people and he was sure they would support whatever conditions are reasonable. They want
the community to thrive and also the island to thrive. If they don't act to do something
constructive and to give the young people a place to work and give them an opportunity to do
value added agriculture,then they are going to leave the island. They need to move forward and
work together. If the road is a problem,they need to make the road better with pedestrian access.
They are problems that can be solved. They need to take a proactive position. Common Ground
is doing that locally as a good neighbor, as an important resource for Kauai, and a resource for
people all over the world to appreciate.
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The Commission received testimony from Gabriella Riece.
Ms. Riece stated she is a member of the north shore conununity and is in support of
Common Ground and what they are trying to do for the future. Her husband is a native of Kauai
and most of them live here for the nature and simple living, but progress on some level is
inevitable. Respectfully to the neighbors if there is a way to combine positive progress for a
place of education, using the land for creating healthy food, and gathering food from other local
farmers.
The Commission received testimony from Rodman Machado.
Mr. Machado stated he was born and raised in Hawaii, educated on the mainland, and is a
chef by trade. He is the brains behind the food at Common Ground. He understands what the
neighbors are going through. The mission at Common Ground is to feed people the right way.
They are not doing funny things on ag land. They mean no disrespect to anybody. They want to
strive forward for the community, for the north shore, for the kids. They are the only restaurant
on the north shore, to his understanding, that actually produces and gives the heart of what they
believe is healthy cuisine. They produce clean food, and they mean no harm or disrespect. He
supports 4 other farmers and 13 employees that care about what they do and how they feed the
community. They can do things to make things right. What they are doing now is going to be
the march in the future for living healthy and feeding people the right way.
The Commission received testimony from Jeri Vanderlaan.
Ms. Vanderlaan stated she is a community member of the north shore and part of the
Common Ground team. It is a place that wants to provide overall healthy choices for the
community, the environment, and the local economy. They provide sustainable products and
produces the foods that enhance the quality of life overall. They have created a sense of
community where staff members and visitors are genuinely interested in a better way of life.
They are interested in educating themselves and others and they make decisions and take actions
to support that lifestyle.
The Commission received testimony from Bruno Ewald.
Mr. Ewald stated he lived on the north shore for 22 years and is in favor of Common
Grounds. He believes they are on their way of doing a lot more for the community with farming,
sustainability, and lifestyle. He believes it will be good for the community. Chris is a helpful
man whose interest is in the community and giving back to the community. He is involved in
teaching lids martial arts and believes there are ways through Common Ground to help the
community. He asked for the Commission's consideration and ultimate respect on this matter so
they can get it going and help make Kauai a better place, little by little.
The Commission received testimony from Tripp McCallester.
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Mr. McCallester stated he works at Common Ground and thinks approval is important
because it promotes tourism which is the engine of Kauai. It is a true value added product
system where they create the food. It is a community restaurant that people can bike and walk
to. They are on the cutting edge of the things they are trying to design.
The Commission received testimony from Mahina Ayau.
Mr. Ayau stated he approves of Common Ground's planning. Anything to help the
community grow in a better way should be supported. He is an employee and they need to
support the economy on Kauai.
The Commission received testimony from Thomas Beebe.
Mr. Beebe stated he is a north shore resident of 14 years and does not think there could
be a better example of forward moving agriculture; the polar opposite to greater concerns on the
island. This is the kind of thing we want to see happening with agriculture on Kauai that
supports communities, supports health, and provides a model for progressive agriculture as well
as a community gathering space. He sympathized with neighbors along that road. Nobody
wants more traffic. Those who have been here a long time want a rural atmosphere. If there is
anything that can be done to mitigate the impact on the neighbors, everyone will be happy. To
deny a project like this or deny additional opportunities for a project like this to succeed and
expand its reach to the community would be a shame.
The Commission received testimony from Josephine Bonaparte.
Ms. Bonaparte stated she has been a resident in Kilauea since 1992. She is in support of
the request to expand their hours of operation including night hours for dinner. They offer the
type of sustainability Kauai should look toward in moving forward. Non GMO, organic food
and organic eating equals overall health and well-being. We as an island should build upon this
prototype as a way to move forward in economics as smart development towards self-
sufficiency. She applauds Chris Jaeb and his good work and asked the Commission to vote in
favor of the request so he can continue to build good community as well as good business. She
can understand that people are speeding and there must be some kind of solution. She did not
think the answer would be to not approve it. There has to be a solution that they can work
together with the homeowners in moving forward with the project.
The Commission received testimony from Gary Seals.
Mr. Seals stated he is a community member of Kilauea and a fellow farmer in the Kilauea
Plateau. Having seen the project evolve for the last 6 years and having spent time with Jack
Gushiken, one of the founding fathers of Guava Kai, and being in communications about the
agricultural developments, he is in full support in the expansion of Common Ground. They are
modeling what the County is moving towards; renewable energies, sustainable farming, and truly
looking at the health and well-being of the community members. He asked the Commission to
take it into consideration. He feels that through the meetings at the Kilauea Neighborhood
Association, that Chris Jaeb has offered mitigation to the neighbors for things like speeding and
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traffic. He has taken the time and spent the resources to do traffic studies. He is aware of what
is happening and the potential expansion. He has heard the current traffic study is nowhere near
what Guava Kai used to have. Given the reduction over the last 6 years, anything that happens
would be received as a slight increase. Through speed bumps, Common Ground is willing to
mitigate the traffic concerns. In support of where the island is looking towards in the future, this
is something they can hold up as a model and say this is what they choose.
The Commission received testimony from Gary Bowen.
Mr. Bowen stated he is a local business owner in the north shore and runs Kauai Chef
Service. He has been doing business for 10 years. He appreciates what Chris Jaeb is doing as
far as local organic produce and making it available to the public and strongly supports what they
are doing.
The Commission received testimony from Carrie Souza.
Ms. Souza stated she has been a resident for 35 years currently living at Kafihiwai. She
personally supports the increase of use permits in support of Common Ground. She is in support
of the project as sustainable organic farming is critical for the health of the people on Kauai and
the garden to table concept is one that they can model for the visitors. She works at the St. Regis
and the people are hungry for what this place has to offer. They clearly state they don't want to
go to Waikiki. What we have to offer is unique especially on the north shore. They are holding
on to their ideals. She is on the neighborhood board of Kilauea and she listens to the needs. Out
of respect for the neighbors she thinks there can be compromise. We are richer with the project
than without it. We have to support it. The suggestions that canine from the meetings are two
consecutive days where there is no operation for the restaurant, reduced speed on the road that
can perhaps be mitigated by speed tables, and there could be a dual access through Bill Porter's
property, but it would be in the relationship between Chris Jaeb and Bill Porter if it is an
alternate route into the grounds. At large, she hopes they can all come together. They are all
after the same common good.
FIE Ward stated that two residents on Kuawa Road requested a postponement of the
hearing because they did not hear about the Department's recommendations until Saturday.
They did not have enough time to figure out what they were going to do or if they need to
consult a lawyer. They originally informed Mr. Hill that they wanted to contest the case or
intervene and they were waiting for Mr. Hull to inform them of what was going on. She was the
one that informed them of the recommendation. She went in on Friday afternoon and nobody
could help her. Ms. Galinato scanned the recommendations to her which she did not receive
until late Friday night. Out of consideration and respect for two other residents, who are kupuna,
the Commission could perhaps give more time by postponing the decisions.
Vice Chair Kimura stated with all due respect, this is not the only application the
Department is working on, and the planners were in Poipu last week working on the road study.
Ms. Ward noted this is their lives.
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Vice Chair Kimura stated he understood,but this is not the only application they work
on.
Ms. Ward stated was accusing Mr. Hull of something else, but not accusing him of not
doing his job. For their particular need, it was important for them to know what was going on.
The Commission received testimony from Matt Rabiolli (sp?) (not signed up to testify).
Mr. Rabiolli (sp?) stated he works at Common Ground. He moved to the island to be a
part of this project because he was interested in learning about a complete system that takes food
to the table and about developing a restaurant and store that supports local community. They are
all learning and trying to get better. The intention is there and the benefits of the community will
be huge. He thinks they should all be on board because it is in the best interest of Kauai and will
take the island where it needs to go. They can't run from what the future will bring. They want
to attract people who also are interested in supporting healthy lifestyles.
GENERAL BUSINESS MATTERS
Request to Amend Special Permit SP-88-3, Use Permit U-88-23, and Class IV Zoning
Permit Z-IV-88-28 to expand hours of operation of food service, to continue to hold special
events, and to construct buildings previously approved under the subject permits, Tax Map Key
(4) 5-2-013:012 (formerly 5-2-017:014) and affecting a Portion of a 46.587 acre parcel = Living
Farms LLC.
Staff Planner Kaaina Hull read the Director's report into the record (on file).
Commissioner Mendonca asked for clarification on the difference between a snack bar
and arestaurant.
Mr. Hull stated within the purview of the Comprehensive Zoning Ordinance there is no
distinguishing factor between the two; they are interpreted as one in the same in that they prepare
food, serve food, and have individuals who can either eat that food onsite or take it off site.
Commissioner Mendonca stated the original intent for Guava Kai was to have a snack bar
to promote the education of the guava farm. She questioned the acres of so called food being
grown that would justify opening another restaurant.
Mr. Hull did not know the specific acreage and noted the question would best be
answered by the applicant.
Commissioner Mendonca questioned if they are growing more than just vegetables.
Mr. Hull stated they are growing vegetables, fruit, herbs and he believes there are sheep.
He was not sure if they were utilizing the sheep within the dishes.
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Commissioner Blake questioned if there is a use permit involved.
Mr. Hull stated it is a use permit, special permit, and Class IV zoning permit.
Commissioner Blake asked for clarification that the basic premise of a use permit is that
the prohibited use will not interfere with the normal activity of the area.
Mr. Hull stated that is a fair assessment.
Deputy County Attorney Jung stated the use permit process is essentially the
compatibility test; if the use being proposed can be compatible with other uses in the
neighborhood and be integrated.
Commissioner Blake stated when reading the letters of support and opposition, it doesn't
sound like the same place. There were several meetings between both factions regarding Anaina
Hou until it appeared to the Commission that most of the problems had been worked out. Here
they have a business and the opportunity to provide to their own townspeople an alternative to
having to travel to eat. The people who were there already, either previously or
contemporaneously with Guava Kai, were happy with Guava Kai. Now there are allegations of
narrow roads, speeding, people trespassing, loud noise, etc. There seems to be a lot of
differences to be worked out before the Commission can make a decision. Ms. Bonaparte
mentioned trying to come together where mostly everyone can be accommodated. Otherwise
they are just imposing their will on what will happen there or not. He has been on that road and
it is very narrow. He feels something needs to be worked out. He questioned enforcement of the
conditions. He questioned when Common Ground can have events and how long they can last.
It seems to be out of the Commission's control. They are not hearing any attempts to come to
some agreement from both factions. He would prefer to see them work it out and allow at least
one more meeting before the Commission makes a decision.
Commissioner Mendonca questioned if they have a liquor license.
Mr. Hull believed liquor licenses have been secured for some of the special functions in
the past.
Commissioner Mendonca agreed with Commissioner Blake. She is in favor of land to
table in terns of promoting agriculture,but the original land itself was based on agriculture with
guava trees and the previous Commission granted a special permit on the basis that it would
educate visitors in terms of guava. We have lost that in the resale of the property. Now they are
saying they are going to do from farm to table, but there is a grey area of commercialized intent.
The public has already expressed concern regarding monitoring and if it would go any further.
She can express sympathy for both sides, but there is a grey area.
Mr. Dahilig stated the permits were passed in 1988. The solutions to keeping ag
productive have been evolving even prior to the passage of the permit. As sugar and pineapple
were declining, this was something that someone was trying to do at that time. There was an
attempt to look at value added elements and capitalize on tourist interest in agro-tourism.
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Unfortunately that model didn't work and the property was resold. There is the micro element
regarding traffic, noise, and road width, but the Department's recommendation is to try to help
solve some of the farm to table issues they are seeing across the island. If there was a panacea to
keep the ag land productive, he would like to see it. They see this as an attempt to try to address
some of the larger and bigger problems with respect to productivity of ag land. He sympathized
with some of the environmental concerns, but he clarified this is a private road and a road that is
not owned by the County. These were permits established when many of the land owners who
are there now purchased their land. This community has been evolving; there is the ag
productivity element and the residential community element. The attempt was to marry the two
and try to clean up the permit. If read in black and white the permit can be interpreted in a
number of ways; the special event condition, or the time and the place. They are healthy
discussion points for the Commission to entertain. The Department's recommendation
philosophy when it comes to farm to table elements is to be a little more open and
accommodating to people who are trying to figure out how to keep our ag lands productive.
Vice Chair Kimura questioned the visitor center and what yoga has to do with
agricultural activities.
Mr. Hull stated those concerns came up in public testimony and they are looking into it.
It is not part of their permit.
Vice Chair Kimura stated it seems speeding along the road has to do a lot with the non-
agricultural classes. He questioned if the Department has discussed the neighbors' concerns with
the applicant regarding speeding on the road.
Mr. Hull noted that in several discussions with the applicant, the road has been a primary
issue. It is essentially Common Ground's road.
Vice Chair Kimura stated even though they own the road, one of the main concerns from
the public is speeding.
Mr. Dahilig stated they do not condone speeding. This is potentially one of the legal
issues that may need to be discussed with the attorney. Many of the exactions levied on the
original applications were done with a certain impact in mind. When the permits were passed in
1988, there was a traffic study. The condition of the Commission in 1988 to mitigate the effects
of the traffic was Condition number 1. Based on the testimony, there is evidence that perhaps
the exaction was not strict enough. There is a nexus issue if the change that is being proposed by
the applicant is enough to say that these other exactions have to follow naturally. It may be
something the Commission may want to take up in executive session. There are constitutional
takings issues that could arise if there are expansions of certain conditions that do not necessarily
arise to the nexus issues. It is a valid concern,but as a recommender to the Commission he
cautioned that part of the deliberations were how to stay within the nexus arguments without
violating property rights.
Commissioner Anderson stated there was testimony comparing this to the TVR issue and
whether or not expanding the restaurant, labeled as a snack bar but functioning as a breakfast and
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lunch restaurant, to a dinner seven days a week restaurant, will open the flood gates to other
people who own ag land who want to open restaurants, and how the department will distinguish
this particular case from cases that may come up in the future.
Mr. Hull stated each applicant is reviewed individually on a case by case basis. There is
a real concern regarding abuses of ag land and the gentlemen estates proliferation. Technically,
you cannot have a residence on farm land. You can only have a farm dwelling that has to be in
conjunction with ag activities, absent any true definition of what constitutes ag activity. In this
situation,the Department has assessed an honest attempt at making the farm happen in relation to
feeding the restaurant activities. In each situation they will look at what is going on with the
property. They are also recommending in the condition that the Department still have more
oversight into what is being served at the restaurant to ensure that it is not abused in the future.
In 2012, the Legislature passed amendments to Section 205 which outright permits restaurants
and marketing pavilions connected with ag activities within the State of Hawaii. The County of
Kauai has not yet taken that step which is why use permits are still required. Technically if they
came in today, no special permit would be required because it is outright permitted on State Land
Use agriculture districts.
Deputy County Attorney Jung stated Mr. Hull's recitation is accurate,but special permits
are an acception to what is allowed under the general land use statute relative to State Land Use
Ag District. There are certain permitted activities. Those activities that are not permitted can
come in and apply for a special permit. All are taken on a case by case basis because they need
to evaluate the land under the proposed use and the type of soil qualities. Many of the TVRs
were on small kuleana type lots without enough acreage to have an actual operating farm. Here
you have the acreage.
Mr. Dahilig stated when they were deliberating on the recommendation for the proposal,
they questioned whether or not this may be the start of a paradigm shift for how they enforce
farm to table. It may be something they need to fine tune as far as how to ensure what is being
served is a farm to table element. The State policy is clear that they are looking to promote farm
to table. From a Departmental philosophy, they are in aligmnent with the farm to table, but the
enforcement element has to be fine-tuned.
Commissioner Anderson stated the proposal is to increase the operation hours from 9:00
a.m. to 5:00 p.m. to 7:30 a.m. to 9:30 p.m. There seems to be a middle ground that was not on
the table, but heard from an adjacent neighbor that their issue with the noise was that most fanms
don't operate until 9:30 p.m. and there may not be continuous traffic in the later hours. She
questioned if there was more guidance in terms of a time frame that could be a potential
compromise.
Vice Chair Kimura stated they can refer that question to the applicant.
Commissioner Mendonea asked for clarification that if she owns an ag land and decides
to open a 230 seat restaurant in her back yard, she can say that she will raise six patches of
vegetables.
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Deputy County Attorney Jung stated it is always a game of catch up. The State Land Use
Law under HRS 205 states you can have specified uses that are allowable that aren't necessarily
agriculturally related such as solar facilities. The State Legislature said they are allowed under
State Land Use Agriculture land. When you get to value added type products,you're looking at
how the County implements through its own CZO, dealing with and regulating value added
products. They still need to go through the use permit standard,but they could make an
argument that no special permit was required. It gets to what the Director referred to as the
context of the proposed use. In this case, they are coming in to modify a current special permit,
use permit, and class IV zoning pernut. If this were a new permit, they might be on a different
standard. Because they are dovetailing on a current permit that was allowed on the property for
what the Department is referring to as a similar type use, they have to look at it under the special
permit standard and the use permit standard. If a new proposed project came up, and the Council
wants to change the law and allow for these types of uses outright on ag, they wouldn't need the
use permit. Because the Council hasn't caught up to the 2012 Amendment to HRS 205,they still
need to come in for the use permit.
Commissioner Texeira clarified the snack shop is actually a restaurant and seats 206
people.
Mr. Hull stated there is no seating capacity for the existing permits. He was not sure how
many seats they have, but they are serving within the sheltered area that was approved under the
original permits.
Commissioner Texeira asked for clarification that there is currently no seating restriction.
Mr. Hull stated there are structure restrictions; they have a certain footprint that could be
built out. They are requesting additional footprint that was previously approved but has since
lapsed under the permits. The only restrictions are on the hours of operation and the footprint for
the visitor center area.
Commissioner Texeira clarified that people could sit outside.
Commissioner Blake asked for clarification that he could have his pasture with 3 cows in
it, open a steal:house, and rotate cows through the pasture.
Vice Chair Kimura stated as long as they are grass fed.
Commissioner Blake stated they don't kriow how long the cows have to be in the pasture,
as long as they harvest the grass for a while.
Mr. Dahilig stated the second provision is an inherent weakness in the fact that they don't
have a farm or general agriculture definition in the State Code and everything trickles down.
When looking at the permit process,those types of details can be further brought in to galvanize
the intent of the Commission. If you look at the law facially, there is an argument that could be
possible,but here there is a use permit and a class IV zoning permit process that can further
galvanize some of those conditions. The Commission can say all the meat served on the site has
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to come from the farm. He cautioned if they are in a position to have details defining the
pennits, they have to figure out how to validate the prime rib on the plate actually came from a
cow that was on the farm. There would be enforcement difficulties. It is a balancing act for the
Commission's deliberations as to how to ensure if farm to table is the desired outcome of the
permit, how to stay genuine to the philosophy. He did not have a clear enforcement answer.
Commissioner Blake questioned if the compatibility issues are still important with a
special permit.
Deputy County Attorney Jung stated it is in the context of how the Hawaii Administrative
Rules and Special Permit Rules defines what an unusual and reasonable use is. There is five
point standard on whether or not the use is integrated and won't affect infrastructure in the area.
They could argue that there is compatibility necessity that is played into the prong of the special
permit standard.
Commissioner Blake asked for clarification that without running afoul of the
Constitution,they could just say no.
Deputy County Attorney Jung stated each decision would have to have rational bases;
they would have to articulate their position as to why they are saying no or yes.
Mr. Dahilig stated the outcome would be different in the context of a new permit
application. This is a permit that is 25 years old with permitted uses folded in. Philosophically,
if they say no, the current permit still stands, but the current permit is not adequate for both the
land owner and the people living around it. They could say no, but it would maintain status quo
in a situation that is not palatable to anybody. Some of the adjustments that need to be made
within the context of their duties as government officials, namely within the parameters of
Constitutional property rights, need to be maintained because there is a valid permit on the
property already. If they were looking at a clean slate,the Department would have different
recommendations and conditions on a similar proposal, but they are already limited by what
happened in 1988.
Cornrnissioner Texeira questioned why the current permit is not adequate for the land
owner.
Mr. Dahilig stated it comes down to the earlier discussion on keeping ag land productive.
They are not in the business of looking at business plans for ag. They look at ag plans but not
whether something pencils out. The feedback from someone trying to make a go of an ag
operation is that he needs certain adjustments to have an ag operation penciled out. When they
take what he is proposing without the business plan element and look at it from a use element,
they need to say what is palatable and not. The Department's philosophy on the permit is that
they lend to be accommodating in the context of trying to encourage productivity of ag land. It
is a systemic problem on the island. Whatever they can look at to try to potentially create a
condition that works,they will try to see if they can make it work.
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Commissioner Texeira questioned if the applicant has actually stated the operation is not
feasible.
Vice Chair Kimura announced that the Commission will be taking a lunch break and go
into executive session on the lunch break. They will continue the regular meeting at1:30 p.m.
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 regardirug powers duties
privileges and/or liabilities of the Planning Commission as it relates to the evaluation of the
Planning Director.
On the motion by Herman Texeira and seconded by Amy Mendonca to move into
executive session, the motion carried by unanimous voice vote.
The Commission moved into executive session at 12:27 p.m.
Vice Chair Kimura called the meeting back to order at 1:34 p.m.
GENERAL BUSINESS MATTERS (Continued)
Request to Amend Special Permit SP-88-3, Use Permit U-88-23, and Class IV Zoning
Permit Z-IV-88-28 to expand hours of operation of food service, to continue to hold special
events, and to construct buildings previously approved under the subject permits, Tax Map Key
(4) 5-2-013:012 (formerly 5-2-017:014) and affecting a Portion of a 46.587 acre parcel = Living
Farms LLC. (Continued)
Vice Chair Kimura noted Commissioner Texeira's question before the break.
Mr. Hull stated the question was if the extension of hours were not allowed if it would be
profitable to still continue in that manner.
Chris Jaeb, owner of Common Ground stated he lived in Kilauea for 12 years, co-
founded Malarna Kauai, a sustainable non-profit with Keoni Kealoha. It has been very effective
in creating school gardens and community gardens throughout Kauai as well as a number of
other farm worker housing laws and issues. He sat on the Kilauea Neighborhood Association
Board for four year and has gone to 8 years of meetings. He is vested and wants the best for the
community in what they want and what the land will provide. The vision and the reason for the
name are because he believes there is more that binds us as human beings than tears us apart. It
is very easy to look to the 1% or 2% of the issues that make us not work together and feel like
nothing is possible. Reality is we all want security, happiness, good water, good food, and good
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neighbors._ He supports that to the deepest level of his being. Another aspect is to make it easy
for people to do the right thing. When you buy something at the typical grocery store or
restaurant, a lot of times you are supporting things that are not healthy for the community or
good for the planet earth; supporting petroleum based herbicides and pesticides, creating toxins
in the air, supporting unethical business practices. There are a range of business practices that
extend well beyond an organic field to table garden restaurant and market. When people see the
depth and what they support by doing it and how it affects people long term, they are going to be
happy and impressed. The educational story is gigantic. Every community should have an
organic food production environment, a highly nutritional place to get food, a market that has a
range of products that represent that community with the business ethics and range of
sustainability ethics that support things that are good for those communities and the planet. They
operate the three distinct business units as a business model with the intention of malting it easier
for other communities to do the same. His belief is if he can make an economic case for an
organic garden, organic restaurant in eco-conscious products,lifestyle enhancement market
focused on locally based products and locally based agriculture, he has done something gigantic,
not just for this community but something that can extend to a number of communities. His hope
is to open source. The more other people can do these kinds of things without having to go
through the learning curve,it is a gift. He was gifted 12 or 15 years ago with a range of income
related to a .com business and he came here with the intention of doing something good,that he
could leave behind and feel good about. The idea was not to make more money. Even if it does
great and they do get the extended hours of operation, and the restaurant becomes profitable, it
will take five or ten years to make the $2 million back that he has put into the full range of
learning curves that he had to experience. Up to a month ago, they were losing between $10,000
and $20,000 a month,hying to figure out how to run a garden or an agriculture operation in a
way that he was totally unfamiliar. Restaurants are not the most popular easy way to make
money. There are food costs that are perishable, a range of employees he knows nothing about
managing, and marketing. There is no guarantee even if they extend the hours that the restaurant
would be viable. To answer the question about whether it will work if they don't get the hours
extended is a function of how much money he is willing to put into it. He believes with his
intention and desire to work out the business issues there are opportunities to make it work, but
he cannot do it indefinitely. There is only so much he can stomach as a human being in an effort
to create something good for his family for this community and beyond. The organic farm
operation makes a huge difference in how they manage the soil and microorganisms. They are
using a hand tilled process so microorganisms live. That is a whole different way of looking at
soil management than traditional industrial agriculture. The purpose is to produce high
nutritional food, not just food that tastes good because it has sugar and fats. They are tying to
make every meal they eat support the right things in the body and the environment; low in sugar,
low in fat, low in salts and sodium, smartly designed with the medicinal benefits of a range of
nutrition that is extraordinary. The jobs they are training people for are the next generation jobs.
We need great organic agriculturalists, great chefs, and great food service people that understand
what was just described and a range of people that can communicate from a messaging
standpoint that makes it easy for people in the community and the world to understand the
benefits of eating this way. This is systemic to the health of the human being and the
environment. If we all ate this way today,the amount of greenhouse gas, pollutants, and
problems in waterways and reefs would be greatly reduced. The previous guava plantation and
sugar plantation were not necessarily the best things from a soil and environmental standpoint for
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the waterways and soil. They employ 30 people; 15 work in the restaurant and the rest are in
agriculture, landscaping and the eco-conscious market. They have a payroll of about$800,000 a
year and he is losing about$15,000 to $20,000 a month to supporting the hope that he can create
a business model that works. With extended hours they would probably add another 30%payroll
and $1 million gross payroll per year and that money goes straight back into people in this
community which is 50% of their cost. There is huge multiplier effect over along period of
time. People state that they are an oasis amongst restaurants on the planet because it's
transformational, peaceful, and beautiful. They have events with some increased sound, but
when put on a scale related to the 426 signatures in two weeks supporting what they are doing,it
is not a big issue. He is not about being mean to his neighbor. He wants to mitigate. He is not
the traditional corporate good old boy. There is value in the vision and he wants to make it real in
the way he acts and lives every day in his life. Guava Kai was permitted 170 cars per hour.
Their traffic studies show 80 cats per hour at peak. They are at less than 50% than the 1988
application. Some of the people that have moved in recently carne in after he bought the place.
When he bought the place there was zero traffic with nothing going on for a few years. Now,
any traffic is going to be perceived as substantial. He personally would like to deal with the
noise issue in the best way possible. They stopped the County recycling at Common Ground
because the neighbor didn't like the noise from the bottles. They have stopped larger scale
events because the noise level was higher than normal. He is more than willing to set a 55
decibel limit at property line which is a pretty low number. They can work with that all day.
There are not too many other 25 year old permits that are going to be asking for an amendment
to extend their hours. This is the processing environment for 700 acres of guava which had a
huge investment in marketing guava outright. They have a huge investment in supporting whole
foods which is much more diversified ag and much more of a greater story that will affect the
local and extended community in a big way. What was going on in the guava plantation in that
mode of business was not viable, primarily because of labor costs. Labor costs are main issues
and they are trying to address it in a way that they can really make the fundamentals work. He
noted they close the gate between 7:30 p.m. and 9:00 p.m. They provide access to stone damn,
beyond Common Ground so people can have pedestrian access through the property all day and
all night. They close the from gate so people can't drive through the property,but it usually
opens up about 7:30 a.m. They have speed limit signs of 15 mile per hour on the road. He is
open to having speed bumps put in and is open to widening the road. He noted he has 48 acres
and feels that he has an unbelievable asset that is a production environment around sustainable
agricultural products. It's not about figuring out a way to make a ton of money, it's about trying
to figure out a way to use the tools available to work with the community and the special use
permitting process to tonne up with a business solution that is viable without putting $20,000 or
$50,000 a month to make worth. If he dies, it closes down in its current mode of operation. He
sees a huge value in using the warehouse that used to process the guava and turn it into a
diversified agriculture valued added products environment that creates a range of healthy food
products so it becomes a food source that provides some level of food security beyond the one
week if the boats stop rwrning.
Commissioner Texeira questioned why the location is so important and if they could still
be economically viable, financially solvent, by having a restaurant operation outside of their
current location.
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Mr. Jaeb stated it is possible to purchase 2 acres of land next to a commercially zoned
property that he can use as a restaurant. The reason it is in the current location is because he
owns the property and lives nearby.
Commissioner Texeira stated it seems to be a problem to have commercial activity in an
ag zoned area.
Mr. Jaeb stated the main issue is that he does not want to become more invested in more
property and take more risk.
Commissioner Texeira questioned the 12,000 square feet of warehouse and if it is part of
the application.
Mr. Jaeb stated at this point it is not being used for anything other than cleaning fruits and
vegetables. It is primarily open space for storage.
1VIr. Hull stated should that processing plant be used for processing agricultural products
on site it is an outright permissible use in the agricultural district approved in an over the counter
class IV zoning. Should they use the facility for other individuals and farmers and companies for
processing then it would have to be reviewed by the Commission.
Commissioner Texeira questioned if they plan to utilize that space.
Mr. Jaeb stated if be can make economic sense out of the operation, he would love to
envision a day when they have 30 or 40 acres in some level of local vegetable,fruit, and nut that
they could bring to a value added environment and create something that makes sense from a
business perspective.
Commissioner Texeira questioned the export potential.
Mr. Jaeb stated they might export to other parts of Kauai but probably not beyond Kauai.
Commissioner Mendonca questioned the acres of agriculture.
Mr. Jaeb stated currently it is about 3 '/2 to 4 acres of vegetables, about 1 '/z of fruit trees
and about 4 or 5 acres of sheep grazing; between 8 and 10 acres in agriculture production at this
point. The rest of the property is fallow.
Commissioner Mendonca questioned if a liquor license has been acquired for special
functions.
Mr. Jaeb stated occasionally they do. Most times it is not necessary. It depends on the
event. Some people need liquor some don't. A birthday party for lids would not, but a wedding
reception in some cases does.
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Commissioner Mendonca questioned the number of functions that required liquor
licensing.
Mr. Jaeb guessed 1 or 2 a month. He would need to check the actual amounts.
Commissioner Anderson noted the current permit states that they need to provide
information in advance when having special events. She questioned if they have done so and
questioned if they are willing to have a time limit.
Mr. Jaeb stated they have provided advanced information to the Planning Department and
have stuck to a 9:30 p.m. time limit. There was one event a year ago that was late. In the last
four years they have never went beyond 10:00 p.m. except for the one instance where they carne
in a and worked with the alcohol and Planning Department to make aware that it was a New
Year's Eve party for kids that provided a place to go, rather than other places on the north shore.
10:00 p.m. had been the latest up until about 6 or 7 months ago, and then they went to 9:30 p.m.
Events are stopped at 9:30 p.m. and people often do not leave until 10:00 p.m. They try to push
them out because of the issues.
Commissioner Mendonca clarified that other than the special occasions, they close at
5:00 p.m.
Mr. Jaeb noted they close about 3:00 p.m. and most of the workers are out by 4:00 p.m.
The administrational staff stays until about 5:00 p.m.
Commissioner Mendonca questioned when the agricultural work is done.
Mr. Jaeb stated every day of the week.
Commissioner Mendonca questioned if the agricultural acreage would be expanded to
provide for the land to table.
Mr. Jaeb stated if they increase the hours, it would essentially double the fruits and
vegetables they would need to provide the meals. They would probably increase production by
50% and would work with other local fanners to source the rest. It is good to support other
organic farmers to provide a good value for their crops. That way he is increasing agriculture in
the area.
Commissioner Anderson noted the proposed permit specifies the majority of the food
served will be from the onsite garden. She questioned the current percentage.
Mr. Jaeb stated it changes with the seasonality. He guessed 30%to 40% realistically and
as much as 50% to 60% when things are thriving in the garden depending on the cycle of crops.
They had talks about running a restaurant 100% from the land but when they look at the range of
food the people like it is hard to make all the range of spices and herbs available in a high quality
that works in a restaurant. It is a great vision. 5 or 6 years down the road, he would love to
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believe that they could pull it off. Right now they are farming what they can most efficiently
that is the heartiest aspect of the menu.
Commissioner Texeira questioned the arnount they are losing daily operationally.
Mr. Jaeb stated if they take out landscaping, assets, improvements, and look at what it
takes to design, develop, and operate an organic garden, fruit tree orchard, sheet pasture, eco-
conseious market working with locals and other people in the area with sustainable products,
develop the restaurant,the administrational staff, on average he was around $15,000 a month;
about$500 a day.
Commissioner Texeira questioned the seating capacity to break even.
Mr. Jaeb stated if they did what they are doing now, for dinner,he was confident they
could break even or be slightly better without increasing the physical seating capacity.
Commissioner Mendonca questioned the current seating capacity.
Mr. Jaeb stated about 80. People referred to, as part of the application, the covered area
beyond the current seating area that when it is not raining there are picnic tables. If they put
tables in to fill out that area, they could fit another 100 to 125, but they are not there today. It is
hard to do much more with the current size of the kitchen. They can only do so much food at
peals time.
Commissioner Anderson questioned the building permit occupancy.
Mr. Jaeb stated it is outdoor seating that is covered.
Vice Chair Kirnura questioned the yoga class and its relationship to ag. He noted that it
is part of the reason for the speeding.
Mr. Jaeb stated a year and a half ago he felt yoga would be great for the staff to start the
day. It evolved into a free class by donation for anyone who wanted to show up. About six
months ago it stopped. There is no yoga today.
Vice Chair Kimura questioned the non ag use.
Mr. Jaeb stated the fitness program, three days a week, is offered to single mothers from
10:00 a.m. to about 11:00 a.m. There are between 50 and 60 women who are benefiting from an
exercise program. There is no commercial transaction. The leader of the program wanted to
offer it for free.
Vice Chair Kimura questioned if the Commission expanded the hours of operation, if he
would be willing to put a reasonable limit for the special after hours function in order to mitigate
the impacts they heard in public testimony.
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Mr. Jaeb indicated agreement.
Commissioner Isobe clarified that Mr. Jaeb stated he would be willing to abide by a 55
decibel noise limit at property line and also consider improving the roadway as well as looking at
ways to mitigate the speed.
Mr. Jaeb replied correct.
Commissioner Isobe stated he heard one of the testifiers mention as mitigation, not
operating the restaurant for two consecutive days and questioned if it is a viable consideration.
Mr. Jaeb stated they currently don't operate the restaurant and market on Mondays. It
would more difficult to reduce by 17%the income generating capabilities.
Commissioner Isobe noted the application as he read it states seven days a week. He
questioned if he would be willing to consider six days a week.
Mr. Jaeb stated the application suggested they may have the capability for 7 but they
currently only operate 6 days.
Mr. Hull clarified that while current operations are at 6 days a week, the permit allows for
7 days a week. He questioned if he would be willing to agree to a condition of 6 days a week.
Mr. Jaeb stated he is open to having the conversation of understanding what that would
mean and what he would have to do to figure it out.
Commissioner Blake asked for clarification that he has attempted to meet with the people
who are voicing concerns about the expansion of the operation.
Mr. Jaeb stated they have his email and phone number and he responds as much as he can
personally each time.
Commissioner Blake questioned if a formal meeting was considered.
Mr. Jaeb stated they have invited everyone who lives on the road to a meeting and they
had pupus one night. They haven't done it for about a year, and it is probably a good time to do
it again.
Commissioner Blake questioned if it helped.
Mr. Jaeb stated usually the people in most opposition don't show up. They end up
meeting with supporters. It affects the goodwill generally but doesn't make a major impact.
Vice Chair Kimura questioned the type of mitigation they have come up with for
speeding.
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Mr. Jaeb stated speed bumps and signs are probably the smartest and simplest. Mobility
from a sustainable approach is to make the roads narrower. The more narrow the road, the
slower the traffic. By increasing the widths of the roads,the traffic would get faster. In some
ways it feels safer, but it might be more dangerous on some level.
Vice Chair Kimura noted painting the stripes on the road a little narrower should slow
traffic down.
Mr. Jaeb stated he would be very open to having a high quality 16' wide road that is well
lined out.
Vice Chair Kimura stated they learned a lot today from the multimodal transportation
presentation and it seems to work.
Mr. Jaeb stated a third of the road is at a 20' width. People generally go faster on it than
the 16' road.
The Commission received testimony from Elli Ward.
Ms. Ward stated she felt obligated to remind the Commission of the request of two
neighbors who live adjacent to the property. They need time to be heard and to consult with a
lawyer. It wasn't that they didn't ask for it. They have been in touch with Mr. Hull for 2 '/2
years. They have been emailing and calling. They deserve to be heard and allowed to have time
to have professional advice.
Mr. Dahilig stated they received, and was included in the packet, a transmittal indicating
there are two individuals that would like to intervene,however the process is not open per the
Rules of Practice and Procedure of the Planning Commission for intervention because of the
modification of an existing permit and the issue of substantial change. The transmittal as
submitted did not meet the requirements of the Rules of Practice and Procedure of the Planning
Commission as well as the fact that there is no agency hearing for the particular matter before the
Commission. Intervention is not proper in this particular circumstance. If the Commission
would like to initiate a contested case hearing,it is the Commission's prerogative to override the
Director's decision to order an agency hearing based on the testimony at which time the
individuals could come in and propose per the Rules of Practice and Procedure of the Planning
Commission to initiate a contested case hearing. They would need to refer the matter to a
Hearings Officer and conduct an administrative trial. Given his evaluation of the proposal and
the scope change it was reasonable to not recommend that the modification require a new agency
hearing. Usually reopening agency hearing relates to a proposed substantial change to the
existing permit conditions. This is a time change and meant for administrative tweaking. As
part of the way the Code is written and the Rules are written the judgment call was that an
agency hearing was not required, so there is no intervention proper.
Vice Chair Kimura noted he has a hard time changing the permit the way it sits now. He
is would like a time constraint on the permit if they allow the change being that the permit runs
with the land and not the owner. If and when they decide to sell, the next owner might take it to
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the next level and might jeopardize the agriculture. If they put a time constraint, he would feel
better. It is a hassle to come in every two years, but permits in the past have changed from the
way the Commission allowed. He questioned if Mr. Jaeb would have any.objections to a time
limit.
Mr. Jaeb asked for questioned if the permit is approved with the changes, every two years
they would have to readjust from scratch.
Vice Chair Kimura stated it would be to ensure they stay within the permit
recommendations and didn't sell the property or that someone else is running it.
Mr. Jaeb asked for clarification that it would be like a status report that they stayed within
the spirit of the intent of the agreement. He would be open to that.
Vice Chair Kimura would not want a new owner to come in and find a loop hole to
change the whole thing. That is why they asked for 6 days instead of 7. His word may be good,
but when there is a new owner, 6 days is out the window.
Mr. Jaeb stated he understands and would be open to that.
Commissioner Isobe questioned from a business perspective, his understanding is
typically restaurants take between 3 to 5 years to become profitable. He questioned how much
time he thinks he needs. He would hate to have him report every 2 years if it will take 4 years to
climb out of the hole. He was thinking where the permit would come up for review and renewal
would be 3 to 4 years but he would be required to come before the Department to give a status
report.
Mr. Jaeb stated that was his understanding; that it would be an update to say they are
operating as described and the full range of activities going on within the scope of the agreement.
Connnissioner Isobe stated his understanding of the Vice Chair's request is that he would
be coming up to request an extension or renewal of the permit every so many years before the
Commission.
Mr. Jaeb noted that's different from a status report. He was not sure what the legal
solution would be. There is probably a way to write that if the spirit of the agreement is intact,
the new owners would have to adhere to the specifics of the agreement. He was sure between
legal counsels there was a way to do it.
Mr. Dahilig stated their recommendations in the permit fold in some things that from an
enforcement_perspective they would like changed for clarification. It may be things like the 6
days a week, extended hours, and some limits for special events and annual reports. The
Department would not want to have the old permits stand as are either,particularly some of the
ambiguous conditions between a snack bar and a restaurant. He asked the Commission to keep
in mind during their deliberations which conditions would be time limited and which would be
permanent changes.
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Mr. Jaeb asked for clarification on the time limit.
Mr. Dahilig stated the extended hours provision would be in effect for 3 to 4 years. Then
they would have to come back and renew the extended hours provision.
Mr. Jaeb questioned if there would be a chance they may lose that right.
Mr. Dahilig stated he is hearing it would be a temporary right for the extended hours with
respect to the time period. The time limitation would be a temporary right not a vested right
necessarily.
Mr. Jaeb stated it would be hard. They would be vested in a restaurant business that may
take 2-4 years to prove that it is even viable, and then possibly lose the right to do it once they
figure out how to do it.
Vice Chair Kimura questioned a status report on the anniversary date.
Deputy County Attorney Jung stated the Commission can either put a temporary time
limitation on the permit to run 3 or 4 years subject to extension by the pleasure of the
Commission, or they can put it in the context of allowing the applicant to come back to provide a
status report and updates, then have the Department look into issues that may need to be brought
up by the Commission. So, they could look at evaluative measures and keep the permit open to
further modification at the end of the time period through the status report element.
Vice Chair Kimura questioned if the applicant would be willing to come back for
extensions rather than coming back for a new permit. His concern is that if and when the
property is sold and there is a new owner, because it has happened time and time again, they
could change everything.
Mr. Jaeb stated from a business standpoint he would feel better with the status report that
is reviewed and confirmed rather than not knowing if he may lose the right to a business he may
spend 2 or 3 years to build due to the changing political tides or nature of laws.
Commissioner Mendonca questioned his restaurant experience or background.
Mr. Jaeb stated other than the last 2 '/z years, he did not have any previous farm or
agriculture experience or market experience.
Commissioner Mendonca questioned the thinking behind the 7:30 p.m. to 9:30 p.m.
hours.
Mr. Jaeb stated they learned how to manage what they have. The restaurant is starting to
do better than it was 2 '/z years ago. As much as he is not a manager, owners can hire managers
who know what they are doing. If they get the right to expand, they would try one or two nights
a week and slowly step into it.
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Commissioner Texeira questioned if they would be able to achieve profitability just by
expanding the hours of operation without expanding the size.
Mr. Jaeb stated they believe they can.
Vice Chair Kimura questioned if they would consider 8:00 a.m. to 9:00 p.m. From what
was said,people are not allowed on the property later than 10:00 p.m. If dinner is served at 9:30
p.m., people would be there until 10:30 p.m.
Mr. Jaeb stated he would be open to that.
Mr. Dahilig stated in terms of ideas that were heard from Commissioners,to assist in the
development of the conditions for potential approval, one was a trade-off for extended hours for
limits on special events to mitigate the increased traffic from the extended hours. There would
be a time limit on the changes to expire within 3 to 4 years that would have to be renewed.
Another was a 6 day a week limitation rather than 7 days. Another was status reports annually
due to the Department. Another was 8:00 a.m. to 9:00 p.m. as an adjusted time for operation.
Commissioner Texeira asked for clarification that in return for the expansion of hours
they would not grant the 1,200' expansion.
Mr. Jaeb stated that one issue is the separate building that was part of the original permit
and is related to the width of the road. If they widen the road, they would have the right to build
the additional market space. He questioned if the expansion is the additional building.
Mr. Hull stated the original permit allowed for a 1,200 square foot building which has
lapsed and the request was to renew the allowance.
Mr. Jaeb stated they would like to increase the size of the market that would be for
products related to what is created there.
Mr. Dahilig stated the Commissioners in 1988 found the impacts to necessitate an
expansion of the road would only kick in once additional square footage was constructed. If
there is a foregoing of the additional square footage, theoretically, because it already is a vested
right issue they could not compel a widening of the road. That weighing process was done in
1988 as to when the increase width would have to kick in.
Commissioner Texeira questioned if widening of the road is a big deal.
Chair Kimura stated that from what they learned today, they would want to narrow the
road.
Commissioner Isobe stated there are two issues; one is the relationship of the road to the
building and the other is the size of the restaurant. The expansion of the building does not
necessitate that the restaurant would automatically be enlarged. His understanding was that
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allowing the building to be built would increase the potential of increasing the market place and
still limit the size of the restaurant/snack bar by saying it shall be a restaurant/snack bar with a
certain capacity.
Mr. Jaeb clarified they would not be expanding the restaurant beyond what it currently is.
Commissioner Isobe stated that it would allow the business the opportunity to expand in
other ways such as the market place where they could potentially bring in more produce for sale.
Commissioner Mendonca clarified that his is in agricultural work. Her understanding is
that he has knowledge to offer the people of Kauai. She questioned why he is not fulfilling the
initial dream to build up the agriculture to be the way it was originally planned. He doesn't need
to expand the snack bar but it could be profitable if they put more of the food products or create
things that are more locally raised and grown at the gift shops. It seems more opportune than
someone with no restaurant background wanting to do something low key and there may be
restrictions. She is behind the fact that lie wants to make the business work for the people in the
agricultural end of Kauai.
Mr. Jaeb stated his background is in technology. This is something that he believes will
add value to the community from a food and health perspective. He believes getting the
restaurant and market operational is the easiest way to get to the next step as compared to
planting out 40 acres of ag land and trying to get a processing plant to create value added
products that will be more labor intensive and a bigger unknown.
Commissioner Mendonca stated he already has a building that he can bring in farmers to
help. A snack bar is providing opportunity to sell breakfast and lunch. She felt that is a
beginning. He has the best of two worlds. He doesn't need to push into a high end restaurant
situation where the Commission would have to consider how to place conditions on it. He
already has something that can work.
Mr. Jaeb asked for clarification that Commissioner Mendonca's suggestion was to plant
out the rest of the property in agriculture.
Commissioner Mendonca stated her view point is that he has the best of two worlds. He
has the breakfast and lunch and the ability to do special occasions. He has the land to do more
fawning and do land to table. He is asking to extend the hours into dinner. It seems to be a
touchy point with other people. If he looks at what he has and considers more of the other side,
such as selling or creating more products, it would not be as controversial.
Mr. Jaeb stated for him it is one step at a time. It is too easy to do a bunch of things and
not do them well. He is trying to do one or two things really well and move from profitability
into the next thing. He would like move into ag centric activities as the next step.
Commissioner Mendonca clarified that she is hearing that he is also willing to work on
more farming.
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Mr. Jaeb stated that if things go well in the next 2 years, the natural next step would be to _
start using the warehouse to produce valued added products. It would be the next smart thing to
do within the current permit and would take no changes. It would be a huge asset in his mind.
Commissioner Anderson questioned the process. She felt there are various options
before the Commission and would like to be able to weigh the different conditions and have
them before the Commission at the next meeting. She felt a deferral would be appropriate to
have the different options for the conditions set forth before the Commission.
Mr. Dahilig stated from an operations standpoint, if there isn't any more business left in
the day, they ask for a deferral. If there are other business matters that can be taken while
conditions are being drafted,they send the ideas back with the planner to draft during abreak for
circulation for discussion. It is up to the Commission how they would like to handle it.
Commissioner Texeira stated he would like to support a deferral because some of the
land owners would like to testify at the next meeting and were not able to attend today.
Chair Kimura stated with no disrespect intended, that even if they only found out on
Friday, they still had Saturday, Sunday, Monday to show up. Commissioner Anderson's request
for deferral is more justifiable versus deferring because someone didn't have enough time or is
not present.
Cormmissioner Texeira stated they have had deferrals in the past to allow the public to
testify again. Unless there is a time constraint and a deadline,he didn't see a problem.
Mr. Dahilig stated they have received written testimony so their testimony is in the
record. He questioned other conditions that the Commission would like to propose at the next
Commission meeting.
Commissioner Anderson requested the list be read.
Mr. Dahilig stated there is a tradeoff of extended hours for limits on special events and
they will come up with some kind of time limit on the change from 3 to 4 years, 6 days a week
for operations of the restaurant, status reports annually to the Department, operation of hours
from 8:00 a.m. to 9:00 p.m., limit the size of the restaurant to a seating capacity and allow the
1200 square foot building to be constructed but for non-restaurant use.
Commissioner Anderson noted there was also testimony regarding 55 decibel limit as
well as speed bumps.
Mr. Dahilig stated as they draft the conditions they will check with the applicants
regarding which have his consent or don't have his consent.
Commissioner Isobe would like to clarify that they and the applicant are clear on the
condition regarding whether or not there will be a time extension as opposed to status reports.
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Mr. Jaeb stated that it is almost impossible to plan a business not knowing if the business
is going to be here 3 years from now.
Vice Chair Kimura stated he agrees with Commissioner Isobe as far as running a
restaurant. He suggested a status report.
Mr. Dahilig stated given he is hearing potential disagreement, they will come up with a
couple of conditions that can be entertained by the Commission; one that is minimal and one that
is more restrictive.
Commissioner Isobe suggested going with the status report and if as part of the reporting
process they find there are violations of the intent or conditions at that point in time, the permit
can come before the Commission for consideration.
Mr. Jaeb stated that he is okay with that.
Mr. Dahilig clarified through the status report process if there are any noted violations
during the period, it would essentially kick to a Commission extension process. They will work
with the attorneys.
Vice Chair Kimura stated as far as running a business, he would like to see it succeed.
As a Commissioner and a resident of Kilauea, he would not like to see something that he works
hard to achieve,that if and when they sell the property, the land owner has some other idea. That
is his only reason for a time constraint on the permit.
Mr. Jaeb stated on the Kilauea Neighborhood Association they ran into these issues many
times where a land owner gets a right to do something and a new land owner sought something
totally different. He is willing to work within the spirit of the current agreement and make it
work in perpetuity.
On the motion by Angela Anderson and seconded by Hartwell Blake to defer this
agenda item to the next scheduled Planning Commission meeting, the motion carried by
unanimous voice vote.
Vice Chair Kimura noted the next meeting is scheduled for Wednesday, June 12.
Amendment of Section 1-2-21 of the Rules of Practice and Procedure of the Kauai
Planniny Commission=Kauai Planning Commission
Mr. Dahilig stated this was based off of some public input concerning when people are
allowed to testify during meetings. To clarify, they are adding a paragraph to state that public
testimony shall also be received at each agenda item. Should a person who has already testified
at the time designated in the beginning of the agenda for the Commission to receive testimony
wish to testify again on the same item at the time the agenda item is actually called, he or she
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may do so unless the Chairperson determines the testimony is irrelevant, immaterial, or unduly
repetitious.
Vice Chair Kimura noted that is the current procedure.
Mr. Dahilig stated they are memorializing the practice and codifying.
On the motion by Herman Texeira and seconded by Amy Mendonca to approve the
amendment, the motion carried by unanimous voice vote.
UNFINISHED BUSINESS (For Action)
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 Plamling Director Denying Use of the
TVR-Non Conforming Use Certificate, Tax Map Key (4) 2-6-007:009, Richard Travers TVNC-
1255.
Mr. Dahilig stated they received the request to appeal the Director's decision to deny the
renewal and that the matter be referred to the Commission's Hearings Officer, Mr. Nakamura.
The delegation of authority to the officer should include a disposition of all motions and
stipulations between the parties, receipt of all evidence, evaluation of all evidence, and
recommendation of a proposed action and decision and order for Commission review and action.
That is his recommendation on this particular appeal.
Richard Travers stated he is appealing the decision to deny the TVR use certificate.
Originally they filed a lengthy package for the original approval approximately 2-3 years ago and
were approved. Since the original application, there has never been any written communication
between the Planning Commission and himself except the registered letters stating they were
going to cancel and deny the TVR renewal and permit. Since this started he has received 3
registered letters from the Commission regarding it. He has never received communication from
the Commission regarding the original permit, about the findings, about any information that
would tell him when it expires, or the fees. He has never received anything except registered
letters denying the permit. He felt it was odd that they can communicate with him about
cancelling it. It would seem they would send some kind of information regarding yearly fees,
when they expire, and any pertinent information he is supposed to know. He questioned what
other decisions were available to the Commission regarding the permit and the rational basis that
was used to come to the decision that his permit be canceled.
Deputy County Attorney Jung stated the matter is a request to refer to the Hearings
Officer for disposition. He clarified it is not the Planning Commission that makes the decisions,
it is the Planning Department's decision that is being appealed to the Planning Commission. The
Department is asking for the matter to be referred to a Hearings Officer to have what is called a
contested case to evaluate the positions. In looking at the letter, it indicated that he did not pay
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the renewals for 2011 and 2012. Those are the issue that will be addressed at the contested case
hearing. If he objects the matter going to the Hearings Officer he can say it, but he will have his
due process hearing to make his case to the Hearings Officer which will then be transmitted to
the Planning Commission.
Mr. Travers stated they requested to pay the two years that expired and renew and was
told it wasn't possible.
Deputy County Attorney Jung stated the matter will go to the Hearings Officer and he
will make a recommendation to the Commission. The attorney representing the Department will
contact him regarding a time for a pre-hearing conference with the Hearings Officer.
On the motion by Amy Mendonca and seconded by Herman Texeira to recommend
the matter to the Commission's Hearings Officer, Richard Nakamura, and the delegation
of authority to the officer shall include the disposition of all motions and stipulations
between the parties, receipt of all evidence, evaluation of all evidence, and a
recommendation of a proposed decision and order for the Commission's review and action,
the motion carried by unanimous voice vote, 5-0. (Commissioner Blake was not present
during this vote).
Special Manavement Area Use Permit SMA(U)-2013-7 to construct a single-family
residence on a parcel located along the makai side of Kuono Road in Moloa'a situated approx
300 ft east of its intersection with Moloa'a Road further identified as Tax Map Key 49-
014:008, and containhi>?a total area of.816 acres =Michael Wells
Staff Plamier Jody Galinato read the Director's report into the record (on file).
Michael Wells, owner and applicant, stated he is providing housing for his family which
consists of 3 adult children, 2 grandchildren and 1 grandchild on the way. He already has the
right with a minor to construct a 500 square foot guest house. He is essentially asking to have a
single family dwelling on the property as well. He did not think it would impact the community
at all. Around him are two vacation rentals on the right and a big house in front. A couple more
vacation rentals are on the left toward the beach. On the immediate left are a couple of shacks.
Moloaa has become a mixed use community. He has owned the lot since 1985 and finally got it
together financially to build the home they live in around 2000. This is an application for long
term housing needs and desires of his immediate family as a long term investment. He has no
intention of selling the property.
Vice Chair Kimura asked for clarification that he has a right for a guest house and he is
asking for a single family dwelling.
Mr. Wells clarified that he is requesting the dwelling in lieu of the guest house so that it
would be a real house.
Mr. Dahilig questioned if the applicant has reviewed the conditions of the permit.
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Mr. Wells stated that he has no objections to the conditions.
On the motion by Amy Mendonea and seconded by Hartwell Blake to approve, the
motion carried by unanimous voice vote.
ANNOUNCEMENTS
Planning,Director Michael Dahilig announced that the following Planning Commission
meeting will be held on Wednesday, June 12, 2013 at 9:00 a.m. at the Lihue Civic Center,
Moikeha Building, Meeting Room 2A-213, 4444 Rice Street, Lihue, HI 96766.
Vice Chair Kimura adjourned the meeting at 3:42 p.m.
espectfu submitted by:
Duke Nakamatsu,
Commission Support Clerk
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