HomeMy WebLinkAboutpc minutes 6-12-13 KAUAI PLANNING COMMISSION
REGULAR MEETING
June 12, 2013
The regular meeting of the Planning Commission of the County of Kauai was called to
order by Chair Katayama at 9:19 a.m., at the Lihue Civic Center, Moikeha Building, in meeting
room 2A-2B. The following Commissioners were present:
Mr. Wayne Katayama
Mr. Hartwell Blake
Mr. John Isobe
Mr. Jan Kimura
Ms. Amy Mendonca
Mr. Hennan Texeira
The following Commissioners were excused:
Ms. Angela Anderson
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Katayama called the meeting to order at 9:19 a.m.
ROLL CALL
Deputy Planning Director Dee Crowell noted that there were six Commissioners present
and there was quorum.
MINUTES of the meeting(s) of the Planning Commission
Regular Meeting of April 30, 2013
On the motion by Herman Texeira and seconded by Amy Mendonca to approve the
minutes of April 30,2013, the motion carried by unanimous voice vote.
RECEIPT OF ITEMS FOR THE RECORD
Commissioner Texeira noted the Commission received a letter.
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2013
Deputy County Attorney Ian Jung noted letters of support or opposition are received
during that agenda item.
HEARINGS AND PUBLIC COMMENT
Request to Amend Special Permit SP-88-3, Use Permit U-88-23 and Class IV Zoning
Permit Z-IV-88-28 to expand horns of operation of food service to continue to holdspecial
events and to construct buildings previously pproved under the subject permits Tax Map 'Key
(4) 5-2-013:012 (formerly 5-2-017.014) and affecting portion of a 46.587 acre parcel= Living
Farms LLC
The Commission received testimony from Yoshito L'Hote from the Kilauea
Neighborhood Association.
Mr. L'Hote stated he was asked by the Kilauea Neighborhood Association Board to
clarify testimony that was received at the last meeting regarding the extension of hours for
Common Grounds. The position of the Kilauea Neighborhood Association is they are neither for
nor in opposition of the extension of the hours and they leave it in the hands of the Commission
to decide.
Class IV Zonine Permit Z-iV-2013-16 Use Permit U-2013-14 and Special Mana ement
Area Use Permit SMA (U)-2013-8 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 5-5-003. 002 and containing a total area of 2.499 acres
= County ofKaua'i Department ofPublic Works and County ofKaua'i Department ofParks
and Recreation.
The Commission received testimony from Joel Guy, President of the Hanalei to Haena
Community Association.
Mr. Guy stated in 2007 they met with then Mayor Baptiste to discuss the conversion of
the Hanalei Courthouse to a community center and have met with the current administration a
number of times to offer their help in the process. The current Board unanimously supports the
renovation of the former Courthouse into a community center. While there are a nw-nber of great
opportunities this center will provide to the community,they feel it is their vulnerability to
disasters that is the most immediate need. As the number of residents and visitors continue to
grow on the North Shore so does the challenge to care for all the people in times of need when
the road out of Hanalei is blocked by a land slide, the river rising for hours or days, or even a
fender bender. The efforts assure visitors and residents a centrally located, well lit area to get
information, find shelter, and centralize emergency responders. They appreciate the intentions.
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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 Mproved 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
Farin LLC(Continued)
The Commission received testimony from Jaynes Maciver.
Mr. Maciver stated he was in support of Common Grounds extension and permit
amendments. He studied sustainability and sustainable business at a Masters level. The changes
that are occurring in the world mean the best thing they can do is support businesses that, instead
of just aiming to make a profit, are looking to enhance the life of the people and take steps to
care for the planet. Change is inevitable. The existing permit is from 25 years ago. The world
has changed a lot since then. In his line of work and study, there is a lot of rapid change that
needs to happen soon. Support for a business that believes in a sustainable future and is looking
to take care of the community by growing food and providing opportunities for people to eat
local, organic,healthy food and to provide jobs and education in agriculture and healthy living
are important. Giving Common Ground the opportunity to be sustainable from not only a planet
and people perspective,but a profit perspective to extend the hours, would be a positive thing for
the community.
Commissioner Blake asked for clarification that Mr. Maciver was in favor of the
extended hours because Common Ground is able to grow their own food and sell it.
Mr. Maciver stated growing their own food with the vision to educate people on eating
healthy, local, organic food. When talking about sustainability, it's a triple bottom line
perspective. You want a business that can sustain itself but also does little harm to the planet in
terms of chemicals. Organic is the way to go and supporting people and education on how to
grow their own food instead of food from big companies that are putting chemicals in the land.
Commissioner Blake questioned if Common Grounds sponsors programs to educate the
general population.
Mr. Maciver stated experience trumps any words that can be written or read in a book.
Studies show that children who care most about the planet are those who have gone out and
experienced nature growing up. To be outside and walking through the fields, to see the foods
grown, then to sit and eat the food, and to have the experience is the scenario that creates people
who want to live a healthy life and move forward.
Commissioner Blake questioned whether Mr. Maciver has availed himself to Common
Ground's specific programs or if he just knows this generally.
Mr. Maciver stated by setting up an environment where people can learn about the food
they are eating, from the staff, to walking through a field where the kale was grown, and then
sitting and eating it, creates people who want to do more. He was not aware of a specific
program, but he understands Common Ground is interested in setting up programs for students
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and young people to come in and learn to farm and create opportunities to learn the skills to work
in a local, green, agriculture based economy. He knows from talking to people there, that is the
vision.
The Commission received testimony from Brian Lansing.
Mr. Lansing stated he moved to Kuawa Road in 1977 before it was paved. He watched
the road deteriorate with very little patch work. It is on a bad position on the highway, on a
curve just after the Kilauea Stream Bridge. The corner is famous for the sale of used cars, corn,
fish, and tangerines. There are cars parked askew on both sides of the intersection. It was not
bad in 1978. The hitchhiker who was there at 8:00 a.m. would be there when you came back at
12:00 noon. Shortly after it turned into guava farms and had a botanical garden it was in
agriculture. Now the use is mixed with a vegetable garden that could feed 100 people on about
an acre or two. The property is actually hrmdreds of acres and could be a valuable agriculture
resource. It is unfortunate that it is expensive to live on Kauai. Farm labor can't be paid to live
here. Now they are exploring other avenues. He is okay with anything agriculture related,
however,the road is unsafe and is neglected. Start of the road construction was done by a
corporation then it went bankrupt. It was never brought to County standards. It is a substandard
road, deteriorating rapidly on a curve. Just down the highway a developer requested use of this
property for a miniature golf course. He widened the highway,put in acceleration and
deceleration lanes, and a safe left turn lane. The road should be studied, brought up to County
standards, and the highway requirement should be left turn and right turn lanes for the safety of
the people. He wishes the County would consider traffic requirements and the unsafe
intersection before allowing the operation to expand. It was kept at that level it was because they
wanted to preserve it in agriculture with low impact. It is overgrown already and it is not safe.
The Commission received testimony from Stephanie Montanez.
Ms. Montanez stated she is the market manager at Common Ground and has spent the
last 8 years owning a natural therapeutic skin care company in which she has been taught the
tradition, the techniques, and the cultural preservation of laau lapaau. She maintained a
sustainable agricultural business in Maui and provided not only food as medicine, but botanical
plants as medicine. Her teacher of laau lapaau was committed to keeping it alive. Her
opportunity at Common Ground is to put back in motion her business operation and also to
educate locals and tourists on the beauty Kauai has to offer from an agricultural perspective. She
currently has 5 acres of land at Common Ground and is growing and utilizing native and non-
native indigenous, endemic, and non-endemic medicinal plants. Her role as market manager is
to branch into a bigger ag development and provide Cornmon Ground a hue opportunity to show
visitors what is possible. It is important to her to keep this part of the culture alive and to see a
sustainable model for children. Over the last 7 months, she has been developing an array of
potential programs and has been growing herbs on the land,harvesting, extracting,
manufacturing, and providing them in the market to be a closed loop, sustainable, on-site
business model and value-added product to the community.
Commissioner Texeira questioned whether she owns or leases the 5 acres.
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Ms. Montanez stated she leases.
Commissioner Blake questioned how much is in medicinal herbs.
Ms. Montanez stated the first step is to certify the land organic. It can be an arduous
process; submitting soil samples, water samples, and repairing the soil. Her understanding is that
Guava Kai was incredibly poisoned from all of the pesticides. Being that she has been taught the
purity of the land is most important to provide medicine, it is her first and foremost project to
restore the land according to her preference in terms of microorganisms that are providing
efficacy in plants. Currently there is a very small percentage being grown to test them. She has
been in research and development over the last 7 months with hopes to get all the data she needs
in order to continue to develop beyond 5 acres.
Commissioner Blake questioned if she is a kahuna laau lapaau.
Ms. Montanez stated the man who licenses and grandfathers people passed away in 1992
and there were no other laau practitioners granted the ability. Her kumu, Levon Ohai, passed
away in the last year and a half. Everything she does in her business has come from his 5
lineages of laau lapaau.
Commissioner Blake asked for clarification that no one has taken Mr. Ohai's place as an
advisor.
Ms. Montanez stated not to her knowledge. He was working with the University of
Hawaii at Manua where she began her studies with him and obtained her educational background
for her business. There are a handful of people working to continue his work, but to her
knowledge there is not one person who has taken what he has done and made it accessible. He
has granted her permission to teach laau lapaau in the college setting which she has done the last
4 years at Maui College.
Commissioner Blake questioned if she teaches here.
Ms. Montanez stated she intended to teach when she moved back and she ended up
connecting with Common Ground in hopes to create the programs there. She goes back to Maui
every 5 to 6 months to teach courses there.
Commissioner Blake questioned if she teaches any classes at Common Ground.
Ms. Montanez stated that she currently does not. When Kumu Ohai passed, she heard
clearly that it is her path to continue the work he passed on. Mr. Jaeb's property makes it viable
and accessible on the North Shore. Her plan is to create a native laau medicinal herb garden.
Her life path is to create an enviromnent for the community to come,pick the plants,learn their
culture, remember the medicine of the land, and have it be as it was done before. There isn't
always a monetary exchange which is why she created a skin care company. She can create from
her heart with the purity of what laau stems from. To have the gift of land to grow and process
and begin teaching is incredibly important.
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Commissioner Texeira questioned if other sites have been considered in terms of soil.
Ms. Montanez stated there were other considerations, but her understanding was their
permitting wouldn't allow her to do the full manufacturing process. Being raised partially on the
north shore, it would be heartbreaking to have to do it elsewhere. She came back from Maui to
set roots and raise her son here and give him the gift of laau on the north shore of Kauai.
The Commission received testimony from Rodman Machado.
Mr. Machado stated he is the chef at Common Ground. He was raised in Haleiwa, went
to college in Portland, and has 23 years of culinary experience,primarily in corporate. He
understands the importance of being a contributor to the community through tourism and local
community following. What they do on ag land is something special. Mr. Jaeb has given him
the opportunity to explore diversified ag. A lot of sweat equity is involved. He uses primarily
60-80% from kale, chard, beets, and carrots. It is a very positive energy and he invited everyone
to experience the energy. He was sure they will make amends with what the community is
asking. They are starting to get the keiki involved. It is an awesome feeling to feed the
community good, clean food. Because he is local and diabetes runs rampant in his family, it is
his mission and it will take a lot of years to grow. All of the super foods,turmeric, Yukon,
ginger, and burdock, that grow on the property is dynamic and impacts the human body more
than people imagine. That is the true story; using the product, getting involved in the land, and
understanding what the land can produce. He supports 13 individuals and 10 local purveyors;
they keep the money in the commti rtity. Extending 3 hours provides more opportunity to give
the community a healthy dinner in the evening and a good place to hang out.
The Commission received testimony from Tom Huffman.
Mr. Huffman stated he moved to the north shore specifically to farm. He picked the
north shore because there are many like-minded individuals around sustainable agriculture and
organic practices. He is in support of the extension of hours. The primary reason is he believes
our food system is flawed. People are developing sicknesses and dying from the foods they eat.
2 out of 3 people are overweight, diabetes is exploding especially among the younger population,
and 1 out of 2 of us are on at least one prescription drug. Major medical operations have become
routine. Heart disease, cancer, and stroke are the three leading causes of death. Millions suffer
from a host of degenerative conditions. One of his friends is so sensitive that if a knife touches a
piece of bread and that knife is used in her food preparation, she would get an allergic 'reaction.
When she goes to Common Ground, she can eat everything and has no worries about any kind of
reaction. They grow organic and they source organic. They are also gluten free. It is their
dedication about how food is medicine that is important. They are educating people on the
benefits of food and healthy ways of living. A lot of people just don't know that the food they
are eating is making them sick. The education they are providing can create a ripple effect. By
extending the hours,they will allow more opportunity to provide that education and awareness.
This is a huge opportunity to share what they are doing and educate people on organic foods and
the benefits of eating a good diet.
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Commissioner Blake questioned if he has instituted any formal training or educational
programs.
Mr. Huffman clarified that he is just a person trying to build a faun.
Commissioner Blake questioned if it has been done.
Mr. Huffman stated the education at Common Ground is through talking to the people,
going to the market, and learning about the local products. The environment there is conducive
for understanding and becoming aware of the benefits of food and eating organic, and the
benefits of sourcing your food locally. It is part of the environment. I-Ie thinks they have plans
to produce more specific educational programs and materials.
The Commission received testimony from Randall Smith.
Mr. Smith stated he has been a resident of Kilauea since 1971. He purchased lot 13137 in
spring of 1978 in the Kilauea Plantation subdivision. Living Farms, LLC has a 46.5 acre parcel,
part of the Kalihiwai Ridge subdivision. When the prawn and guava employees accessed their
jobs at agronomics using Kuawa Road, it was not a legal access. Legal access to Guava Kai via
Kuawa Road was not approved until 1991 against the wishes of Kilauea Plantations subdivision,
Kuawa Road property owners, and residents. The old gravel haul cane road at the end of the cul-
de-sac on Kuawa Road separating two Kilauea Plantations subdivisions was an easement to the
Water Department pump and tanks,not an easement to Kalihiwai Ridge subdivision. When
Guava Kai got an additional easement to Kalihiwai Ridge subdivision from Kuawa Road to
Kilauea Plantations Subdivision, C. Brewer Company was to bring Kuawa Road to County
standards and dedicate the road to County. It would allow property owners and residents rubbish
pick up, police access, County maintenance, etc. This was never accomplished, yet Kuawa
Visitor's Center operated until it failed and did no road improvements during its years of
operation. No new permits should be issued until the County accepts dedication and takes over
Kuawa Road. He recently installed the first fire hydrant on Kuawa Road. More may be needed
to bring it up to dedication standards. He would like to be reimbursed for his costs. At the June
5, 2013, meeting with Mr. Jaeb, he suggested Living Farms LLC use their Kalihiwai Ridge
Estates subdivision for public access to Common Grounds and remove signs from Kuhio
Highway and Kuawa Road.
Commissioner Blake questioned Rodman Machado who testified earlier if he was
familiar with Roy Yamakawa, the U.H. ag extension agent. His job is to assist farmers in their
crop raising endeavors. He is very lmowledgeable, extremely well-traveled, and has served on
the Commission in the past. He is in the State building and is approachable, accommodating and
knowledgeable.
Mr. Machado thanked Commissioner Blake for the insight. It is a lot of work and they
know they can come to terms with the community and make it happen. The real reason he
believes in it is because the passion and the hearts are right. Farming is no money, but by paying
attention to the nutritional value of what they are doing is really special.
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Commissioner Blake stated that he is well traveled in the world and should have some
helpful insights into what they are doing.
The Commission received testimony from Mark Leon.
Mr. Leon stated he is a neighbor adjacent to Common Ground. Per the Commission's
request, he and nine other residents of Kuawa Road met with Chris Jaeb on June 5 to discuss
ways they can come to an agreement. They are asking that the Commission deny the application
not because they oppose change, but because they feel there are still too many unanswered
questions and unresolved issues to reach a consensus today. The current permit states occasional
after hour functions are permitted. Most have nothing to do with agriculture; wedding receptions,
private parties, fitness classes. The Planning Department addressed this issue in the latest
recommendations by suggesting Mr. Jaeb limit the number of events to 4 per month. One per
week is not occasional. Rather than being a restriction, it would actually grant a new entitlement
to hold regular after hour events with amplified music. Many events involve the serving of
alcohol They would like to compromise with Mr. Jaeb to help him succeed in his ag triple
bottom line sustainable business, even possibly a restaurant with evening hours, but Common
Ground is not a vineyard and they think all serving of alcohol there should be stopped. Many
events responsible for creating dangerous traffic conditions along Kuawa Road are not even
counted as events under the existing permits; yoga and fitness classes. The Planning Department
recommends sale of items in the gift shop should remain restricted to Hawaiian grown and
produced. On June 5 the first item he picked off the shelf was a water purification system from a
Canadian company made in China. Planner Hull testified the Department did not yet know
which items should be allowed for sale or how to enforce it. He noted they don't grow anywhere
near all of the food that they serve and the garden is less than one acre. The Department's
recommendation also rejects putting a time limit on any new permit or modifications. He felt
there should be a 3 year limit on any new entitlements. No time limit is exactly what has created
so many problems with the existing 25 year old permit. The entitlements intended to nurture a
large guava farm are now used to host parties with alcohol and live music. They all agree on the
need for alternative access to Common Ground. Mr. Jaeb is interested in exploring the feasibility
of alternative access through Aina Hou or possibly Kalihiwai Ridge. At the meeting on June 7,
be also said he had no plans to have amplified music at the restaurant. They are positive
developments and they can work with him, but they see nothing in the Department's
recommendations that put any of it in written form. With the history of abuse and misuse of the
existing permit, it would be difficult to feel good about proceeding without more written
guarantees such as a timetable for completing alternative access. They also feel there is a basic
issue of fairness. The Planning Department decided the application is just to amend the existing
permit. This decision put it on the fast track and made it impossible for him to apply for
intervener status. The land use bears no resemblance to SP-88-3 and the abuses make a strong
case even for revocation of the existing permit. It is a new application that seeks to codify the
abuses and misuses of the existing one. He requested the Commission deny the application so
they can really get to work on a solution to help Common Ground become a successful,
sustainable, farm to table, triple bottom line,possibly with evening hours. They think 7:30 a.m.
to 7:30 p.m.is more reasonable.
The Commission received testimony from Ken Taylor.
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Mr. Taylor requested denial of the activity. The property owner sent out a letter asking
people to show support of his activity that states he purchased Common Grounds in April 2007
with the intention of creating a sustainable resource center. It doesn't say anything about
creating an agricultural operation. Common Grounds operates 3 distinct business units; an
organic garden, a cafe, and a sustainable products market. On the website until recently, there
was a master plan for the whole operation. A couple acres of growing vegetables on 46 acres is
not an ag operation. The closest thing in the master plan, an organic food processing center, will
help growers and entrepreneurs build wealth by offering education services and facilities needed
to add value to their products. There will be classes in new food processing technology,
marketing, and fund raising. They are all important and things they can use on the island, but
this is not a commercial zoned property for these kinds of things. His Understanding on the
technology media center is that there is over a million dollars' worth of equipment in place
already for the operation. His felt the Commission should deny the request and ask for a full EIS
on the master plan that has been up and running until recently. The master plan activities say he
purchased the land and began the work of shaping the environment and experience that would
attract like-minded people to bring themselves,their ideas, entrepreneurship, and emotional
capital. He wanted to create a container that would facilitate sustainable environmentalism and
green business to be held by everyone involved. He is looking forward new elements of green
businesses as the site master plan will allow them to add facilities of several kinds. He is
developing a media center idea based on what he has learned. The market strives to offer eco-
friendly sustainable products front Kauai and around the world. This is not an ag operation. It is
a business plan that has no business on ag land. He hopes that prays that the Commission deny
what is before them and ask the applicant to come back with a master plan project with a full EIS
so they can flush out all of the issues and problems and move forward.
The Commission received testimony from Emma Chigee (sp?).
Ms. Chigge (sp?) stated she was born and raised on Kuawa Road. She hopes the
Commission will deny the extended hours at Common Grounds as well as the alcohol permit use.
They noticed increased traffic and noise on the road, and it is dangerous for kids and animals
walking on the road. There have been no improvements to the existing road with hundreds of
cars coming down for exercise classes, coffee in the morning,private events and functions. She
hopes the Commission will take more interest in denying the current applications that he has in
motion.
Commissioner Kimura noted the Commission cannot deny nor approve any alcohol being
served. That goes to the Liquor Commission.
The Commission received testimony from Charles Ressler.
Mr. Ressler stated he originally bought property on Kuawa Road in 1977 when C. Brewer
subdivided. His understanding was that Kilauea was going through State Land Use Commission.
The vision was for it to be a bedroom community for commercial centers such as Princeville,
Kapaa, etc. It was not envisioned to become the town it has become. He coached basketball in
the late 70s. You could ride your bike down the middle of the main road to the lighthouse at any
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time of day or night. He is aware of the changes on Kuawa Road. He is not opposed to anything
Mr. Jaeb wants to do. He has some very good and progressive ideas. The main issue from his
perspective and from what he knows from the neighbors is the road situation. He does not want
an improved road. People are already going 50 miles an hour. When you improve the road,
people drive faster. There is no enforcement of the speed limit. It is not a safe road. The turnoff
is extremely unsafe. He is afraid he is going to get rear ended and pushed into the oncoming
traffic. The road itself is in disrepair. The mini golf course road has a safe turnoff and bypasses
many of the issues that concern many of the people. That is the answer; the alternative road. It
will cost Mr. Jaeb some money but he will have peace. If he doesn't, he is not going to have
peace on that road for his businesses. He did not know one person on that road who is
supportive. I Ie urged a time limit to build another entrance to the area. If not, step two would be
to delay the decision today and visit the road.
The Commission received testimony from Brad Bayerly (sp?)
Mr. Bayerly (sp?) stated he is a five year resident of Kuawa Road and his primary
concern is with the youth of the north shore not having safe, healthy, places to be. He had
professional experience working with youth in rehabilitation centers. Healthy environment and
nutrition are two major components in their success. The organic focus of Common Ground is
top grade. They need healthy, safe places for young people to go in the evening. He felt lower
volume acoustic music performance is acceptable. The nutritional aspects are excellent. His
vote is on a personal community based level to allow the evening hours to proceed. He feels it is
a small sacrifice to have some increased traffic in the evening to be able to provide an
environment of that sort for the younger people. They have made considerable improvements in
filling in the potholes with concrete and some of them repeatedly when needed. He witnessed it
in front of where he lives.
The Commission received testimony from Cammie Soltren.
Ms. Soltren stated she has been a resident of the road for the last 4 years and a frequent
visitor of the road since 2005. She has never seen the road in such distress. The failed attempts
to fix the road have done nothing but further deteriorate the road's condition. The increased
traffic doesn't help. Numerous times she has been run off the road with her 6 year old daughter
in tow by fish trucks, Esaki trucks, and by Chris himself. She is asking to deny the request for
extended hours. She cannot let her daughter ride her bike on the road because she is afraid for
her safety. To her knowledge there is no restaurant operating on any agricultural or residential
zones on Kauai. It is unfair for the residents who live there. Currently employees speed down
the road. People speed down the road in the morning for their coffee or during lunch in the
afternoon, and she is asking that the Commission not allow individuals to speed down the road at
night as well. Mr. Jaeb has been careless in every avenue and has no consideration for the
residents of the road and she is opposed to the request for longer hours.
Continued Agency Hearing (NONE)
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New Agency Hearing
Class IV Zoning Permit Z-IV-2013-15 and Use Permit U-2013-13 to permit the
construction and operation of a solar power facility on a parcel immediately adjacent to the
Koloa Mill site along the eastern side of Ala Kinoild in Koloa further identified as Tax Map
Key 2-8-002:002 (por.) and containing a total area of 67.24 acres=Kauai Island Utility
Cooperative.
There was no public testimony.
On the motion by Jan Kimura and seconded by Herman Texeira to close agency
hearing,the motion carried by unanimous voice vote.
Class IV Zoning Permit Z-IV-2013-16, Use Permit U-2013-14 and Special Mana eg ment
Area Use Permit SMA (U)-2013-8 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 5-5-003: 002, and containing a total area of 2.499 acres
=County of Kauai Department of Public Works and County of Kauai Department ofParks
and Recreation.
Deputy County Attorney Jung noted the Commission was in receipt of a letter dated June
12, 2013 from Barbara Robeson.
On the motion by Jan Kimura and seconded by Amy Mendonca to receive the letter
for the record, the motion carried by unanimous voice vote.
The Commission received testimony from Malcaala Ka'aumoana.
Ms. Ka'aumoana stated she was testifying on behalf of the Hanalei Watershed Hui. The
issue of highest priority continues to be the water quality of the rivers and bay. As a public
project,this application carries the responsibility to permit only a project that utilizes and
demonstrates management practices that improve the quality of our waters and prevent their
further degradation. This project is one block from the ocean. The hui has conducted,
coordinated, and contracted numerous studies and projects to better understand the hydrology
and water quality and identify practices to lessen pollutants and impacts on the Hanalei
Watershed since 1999. Recently completed, the Hanalei Watershed Management Plan funded by
the EPA and Hawaii Department of Health identify sources of pollution and informs private and
public land owners on strategies and recommendations to address them and reduce the impacts of
the pollutants on the streams and bay. The Planning Department contributed and participated in
the report. They support the project. The Director's report for the application contains the
standard language regarding construction BMPs, lighting, and the always hoped for sustainable
building strategies, but is missing a description of the project's review by the community
because there was none. Several discussions were convened to elicit community opinion on
potential uses but not included the historical,physical, or environmental aspects and potential
impacts of the project. The SMA permit application is incomplete and incorrect. It is not clear
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whether there is a septic or a cesspool. They know executive order 4214 transferred the building
from State to County. The County and the State GIS maps still show the building as being
owned by the State. Executive order 4014 is not included in the packet so they don't know of
any conditions or restrictions that may have been attached. Neither the Director's Report nor the
consultants SMA application utilized any of the information or recommendations in the Hanalei
Watershed Management Plan. The project is an obvious, appropriate, and necessary opportunity
to implement pollution control strategies and devices to protect, conserve, and utilize the finite
resources. The application calls for copper gutters and down spouts. While they cannot support
the use of copper in anything because of costs and that they will likely go missing,they do offer
down spout design suggestions that utilize the rain water in ecologically sound manner. She
questioned the expected waste volume from this project. At a minimum they strongly suggest
use of an aerobic treatment ATU system and preferably a tertiary waste water system. The
Hanalei Watershed Hui has identified cesspools and septic tank systems as sources of impairing
pollutants. She reminded the Commission the ground water table in this location is not much
more than a foot below the surface. With impending sea level rise and increasing ocean
inundation in this area, this project is sitting in the sand. The application calls for a sidewalk to
accommodate a public bus stop. There are many options besides sidewalks and impervious
surfaces which can be employed to provide both ADA access and sound management of storm
water runoff. It is perfect for photovoltaic energy installation. They are concerned about the
plan for a 3 foot sea wall to protect the building. She questioned if there has been a hydrologic
analysis to show how the sea wall will affect the depths of flood waters on other properties. It
has the potential to redirect sea waters resulting in increases to the wedded perimeter and depths
outside the seawall adversely affecting the public roadways. She asked for assurance that the
well-loved shower tree in the front yard will be saved. For the historical aspects they support the
testimony submitted by Barbara Robeson. If there is an opportunity to restore some of the
aspects of the original building as included in the illustration, especially the exterior overhangs
and posts, they strongly urge they be included.
On the motion by Jan Kimura and seconded by Amy Mendonca to close agency
hearing, the motion carried by unanimous voice vote.
Continued Public Hearing (NONE)
New Public Hearing (NONE)
All public testimony pursuant to HRS 92
CONSENT CALENDAR
Status Reports (NONE)
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Director's Report(s) for Project(s) Scheduled for Agency Hearing on 7/9/13
Class IV Zoning Permit Z-IV-2013-18 to erect a solar powered wind turbine Use Permit
U-2013-16 to deviate from Section 10-2.4(e)(1) of the Kauai County Code(1987) as amended
relating to the height standard within the North Shore Development Plan and Variance Permit V-
2013-4 to deviate from the maximum height requirement within the Agriculture District on a
parcel located along the eastern side of Waialsalua Street in Waiakalua approx. 1,300 ft south
of its intersection with Kuhi`o Highway further identified as Tax Map Key 5-1-005: 028 Unit 4
and affecting a portion of a larger arp cel approx. 10 acres in size=Steve Hunt
Shoreline Setback Activity Detennination
Shoreline Setback Commission Review SSCR-2013-19 and Shoreline Setback
Determination SSD-2013-44 for a shoreline activity determination Tax Maps Key 2-6-007. 013
Poipu, Kauai, for acceptance by the Commission=Kenneth Denton
On the motion by Jan Kimura and seconded by Ferman Texeira to accept the
consent calendar, the motion carried by unanimous voice vote.
GENERAL BUSINESS MATTERS (NONE)
COMMUNICATION (For Action) (NONE)
COMMITTEE REPORTS
Subdivision
Subdivision Committee Chair Kimura presented the Subdivision Committee Report.
Transmittal of Agriculture Master Plan,pursuant to Condition No. l.j. of the tentative
approval letter dated March 11, 2009, relating to a 7-lot subdivision within Open(0) zoning
district, Subdivision Application No. S-2009-17, Tax Map Keys: 2-8-012:001, 011,
Koloa=Aukahi Farm, LLC was accepted, 3-0.
The following tentative subdivision actions were approved, 3-0:
S-2013-17, County of Kauai, Department of Water, TMK: 1-2-002:001
S-2013-18, County of Kauai, Department of Water and Marty Hoffman,
TMK: 2-4-003:006, 007, 008
S-2013-19, County of Kauai, One Diva LLC, TMK: 2-5-003:001
The following final subdivision action was approved, 3-0:
S-2013-03, James E. Nishida, Jr. Et.Al, TMK: 4-2-002:015
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The following modification of requirement condition action was approved, 3-0:
S-2003-12, Oyama Partners/Michael M. Castillo, TMK: 2-3-002:003; 2-3-020:109
On the motion by Herman Texeira and seconded by Amy Mendonea to accept the
subdivision committee report, the motion carried by unanimous voice vote.
Chair Katayama called for a 17 minute break to reconvene at 11:00 a.m.
NEW BUSINESS
Class IV Zonine Permit Z-IV-2013-15 and Use Permit U-2013-13 to permit the
construction and operation of a solar power facility on a parcel immediately adjacent to the
Koloa Mill site, alone the eastern side of Ala Kinoiki in Koloa, further identified as Tax Map
Key 2-8-002:002 (por.) and containing a total area of 67.24 acres=Kauai Island Utility
Cooperative.
Staff Planner Kaaina Hull read the Director's report into the record (on file).
Michael Belles representing the applicant stated they met with the Koloa Community
Association on May 23. There were no objections raised by the committee, however because
they lacked quorum they were not able to take action and make a recommendation. Based on the
comments made during the meeting,they were in support of the project, but he cannot officially
report that they voted in favor. Several people had solar and appreciated that fact that it will
reduce dependency on fossil fuels and other things detrimental to the economy and people living
on Kauai. It is strongly endorsed, supported, and recognized as the new trend. Federal and State
goverrunents have encouraged local companies like KIUC to engage in these types of activities
wherever possible. He noted the 70 acres on the map where the site will be located.
Immediately south is Weliweli Road, to the southeast is Koloa Mill, and to the southwest is the
Western bypass.
Brad Rockwell, Power Supply Manager for KIUC stated that KIUC is a member owned
cooperative. They have a strategic plan that is calling for them to greatly transform electricity on
the island. They set targets for 50% of their electricity supply to come from renewable resources
by 2023. This was the winning site for a number of factors including proximity to the Koloa
substation,the land cost, and the soil classification. There was a concern that there would be a
lot of them. He noted they are doing one other similar size in Anahola and they can see
potentially where they would want to do one more, but they are pretty much reaching the
technical limits for solar. This isn't something they will start to see all over the island. Once all
approvals are obtained construction would take about 6-9 months. This one project is about 6%
of the annual energy. All solar systems installed on the island to date on all the residences and
businesses only amount for about 2%. By doing it large scale, they are bringing low cost cheap
solar for everyone. This one project alone will save 1.7 million gallons of diesel fuel coming to
the island each year.
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Commissioner Kimura questioned the ownership of the land and the parcel acreage.
Mr. Rockwell stated the owner is Haupu Land Corporation and the parcel is about 70
acres. The solar project will not take up the entire portion; maybe a 30 acre footprint.
Commissioner Texeira questioned if the energy generated in Koloa would be servicing
that community.
Mr. Rockwell stated once it goes into the substation it goes into the island grid and is
basically serving the entire island.
Commissioner Texeira questioned if there is consideration to hiring local constriction
workers. He would think that they would want to encourage local employment as much as
possible. He questioned if the program is federally funded.
Mr. Rockwell stated this one is not federally funded and the financing structure is going
to be private.
Commissioner Texeira stated they would not have control over the bids if it was federally .
funded, but they have control of encouraging local laborers.
Mr. Rockwell stated they definitely encourage it. As a member owned cooperative hying
to do good for the community, they recognize it is not just about the bottom line. There is some
level of how much higher they can go. The goal is to bring the lowest cost project so it can
impact the rate in a positive way. They are trying to balance it all.
Mr. Hull clarified the size of the lot is approximately 67 acres, but the size of the parcel is
several hundred acres.
Commissioner Kimura asked for clarification that the units are only going to take up 30
acres.
Mr. Hull stated it will take up approximately 30, but the question was the size of the lot.
He clarified the lot is approximately 67 acres, but total parcel area is several hundred acres.
Mr. Belles clarified the portion that they are actually leasing is the 67.24 acres and of that
approximately 30 acres will be developed.
Commissioner Mendonca stated that by putting something of this magnitude throughout
the island, she hopes the cost factor does not go back to the consumer. They are saving on the oil,
but to build it they need to put out money.
Mr. Rockwell stated in basic terns if they look at saving 1.7 million gallons of diesel a
year,they are looking at about a $6 million a year savings. Paying for the project also includes
the debt service, the operations, maintenance and upkeep. Even with that thrown in, they are still
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saving $2-3 million a year in total costs to generate the same amount of kilowatts of electricity
and that is what gets spread into the rate.
Commissioner Mendonca stated based on projected plans including one more site, she
questioned at what point they will be able to state that they have one of the lowest electric bills in
the State.
Mr. Rockwell stated it depends on what the other islands do and their fuel cost. If we
look to the 2023 time frame and they reach the goal of 50%renewable, they can accurately say
what the cost of the other 50%will be. They feel strongly that the renewable projects will be
cheaper than what they think oil is going to be going forward and more importantly the cost is
known, fixed, and stable. So half of the bill will be set and not fluctuating.
Chair Katayama questioned if KIUC is subject to real property tax. In section 6.9 of the
application, the property values suggest that they are. He did not know if utility is subject to real
property tax which benefits the County directly. It made mention that the improvements would
increase the property value therefore increase the property tax. He questioned how the lease
arrangement with the land owner is addressed.
Mr. Rockwell stated it would be the responsibility of KIUC.
Commissioner Texeira questioned if they are trying to get these projects underway as
soon as possible to enjoy any Federal tax credits.
Mr. Rockwell stated definitely as soon as possible.Every year this is a subject of great
debate in the legislature. They feel there is some risk as to the incentives that will be available in
the future, so they would like to get it going as soon as possible. Aside from that, they are
spending about$250,000 per month in oil for every month the project is not online. It is cheaper
than oil, plus the unknown risk of what will be there in the future is driving them to push.
Chair Katayama questioned if KIUC would be the owner of the photovoltaic facility.
Mr. Rockwell stated one of the challenges of being a member owned cooperative, not for
profit, is it has been difficult to take advantage of tax incentives. They will be creating a for
profit subsidiary called KRS2, so that would technically be the owner. That allows them to go
after the tax incentives. All of the cash flow is washed back to KIUC.
Mr. Hull noted there is a condition, as is recommended on most if not all of the recent
applications, to seek local employment within legal confines.
On the motion by Amy Mendonca and seconded by Herman Texeira to approve
subject to the last line,the motion carried by the following roll call vote:
Ayes: 6,Nos: 0
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Class IV Zoning Permit Z-IV-2013-16, Use Permit U-2013-14 and Special Management
Area Use Permit SMA I(_J)-2013-8 to accommodate the conversion of the existing IIanalei Corot
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 5-5-003. 002, and containing a total area of 2.499 acres
=County ofKauO, Department ofPublic Works and Counti,OfKaua'i Department of Parks
and Recreation.
Mr. Hull read the Director's report into the record (on file).
Brian Inouye from the Department of Public Works stated there was concern about the
2'-3' wall that was being proposed. They are flood proofing the building to meet the
requirements for the County and the wall is actually part of the building being built adjacent to
the building.
Chair Katayama clarified that it is structural to the building.
Mr. Inouye stated the existing floor elevation was just a concrete slab below the flood
elevation. They needed to flood proof the entire building.
Chair Katayama questioned if they have reviewed the comments made by the Hanalei
Watershed Hui.
Mr. Inouye stated there is an executive order 4214 that they indicated was missing that
transferred the structure to the County for recreational use. The original plans to do not call for
any type of PV system however it is something they could consider as well as a solar water
heating system.
Chair Katayama stated one of the concerns was handling the grey and black water
generated by the facility. The total capacity would be increased by the use.
Mr. Inouye stated the existing facility is on a cesspool and they are upgrading it to a
septic system. He is not sure of the additional systems that were mentioned or the costs.
Chair Katayama clarified that it will be appropriate to the building capacity.
Mr. Hull read the recommendations of the Department into the record (on file).
Chair Katayama questioned if the applicant has read the conditions by the Department.
Mr. Inouye noted they would need to check with the State for the ADA compliant
pedestrian walkway along Kuhio Highway regarding future plans for pedestrian walkways in that
area. If indeed that is approved by the State, it should not be a problem.
Chair Katayama questioned why the Commission would want to intervene on a State
highway.
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Mr. Hull stated there are two avenues for providing the walkway. One is within the
County properly, or portion of a widening easement for the State highway.
Chair Katayama asked for clarification whether the adjacent parcel referred to in the
condition is referring to the State or County property.
Mr. Hull stated it isn't referring to either.
Deputy County Attorney Jung noted because the property is an executive ordered
property, the County basically holds inanaging control, The State technically still owns it. We
have sort of a license over the use of the property. They can still work with the State to identify
where the Kuhio Highway reserve is located. If there are any expansions the potential sidewalk
could move inward towards the property onto the specific executive ordered property outside of
the road reserve.
Chair Katayama questioned whether the road right of way would move with the
expansion and have to condemn or reconfigure the executive order.
Deputy County Attorney Jung stated it depends on the executive order, but there
wouldn't be any necessary condemnation because it is State property.
Chair Katayama clarified the State would probably want to maintain jurisdiction on the
highway.
Mr. Hull noted that State Highways did not have any objections. It can be amended to
state subject to approval and/or no objection by the State of Hawaii. If there was a situation
where they did object, ultimately the applicant would have to return to the Commission to amend
that particular condition.
Commissioner Mendonca questioned if there was an opportunity to meet with people in
the Watershed Hui to discuss some of their concerns.
Mr. Inouye noted he has not personally. Joel front the Hanalei to Haena Community
Association has been holding periodic meetings with the Mayor and the Department of Parks and
Recreation about the use of the facility.
Commissioner Mendonca stated one of their concerns was the copper gutters. It seems to
be a high expense and she questioned if an alternative could be used.
Mr. Inouye stated they can definitely look into it. The existing gutters are copper. When
the architect did the renovation plan he indicated copper.
Commissioner Mendonca questioned the shower tree.
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Mr. Inouye noted the existing plans do not call for any work around the shower tree area,
however, depending on the State highway and where the sidewalk would be situated, it may
come into play. It is on the front right corner.
There was no public comment.
Commissioner Isobe questioned how to forward the concerns from the Water Shed Hui
so they can potentially consider the comments.
Mr. Hull stated it can be officially transmitted. If action is taken by the Commission,it
would still have to go through building pennit review.
Commissioner Isobe stated from what he gathers, most are building or construction
related requirements.
Commissioner Kimura requested a copy be forwarded for their consideration.
Mr. Hull stated that Department will be transmitting it. The Department would also
recommend that Condition 2 be amended as previously read concerning the State of Hawaii's
approval and/or no objection.
Deputy County Attorney Jung stated if the Department is willing to modify the report as
such, the Commission does not need a motion to amend.
Mr. Crowell indicated the Department stipulates on it.
Deputy County Attorney Jung noted the language will be clarified in Condition 2 to be
reflected in the report.
On the motion by Jan Kimura and seconded by Herman Texeira to approve, the
motion carried by the following roll call vote:
Ayes: 6,Nos: 0
Commissioner Isobe stated he would like to proceed and finish the Living Fauns LLC
application and they can make a decision on the executive session after that.
UNFINISHED BUSINESS (For Action)
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 holdspecial
events and to construct buildings previously pproved wider 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)
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Mr. Hull noted letters in support and opposition, a letter requesting additional time when
speaking to the Commission, minutes of a meeting with Chris Jaeb recorded by Elle Ward, and a
petition of 721 signatures in support that were received in the morning (on file).
Chair Katayama suggested the Commission take a working lunch break to review the
correspondences and reconvene at 1:00 p.m.
The Commission recessed for lunch at 11:56 a.m.
Chair Katayama called the meeting back to order at 1:05 p.m.
Chair Katayama thanked the public for the break and stated it was helpful to go through
the materials submitted.
Mr. Hull read the supplement to the Director's report into the record (on file). He noted
there was a request by a Commissioner concerning the Department looking into maximum
seating capacity with the Building Division and/or Fire Department. The Fire Department
adheres strictly to the Building Division code which for open air pavilions, regardless of
commercial or not, does not have a maximum allowable seating capacity in that their regulations
primarily are associated with the number of exits required for a certain amount of people in a
building. It is open air and essentially all areas are an ingress egress opportunity should a fire or
something happen.
Cameron Christopher Jaeb owner of Common Ground Kauai and Living Farms, LLC
stated that he has lived in Kilauea for 20 years, has sewed on the Kilauea Neighborhood
Association Board for 4 years, and has attended 7 years of meetings. He started Malama Kauai,
a non-profit that supports sustainability throughout the island. The reason he moved here is
because of the beauty of Kauai and the hope that he can in some way give something back to the
community. He was blessed in his previous work experience with enough resources to
contribute something to the connnunity in a way that he felt world be beneficial. He sees this as
an incredible opportunity to tell a new story about diversified agriculture and a range of green
businesses that support agriculture and Kauai. The agricultural issues are fundamental. A lot has
to do with housing crises and costs of labor. If they can't figure out a way to do ag in light of
those expenses, it is not going to work. The vision is to use the agricultural environment to
create a range of food products that make it so human health is the priority and people can see
the connection between the land and their personal health. As much as a lot of the conversation
has been around traffic issues, fundamentally the reason there are questions is because of the
agricultural impact. If they do diversified ag right and get companies like Palalau, which are
Hawaiian medicinal organic skin care products, at those are great stories. It provides an
opportunity for lids to become educated about health and agriculture as well as having a way to
stay in the community. They already have an $800,000 payroll for their current staff and the
majority is under 30 years old. They can probably increase that by another 10 to 15 people
adding another $125,000 income to people on the North Shore community. The relationship
between the farm, the garden, the caf6, and the market is unique. People that come to Common
Ground recognize that any community can have a great organic agricultural environment. They
can have a restaurant that sources food that speaks to nutrition and personal health, and have a
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market that relates to local products that work. The value to all communities throughout the
world is substantial. They had Kamehameha Schools and a senior living group in Lihue wanting
to use the same model for a garden and cormmercial kitchen with a program that speaks to
personal health. Fundamentally, 11 of the top 15 causes of death in the United States can be
prevented or cured by the right type of food. The chef is basically saying that everything you eat
at Common Ground is a great story as it relates to curing disease outright. He has personally met
with the people to try to mitigate the issues. The number one issue is the traffic on the road and
the volume of traffic. The original permit states that 170 cars were projected at peals hour.
Currently during the exercise class that everybody is most concerned about they are at 80 cars at
peal,horns. The normal operations are 25 to 30 cars at peak hour. The exercise class actually
had 70 cars coming in and out for 1 Yz hour, 3 days a week, for 15-20 minutes of inconvenience.
If the neighbors are aware of it and adjust their schedules in some way they would not even be
impacted by it. He talked to the neighbors about either restricting the number of people that
come to the class; it is a free class so there is no commercial relationship other than providing
some level of health to families on the north shore, and/or really being conscious on making an
effort for everyone who comes to the class to drive slow and respect the neighborhood. The 55
decibel limit is one that he is willing to stick by. There was an event a week and a half ago. He
went to the property line and it was 60 decibels so he made an adjustment to 55. He noted the
sound level he is currently speaking is about 85 to 90 decibels. When the wind blew at about a
5-10 mile per hour gust, it was louder than the 55 decibel limit. A relatively low tone of voice is
a little higher than 55 decibels. The neighbor closest to the property can hear it, but it is really
slight in the background. It isn't a big pounding problem,but he is willing, if they do have
special events, to adjust the base in ways that they probably wouldn't even know the music is
going on. Generally,if they keep their current restaurant music to that level at night, they won't
be hearing the music. They had 721 signatures on the petition and 20 plus letters in support.
Hundreds of people, visitors and local, understand the impacts to health and the impacts to the
environment. Whether they start eating healthier food because they recognize that it is possible,
or see the vision in the relationship between the gardens they can do at home, that is a great
takeaway. The Kilauea Neighborhood Association heard both sides of the story and listened to
the land owners' complaints over the last three months. They did not take a position on it. He
noted he owns the road and 170 cars per hour were allowed. They now have no exercise or yoga
classes and they have no plans to restart them. Their peak is probably closer to 25 to 30 cars. In
response to the master plan for a fitness center and media center, it was a four year old idea that
was to gauge public sentiment. None of that is going forward at this point. He is trying to figure
out a way to get a diversified agriculture environment with a cafe and market in operation.
Commissioner Kimura stated there was concern about the 7 days a week operation. He
questioned if they agreed to drop it to 6 days a week.
Mr. Hull noted the Department's recommendation is for 7 days a week.
Commissioner Kimura noted they don't currently serve on Mondays.
Mr. Hull stated the current operations are 6 days. The Department was not taking a
position to mandate it to b days, but it is something the Commission can discuss.
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Commissioner Kimura stated another concern was the 4 days a month after-hours
functions.
Mr. Hull noted that was based on the Commission's discussion on limiting special after
hour functions. It may be prudent to limit the number as there is no standard definition for
occasional.
Conanissioner Kimura questioned if there have been discussions with the Department
about the road.
Mr. Jaeb stated although people feel that the road is hazardous with pot holes,they feel
that fixing it and malting it wider would increase the traffic and increase the speeds. Separate
from that issue is the safety issue with the current road, so he is going to go forward with fixing
the apron from the main highway to the road. He is going to continue to maintain the pot holes
and be as progressive as they can so the people who drive on the road have a safe way of
navigating.
Commissioner Kimura questioned if there was consideration of turning it over to the
County.
Mr. Jaeb stated that he heard the County wasn't accepting roads even if they brought it up
to County standards.
Commissioner Blake referenced the mention of education. It seems to be an important
component of the operation. He questioned if they have established contact with the Kapaa
High School vocational agriculture program.
Mr. Jaeb stated he has been in contact with their business development program. They
came out to do videos. They have a business plan theme and in the past years it has been on the
relationship between a garden, a restaurant, and a market. They wanted to add a go cart track but
it isn't something they are moving forward on.
Commissioner Blake stated in the old days, vocational agriculture programs on the island
were active. Except for the big operations, ag has since declined and it has also been reflected in
the high school programs. It would be a service to the community and the people who enroll in
the program. If the interest can be re-ignited at an early age,it would go a long way to
supporting the County's goals of continuing Kauai as a rural pastoral place to live. He urged Mr.
Jaeb to make contact with the vocational agriculture program at Kapaa High School and see what
can be done to broaden their perspectives.
Mr. Jaeb stated that making farming fun or a way to make a reasonable level of income
on it is fundamentally what they are talking about. It is a lot more than learning how to farm
vegetables or fruits. There is a marketing aspect, a distribution aspect, business 101 aspects, a
range of things that go beyond farming, and a range of expertise to do it well. They are doing
something simple; taking a raw agriculture product and doing the best way they can value add it
in retailing it in a restaurant. It is a very simple approach. It is the essence of what he feels is the
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most valuable; to create the health, wellness and well-being related to doing food in a more
progressive way that gets lids jobs that they can carry into the future.
Commissioner Blake stated that unless they are shown, they will have stumble on it later
in life to appreciate it. The earlier they can appreciate it, the better the whole effort becomes.
Mr. Jaeb stated he would love to create the relationship with Kapaa High School and
make it easy for kids who want to learn about agriculture, not just about farming but
understanding what it really takes to make an agriculture business viable. The kids will see it as
a way to live here most fundamentally.
Commissioner Mendonca stated she is getting confused with the intent to raise and grow
things and promote a healthy environment and put it on the table. She questioned the extension
of the 1200 square foot building and the purpose.
Mr. Jaeb stated that it would probably be a great extension to the Palalau skin care
product line, or arange of medicinal skin care and other products that would be pretty much
from Common Ground with Hawaiian traditional agricultural techniques. There is currently no
business plan that speaks to exactly what that building will be.
Commissioner Mendonca asked for clarification on how they are talking agriculture
where land to table is very important, and then they are hearing about the need for exercise
classes.
Mr. Jaeb stated it was something that someone came and offered. They were of the
understanding that because they had no commercial benefit from it they could do it. If at the end
of the day, the Commission wants them to not offer roughly 80 people free exercise, he can say
no to that.
Mr. Hull stated even if the applicant is amenable to the idea, it is a non-commercial
activity. Being that no charge is being levied by the land owner, it is essentially people gathering
on his property, free of charge. While it is a larger number than can be anticipated on other
properties, it is essentially just people gathering on his property. He deferred to the Deputy
County Attorney for an opinion on crafting a condition to that effect.
Deputy County Attorney Jung stated the idea behind commercial is that you are accepting
a fee. If it is in gratis where they are opening the property to someone to do an activity that is
free without the commercial context, it is a question of whether or not they are straight guests by
invitation without the commercial context which would trigger a potential use permit on ag, or if
they are there just to gather without any true invitation. It comes down to a question of facts;
whether or not there are posters advertising the free event or if it is j ust by word of mouth. Each
would need to betaken on a case by case basis. It ultimately comes down to whether Planning
would be willing to require a use permit for such an activity without a fee,based on how people
are advertising the free event. It is a very grey area. If the Connnission would like an official
opinion they would need some time to research and address the issue.
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Commissioner Mendonca stated her concern was everything was based on a special
permit granted before Mr. Jaeb bought the property. With land to table being the most basic
intent, her question was how to keep the guideline specific instead of having all the other things
that seem to be diluting the intent of the law.
Mr. Hull clarified there is a specific request for that use, but there are other land use
entitlements already guaranteed to the property. The property is entitled to five dwellings. It
does not require a use permit to build the five dwellings. Regarding the exercise classes,there is
no fee being charged. Because they are just gathering there, it is a land use entitlement; he has
right as a property owner, as anyone has the ability to invite someone over to work out at their
house. Absent the commercial fee, it is the Department's interpretation that it is an outright
permissible use.
Commissioner Texeira stated he understands the entitlements,but on the same token, you
want to be a good neighbor. The exercise classes are creating traffic that affects the
neighborhood. He questioned why they would want to encourage it in view of the fact that the
neighbors are complaining about high traffic.
Mr. Jaeb stated that there are several ways to address it; eliminate it outright, limit classes
to 20 people, or tell them to go slow and monitor it. If at the end of the day the Commission
states they don't want the exercise classes there,he could say no to it. He suggested they could
be very clear on the speeds, the times, and monitor it. If it doesn't work, and it is still out of
hand, they can restrict it. If it still doesn't work,then close it down.
Commissioner Texeira thinks he would want to preserve the integrity of what they are
trying to do. In that effort, they would want to minimize the peripheral activities on the property.
Commissioner Kimura stated because of the closing of the spa at the clubhouse, he has
been hearing there is no place to exercise on the north shore. He was sure that if they talked to
the people who exercise,they would slow down, because there is no other place to exercise. He
clarified he was not saying whether it is right or wrong, but as far as healthy living, there is very
minimal places that offer exercise on the north shore. He feels for the residents too. If he were
living on the road, he would not want change, but he has learned to accept change. He was born
and raised in Kilauea during the plantation days. A lot of people move to Kauai and he has
learned that once people get theirs they don't want anyone else to get theirs. If the original
residents of Kilauea didn't accept change, nobody else would be there. It is unfortunate that
people think that way. Without change they would be stuck in a world that doesn't exist. He
still feels for the residents of the road, but on the other hand he feels we need to accept some
changes. It is his opinion that they don't have enough places to exercise. It is one of the biggest
concerns that a lot of residents of the North Shore have since the closing of the spa.
Mr. Jaeb stated it is really serving the lowest and medium end of the economic spectrum
in the community. He feels that is one of the greatest gifts back that Common Ground can do.
That is the main reason he is trying to hold on to it if he can. The trickle-down effect to 80
people having 3 tines a week exercise over the long term is substantial.
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Commissioner Blake questioned the other purveys under the special use permit. They
have the burden of proving on an on-going basis that their use is not going to adversely impact
the uses that are permitted under the current zoning. He can sympathize with someone who
decides they want to live in paradise, settles down, and the next day something happens that was
totally unanticipated that they were trying to get away from. It would seem that if Common
Ground is engaging in a use that is not compatible to the zoning of the overall parcel, the present
residents have an outlet for being heard. It would appear that this is where the residents and
Common Ground would want to get together to work it out because it takes a community. It is
not a gated community. It is not all fanning and only fanning;there are multiple uses and
multiple reasons for residing in Kilauea. If someone wants to file a complaint, one of the things
he looks at is what they have done to try to work it out first, rather than leaving it up to City Hall.
If you leave it up to City Hall, they might get a result that nobody likes. It would behoove the
business Common Ground is pursuing and the residents who live around Common Ground and
serviced by Kuawa Road to follow the golden rule. If that is not working then sit down and talk
it over.
Mr. Jaeb stated they have worked with people who have brought their issues to them
directly and has made specific adjustments. They used to have a County redemption center on
property, but noise was a problem so they stopped it. They used to start mowing at 7:00 a.m. and
moved it to either 7:30 a.m. or 8:00 a.m. because that was a problem. There was an issue with
the larger type events, and they have stopped doing larger events. There was an issue with the
noise, and they have worked more consciously to work with them directly. He is confident that
if given a chance they can do a good job with managing the traffic in a way that gets it way
better as far as the safety and speed on that road.
Commissioner Blake questioned the outcome of the number of days of operation.
Mr. Hull stated it is ultimately up to the Commission's discretion. The ,Department's
recommendation is not to limit it. The applicant has indicated they are currently operating 6
days a week.
Chair Katayama suggested putting on the record the Department's recommendations for
the conditions, then the Commission can continue dialog and entertain public testimony. Lot of
the things they are talking about in terms of operations or impacts is already defined in the
recommendations and is a matter of fine tuning.
Commissioner Kimura questioned why they would be having public testimony again.
Chair Katayama stated once they have agreement among the Commission with the
applicant, the public should have the ability to comment on what will be approved.
Deputy County Attorney Jung stated they open public testimony at the beginning to allow
the public who may not have a chance to stay through the whole meeting to speak, and the public
will have another opportunity to speak on the item for those who may not have made it in the
morning.
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Chair Katayama stated once they go through the recommendations by the Department
they will ask the applicant if he is agreeable or make whatever adjustments need to be made, and
before they take action,have public testimony.
Commissioner Kimura questioned if they have ever gone through the conditions and then
have the public testimony.
Deputy County Attorney Jung stated not that he can recall but it is up to the Chair.
Chair Katayama stated the majority of the letters addressed certain aspects in the
recommendations from the Department.
Commissioner Isobe requested clarification that Mr. Jaeb owns the road. He questioned
how it ties to the surrounding properties.
Mr. Jaeb stated the surrounding properties have an easement to use the road to get to the
highway.
Commissioner Isobe questioned if Mr. Jaeb is solely responsible for the upkeep of the
road to the benefit of the surrounding properties and his property.
Mr. Jaeb stated that he has asked for help in the past, but nobody stepped forward. It was
a major concern. It is like going to someone's house and saying he has an easement to use the
road and he wants to qualify the type of traffic that person has on their road. That was something
that was available to them when they purchased the property. The 179 cars per hour at peal,is
written and documented in 25 year old infonmation. He is not even at half of that on the busiest
exercise day.
Commissioner Isobe stated he assumes part of the traffic generated is by the surrounding
properties.
Mr. Jaeb agreed.
Commissioner Isobe questioned if there are any other non-commercial uses other than the
yoga classes.
Mr. Jaeb stated they are not currently doing any yoga or exercise classes. They did a yoga
class but about 9 months ago, it stopped. The only class that stopped about a week ago was the
fitness class. They don't know if it will continue because the person who ran it is gone and they
don't know if they will be back to restart it.
Commissioner Isobe clarified that it was done as a service to the community and not
necessarily tied to Mr. Jaeb's business plan.
Mr. Jaeb stated that it is not. Regarding occasional events, he noted that occasional could
be interpreted a number of different ways. The Department has recommended 4 per month.
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They currently have the right to do way more events than they have agreed to do. They are
asking for the right to extend their hours. When they compare extending hours on a 25 year old
permit to gentlemen's estates on properties, he questioned which one is more of an issue. They
are asking to extend hours on a permit that is going to fundamentally support agriculture in the
region. .
Commissioner Isobe stated he heard testimony regarding the possibility of another road
ingress to the property. He questioned why if he already has a road that he owns that accesses
his property.
Mr. Jaeb stated he couldn't agree more. Basically, although he owns the road that he
maintains with no support whatsoever, he is being asked to consider the cost of doing another $1
million to $2 million mile long road from Anaina Hon in an effort to lessen the impact on his
road. Needless to say, if he looks at the improvements to the current road that he owns, it would
cost between $150,000 and $250,000. It would be a lot easier to manage than$1 million or $2
million of a much more costly engineered road.
Commissioner Isobe noted that clearly he doesn't need that road because he already ovals
a road.
Mr. Jaeb agreed clearly not. The only reason they were considering it was because of the
issues that are being raised.
Mr. Hull read the Department's recommendations into the record (on file).
Mr. Jaeb agreed with the comments.
Commissioner Blake questioned condition number 1 that states the applicant shall either
widen Kuawa Road or develop the alternate off street pedestrian route for visitor access to the
visitor center.
Mr. Hull stated most of it is existing language from the Conditions of approval from
1988. There was some discussion as far as widening Kuawa Road to 20 feet however there were
concerns about speeding vehicular traffic on that road. On the same day of that discussion there
was a world renov\med traffic engineer that spoke about how the widening of the road actually
induces vehicular speeding and that the narrowing is a traffic calming measure. There was
debate about the appropriateness of still adhering to the widening of Kuawa Road while there are
many concerns about vehicular speeding. As a way to not only alleviate vehicular traffic but to
provide further amenities for pedestrian safety the Department felt it prudent to recommend an
alternate pedestrian pathway.
Commissioner Blake questioned if the alternate pedestrian path would cut through other
properties.
Mr. Hull stated it could be along Kuawa Road which the Department envisions, but it
also leaves it open via another route should one become available.
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Commissioner Mendonca questioned the food service restriction to agricultural products
grown and if they could be more specific to primary foods.
Mr. Hull stated essentially it could be amended to read sale of items including but not
limited to the primary dishes at the food service dishes or during any of the special after hour
functions shall be restricted to agricultural products grown and/or raised and/or produced on the
subject property.
Commissioner Mendonca stated originally there were 3 phases in 1988. They are
discussing the 3rd phase. She asked for clarification that Phase 1 and phase 2 specifically state
that no alcohol beverages will be served.
Mr. Hull stated it was in the findings of facts but not reiterated in the conditions of
approval
Commissioner Mendonca asked for clarification that they can still serve alcoholic
beverages.
Mr. Hull stated the Department's read was that they can be served at special after hour
events. As far as within the actual food service operations or marketing pavilion, they have been
very cautionary and have not officially made a determination.
Deputy County Attorney Jung stated in looking at the framework of the findings of fact,
conclusions of law and decision and order in 1983, it appears this was the proposal for
development. Because none of the specific findings were incorporated into the conditions of
approval and decisions and order, it is technically not binding because it is what they were
promoting as their product. If they request for alcohol it would fall under separate jurisdiction of
the Liquor Commission and Liquor Department. The Commissions can look at the impacts to
the neighborhood based on the proposed land use, but they don't want to delve too deep into the
minutia of the operational issues if another jurisdictional body already has control. The Liquor
Commission has the final say.
Commissioner Mendonca stated much referred back to the existing permit, so she was
wondering if it had any bearing.
Deputy County Attorney Jung stated if she wants to look at the proposed intent of the
original proposal,they can, but the Liquor Commission has jurisdiction. There is no restriction
on drinking alcohol on ag land. It is an activity not necessarily a use of the land.
Commissioner Mendonca stated it seems Mr. Jaeb made a consorted effort to meet with
the people. She questioned if there is going to be another meeting.
Mr. Jaeb stated there are two issues; the traffic and the noise. The noise was more
manageable and the deal was to watch the 55 decibels, watch the base, and communicate. As far
as the traffic, based on previous discussions, it is his road. They are under 50% of the projected
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use of the road with the exercise class. Without the class, they are at about 25%. He still wants
to make it a safer road, fix the pot holes, and work with the neighbors where he can make the
traffic slow down.
Commissioner Mendonea questioned the references to 125 maximum guests for catering
and whether that is the total amount for after hour fimctions.
Mr. Jaeb stated it is pretty much the maximum they can fit under the roof.
Chair Katayaina requested that if public testimony focus on the recommendations as read
by the planner it would be helpful, but certainly not limited.
The Commission received testimony from Elle Ward.
Ms. Ward noted Kauai use permits are granted only if the proposed use is compatible
within the district and not detrimental to the health, safety, peace, morals, comfort and general
welfare of the community, will cause no substantial harmful environmental consequences, and
will be consistent with the General Plan. She stated all of the activities that have been happening
at Common Ground have impacted the quality of their lives. They are not able to have the peace
and quiet and enjoyment of their residence. They met with Mr. Jaeb who initiated the meeting
and he heard from the majority of the neighbors of Kuawa Road who share the same problem.
The residents are saying they can live with it if he leaves the road alone and cuts a new safer road
with turn lanes established. She got the impression that he was willing to check into it and had
supposedly talked to the owner of the property for a right of way permit. She is surprised with
the turn of events because he never brought up the talk about sharing the cost of the road. He did
it at a meeting about a year and a half ago which was only attended by maybe 4 residents. There
was no research as to the costs. The recommendation of the Department is that Kuawa Road be
repaired to meet County standards,but like the 1988 decision and order there is an escape clause
in that the Department ties in widening road or developing alternative off street pedestrian route
in conjunction with construction of the additional 1200 square feet. She noted the Kilauea
Agronomics in 1988 did the road badly with no drainage, grading, or turn lanes and skipped
phase 2 entirely. She asked the Commission not to allow expansion of restaurant hours until
there is a firm commitment from the developer about the road. They need a starting and
completion date otherwise it is not much of a condition.
Commissioner Kimura noted he is neither 100% for or against the project. He questioned
how another road would improve the safety of Kuawa Road.
Ms. Ward stated the safety is compromised because of the additional traffic to the end of
the road, not to their homes.
Commissioner Kimura questioned how turning from the highway to Kuawa Road would
impact the residents, versus putting in a new road somewhere else.
Ms. Ward stated residents could turn into the road without having to wait on the highway
because of the lines of cars that either go into the road or exit the road.
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Commissioner Kimura noted whether the visitors are there or not,you still have to turn
left, and the traffic is what it is.
Ms. Ward stated the traffic has gotten worse.
Commissioner Kimura questioned how turning into the road would impact the residents
with the business being there or not if traffic is driving past Kuawa Road and residents are still
having to turn there.
Ms. Ward stated they are talking about traffic going in and out of Kuawa Road.
Commissioner Isobe questioned if Ms. Ward as a property owner that utilizes Kuawa
Road be willing to pave a fair portion.
Ms. Ward stated it has to be an equitable proportion.
Commissioner Isobe asked for clarification that she would be willing to pay an equitable
share for improving the road.
Ms. Ward indicated sure.
The Commission received testimony from David Ward.
Mr. Ward referenced the book, "Regulating Paradise" written by a U.H. Law Professor.
The practice of automatic zone changes may seem a bit dubious because zoning in Hawaii is a
legislative act, and so therefore is rezoning. Rezoning arguably automatically deprives the
property owner of the usual due process involved in rezoning a parcel of land. Some states
forbid the practice altogether. Others permit automatic rezoning under very limited
circumstances comparing it to a special use with conditions. The breach of a condition such as a
special use clause causes the permit to automatically expire leaving the owner with the
underlying zoning. The special use procedure is superior both administratively and legally. This
applies to Kauai and this applicant. The market at Common Ground reopened last year after
being closed for years. The snack bar converted to a full service restaurant in 2010 and has not
been in compliance with the 1988 decision and order of the Planning Commission to restrict
sales to those items listed in the petition documents such as guava and guava products.
Therefore the breach of SP88-3 automatically expires the permit. He included the standards for
issuance for permits from the 1988 permit. In assessing whether the proposal was compatible or
could be integrated into the neighborhood the following were considered: nature of proposal;the
concept of a visitor center to promote Kilauea Agronomics and C. Brewer agricultural products
to proposed display area, snack bar,retail area. The proposed use is ancillary to the existing
agricultural use of the land. Mr. Jaeb stated the garden supplies only 30%to 40% of the food
served. The proposed use in the new application is not ancillary to the existing agricultural uses
of the land. The breach of the condition of the special use permit causes the permit to
automatically expire leaving the owner with the underlying zoning. If the Commission wants to
comply with State and County Ordinance, this requirement that the proposed use be ancillary to
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the existing agricultural use of the land must be imposed. Without enforcement there will be no
incentive to use ag zoned land for food production, there will be a proliferation of stores and
restaurants on ag zoned land with no requirement or incentives to do any agricultural production.
The applicant may have concluded there is little to be made in agriculture. This applicant has a
master plan and he just took it off the web a month ago. It is just one step in the plan. He
requested the Commission protect our ag land from urban sprawl.
The commission received testimony from Diane Torkelson.
Ms. Torkelson stated she and Mark Leon own the property immediately adjacent to
Common Ground. They receive the greatest impact from the noise, traffic, and activities going
on at Common Ground. They purchased the property in 1999 and lived there for a period of time
when Guava Kai was in ownership. She asked for denial of the application. She asked for
accountability for the current land use before proceeding to other things. The impact has a lot to
do with special events. There have been open mic nights and they always have amplified music.
The one in December was broadcast from the sound studio there, worldwide. There have been
live music concerts in their outdoor stage with outdoor seating. The private receptions or parties
after hours with amplified music are common and they hear the music and the shouts from the
party. Until there is clarity of the definition of an ag related special event, it is difficult to
evaluate the current use. The website for special events includes in bold print that all guests must
vacate the property no later than 9:45 p.m. This is not being met. On June 2'1 there was a
wedding reception with amplified music and alcohol. The music stopped at 9:50 p.m. At 9:50
p.m. everybody was supposed to already be gone according to website. Instead there was heavy
traffic on Kuawa Road from 10:00 p.m. until 11:00 p.m. as the guests slowly vacated. Alcohol
increases the noise level and has more concerns for the neighbors as people who have had
alcohol are driving by. The Department recommended the decibel level be not over 55. Mr.
Jaeb stated that it was at 60 and he brought it down to 55. To her, the music just got louder and
louder up until 9:50 p.m. The original report noted 70 decibels are allowed for agriculturally
zoned land,but the Kauai noise reference manual states is for agricultural equipment such as
land cultivation and crop production and harvesting. Her concerns for the future use of the land
come from the plans for Common Ground. Many people have already mentioned the master
plan. She noted a video on YouTube from July 2011 clearly stating the five goals as of two years
ago, including a school for children, a school for adults,job training and communication, and
wellness and fitness center, a wellness center using holistic methodologies including the
management of chronic illness such as cancer, and a media center which is already in operation
to broadcast to the local and global community. He stated he wants people on the land to have a
sense of inner peace and connection with nature on Corm-non Ground. She has the same desire.
She wants a sense of inner peace and connection with nature on her property.
Chair Katayama clarified the Commission is working on the modifications to a special
use pernrit. They are not acting on the validity of the permit in itself. They are acting on the
recommended modifications to the special use permit as presented by the Department.
The Commission received testimony from Mark Leon.
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Mr. Leon stated he is co-owner of 4760E Kuawa Road with Diane Torkelson. There are
many reasons why the permit is outdated. 11 residents of Kuawa Road came to testify and 9 of
the letters in opposition are either from Kuawa Road or Kalihiwai Ridge and also hear the noise.
Mr. Jaeb has more signatures on his petition but a lot of those are tourists going to the restaurant
and from people who don't live in the neighborhood. It was already mentioned one of the
conditions was to bring the road up to County standards but the same loophole is there that
allowed Guava Kai to not do that for 20 years. He was surprised with Mr. Jaeb's testimony.
Last week he was enthusiastic about exploring an alternate access to Common Ground. It would
help a lot because that road is substandard and if they will have more traffic during evenings and
other events, an access route from the highway with a turn lane would be a lot safer and take a
lot of stress off of their road. He thought it was high on the agenda from their meeting with Mr.
Jaeb, but it was not mentioned today. The Department's reconunendation limiting the special
events to 4 per month is actually granting a new entitlement. The current permit states
occasional. He did not see how occasional is once a week. They are supposed to be ag related to
promote the agricultural enterprise on the land. He has been baffled as to how it morphs into
wedding receptions where alcohol is served. He asked Gerald Rapozo of the Liquor Board to
contact the Planning Department to see if his testimony would be useful. There are many
unanswered questions about the way the permitting of alcohol is done at Common Grounds;
most of the time it is not. They are not opposed to change. He asked the Commissioners to go to
Common Ground. At the most 2 to 4 acres are being cultivated. Most of the ground lies fallow.
The garden that supplies the restaurant is less than an acre. The first thing he noticed was
Esaki's Produce truck unloading produce for the restaurant. He urged the Commission to deny.
Commissioner Blake questioned if increased production would take care of one of the
main objections.
Mr. Leon stated it would be doing what he says he is doing. It wouldn't solve the
problems of special events and increased traffic problems.
Commissioner Kimura clarified that the special events permit was in 1988. It was his
concern too,but they can't take something away that they didn't give. The permit runs with the
land. It has been one of his main concerns since the time he was on the Commission.
Mr. Leon stated it is the reason he urges the Commission to not approve.
Commissioner Kimura clarified that has nothing to do with why they are here today
Mr. Leon stated one of the recommendations is on the special events.
Commissioner Kimura noted it is a recommendation. If they deny the permit today, he
can go back on the special events permit and do whatever he wants.
Mr. Leon stated he does have the right to hold after-hours events now under the permits
he holds, but it says occasional.
Commissioner Kimura questioned occasional.
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Mr. Leon stated he certainly doesn't consider 4 a month to be occasional. That is regular
once a week. It was probably a badly written clause in the original permit. He did not see any
reading of occasional as one a week.
Commissioner Kimura stated that is not their call. The permit is written the way it is
written. If they deny the request today, it goes back to the original permit.
Mr. Leon stated that Mr. Jaeb said himself in the meeting that he has maybe 2 to 3 a
month, so the 4 a month is more than he has now.
Conunissioner Kimura stated that with the current permit, he can have events until 12 or
1:00 a.m. and there is nothing they can do. They could deny the request today, but in the long
run, if he sells it to someone else that has no respect for the neighbors or anyone else,that after-
hours permit will come back and stab them in the back.
Mr. Leon stated that already happened when it was sold to Mr. Jaeb. He has not shown
the most respect for the neighbors either. There is a pemnit that is outdated,runs with the land,
and he thinks the current owner has taken advantage of it. There are already so many abuses and
misuses. He understands and appreciates that the Commission cannot address them, but he is
saying it has already happened. One of the problems today was that the original permit has no
time limits and ruses with the land. He hopes the Commission will deny the application, but if
not, he recommended a 3 year time limit with strict conditions about improving the road, access,
etc. He asked the Commission not to make the same mistakes as in 1988.
Chair Katayama requested a 3 minute break.
Vice Chair Kimura called the meeting back to order at 2:58 p.m.
The Commission received testimony from Stephanie Montanez.
Ms. Montanez stated she is the market manager for Common Ground, Kauai. They have
75 vendors; 3 that are non-Hawaii businesses, 10 are Kauai-grown businesses and fauns, and the
rest are from the outer islands. All of the products selected for the market have an agricultural
connection, even the 3 businesses that are imported. It is the focus of the market to support
Hawaii grown and Kauai made. Her company being a big part of what is sold in the market is
Kauai grown on premise. In addition, there is a multitude of other Kauai grown, ag based
businesses and products and the rest of them are from the State of Hawaii. The product spectrum
is being dyed with olena,produced with a sustainable agriculture model at hand, and they are not
unconsciously selected and not selected without agriculture in mind. She feels there is a
miscommunication of the opposing side in understanding why and how they select the products.
Commissioner Isobe asked for clarification that all of the products have either a
connection to Kauai or are Hawaii based.
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Ms. Montanez stated except for three. One is a water filter imported from Canada and
another is a grass-made basket company from Africa.
Commissioner Isobe questioned how the Department would handle that situation.
Mr. Hull stated under the conditions of the Department's recommendations, the latter
three products would probably not be allowed. Under the current conditions, because it
references products that are not only derived from the property, but future C. Brewer produced
products, there is no way to physically interpret it and put a limit on it. Under the current
conditions of approval, while the first qualifying phrase is guava related products, it goes on to
list other tropical fruit and vegetables and fixture C. Brewer products. There is intent to keep it
arguable within the State of Hawaii,because C. Brewer was a Hawaii ag company, but it wasn't
specifically limited to Hawaii ag products. Under the Department's recommendation, they are
trying to drive it towards not just the State of Hawaii, not just Kauai,but more specific to the
property. There may be other products that may be arguably within that realm, but a first had
read of those three products that were mentioned, he did not think it would be allowed.
Vice Chair Kimura questioned if that would be a problem.
Ms. Montanez replied not at all.
The Commission received testimony from Lyn Long.
Ms. Long stated she lived on Kuawa Road for 29 years. There are issues with the road,
the noise, and the litter,but what is not being addressed is that the application is for extending
the hours from 5:00 p.m. to 9:30 p.m. It is inappropriate and inconsiderate of the neighborhood.
She questioned why it has to be done and why they think it is a good idea. She agreed with Mr.
Jaeb's intentions, goals, and diversified agriculture, teaching the kids,but she questioned why he
can't stop at 5:00 p.m. It is usually later at night. He wants to establish a venue for music
concerts and other events. Evening and night time events are inappropriate. She asked the
Commission to deny the request for extended hours. A lot of the names on the petitions and
letters that he solicited are from people who went to the restaurant and had a nice meal. A lot of
people in support are not even from Kauai. She asked the Commission to take that in to
consideration and not extend the hours into the night.
The Commission received testimony from Commie Williams.
Ms. Williams stated she and her husband live two doors from Common Ground. When
they bought their property, they were told Guava Kai owned the road and they would be
improving it. Over the years they came by with fliers stating they were going to start working on
it and it never happened. As far as the neighbors being responsible for fixing the road, Mr. Jaeb
inherited that. Most of the damage was not done by the neighbors. It was done by Guava Kai
and the huge tour buses that couldn't fit on the road and would fall over, and now from all of the
increased traffic from his enterprises. She questioned the definition of after-hours. She felt
extended hours needs to be specific. The purpose of Chapter 205 in 2005 was to be sure that ag
land was kept as ag land because it was all being developed into other types of enterprises. If the
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Commissioners visit the site they would see a small rock herb garden behind the restaurant and a
garden that she measured 100 feet by 60 feet that has a row of basil, 2 rows of lettuce, and the
rest is weeds. The other two plots they had when they were producing 125 pounds a week and
selling it to the public is not there. The chickens are not there. There are 39 papaya trees in a
small row that are not yet producing. There are two rows of lime trees, 6 stands of bananas that
have 4 trees each, 6 sheep, 4 goats, and two areas of dead guava trees. They are not doing farm
to table. It is a great idea, but they are not doing it there. She did not know how they are
teaching children fanning techniques when they are not doing any farming. Before the
Commission grants someone permission to extend their hours for a farm to table restaurant they
should have a farm to table restaurant. Exercise classes have nothing to do with ag land. Having
a film studio to broadcast radio worldwide can be done from his home office, not on ag land.
She asked the Commission to quit giving it back to people with millions of dollars who destroy
ag land. It will never be used for that again. They are building a 1200 foot building. Until they
are actually producing the products that need to be put into what they are malting, they should
not be permitted to do it. They are putting the cart before the horse and not following through.
The follow though would be to have a farm and utilize it. She questioned if the State of Hawaii
is going to approve it since it is over 15 acres as per the Statutes in 205.
Deputy County Attorney Jung stated they can look at how the referral process will work
with the modification of permit, but ordinarily if the use area is over 15 acres it will have to go
the State Land Use Commission to make their determination.
Ms. Williams asked for clarification that the County won't make a determination until the
State has determined it. She would like it go to the State.
Mr. Hull clarified that the project area is specifically under the Special Permit which is
not the farm because the farm is outright pernnitted under Hawaii Revised Statues. He reminded
the Commission that the Hawaii Revised Statutes Section 205 that is being referenced outright
permits restaurants on agricultural lands in so far as they are serving not agricultural products
tied to the land, but tied to the entire State of Hawaii. Even if the special permit was applicable,
the project size, not the size of the property, has to be 15 acres. The project size is less than 15
acres. It is a portion of a 46 acre parcel. Should the State determine that they want to review it,
the Planning Commission takes action first, and then referred to the State Land Use Commission.
The Commission received testimony from Doug Ryan.
Mr. Ryan stated he was part of the exercise group and it was the best thing he has ever
done as an adult. It is mostly women in that group. It is about agriculture, it is not about the
exercise. There is a farm there and it is being brought to the restaurants. He knows someone
that works there and that is what happens. They are talking about jobs and a proper use. It is an
agricultural reality and an agricultural experiment. As a neighbor he can understand the concern
about the road. Part of being a neighbor is that the neighbors drive on the road and neighbors
hold their own parties. People that go to them; the UPS trucks, delivery vans, are all part of
those numbers. He noted the area has a rural atmosphere and they are liable to turn it into just
another street if they widen the road. Mr. Jaeb is losing money every month. He is dedicated to
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the idea and principle of bringing the land to proper use. There is a possibility of working with
kids in the schools.
The Commission received testimony from Neal McManus.
Mr. McManus stated he is not associated with Common Ground. He also attended the
exercise classes. His felt it should be approved. There are a lot of developments on the island
and not many people put an effort into trying to develop and agricultural enterprise. He farms
himself and it is difficult to make a farm work; it is labor intensive, especially if it is sustainable.
He commends Mr. Jaeb for trying to do it and for being willing to take a loss. He referenced a
joke about a farmer that won the lottery in California and has a press conference. They asked the
farmer now that you won the million dollar lottery, what are you going to do? The farmer said I
guess I'll keep farming until it runs out. That is the nature of farming. Anything that can
support ag should be encouraged. Extending the hours to 9:00 p.m. such that everything is quiet
by 10:00 p.m. is somewhat reasonable on Kauai. It used to be that Kauai was quiet by 8:00 p.m.
These days the traffic on all of the roads is increased exponentially with tourists as well as
residents. There is a tax on this lifestyle that used to be a pineapple and sugar island. Those
industries left because of the cost of doing agriculture. Mr. Jaeb's operation buys produce from
the small farmers around him and is more than willing to purchase organic produce of all types
and fruits. He is sorry for the neighborhood that will have more traffic but they will probably
have more traffic anyway in the fixture as we all do. He lives on Kahiliholo Road. The traffic
has increased since he first purchased his property in 1993. It is a tough business and any
support they can give in regards to supporting the enterprise is a step in the right direction.
Mitigation, negotiation, and compromise are the way to go.
The Commission received testimony from Cammie Soltren.
Ms. Soltren stated she is a resident of Kuawa Road and agrees with a lot of what people
are saying. It is a good idea and she loves the idea of agriculture and sustainability, but the fact
of the matter is it doesn't have to go past 9:00 p.m. There needs to be an end at a certain time so
the residents of Kuawa Road can live their lives after they get off work. As it is now, that
doesn't happen. She is all for the business, the restaurant, but not the idea of extended hours. It
is unnecessary.
Deputy County Attorney Jung stated now that the conclusions and recommendations
were read, the Commission can move to approve, deny, or amend the recommendations, and they
can entertain discussion.
Commissioner Mendonca questioned the catering menu of 40 guests with a maximum of
125 and if he is willing to consider it as a condition for the occasional after hours events.
Mr. Jaeb stated he is willing to consider it.
Commissioner Mendonca questioned the closure of the gate at night.
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Mr. Jaeb stated they usually close 5yu3about 6:30 p.m. or 7:30 p.m. whenever it gets
dark.
Commissioner Mendonca questioned if he would have objections to a time frame on the
occasional catering.
Mr. Jaeb noted there are five homes that have the right to go through the gate.
Mr. Hull clarified that Commissioner Mendonca was referring to the special after-hours
functions and whether he would be willing to entertain limiting the hours to a particular time at
night.
Commissioner Mendonca noted that if the hours of operation are from 7:30 a.m. to 9:00
p.m. and questioned if 9:00 p.m. would be the time to close for special functions.
Mr. Jaeb stated that currently there is no time limit, and occasional is to be interpreted.
They have accepted and created their own time limit by trying to end music by 9:00 p.m. and be
out by 10:30 p.m. at the latest. There was one incident last week that was not a good example of
how they manage the events. He would be willing to do be done by 9:30 p.m. and have people
out by 10:30 p.m. for the 4 special events.
Commissioner Mendonca requested that be put into a condition.
Deputy County Attorney noted before the Commission proposes amendments,they want
to start the discussion on a motion to approve, deny, or amend the recommendation.
Mr. Crowell noted there can also be a motion to defer the matter.
On the motion by Hartwell Blake and seconded by John Isobe to approve the
recommendations, the following discussion ensued:
Commissioner Mendonca stated that she would like to add a 13"'amendment.
Mr. Hull questioned the time frame that was being proposed.
Mr. Jaeb stated the suggestion was that the event would be over at 9:30 p.m. and people
would be out by 10:30 p.m. for special functions.
Commissioner Mendonca questioned special functions on Sundays. She noted Monday is
a work day for most people.
Mr. Jaeb stated generally there aren't Sunday night events. There have been some but it
is not the most popular night of the week, with an exception of the one they had several weeks
ago.
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Commissioner Mendonca questioned if he would have a problem with not having any on
Sundays.
Mr. Jaeb noted he would be okay with that if that would make it easier for the neighbors.
Mr. Hull noted it would be for special functions.
Commissioner Texeira questioned the main motion to approve.
Vice Chair Kimura stated it was to approve the extended hours with the conditions read
by the planner.
Commissioner Texeira noted there are different items in that motion; more than just
extending the hours.
Vice Chair Kimura stated approving the main motion was with the recommendation of
the Department.
Deputy County Attorney Jung stated the motion was to approve the request based on the
recommendations from the Planning Department. Some of the Commissioners are looking at
modifying the conditions from the Planning Department.
Commissioner Texeira stated he understands that. Expanding the hours of operation and
food service,to continuing to hold special events, and to constructing buildings previously
approved are 3 separate items mentioned in the agenda. He questioned the main motion.
Deputy County Attorney Jung stated the main motion is based on the report of the
Planning Director to recommend approval of the proposal with proposed conditions attached.
The Commission can look at modifying the recommendations of the Department based on the
testimony from either side to mitigate the impact of the project.
Commissioner Texeira stated he doesn't understand the main motion because there are 3
separate items, and they are saying that it is one motion,but those are sub conditions within that
motion.
Commissioner Isobe stated the main motion as he understands it is to approve the
recommendations section of the Planning Director's report which has 12 conditions. The
confusion is coming about because he is looking at the additional findings. They are not
approving the findings, but the recommendations which are 12 conditions.
Commissioner Texeira stated he doesn't have a problem with that. He understands the
recommendations. If they are looking at the recommendations, he understands that. He is
questioning the other items mentioned on the agenda, in addition to what they are talking about.
He questioned if the special permits and the expanded size of the building were part of the 12
recommendations. It would have been nice to treat the items separately instead of together.
They have one motion and 12 recommendations under the motion.
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Deputy County Attorney Jung stated ordinarily when a project is acted upon,the agenda
item describes what is being requested. Here, what is being requested is the 3 items. Because
they are under one permit set, they are bundled together based on one recommendation from the
Planning Department that the Commission can either agree with, disagree with, or make
modifications. All of them are bundled under the permit set, under the modification of the
existing permit set.
Commissioner Texeira requested the permit set.
Mr. Crowell stated the staff report is proposing to amend the original permit conditions.
Expanding hours of food service operations is condition 6, continuing to hold special events is
condition 6 as well, and constructing buildings previously approved is condition 1.
Commissioner Texeira stated he understands what he is saying. He doesn't understand
why it is not exactly mentioned as the recommended action.
Deputy County Attorney Jung stated the confusion may lie in that the report is the
supplemental report number 1. The original report was submitted at the May 14 meeting.
Mr. Hull clarified that Commissioner Mendonca was requesting to amend Condition 8.
Deputy County Attorney Jung noted there would need to be a motion.
Mr. Hull stated that recommended condition number 8 from the Department will be
amended to read as follows: "Sale of items including but not limited to the primary dishes at the
food service operation or during any of the special after hour functions shall be restricted to
agricultural products grown and/or raised and/or produced on the subject property. Additional
food stuffs from off site, preferably from Kauai or the State of Hawaii may be utilized in
products and or dishes. The Department shall determine those off site food items that may be
used at the onsite food service operation to ensure that the operations are in keeping w th the
intent of the farm to table and farm to shelf spirit of the subject permits. Sales in the exhibit and
marketing pavilion shall be limited to promotional products such as hats and tshh-ts with the
subject property's farm related logos and other tropical fruit products such as sugar,pineapple,
coffee, macadamia nuts and other future agriculture products that are grown on the subject
property that are made in keeping with the promotion of Kauai groan and/or Hawaii made
projects. The Department shall determine those off site produced products that may be sold at
the exhibit and marketing pavilion to ensure that the operations are in keeping with the intent of
the farm to table and farm to shelf spirit of the subject permits. Both food service and sales of
products shall be limited to ground story operations."
On the motion by Amy Mendonca and seconded by Hartwell Blake to amend the
proposed main motion as read by the planner the following discussion ensued:
Commissioner Isobe questioned the effect of the amendment and the meaning of the
word"primary".
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Commissioner Mendonca stated there is a vagueness regarding the particular proteins
used in their actual cooling like chicken, lamb, and beef. They become primary even if most of
it is vegetable. The intent of land to table is that they have to raise, grow and produce them.
That is the impression she gets that Mr. Jaeb is trying to do.
Conu-nissioner Isobe questioned how that would be accomplished. If approved,he
questioned how he would be able to raise chickens in time so that he can continue to serve any
chicken dishes or cow or lamb.
Commissioner Mendonca stated that he has an extended time to finish his 1200 square
feet of building in which case he is required to sell a certain amount of Hawaii grown products.
Mr. Hull stated they would ultimately work with the Department to ensure that it is kept
to a specific percentage or dollar figure. It is new territory, but more limiting than what is already
inherent within the permits now. In recommending this, it is the Department's attempt to steer
the products being sold on the site. Under the current approvals it is more open and liberal in a
sense of future C. Brewer products or products from Hawaii as well as around the world. They
are hying to limit with some allotment for products grown off property, but steering it toward
those grown specifically on the property, ultimately tying the farm operations on the property to
the restaurant so that the more business the restaurant does the more farming it will necessitate
from the property.
Commissioner Isobe stated he understands. His concern is they are now asking the
applicant beyond becoming a farmer to now become a rancher, and potentially become a
fisherman. He questioned how he would now serve seafood on the menu because there is no way
he can raise ahi or mahimahi on his property.
Commissioner Mendonca stated the point she is trying to make is for the primary dishes
that he has the land to grow; lamb, vegetable, and maybe cattle. The end result is what he cannot
get, after raising it, we are looking at Kauai and Hawaii grown items. That was the original
intent; to use the guava that was there. Now he is using what he can raise on this land and sell to
the table.
Commissioner Isobe stated he understands the intent.
Commissioner Mendonca stated they don't want to say that he can go and buy cattle at
another distributor or lamb from another distributor. She is trying to make it clear for the people
who are expressing concerns, and he has expressed his willingness to work through this. She is
sure there is going to be some consideration given if he cannot raise it in the next 6 months and
have a herd of cattle. She is saying they need to clearly identify them so they are not back in that
situation again. It's just the primary.
Commissioner Isobe stated he may be misunderstanding the term primary, but if the dish
is a lamb dish, the Commission is expecting him now to become a rancher and raise sheep.
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Mr. Hull stated it would be the intent. If he were growing all of his dishes on site, not
only the vegetables but also the protein, that ultimately is the aim of the condition; that the
restaurant is literally tied to the property,primary dishes included. Should he go out and
continue to purchase outside meat and it is being served in all of their dishes, and every night it is
the primary dish, then zoning for an outright restaurant is in the commercial zoning district and
the resort district. The reason the Department is looking at this application in a more favorable
light is that it can be potentially tied specifically to agricultural products produced on site and
therefore the better the restaurant does the more impetus there is to further farm that subject
property. One thing everyone is looking at is how to motivate land owners to farm their
properties more. The Department acknowledges that there are every day operations where they
can't grow everything. Should he not be able to grow certain things they can all have a certain
allotment for it,preferably that he be accessing locally grown or grown in the State of Hawaii.
The intent of the condition is to guide the applicant to tying the restaurant operations to the farm
on the land.
Commissioner Isobe questioned the extent.
Mr. Hull stated to the extent feasible.
Commissioner Isobe stated he would hate to see the operation become unsuccessful
because they are reading it so strictly that in fact it doesn't become feasible.
Mr. Jaeb stated it is literally not possible. They can definitely farm the majority of the
vegetables and percentage of fruits that is reasonable for produce,but there is no way you can
make a field to table restaurant work in today's world without having a variety of proteins,
whether fish or meat. They would like to be there, but they can't start there. It would be crazy to
imagine getting into the full range of production not even knowing if you have a viable business
to start.
Commissioner Isobe stated that was his concern. He is not an ag expert, but he is
assuming that a restaurant cannot use every piece of the cow even if they raise the cow.
Mr. Hull stated what the Department is recommending is a bit more stringent than what is
allowed under Hawaii Revised Statutes. Hawaii Revised Statutes right now allows him to
operate a restaurant on ag land and he doesn't have to be growing anything on that property.
They would like to narrow what the legislature allowed to not only push from the State of
Hawaii but from the specific property. Every day operations are going to necessitate things like
salt.
Mr. J'aeb noted that they wouldn't want to grow certain types of spices because it would
not be economically viable.
Commissioner Blake stated a rancher is a grass farmer and the cows harvest the grass. If
you have the grass, he would say finish with the animal on the grass that they have and try to
honestly work with the definition.
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Deputy County Attorney Jung noted there is a motion on the floor. It can always be
withdrawn. They are entitled to move forward with the motion. He questioned if it has been
routed to the Department of Health if they are going to be required to butcher the animals on site.
Mr. Hull noted the condition does not require the butchering of the animal to be on site.
Mr. Jaeb asked for clarification that they are going to have to grow everything on site.
Mr. Hull stated the goal would be taken from the Commission to aim it that way. It is not
outright required at the moment but the goal is to steer it. There would be room for the
Department if 70% of the primary dishes are sourced from outside and issue violations or bring it
back to the Commission for further discussion.
Mr. Jaeb stated he likes the idea and he is good with the goal, but as they discussed it
would be almost impossible economically to farm the range of animals. The intent to have the
primary dishes with the majority of the ingredients, they can do and is within the spirit of what
they are about.
Vice Chair Kimura questioned if he was in agreement with Commissioner Mendonca's
recommendation.
Mr. Jaeb was not sure how it was being interpreted.
Mr. Hull stated the sale of items including but not limited to primary dishes at the food
service operation or during any special after hour functions shall be restricted to agricultural
products grown and/or raised and/or produced on the subject property. It has the qualifying
statement of shall be restricted, however the second clause goes on to say additional food stuff
items.
On the motion by Amy Mendonea and seconded by Herman Texeira to amend
condition number 8 to state: "Sale of items including but not limited to the primary dishes
at the food service operation or during any of the special after hour functions shall be
restricted to agricultural products grown and/or raised and/or produced on the subject
property.", the motion failed:
Ayes: 3,Nos: 2 (John Isobe,Jan Kimura)
Deputy County Attorney Jung clarified that the motion failed. There needs to be 4 votes
for valid action.
The Commission recessed at 3:56 p.m.
Vice Chair Kimura called the meeting back to order at 4:05 p.m.
Commissioner Mendonca suggested an amendment to Condition 8,replacing the period
to a semi-colon to read as follows: "Sale of items including but not limited to the primary dishes
at the food service operation or during any of the special after hour functions shall be restricted
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to agricultural products grown and/or raised and/or produced on the subject property; additional
food stuffs from off site,preferably from Kauai or the State of Hawaii may be utilized in
products and or dishes."
Mr. Jaeb indicated that he did not agree if the perception is that primarily everything has
to come from the property.
Mr. Hull clarified the Department has stated that the additional food stuffs clause from
off-site covers it, but two Commissioners didn't think it gave enough leeway to use additional
foods. Instead of having it as two separate independent clauses, they joined the two together.
Mr. Jaeb stated he was good with that.
On the motion by Amy Mendonca and seconded by Herman Texeira to amend
Condition 6 replacing the period with a semicolon to read as follows "Sale of items
including but not limited to the primary dishes at the food service operation or during any
of the special after hour functions shall be restricted to the agricultural products grown
and/or raised and/or produced on the subject property; additional food stuffs from off site,
preferably from Kauai or the State of Hawaii may be utilized in products and or dishes.",
the motion carried by the following roll call vote:
Ayes: 5,Nos: 0
Commissioner Isobe recommended an amendment to Condition 10 to add Item F.2.,part
of the findings, to state: "Should this owner or any future owner violate the subject permit
conditions of approval, and the owner fails to rectify these violations in a timely manner, the
subject pen-nits can be subject to revocation and the owner to Civil and criminal prosecution."
Mr. Jaeb asked for clarification the condition states if they are out of compliance they are
subject to criminal prosecution.
Commissioner Isobe stated he was reading from the language. His intent is to ensure that
the current owner or any future owner of the property comply with the conditions assuming they
are approved today.
Mr. Jaeb stated he was fine with that.
On the motion by John Isobe and seconded by Hartwell Blake to add to Condition
10 "Should this owner or any future owner violate the subject permit conditions of
approval, and the owner fails to rectify these violations in a timely manner, the subject
permits can be subject to revocation and the owner to Civil and criminal prosecution.", the
motion carried by the following roll call vote:
Ayes: 5,Nos: 0
Vice Chair Kimura suggested an amendment from 7:30 a.m. to 9:00 p.m. to 8:00 a.m. to
9:00 P.M.
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Mr. Jaeb stated he was good with that.
Vice Chair Kimura suggested an amendment from 7 days a week to 6 days a week.
Mr. Jaeb stated he did not agree because he currently has the right to operate 7 days a
week. He hoped the Commission would support the agricultural efforts. The extra day could
make a difference. They currently don't operate on the 7a' day and don't have plans to, but he
wouldn't want to give up something that could have value in the future.
Vice Chair Kimura suggested including in a status report that if they need to change from
6 to 7 days, it will be at the discretion of the Department or Director.
Deputy County Attorney Jung stated it would be too specific to delegate power to the
Department when it is a Commission authority.
Mr. Jaeb noted they currently have the right to operate the market 7 days a week.
Vice Chair Kimura suggested a motion to change the hours of operation from 7:30 a.m.
to 9:00 p.m. to 8:00 a.m. to 9:00 p.m.
Commissioner Texeira questioned if the hours include special functions.
Vice Chair Kimura stated there will be another recommendation. His suggestion is for
regular operations.
Commissioner Texeira would like to be more conservative. He felt 9:00 p.m. is late. He
preferred 8:00 a.m. to 8:00 p.m. at the latest.
Commissioner Blake stated his personal experience is that by the time he gets home from
work and decides to go out to dinner it is already around 6:00 p.m. If you live outside of
Kilauea, it would be later. He did not feel 9:00 p.m. was unreasonable.
Vice Chair Kimura stated he is a late eater himself. .
Commissioner Texeira stated it makes sense, but he was trying to accommodate the
abutting property owners. He felt if the restaurant is not open at the hours they want,then go
somewhere else, or go on the weekends.
Commissioner Blake stated he is looking at 9:00 p.m. in that location, not necessarily the
restaurant. He did not think that in and of itself was unreasonable. Rather than limit them, he
would rather give them every opportunity to succeed,provided they succeed in a manner that is
within the rules.
Commissioner Texeira questioned the trade off with the abutting land owners.
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Commissioner Blake stated if there is a delivery at 9:00 p.m. from U.P.S., who is to say
that they can't come back until tomorrow. They expect people to act reasonably until they show
they cannot act reasonably. All he was focused on was the time in that location.
Commissioner Texeira noted it is an ag zoned district.
Commissioner Blake noted that restaurants are outright permitted.
Commissioner Texeira stated they want to limit the activities of the restaurant.
Commissioner Blake stated he understands and appreciates that,but they are limiting it
by confining it to primarily things that they raise or are raised in Hawaii, rather than escargot
from France or couscous from Morocco.
Commissioner Texeira stated they are not actually doing that, but they want to do that.
They are only growing a small percentage. He questioned wiry they can't prove it first, and then
expand the hours.
Commissioner Blake stated it would eat up Commission time, Department time, and the
business' time.
Commissioner Texeira stated that is the reason they have a Commission.
Commissioner Blake questioned if they have to do it just because they can do it.
Commissioner Texeira stated he just wants to protect the integrity of agriculture and limit
the use of these kinds of commercial activities on ag land. He did not want to create something
that someone else will come in and apply for the same activity.
Commissioner Blake stated if that is the case they need to be landed on with both feet.
Vice Chair Kimura noted that at the original request was for 7:30 a.m. to 9:30 p.m. at the
last meeting.
On the motion by Hartwell Blake and seconded by Amy Mendonca to modify the
hours from 7:30 a.m. to 9:00 p.m. to 8:00 a.m. to 9:00 p.m., the motion carried by the
following roll call vote:
Ayes: 4,Nos: 0, Silent: 1 (Herman Texeira)
Deputy County Attorney Jung noted that the silent vote goes with the motion and the
motion was to amend. He clarified the vote is counted as 5 ayes.
Commissioner Mendonca questioned the 1988 decision and order on page 10 that states
occasional after hour functions are permitted. Looking at the history,they have had almost once
a month. She questioned if they could limit the special occasions to 2 a month instead of 4 a
month.
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Deputy County Attorney Jung stated it is the discretion of the Commission. It is a matter
of interpretation as to what the Commission feels is occasional. They can balance the occasional
with the fact that they are asking for more night time activities. However they interpret it is fine
as long as it is a reasonable interpretation with a rational basis.
Commissioner Mendonca questioned the amount of after-hours activities that were held.
Mr. Jaeb stated they have anywhere from 3-6 activities. They try to constantly manage it
in a way that was working with the neighbors. There were occasions where they were doing
larger, more frequent events, but they have been more respectful over the last 6 to 8 months.
Vice Chair Kimura noted the original permits stated that the occasional after-hours
special functions were from 5:00 p.m. to whatever time. Now that the hours are until 9:00 p.m.,
he questioned what is considered as after hours.
1VIr. Jaeb stated it would be up to 10:00 p.m.
Mr. Hull clarified that because of the stagnated Commission construction of Condition 6,
essentially special after hours would still run from 5:00 p.m. because the terminology was
established with the 5:00 p.m. pocket.
Commissioner Blake clarified that 4 a month could be Monday, Tuesday, Wednesday,
Thursday and then it would be done for the month, or it could be every Saturday or every
Sunday. He felt, if the business is to be successful, there has to be some flexibility. They can
pass rule after rule that would effectively immobilize them. He would be in favor of special
occasions up to 4 a month.
Vice Chair Kimura clarified that is the Department's recommendation.
Mr. Hull suggested that it may be appropriate to remove "after-hours" and state that
special functions are permitted with no more than 4 special functions permitted per month. They
may want to have discussion on a proposal for specific after hour time requirements.
Deputy County Attorney Jung suggested that if Commissioners have any amendments to
propose they state their proposal and a motion can be made.
Commissioner Mendonca stated that she would like to propose Condition 13; maximum
capacity for guests no more than 125 and that the function, as agreed, would end at 9:30 p.m.,
vacating by 10:00 p.m.
Deputy County Attorney Jung stated if that is the intent, it may be more appropriate in
the special functions section so it is all concentrated. They can work on the language where it
would be with no more than 4 special functions permitted per month with a cease of special
function operation by 9:30 p.m. with vendors vacating by 10:30 p.m.
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Mr. Hull stated special after hour functions shall be limited to no more than 125 guests.
Each special function shall cease no later than 9:30 p.m. and those attending said function shall
vacate the property by 10:30 p.m. with no special function occurring on Sunday.
Mr. Jaeb stated currently under the occasional events, they are not limited by the number
of the people or time; they have created their own time. They were proposing a limit of 4 events
a month, 250 people maximum, ending at 10:30 p.m. with everyone out by 11:00 p.m. He noted
they currently have as many nights as they want under occasional.
Commissioner Mendonca requested clarification. They stated minimum of 40 guests and
maximum of 125.
Mr. Jaeb stated that was in reference to the restaurant. They currently operate out of the
covered area where the restaurant operates that has 125 seating capacity. Special events can be
done anywhere on the property and is not limited to that capacity. 200 people could fit in the
lawn of the property for special events. Their special events were normally 80-100. He noted
that they are currently giving up a right that is unlimited with unlimited hours.
Commissioner Mendonca clarified at the last meeting she asked the same question about
seating capacity and he replied no more than 80. Now she is hearing a seating capacity of 125.
Mr. Jaeb stated the current restaurant,in its current configuration,has 80. If they utilize
the covered area that exists in the same space it can accommodate up to 125, but they don't do
that. Unless there is a special event in that covered space it has an 80 seating capacity.
Commissioner Mendonca questioned the maximum guests of their special functions and
how they keep track.
Mr. Jaeb stated they have tried to keep it low in consideration of the neighbors. There
have been events with 400-500 people but they stopped doing them. He would be fine with
limiting to 200.
Vice Chair Kimura called arecess at 4:38 p.m.
Vice Chair Kimura called the meeting back to order at 4:40 p.m.
Commissioner Mendonca clarified that her motion would be for a maximum of 200
people and the people would be out by 10:00 p.m.
Mr. Hull clarified that Condition 6 would have additional language to read: "Special
after hours functions shall be limited to no more than 200 guests. Each special function shall
cease no later than 9:30 p.m. and those attending said function shall vacate the property by 10:00
p.m. with no special functions occurring on Sundays.
Mr. Jaeb stated that having a wedding party end at 9:30 p.m. would be hard. He would
request 10:00 p.m. with everyone out by 10:30 p.m.
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Commissioner Blake stated that was his understanding.
Vice Chair Kimura requested clarification.
Mr. Hull noted after the break, Commissioner Mendonca requested 9:30 p.m. cease of
functions, vacating the premises by 10:00 p.m.
Deputy County Attorney Jung noted for the record that it would be over the objection of
the applicant.
Commissioner Isobe questioned the restriction on Sunday.
Mr. Hull stated Condition number 6 would be amended to read as previously set as
starting at 8:00 a.m. with additional language to state: "Special functions shall be limited to no
more than 200 guests. Each special function shall cease no later than 9:30 p.m. and those
attending said function shall vacate the property by 10:00 p.m. with no special functions
occurring on Sundays."
Commissioner Isobe noted that he would be voting against the amendment. His concern
was that of noise. In his opinion there is already a restriction in terms of decibel levels. Whether
it is 9:00 p.m. or 11:00 p.m. if the applicant abides by the decibel level, the noise problem is
already taken care of or at least to the extent that it can be taken care of He agreed with
Commissioner Blake and felt they need to be careful about over regulating the business so it does
not become a viable business. When they start limiting the hours of operation, what can be done
on the property, what days they can operate, he is concerned about where and when they reach
the point of over conditioning the business so they cannot succeed. I Ie believed they need
flexibility. He felt the Department has done a commendable job in drafting conditions that
attempt to address the majority of concerns. There will be an annual review of the business
practices. It is clear that if there are violations of the conditions as stated, the Commission has
the opportunity to review the business practices up through and including revocation of the
permit. Those safeguards are now in place. At some point they need to bust the applicant.
Hopefully this business can succeed and move forward.
Commissioner Mendonca appreciated Commissioner Isobe's feelings and what the
applicant is doing, but in view of what the land is to technically become, and in view of the
surrounding people, she felt they are not restricting; they are trying to assist it to keep within the
intent of the land as agriculture. They are allowing him to do something else which is really
outside of the perimeter of agriculture and find a happy balance. To have a restriction on the
after hour function by stating 9:00 p.m. or flexibly 10:00 p.m. end, she knows that people are not
going to be out of there right at 10:00 p.m. They will attempt to get out, but by the time
everyone gets out it will be 10:30 p.m. or possibly later.
Vice Chair Kimura noted that would be a violation of his permit.
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Commissioner Mendonca stated 9:30 p.m. would take care of the special function. If he
is willing to work with her on 10:00 p.m. she would be willing to make that change. Her point is
that it is agriculture and they are giving him every opportunity to have the functions. They are
extending the hours and allowing 1200 square feet of another facility for a business within
agriculture land.
Commissioner Isobe noted that, as stated by the planner, a restaurant operation is a
pennitted use in the agricultural district under Chapter 205. They are not giving any more
consideration that is already allowed under the law. He is not disagreeing and overlooking the
concerns of the surrounding residents; he is trying to accommodate that also. His concern is one
of overregulating the business. His concern is not so much on the hours of operation. If they can
take each amendment as a separate amendment and look at each one,he has no problem. His
concern is eliminating Sunday as a day of operation. If they want to limit the number of
participants that can attend to 200, which the applicant has agreed to, he has no problems with
that. When they bundle them together, he cannot support all three.
Commissioner Mendonca clarified that Commissioner Isobe would like to take Sunday as
a separate issue. She asked for clarification that the applicant requested keeping Sunday in the
background in case they need it.
Mr. Jaeb clarified that it would be Monday because Monday is the day they are currently
closed.
Commissioner Mendonca suggested amending Condition 6 to include additional
language that would read: "Special functions shall be limited to no more than 200 guests. Each
special function shall cease no later than 9:30 p.m. and those attending said function shall vacate
the property by 10:00 p.m."
Commissioner Isobe questioned whether the applicant was comfortable with that.
Mr. Jaeb indicated no.
Commissioner Isobe questioned the hours of operation that would make it feasible.
Mr. Jaeb stated that for special events stop at 10:30 p.m. vacating by 11:00 p.m.
On the motion by Amy Mendonca and seconded by Herman Texeira to amend
Condition Number 6 to include additional language that would read: "Special functions
shall be limited to no more than 200 guests. Each special function shall cease no later than
9:30 p.m. and those attending said function shall vacate the property by 10:00 p.m.", the
motion failed.
Ayes: 2, Nos: 2 (Hartwell Blake, John Isobe), Silent: 1 (Jan Kimura)
Deputy County Attorney Jung noted that the silent vote goes with the motion, and the
motion still fails because it would be 3 in favor and 2 against.
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Commissioner Blake questioned the current standing of Condition Number 6.
Mr. Crowell stated the regular hours of operation are 8:00 a.m. to 9:00 p.m., 7 days a
week. Occasional after hours are permitted. The applicant shall notify the Planning Department
in advance of such special functions.
Vice Chair Kimura noted that it states no more than 4 special after hour functions
permitted per month.
Commissioner Blake asked for clarification that there is no time specified.
Deputy County Attorney Jung stated currently there is no time restriction on the special
after hour functions.
Commissioner Isobe proposed an amendment limiting the time to 10:00 p.m. out by
11:00 p.m. also limiting the number of guests to a maximum of 200.
Commissioner Texeira questioned how they would control the people.
Vice Chair Kimura noted it would be up to the applicant to control because if he doesn't
the permit would be in jeopardy.
Commissioner Blake stated he has seen hosts of parties stating that they have to be out by
a certain time. 99% of the people will. The proprietor will have to enforce it.
Commissioner Texeira stated when they are drinking they don't listen.
Commissioner Blake noted there is a police substation in the area.
Deputy County Attorney Jung stated that potential condition is to alleviate noise elements
to the adjoining neighbors to the parcel.
Vice Chair Kimura questioned if they could have them vacate by 10:30 p.m.
Commissioner Isobe felt it was more reasonable to allow people an hour to vacate a party
than to give them a half hour to vacate. Without some kind of limitation, it would be an open
ended event that never has to be vacated. To the extent possible, he is trying to mitigate the
concerns on both sides. Leaving it open ended is dangerous. Giving it just a half hour window
for all of the reasons the Commissioner Texeira stated is probably true. The earlier proposal
gave people only a half hour to vacate and gave them earlier time to have to vacate which would
fringe upon the potential operations.
Commissioner Blake agreed with Commissioner Isobe. If they use the reason that they
are drinking,then they could drink all night. He suggested putting a limit on it and leaving it up
to the proprietor to enforce.
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Vice Chair Kimura noted that without the recommendation, they can go until whatever
tirne they want. Commissioner Isobe is trying to limit the time when they do have a function that
is reasonable. He questioned whether Mr. Jaeb had any comments.
Mr. Jaeb indicated no. He was requesting 10:30 p.m. out by 11:00 p.m. and they are
suggesting 10:00 p.m. and out by 11:00 p.m.
Deputy County Attorney Jung clarified that Mr. Jaeb does not concur.
Mr. Jaeb indicated Deputy County Attorney Jung was correct.
Deputy County Attorney Jung noted the motion is being made over the objection of the
applicant.
Commissioner Mendonca asked for clarification that the whole place would be closed
down by 11:00 p.m.
Commissioner Blake stated that the guests have to be out by 11:00 p.m.
Commissioner Mendonca expressed concern because of the testimony regarding the
noise.
Vice Chair Kimura noted the noise is restricted to 55 decibels. If they are beyond, they
are breaking the permit.
Commissioner Mendonca questioned the restriction of no fanctions on Sunday.
Commissioner Isobe clarified that is not a part of his amendment.
Commissioner Texeira stated they are not given much of a choice. Either they have this
compromise or they have the opportunity to stay open all night. It did not seem like a fair
compromise. They are doing it because they have to.
Commissioner Blake pointed out the applicant is limiting himself.
Commissioner Texeira stated it is over his objection.
Commissioner Blake noted that currently there are no restrictions. He is coming in to
request a restriction and the Commission is stating that he can have a certain amount of
restriction. If the Commission doesn't do anything, it goes back to the current status.
Commissioner Texeira stated that he realized that,but he did not like the circumstances.
Commissioner Blake stated it was done by a previous Commission.
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On the motion by John Isobe and seconded by Hartwell Blake to amend Condition
number 6 to include additional language that would read: "Special functions shall be
limited to no more than 200 guests. Each special function shall cease no later than 10:00
p.m. and those attending said function shall vacate the property by 11:00 p.m.", the motion
carried by the following roll call vote:
Ayes: 4, Nos: 1 (Amy Mendonea)
On the main motion by Hartwell Blake and seconded by John Isobe to approve the
request based on the recommendations of the Planning Department,with the amendments,
the motion carried by the following roll call vote:
Ayes: 5,Nos: 0
EXECUTIVE SESSION
Pursuant to Hawaii Revised Statutes Sections 92-5(a)(2 and 4) the punTose 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 regarding powers duties
privileges and/or liabilities of the Planning Commission as it relates to the evaluation of the
Planning Director.
On the motion by Hartwell Blake and seconded by Herman Texeira to defer the
executive session, the motion carried by unanimous voice vote.
ANNOUNCEMENTS
Planning Director Michael Dahilig announced that the following Planning Commission
meeting will be held on Tuesday, July 9,2013 at 9:00 a.m. at the Lihue Civic Center, Moikeha
Building, Meeting Room 2A-2B, 4444 Rice Street, Lihue, HI 96766.
ADJOURNMENT
Vice Chair Kimura adjourned the meeting at 5:05 p.m.
Respectfully submitted by:
akama su,
Commission Support Clerk
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