Loading...
HomeMy WebLinkAbout2014_0422 Planning Commission Regular minutes WEB KAUAI PLANNING COMMISSION REGULAR MEETING April 22, 2014 :c Prior to the start of the meeting the Oath of Office was given to new Planning Commission member Sean Mahoney. The regular meeting of the Planning Commission of the County of Kaua'i was called to order by Chair Kimura at 9:07 a.m at the L-ihu` e Civic Center, Mo` ikeha Building, in meeting room 2A- 2B. The following Commissioners were present; Ms. Angela Anderson Mr. John Isobe Mr. Hartwell Blake Ms. Amy Mendonca Mr. Sean Mahoney Mr. Jan Kimura Absent and Excused: Mr. Wayne Katayama . .. •:. . _ i .]• AIL . • � -, ' ' _ .. The following staff members were present: Planning Department — Michael Dahilig, Leslie. Takasaki, Jody Galinato; Office of Boards and Commissions — Cherisse Zaima; Deputy County Attorney Ian Jung • 1 , Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Kimura called the meeting to order at 9:07 a.m. ROLL CALL Planning Director Michael Dahilig noted that there were six Commissioners present, APPROVAL OF THE AGENDA . On the motion by Hartwell Blake and seconded by Amy Mendonca to approve the agenda, the motion carried by unanimous voice vote. Mr. Dahilig welcomed new Commissioner Sean Mahoney on board. MINUTES of the meetine(s) of the Planning Commission Meeting of March 25, 2014 On the motion by Amy Mendonca and seconded by Hartwell Blake to approve the minutes of the March 25, 2014 meeting, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing There was no continued agency hearing. New Agency Hearing Class IV Zoning Permit Z-IV-2014- 10 to allow aftei-the-fact improvements that includes the conversion of a garage into an additional dwelling unit and additions to the existing residence, and Variance Permit V-2014-2 to deviate from Section 8-4.3 of the Kauai County Code 19871, as amended, relating to setback requirements within the Residential (R) zoning district, located on property located at the Kealoha Road/Makaha Road intersection in Kapa`a, further identified as Tax Map Key 4-5-001 : 018, and containing a total land area of 7,305 sq. ft. = Lorraine Newman . Mr. Dahilig noted the Department is in receipt of a letter dated 04/15/2014 from Loma Nishimitsu, Esq. withdrawing the subject permits. Mr. Dahilig stated written testimony has been received from Caroline Miura, and Leilani (last name inaudible). On the motion by John Isobe and seconded by Amy Mendonca to accept the withdrawal of the Class IV zoning permit application, the motion carried by unanimous voice vote. Continued Public Hearing Adoption of administrative rules interpreting provisions of Chapter 8, Kauai County . Code pertaining to the enforcement of accessory agricultural structures for commercial sale of farm products = County ofSaua `i, Planning Department. Wearing cont' d 11 /12/134 cont'd 2/25/14, cont' d 3/25/14.1 On the motion by Sean Mahoney and seconded by Amy Mendonca to close public hearing, the motion carried by unanimous voice vote, New Public Hearing There was no new public hearing. CONSENT CALENDAR Status Reports There were no status reports. Director's Report(s) for Project(s) Scheduled for Agency Hearing on 5/13/14 Class IV Zoning Permit Z-IV-2014-11 and Use Permit U-2014-10 to construct and operate a library facility on a property located at the corner of Kawaihau Road and Mailihuna Road further identified at Tax Map Key 4-6-014. 0031 on a portion of a total property area of approx. 52, 166 acres = State of Hawai`i. Department of Education. Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2014-20 and Shoreline Setback Determination SSD-2014-52 for a shoreline activity determination. Tax Map Key 2-6-011: 002 Po` ipu, K61oa, Kauai, for acceptance by the Commission = Tropic Pools, Applicant, Shoreline Setback Commission Review SSCR-2014-21 and Shoreline Setback Determination SSD-2014-56 for a shoreline activity determination, Tax Map Key 2-6-011 : 008 Po`ipu, Kauai, for acceptance by the Commission = Earl Payton, Applicant, Shoreline Setback Commission Review SSCR-2014-22 and Shoreline Setback Determination SSD-2014-58 for a shoreline activity determination, Tax Map Key 2-8-021 :001 Po` ipu, Kauai, for acceptance by the Commission = Po `ipa Resort Partners, Applicant. Shoreline Setback Commission Review SSCR-2014-23 and Shoreline Setback Determination SSD-2014-59 for a shoreline activity determination, Tax Map Key 2-8-020:041 , Po` ipu, Kauai, for acceptance by the Commission = Po `ipa Palms AOAO, Applicant. Shoreline Setback Commission Review SSCR-2014-24 and Shoreline Setback Determination SSD-2014-60 for a shoreline activity determination. Tax Map Key 2-6-011 -021 : 041 and 2-8-021 : 044-068, Po` ipu, Kauai, for acceptance by the Commission = CIRILand Development Company, Applicant. On the request by Ms. Anderson and concurrence by Mr. Isobe, Item G.3.e SSCR- 2014-24 and SSD-2014-60 was moved to New Business. On the motion by Sean Mahoney and seconded by Amy Mendonca to approve the consent calendar with the removal of Item G.3.e, the motion carried by unanimous voice vote. EXECUTIVE SESSION (NONE) GENERAL BUSINESS MATTERS Appointment of Member to Subdivision Committee Mr. Kimura nominated Mr. Mahoney. On the motion by Hartwell Blake and seconded by Angela Anderson to close nominations, the motion carried by unanimous voice vote. On the motion by Hartwell Blake and seconded by Angela Anderson to appoint Mr. Mahoney to the Subdivision Committee, the motion carried by unanimous voice vote. Chair Kimura requested Committee Reports be taken next. COMMITTEE REPORTS Subdivision Chair Blake read the Subdivision Committee report into the record. (On file) The following Tentative Subdivision Actions were approved 2-0: S-2014-14 = Lance & Ann Akama Trust/Michael Akama & David Akama, Proposed 24ot Boundary Adjustment S-2014-15 = Charles/Carol Nagata, Proposed 2-lot Boundary Adjustment The following Subdivision Extension Requests were approved 2-0: S-2011 -21 = Kukui `ula Development Co. (Hawaii) LLC, Proposed 40-lot Subdivision S-2013-09 = R3BST, LLC, Proposed 12-lot Subdivision On the motion by Amy Mendonca and seconded by Sean Mahoney to accept the Subdivision Committee report, the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS Approach to fruit stand regulation on agricultural lands (see related F.3 .a.) Mr. Dahilig provided some background, explaining that rules were presented back in November as requested by the Commission concerning how to better frame the structure on fait stands. Ensuing discussion included competing interest in potentially changing the legislation versus changing the rules. Mr. Hull stated the Commission requested the Department draft up rules restricting the square footage and overall view of agricultural stands via the use permit process. This request was based on concerns raised during the permit public hearing process for an agricultural stand in Kilauea. The Department drafted rules stating an enclosed area shall not exceed 400 feet, and the overall square footage of the fuit stand or agricultural stand cannot exceed 800 feet. He clarified that based on the proposed rules, it would still need to go through the use permit process; however, it limits the Commission from reviewing any stand over 800 square feet because anything over that size would be prohibited. The Department' s concern is that this proposed rule would limit the Commission' s authority as opposed to using the standard case-by- case situation; it is ultimately the Commission's decision if they want to impose that rule. In reference to a possible amendment to the CZO, Mr. Hull stated attached to the report is the draft ordinance, which says that agricultural stands would be permissible in the agriculture district insofar as they are no larger than 500 square feet in size, are an open air structure, and are limited to selling only those vegetables and fiuits grown on the property. If the Commission has concerns with this draft, the Department can work on that as well. In response to questions by Mr. Kimura and Mr. Blake, Mr. Hull explained under this proposed draft ordinance, value-added products would be prohibited, therefore, the previously discussed agriculture stand in Kilauea would still need to come before the Commission .because it is requested to be larger than 500 square feet, and to sell produce grown on other properties. Ms. Anderson stated if the size of the agriculture stands are being limited, she suggests allowing produce grown on Kaua` i as opposed to just from that particular property as it would allow for neighbors to participate together in one fruit stand rather than have a stand on each property. Mr. Kimura asked if neighbors are allowed to combine produce grown on their individual properties to be sold at one stand. Mr. Hull explained the way the draft ordinance is written, it would be per property; however it would allow CPRs on a single property to hui up. Mr. Hull pointed out that enforcement would be an issue considering the difficulty in verifying whether produce is grown on a particular property, or even on Kauai. He stated the intent is good as they are trying to promote and grow agriculture on Kauai, noting that FIRS 205 outright allows agriculture stands on State Agricultural Lands for any agriculture products grown in Hawaii with no special permit required. However, another enforcement issue is determining how much of the value added products utilize resources or supplies that are not from Hawaii; it' s a gray area that needs to be looked at. Ms. Mendonca stated if the Commission starts nitpicking the guidelines, it may open up other areas, and based on the limitations in the guidelines, any applicant wishing to deviate from those guidelines would still need to appear before the Commission. At that point, they will have the discretion to approve or disapprove based on the specifics of the application. If three land owners want to sell their produce together, they would need to come before the Commission for approval. Mr. Hull replied yes. Mr. Isobe asked if the recommendations being made are coming from the Department, or from specific Commissioners. Mr. Hull explained that when the original CZO draft update was published online, it included amendments very similar to what is being proposed today to outright permit agriculture stands in the agriculture district. However, due to subsequent discussions that occurred on the Commission floor regarding agriculture stands, the Department decided to remove it from the CZO draft update to allow for further discussion by the Commission. Mr. Isobe asked if what is being considered today are rule changes; or are they proposed amendments that would be forwarded to County Council. Mr. Hull replied the item on the agenda is the rule change, which is the only thing that can be voted on today; amendments to the CZO cannot be voted on under this agenda item. Mr. Isobe asked if the proposed rule change is consistent with the proposed amendment to which Mr. Hull replied no, it is in diametric opposition. Mr. Isobe stated for clarification that the rules being considered today are going to be in opposition with legislation, which means should legislation pass the rule changes become moot. Mr. Hull explained if the Commission does not approve the rule changes, the Department will work to bring the draft ordinance into the CZO update. If the Commission votes to approve the rule changes, there will be no continuation of the draft ordinance. The Commission is at a point of deciding which direction they want to go in. (Mr. Blake left the meeting at 9:35 a.m.) Mr. Isobe questioned why the Commission is considering a potential rule change that opposes the potential legislation. Regardless of the vehicle, he is trying to understand what the preferred policy direction is, considering the rule change and the draft ordinance are in diametric opposition. Mr. Dahilig explained the Commission's rule making authority only allows interpretation of what is authorized in the County Code; adopting a policy as part of the rule making process is in direct conflict of that. The only vehicle they would have would be through the zoning amendment as there is currently nothing to allow the Commission to further interpret by rule what is already authorized by the County Council. In response to Mr. Isobe, Mr. Dahilig stated while there is no authorizing legislation for fruit stands, the Department' s concern is with the commercial use aspect. He is hearing very different views on the use permit policy recommendations with some commissioners wanting it more permissive, and others wanting it more restrictive. The rule making elements are more restrictive than the zoning amendment elements. Mr. Isobe asked for clarification on that to which Mr. Dahilig explained the rule set still requires a use permit, and essentially frames the use permit process for the Commission to further refine its discretion. Whereas the zoning amendment seeks to remove the requirement for a use permit. Mr. Isobe requested a summary of what the rule set before the Commission today is recommending. Mr. Hull explained the proposed rule set states that any agricultural stand must go through the use permit process; however, should the stand be greater than 800 feet, the Commission cannot even entertain it because of what is imposed in those rules. In contrast, the proposed ordinance states a use permit is not required if the structure is under 500 feet and has produce grown on the property; however, anything beyond the size limit, or requesting the sale of produce from outside the property would require a use permit. The proposed ordinance essentially frees up farmers for small, limited operations to be approved over-the-counter making it more permissive than the rule, which restricts agriculture stands even more by imposing a size limit. Mr. Isobe asked why, under the rules, the Commission cannot say that a structure under 500 square feet can be an over-the-counter permit. Mr. Hull replied because it is not outright permissible under the County Code, which states any commercial activity (exchange of money) on agricultural lands requires a use permit under the current zoning ordinance. Mr. Jung added the Commission cannot, by rule, alleviate a procedural requirement of the code. Mr. Hull pointed out that the proposed rules were not presented as a recommendation by the Department, but were drafted because it was requested by the Commission; concerns were expressed to the Commission by the Department on those draft rules. In response to Mr. Isobe, Mr. Hull clarified that the current rules require a use permit for any fruit stand, but the proposed rules would limit the size of the stand to 800 square feet. • Mr. Isobe asked if it is the Department's position that the Commission can impose a • square footage limitation as well as impose limitations of the kind of produce being sold and where the produce is acquired. The reason for his question is that there is a very broad State law that the Commission wishes to narrow down, and potentially be more restrictive by not only restricting size, but also restricting free commerce, which Mr. Isobe feels telling people what they can and cannot sell is a non-Planning area. Mr. Dahilig explained the proposed rule was crafted to address concerns raised on a previous permit as to whether there should be uniform limitations on the size of agricultural stands across the island. Mr. Kimura noted that at the last meeting, some commissioners expressed concern about farmers taking advantage of the value-added element by bringing in products from elsewhere such as smoothies. Mr. Isobe stated he understands that; however, it is permitted under State law which has higher authority. This would contradict that law by saying the Commission will not allow it despite what State law says. Mr. Jung explained that State Land Use law, HRS 205, creates the concept of what permitted uses are on State Agricultural Land. Recent amendments now include value-added products as a permitted use, allowing the retail sale of products grown in Hawaii without the requirement of a special permit. Moving into County zoning regulatory controls, HRS 205-5 allows the County to be more restrictive on the type of permitted uses they allow in the County agricultural districts. Although the State policy is to streamline more of these types of value- added uses, the Commission was concerned about the possible overreach on individuals bringing in products not necessarily grown on their particular property or farm, and having a value-added market on the property. Discussion ensued on how they can further restrain or constrain people from coming in with these types of developments, which prompted the drafting of the proposed rules. The question now is whether to alleviate those concerns with certain parameters such as allowing structures under a certain square footage to be permitted over-the-counter, and anything beyond the size limitation would require a use permit over which the Commission has certain discretionary controls. Mr. Jung stated he does not see it as a restriction on what is being sold, but•rather the type of product being sold because it is still the sale of farm products. Limiting it to products only grown on the property curbs the potential overreach of some landowners in the sale of value-added products. Mr. Isobe stated for example if someone is growing lemons on their property makes it into lemonade, and does not have the ability to grow and process sugar, that person would need to acquire sugar elsewhere; however they would be in direct violation of the proposed rule for the mere fact that the sugar was not grown on the property. He expressed agreement with Ms. Anderson that if three property owners want to get together and sell fruit, who are they to decide what people may or may not want to do in the future that may make perfectly good sense. Ms. Anderson stated her understanding is that the status quo is currently the most restrictive of any other counties as it requires a use permit for any farm stand. Her proposal was to allow outright over-the-counter permits as part of an amendment to the CZO, which moves away from the proposed rules. She is unsure if the proposed rules need to be voted against, and whether a motion is required should there be a consensus to move forward with amending the CZO. Mr. Kimura stated that in previous discussion it was mentioned that value-added products would be difficult to regulate. He noted that it seems the intent is to make things easier for a small farmer to have a simple agricultural stand, and questioned how the regulating of value- added products would make it difficult if what they grow is what they sell. Especially considering the difficulty of verifying where the value-added products come from. Mr. Hull commented that the Department has not drafted up a full analysis and report for a potential ordinance, and has simply provided draft language as requested by the Commission. If the Commission would like to go in that direction, he suggests they take action on the rules, and should it be voted against, the Department can come back with a report and analysis on the restrictions under current law as well as what is permissible under State law. Mr. Kimura stated he thought the Commission was moving in the direction of former Commissioner Texeira' s desire to keep farm stands small, and open air with no refrigeration, and to make it as easy as possible for small farmers to be able to sell their produce. Ms. Anderson asked what the Department would need from the Commission to move forward. Mr. Dabilig replied the Commission would need to determine whether they want to go forward with the proposed rules, or go in the other direction in exploring the zoning amendment. The Commission' s vote on the current proposed rules will determine how they progress. Mr. Kimura asked Mr. Mahoney if he felt comfortable voting on the proposed rules today to which Mr. Mahoney .stated it is a bit confusing. Mr. Mahoney commented that being a farmer is already so difficult, and now the Commission, which is made up of members not involved in agriculture, is going to determine how farmers plant their crops, what they sell, and how they can sell them. Additionally, he noted the produce grown is perishable, yet they want to prohibit refrigeration. He pointed out that one of the ideals is to promote agriculture, and he feels they should not be so restrictive; what could be sold at a fruit stand that would be so offensive? Smoothies are a value-added product, but he does not see anything wrong with that. He questioned whether they are really promoting agriculture, or restricting it. Mr. Kimura asked Mr. Mahoney how he feels about someone selling hamburgers at a fruit stand to which Mr. Mahoney replied that may not be appropriate at a fruit stand, but he does not see a problem with smoothies or other produce related products; something not set up as a restaurant. Mr. Kimura noted one concern was that cattle being raised on agricultural land with the intent to.sell hamburgers. Mr. Mahoney stated he feels it is a big stretch that someone would sell hamburgers at a fruit stand with all the competition of burger joints around. Looking at it more realistically, produce related items are not a problem. Mr. Mahoney stated he feels they are worrying too much about things that are not likely to happen, but if they do it could be corrected. Mr. Mahoney commented he feels they should try to help the farmers in order to promote agriculture, noting that farming is such a difficult business to be in and doesn't think more restrictions should be added. Mr. Dahilig stated for clarification that if the Commission were to maintain status quo, the restrictive use permit process would still remain in place as dictated by legislation. In response to Mr. Kimura, Mr. Mahoney stated he is comfortable voting on this item. Ms. Mendonca asked for clarification on what they are voting on. (The meeting recessed at 10: 10 a.m.) (The meeting resumed at 10:25 a.m.) Mr. Isobe moved to table the item. In response to Mr. Kimura, Mr. Dahilig explained should they Commission table the item, it means no action will be taken on it until such time as the Commission votes in the affirmative to take it from the table for discussion again. Mr. Isobe explained his intent for the motion is to allow the Commission the ability to take from the table in the future if it decides to not move forward with an amendment to the CZO. If the legislation does not pass, the Commission can then take these rules from the table for consideration without having to go through the whole process all over again. On the motion by John Isobe and seconded by Angela Anderson to table the item, the motion carried by unanimous roll call vote. NEW BUSINESS Shoreline Setback Activity Determination Shoreline Setback Commission Review SSCR-2014-24 and Shoreline Setback Determination SSD-2014-59 for a shoreline activity determination, Tax Map Key 2-6-011 -021 : 041 and 2-8-021 : 044-068, Po` ipu, Kaua` i, for acceptance by the Commission = CIRI Land Development Company, &1)licant. Ms. Anderson expressed concern that the Commission did not receive the application packet that included the maps for the zoning, and requested additional information on where they were at in the process as it is her understanding that this is the first time they have reviewed this type of matter. She feels it would be helpful to the Commission to have the layout of this particular project. Staff Planner Jodi Galinato explained this is the fast shoreline subdivision that has come through since the shoreline ordinance has been in effect, which informs potential lot owners of the buildable areas of the lots. This particular property has varying lot depths, and has different setbacks based on that. On the motion by Angela Anderson and seconded by Sean Mahoney to accept the communication, the motion carried by unanimous voice vote, ANNOUNCEMENTS Topics for Future Meetings Mr. Dahilig noted the following items to appear on upcoming agendas: • Cell phone towers for which the Department will provide reference maps as requested by the Commission. • The Department of Education Kapa` a Elementary School Library permit for review Mr. Kimura noted an update on Kauai Springs was requested at a previous meeting to which Mr. Dahilig replied that was an executive session item, and the Department will contact the Attorney' s Office to schedule an executive session on the matter. Mr. Isobe requested that as the Department begins to craft the legislation for the CZO amendment the Commission be given a summary of the current State laws, and a synopsis of what the CZO draft will allow. The reason for his request is he is still unclear on the proposed uses, and the definition of agriculture. He feels agriculture is not limited to crops, but also includes poultry, goats and cattle as well. He questioned why preference would be given only to those growing crops; why not other forms of agriculture. Mr. Kimura requested in the near future some kind of proposal for legislation to define what a farm is. Mr. Jung replied agriculture is defined into three categories; that information will be made available to the Commission. The difficult part is defining actual farm operations, but it can be looked into and put on a future agenda for discussion. Mr. Dahilig suggested they pair it with an executive session to allow the attorney to provide a breakdown of why they have been struggling with the lack of interpretation on the definition of farming. Mr. Dahilig stated the Commission should begin to see an increase in applications for Commission action in the next few months. Mr. Isobe asked if a list of applications the Department is reviewing that may potentially appear before the Commission can be provided ahead of time rather than seeing it for the first time on the agenda. This would allow commissioners to ask questions or obtain more information prior to it being presented before the Commission. Mr. Dahilig replied the Department could provide an intake status report. Mr. Kimura requested an electronic version of the Charter amendment and CZO updates be provided to the Commission. Mr. Dahilig stated he will provide a link to the online CZO database which provides real-time updates. Mr. Kimura replied he just wants something he is able to open up on his Wad. Mr. Dahilig stated he will walk them through the website, and if that still does not work for them, he will figure out a way to keep a PDF tabbed version. The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the L-ihu`e Civic Center, Mo` ikeha Building, Meeting Room 2A-2B, 4444 Rice Street, L-ihu`e, Kauai, Hawaii 96766 on Tuesday, May 13, 2014. ADJOURNMENT Chair Kimura adjourned the meeting at 10:44 a.m. Respectfully submitted by: Cherisse Zaima Commission Support Clerk () Approved as circulated (add date of meeting approval). () Approved as amended. See minutes of meeting.