HomeMy WebLinkAboutPC 1-28-14 Minutes DRAFT KAUAI PLANNING COMMISSION
REGULAR MEETING
January 28, 2014
The regular meeting of the Planning Commission of the County of Kaua` i was called to order by
Chair Kimura at 1 :42 p.m., at the Llu`e Civic Center, Mo`ikeha Building, in meeting room 2A-
2B. The following Commissioners were present:
Ms. Angela Anderson
Ms. Amy Mendonca
Mr. Herman Texeira
Mr. John Isobe
Mr, Hartwell Blake
Mr. Jan Kimura
Absent/Excused: Mr. Wayne Katayama
The following staff members were present: Planning Department — Michael Dahilig, Ka'aina
Hull, Jody Galinato, Marie Williams, Leslie Takasaki; Office of Boards and Commissions —
Cherisse Zaima; Deputy County Attorney Ian Jung
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Kimura called the meeting to order at 1 :42 a.m.
ROLL CALL
Director Michael Dahilig noted that there were six Commissioners present.
APPROVAL OF AGENDA
On the motion by Herman Texeira and seconded by Hartwell Blake to approve the
agenda as amended, the motion carried by unanimous voice vote.
MINUTES of the meeting(s) of the Planning Commission (NONE)
RECEIPT OF ITEMS FOR THE RECORD
On the motion by Herman Texeira and seconded by Amy Mendonca to receive the
items for the record, the motion carried by unanimous voice vote.
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing (NONE)
New Agency Hearing (NONE)
Continued Public Hearing (NONE)
New Public Hearing (NONE)
CONSENT CALENDAR
Status Reports (NONE)
Director's Report(s) for Project(s) Scheduled for Agency Hearing on 2/11 /14
Class IV Zoning Permit Z-IV-2014-8 and Use Permit U-2014-8 to permit an existing
non-conforming residential use with a General-Commercial (G-C, zoning district, on a parcel in
Waimea Town, situated on the mauka side of the Ala Wai Road/Kaumuali'i Highway
intersection, finther identified as Tax Map Key 1-6-06: 028, and containing a total area of 3,314
sq. ft. = Susan L. Strairlht Trust.
Shoreline Setback Activity Determination (NONE)
On the motion by Herman Texeira and seconded by Amy Mendonca to accept the
consent calendar, the motion carried by unanimous voice vote.
GENERAL BUSINESS MATTERS
Request for an Amendment to Class IV Zoning Z-IV-2009-7 to modify Condition 15 of
the Conditions of Approval to utilize a weather cedar fence in place of the required concrete wall
to screen back-of-the-house operations = Safeway, Inc.
Paget 2
Staff Planner Ka'aina Hull read the Director's report into the record. (On file)
Mr. Blake asked what the reason for this request is to which Mr. Hull replied it is
ultimately for aesthetic purposes, noting that the applicant is present if the Commission would
like to ask them any questions.
Ms. Mendonca asked if the concrete fencing was a requirement of a condition set by
former Commissioners to which Mr. Hull replied yes. He further stated former action was based
on another use in that area which used concrete, earth-tone colored fencing, and is what led to
that language being placed into the conditions of Safeway' s original approval. Ms. Mendonca
questioned whether it was a buffer for sound. Mr. Hull stated the sound issue was not brought
UP,
Jason Matsumura, representing the applicant, was present.
Mr. Matsumura stated the amendment request is fairly straightforward, and they are in
agreement with the staff recommendation.
Ms. Anderson asked what type of activities will be taking place in the back section that
will be screened.
Clifford Mukai, Principal Civil Engineer, explained the back-of-the-house operations will
include a service driveway behind the linear retail buildings where there will be truck shipments.
Ms. Anderson asked whether or not the concrete wall would provide a better sound barrier than a
cedar wall, and whether there are concerns by neighbors about trucks going back and forth for
early morning shipments; what are the expectations of the operations. Mr. Mukai stated the
alternative wall was proposed by the applicant primarily for aesthetic purposes as it provides a
less rigid feel than a solid masonry wall. It is still a solid wall made of premium grade, heavy,
simulated weathered cedar, vinyl fencing of a commercial grade. He added that it will still be a
solid, six foot high wall with landscape screening between the service driveway and the rear of
the Village West parcels.
Mr. Hull read the Department' s recommendations into the record. (On file)
Mr. Isobe asked for clarification on the meaning of the Director forwarding the
maintenance and restoration requirements to the Planning Commission for review and action.
What is the Commission anticipated to do should that happen? Mr. Hull replied it is essentially a
safeguard should the fence come into disrepair; it is standard for improvements made on a
property. Should the improvement come into disrepair; or is vandalized and has a visual impact
on the character of the area, the Department would inform the applicant that it must be restored
to meet the requirements of Condition 15 . Should the applicant be unwilling, or unable to
comply, the issue would be forwarded to the Planning Commission for final review and action,
Mr. Isobe asked what the Commission would do at that point; how much latitude do they have?
Mr. Dahilig explained the authority of the Commission to revoke, or modify. He stated another
option that could be exercised that does not involve the Commission is to fine the applicant for a
violation of the condition. Either way, the intent is to put the applicant on notice as to the
Page 3
seriousness in which it must be remedied. Mr. Hull added should it be determined that if the
applicant is unable to maintain the fence, or if maintenance of the fence is no longer necessary, a
request to eliminate the use of the fence would need to come before the Commission.
Mr. Isobe asked if the Commission were to revoke the condition, would that mean the
concrete wall that had originally been required then goes up to which Mr. Hull replied no,
explaining that the language the Department is recommending be changed is to remove the
requirement of the concrete wall.
Mr. Dahilig mentioned other remedies the Commission could impose, and stated their
analysis and recommendation would be presented to the Commission should it come to that.
Mr. Isobe asked if it would be better to say up front that if the applicant does not maintain
or restore the fence as necessary the applicant shall replace the fence with a concrete wall, which
he assumes would require less maintenance.
Mr. Blake asked if the applicant doesn't do anything, does the Commission have the
authority to revoke the permit and shut the business down to which Mr. Dahilig stated that is a
remedy the Commission can impose.
Ms. Anderson commented there has not been testimony regarding sound impacts, and
whether or not the new proposed fence will be adequate enough to block possible noise from the
back lot. She would like to include in the condition that if there are complaints from the
neighboring lots the Commission would then be allowed to revisit the issue to address noise
complaints.
Mr._ Kimura noted it should be within reason to which Ms. Anderson agreed, adding that
because they have not received testimony on it, she does not have enough information to
determine whether it will be a potential problem, but she would like to include a condition that
anticipates that.
Mr. Jung noted that the revocation procedures only allow them to revoke based on non-
compliance with a particular condition; there is no way to hold out a condition to say they will
wait and see if there is an impact. The Commission could require a status report to look at
additional impacts that maybe subject to further review. Ms. Anderson stated that is what she
would like. Mr. Kimura suggested in lieu of a status report, can one of the conditions state the
applicant will work out mitigation measures with the Department. W. Hull stated the
Department of Health is.the agency that governs noise impacts. Certain decibel levels are
permissible within certain zoning districts, and a commercial district such as the one this
proposed use is located in has a somewhat higher decibel maximum given the nature of the
operation. If the Commission wishes to add an additional condition, the Department would
recommend the following as stated.
Should complaints be received concerning noise generated by back-of-the-house
operations, the Commission reserves the right to review and/or require further mitigation
measures.
Page 4
Ms. Anderson stated she would be agreeable to that additional condition.
Mr. Dahilig stated the Department would adjust its recommendations to incorporate the
additional language.
Ms. Mendonca asked whether the change from a concrete wall to this current proposal is
to be in conformity with their other stores to which Mr. Hull stated he believes they are
mimicking one store on Maui. Ms. Mendonca asked to clarify that the original concrete wall
required by previous commissioners was not meant to be a sound barrier to which Mr. Hull
replied the specific term "sound" did not appear in the minutes, but he noted the two types of
screening generally referred to is visual, as well as sound. The use of the mason fence was
because of the use of a similar fence in that area, but noise impacts were not specifically
referenced.
Mr. Kimura stated he thinks the wall is more for security and safety reasons.
Mr. Blake asked, based on what Mr. Mukai had explained, that deliveries would be
intermittent deliveries to this portion of the store. Mr. Hull stated the Commission ultimately
reviewed this as a commercial facility, and approval for the application was granted. The
operations could change over time, so it is difficult to comment on exactly what will always
occur, but generally back-of.-the-house operations are for shipments as well as refuse
collection/storage.
In response to Mr. Kimura, Mr. Mukai replied the fence will extend along Nuhou Street
where the water tank is up to the back of the existing Village West parcels. Mr. Kimura asked
what the distance is from the loading dock to the fence to which Mr. Mukai replied
approximately 50 feet.
Ms. Anderson asked to clarify whether the motion currently on the floor includes the
amendment she proposed to which Mr. Dahilig replied it will be incorporated into the report,
Mr. Texeira asked if that proposed amendment will create additional hardship on the
applicant, and asked for the applicant' s comment.
Mr. Matsumura stated the amendment as stated by Mr. Hull is acceptable.
On the motion by Herman Texeira and seconded by John Isobe to approve the
amendment to the Class IV Zoning permit, the motion carried by unanimous roll call vote.
Select Committee Report to the Planning Commission regarding a recommendation for a
new Chapter to the Rules of Practice and Procedure of the Planning Commission for the
Selection, Evaluation, and Dismissal of the Planning Director. The Report presents the findings
and recommendations from the Select Committee on Employment Policies and Practices
established by action of the Planning Commission on July 23 . 2013 .
Page 5
i
Mr. Kimura requested this item be deferred to the end of the meeting. Mr. Jung stated
that pursuant to the Sunshine Law in reference to select committees, no action can be taken on
this item at the meeting it is presented at, but must be done at a subsequent meeting.
COMMUNICATION (For Action)
There were no communications.
COMMITTEE REPORTS
There were no committee reports.
UNFINISHED BUSINESS (For Action)
Modification of Class IV Zoning Permit Z-IV-2008-6, Use Permit U-20084 and Special
Management Area Use Permit SMACQ-2008-5, to construct a manager's house and maintenance
building on a parcel situated along the mauka side of Kahili Quarry Road in Kilauea, approx. 1
mile east of the Kilauea Road/Kalul' i Q11gry Road intersection, further identified as Tax Map
Key 5-2-012 . 035 , and containing a total area of approx. 161 . 88 acres = Charles M.
Somers/WestSunset 32 Phase 1, LLC. LDue to lack of quorum, hearing cont'd 4/9/13 , hearing
closed and Freeman & Kilauea Neighborhood Association intervenor status referred to Hearings
. .... .. .... . .
Officer 4/30/13 .1
Staff Planner Jody Galinato read the Supplemental No. 6 of the Director' s report into the
record.
Referencing the revised plan for the barn, Mr. Kimura asked will it be downsized, and if
so to what size. Ms. Galinato replied that the recommendation is not to downsize the actual
structure, but rather for deletion of the loft, lanai, and bath area to remove any sense that it could
be occupied, and to ensure it will remain consistent with the use of the maintenance building; the
structure will be 2,592 square feet.
Jonathan Chun., representing the applicant, was present along with some of the
applicant' s contractors and caretakers as well as Mr. Graham,
The Commission received testimony from Charlie Martin and Yoshito L'Hote.
Mr. Martin and Mr. L 'Hote, representing the Kilauea Neighborhood Association (KNA),
stated the Board of KNA is unanimous in their opposition to this application. Mr. Martin and
Mr. L 'Hote read their previously submitted written testimony into the record. (On file)
Page 6
The Commission received testimony from Beryl Blaich.
Ms. Blaich distributed written testimony. (On file)
Ms. Blaich noted that the Director's report states there is no rational nexus between the
building of these homes and requirements in the SMA for mitigation by creating public access.
She commented that this permit is not completely governed by the SMA laws as it is also a use
permit, and Class IV zoning permit application, which are governed by the County' s CZO. In
reference to a section of her written testimony regarding public access to publicly-owned land or
waters, she commented that public access laws exist not for mitigation or trade off purposes, but
because public access ensures public health and well-being and allows access to places,
especially areas that have been designated special; this is a Special Treatment, Historic, Cultural,
and Open district. She stated the Commission has the authority to require access regardless of
the SMA layer; there are other fundamental County laws that apply. She acknowledged that it
may leave the County legally vulnerable, but questioned why it is included in the general
standards for the Agriculture and Open section of the CZO if it is not at the Commission's
discretion to exercise the right to public access. It should be deleted if it does not belong in
there, especially considering they recently amended the CZO . Ms. Blaich stated that Kahili
Quarry Road is, and always has been, a public road, and the applicant agreed to improve the
entire length of the road, which is one of the conditions that has not been met. The conditions
for the first application should be met first, before this new application is even considered.
The Commission received testimony from Makaala Kaaumoana.
Ms. Kaaumoana stated she is testifying on her own behalf, and on behalf of her family
who are residents of Kilauea. She is opposed to this application, noting her long history of
participation with the initial permit application for this parcel in both discussions, and
intervention. Many serious issues and concerns were vetted in the initial permit for this project
located in a fragile, and environmentally sensitive estuarine area. The true impacts of the
allowed development in the initial permit are not known until the structures are occupied, as they
have learned from a structure permitted on the point in Kalihiwai Valley. Until it was occupied
and became a "party house" the impact to residents in the valley below as well as the bird life
was not known. The same uncertainty is present with this situation. Ms. Kaaumoana stated
consideration of this application should be based on the experience of impacts from the first
permit; however that benefit is not available to those responsible for the protection of protected
species - the cultural practitioners, the community, the public, or this Commission. It is unclear
whether the U.S . Fish and Wildlife Service has been consulted, but they cannot testify on this
application about the impacts of this project as they have no information either. Ms. Kaaumoana
stated the applicant acknowledged an understanding of the Special Treatment designation in the
first permit application by agreeing to delete the manager' s house and barn; however, now the
applicant is applying for the very same thing he offered as compromise. She urged the
Commission not to approve the permit until there is a full understanding of what is going on
there.
Page 7
The Commission received testimony from Dr. Mehana Blaich Vaughan,
Dr. Vaughan distributed her written testimony, in opposition, as well as testimony from
Bill Chase, Gary Pacheco, and Maria Maitino, also in opposition.
Ms. Vaughan read a summary of her written testimony into the record. (On file)
The Commission received testimony from Alvin "Bino" Castelo.
Mr. Castelo stated he comes from four generations in Kilauea, and is speaking for the
future of Kilauea, and also for his family and the next generation. He stated his family has been
using the Kahili Beach area for crabbing, fishing, surfing, etc. He read from a letter submitted
by Katherine Castelo (on file). He noted that the Kilauea community is taking the time to write
letters, and come to meetings because this is their local beach, and there has been a negative
impact since the applicant has arrived. The applicant has not followed through with his
responsibility of implementing a conservation plan/agriculture plan. Mr. Castelo urged the
Commission to listen to the people of Kilauea.
The Commission received testimony from David Steinman,
Mr. Steinman stated he is aware of previous testimony coming from people who have -- - - _- -- - -- - --
lived here for a long time, and who have a greater right to speak than him. He lives at the end of
Kahili Quarry Road, which makes him the closest to the applicant' s residence. He stated that
access to the waterfall is an issue, acknowledging that he is aware it is at the applicant' s
discretion, but pointed out that discretion has basically been used to deny access all together. He
and his family have used those areas since they moved to Kauai 12 years ago. When they
initially moved here they asked for permission to plant a forest, which they received, and have
since followed through with that. Up until now, the agroforestry requirement of this application
has not been fulfilled. The use of this type of enormous property, which he finds difficult to
believe will be for a single family, may be used for an alternative purpose such as a corporate
retreat, which would have a very negative impact to this special, delicate environment. The
traffic on Kahili Quarry road currently is not bad, and is used mostly by people who have lived
in the area for a long time that want access, which they have always had in the past. He noted
that to suddenly have a lot of non-islanders coming in and out would also be a bad thing. Mr.
Steinman stated that one has to be a good neighbor, and ought to follow through with what one
says they're going to do. He feels it would be a bad precedent for Kilauea, and all of Kaua` i to
approve an additional permit when the conditions of the first one have not been fulfilled,
especially since they are unsure of what the actual use will be; this is not the right time to
approve this.
The Commission received testimony from Hope Kallai.
Page 8
Ms. Kallai noted she had submitted testimony on the previous application, and asked if it
was still on file to which Ms. Galinato indicated yes.
Ms. Kallai read a summary of her written testimony in opposition into the record. (On
file)
The Commission received testimony from Tim Kallai,
Mr. Kallai stated as he is listening to all testimony, which he need not repeat as they are
the sentiments of the outlying community of Kilauea as well as Kilauea Town Central, the issue
he keeps hearing is on the cumulative impacts of this particular project. The first phase has not
yet been completed, yet they are asking to expand, and perpetuate the project to a greater stance.
However, everything he has heard so far has been negative as to what the impacts already are,
noting that the applicant has not even begun to reside in the structure. He stated that about five
years ago and prior, he would go to the river to fish with his son, but unfortunately, since the
applicant has taken over this parcel for stewardship, they have not had the opportunity to go back
to the river. Though his son still fishes, and has found other places on the island to do so, he
feels that a piece of their community has been taken from them because they are not allowed to
access and enjoy an area they used to. Mr. Kallai is unsure of how it has occurred that a
jurisdictional right has been given to someone to take from a community, and if it is the right of a
sole person to do so, he feels that should be questioned by the Commission. It is really
saddening to see something like this lost as it is more than something physical, it is something.
deep inside that people appreciate about Kauai; the beauty, ruggedness, wilderness, freedom,
and things they wish to preserve for future generations . He urged the Commission to defer this
matter until all other conditions have been met prior to even reevaluating this project.
(The meeting recessed at 3 : 03 p.m. for a caption break)
(The meeting resumed at 3 :30 p.m.)
The Commission received testimony from Ken Carlson,
Mr. Carlson stated he has lived on the eastern bluff of the Kilauea River for 27 years. He
distributed copies of a photo he took that morning of the structure currently on the applicant's
parcel, noting it is difficult to get an idea of how big and obnoxious it really is. He pointed out
six other houses on Seacliff Plantation, all of which he states could easily fit within the
applicant' s current structure. To the right of the structure comprised of 15 different roofs, is
where the applicant would like to extend. In reference to the Planner' s comments on the view of
Kahili Beach, Mr. Carlson questioned what about the views from across the river; the applicant's
structure is as large as a shopping center. He noted that two weeks ago, all the lights on the
property were on all night, despite the fact that no one is currently residing there. He compared
the lights to a large ship, and noted that this structure will be the brightest thing in Kilauea other
than the soccer field. Mr. Carlson stated his opposition to the expansion of this project.
Page 9
The Commission received testimony from Katherine Castelo.
Ms. Castelo stated she had previously submitted her own testimony, and would now be
reading Uncle Gary Smith' s testimony in opposition. Ms. Castelo read Mr. Smith's testimony
into the record. (On file)
The Commission received testimony from Mose Oppenheimer,
Mr. Oppenheimer stated he is a resident of the Kilauea area, and will not be speaking in
terms of legalities, but as a character witness. He explained that four years. ago, he, his wife, and
some extended family were walking to the waterfall, which they had been to before, and were
accosted by two security guards on ATVs; one of whom was extremely verbally abusive to them.
While Mr. Oppenheimer and his family continued to have aloha in their approach, the security
guard did not reciprocate that. Mr. Oppenheimer stated, to him, it represents the applicant who
hired the security guards. He noted that he has been asked to leave places before, usually in a
pleasant way; however, this was by no means pleasant. Mr. Oppenheimer reiterated there is not
a lot of aloha on that land as far as he can see.
The Commission received testimony from Charlie Martin.
Mr. Martin stated he. was. speaking as an individual, noting he has lived in Kilauea since
the late 70' s, and has always used that access to go prawning, fishing, hiking, etc. He hasn't
personally encountered the security guards, but has not been to the area since he' s heard access is
no longer allowed. Mr. Martin stated the Commission holds the future of Kilauea' s enjoyment
of life for future generations in the power of their pen, and urged the Commission to consider
that, and deny the application.
The Commission received testimony from Mario Orion.
Ms. Orion stated she has been a resident of Kilauea for the past 11 years, and did have the
opportunity to go up to the waterfall one time, noting it is an amazing place. Her husband Mose
previously shared their other experience of trying to go there. She asked the Commission to
deny the permit as she feels the applicant has not fulfilled his promises and obligations, and
would like to see those fulfilled before he is granted permission to complete more buildings. She
would also like to see him have abetter attitude toward the community, noting the comments Dr.
Blaich had previously made about the cultural importance of the area, especially for the
Hawaiian people. Ms. Orion read written testimony from Aunty Maria Maitino into the record.
(On file)
The Commission received testimony from Ron Paul.
Mr. Paul read a letter of testimony in opposition from Bill Chase into the record. (On file)
Page 10
The Commission received testimony from Ron Chittenden,
Mr. Chittenden stated he comes before the Commission as a common, working man,
noting he had to spend his hard earned money to appear to testify today, but did so because this
is impassioned to him. He stated he used to reside in the Homesteads, and is originally a
Vermont farm boy, so he understands the value of community. He moved to Kilauea 16 years
ago because it is a community where the people look out for one another, fix their own bus
sheds; take care of the parks, clean their own beaches, and help kupuna with house maintenance;
this is what a community is all about, and the people of K-ilauea stand shoulder to shoulder to do
that. Since the applicant began his project, there have been many opportunities for him to come
forward, or send a representative to show he is part of the community through assisting with
community events, or sharing and welcoming community access to the waterfall. Mr.
Chittenden stated a person is judged not by what they say, but by what they do, this applicant has
had lots of time to show who he is, and has not done so.
The Commission received additional testimony from Beryl Blaich.
Ms. Blaich stated she provided some maps to the Commission which relates to the issue
of the improvements to the entire length of Kah.ili Quarry Road, which was agreed to by the
owners. She summarized the remainder of her written testimony regarding ownership of Kahili
Quarry Road, and the conservation easement areas. (On file)
The Commission received additional testimony from Dr. Mehana Blaich Vaughan,
Ms. Vaughan read written testimonies in opposition from Uncle Gary Pacheco, and Uncle
John Bailey. (On file)
Dr. Blaich further stated that the opportunity to take their children and grandchildren to
the waterfall is important, and that the County needs the community to stay involved in the
management of the area. . She pointed out there are three surf schools operating illegally, people
throw shopping carts, fish guts, and trash off the bridge mauka of the river mouth. The County
may not have the capacity to monitor this, and needs the community to stay engaged, which they
. have done. As a community, they have halted driving on the beach, protected burials, hauled
trash from the beach, retired development rights on multiple lands, and they want to remain
engaged; they cannot do that if they are not allowed to connect their children to this place.
Jonathan Chun, representing the applicant, provided a Powerpoint presentation to orient
some of the Commissioners who were not present during the initial permit application process,
and to demonstrate what has been done.
Page 11
Mr. Chun explained in 2004, Mr. Somers and his company purchased Lot 2, which is a
161 .88 acre parcel located in Kilauea. He pointed out notable areas of the property as well as the
sanctuary areas maintained by U.S. Fish and Wildlife. He explained Kahili Quarry Road is
basically divided in two; the south side is 13 feet wide and owned by the County, the north side
is part of a privately owned lot which the County has a right-of-way across. Mr. Chun noted Lot
2 is located in the State Land Use Commission (SLUC) Urban district, General Plan Open
district, and CZO Open district and Special Treatment district, and is also within the SMA.
Kilauea stream is located on the mountain portion of Lot 2.
Mr. Chun provided background information on the initial application, and its subsequent
amendments to withdraw certain structures, but noted there was no agreement that those
withdrawn structures would never be applied for again. In 2008, the Planning Commission
approved the development of the main house, and other accessory structures and uses, subject to
18 conditions. Condition I l .d required the granting of a conservation easement, and that
condition has been met. In December 2008 the applicant created a conservation easement, as
was included in the original decision and order, across 80. 1 acres of Lot 2 and granted to the
Hawaiian Islands Land Trust (formerly the Kauai Public Land Trust). In addition, of his own
accord the applicant created a second conservation easement across an additional 69.3 acres,
which was also granted to the Hawaiian Islands Land Trust. As a result, 149 .4 acres or 92. 3
percent of the entire lot is subject to the conservation easements; only a small portion of the lot, a
12.4 acre building envelope, is allowed to be built on.
. . . ....... Mr. Chun .explained what was. approved by..the Commission in 2008. was. a main. house, .... . .. . ... . . . . .
. . . . . . . . . . . . . . .
which is nearing completion; his best estimate is by the end of this week or very soon thereafter,
weather permitting. . The landscaping should be completed within the next few months. The
conservation manager' s house will be located within the building envelope along with the
conservation maintenance building; the manager's house will be closer to Kahili Quarry Road,
with the maintenance building to be located below that.
Mr. Kimura pointed out a Y-shaped road/driveway, and asked where it goes. Mr. Chun
explained those are gravel paths that allow maintenance/landscape staff access to the
conservation easements via golf carts; they are not paved roads, and do not connect to Kahili
Quarry Road.
Sectional views and floor plans for the conservation manager' s house, and the
conservation barn were described and shown in several slides. Mr. Chun noted the barn floor
plan still shows the bathroom, which has since been agreed upon by the applicant to remove.
Mr. Chun described the landscaping plan, which will be submitted to the Planning Department
for review prior to implementation.
Mr. Chun addressed the concerns raised by the public, and wished to dispute any claims
made that the applicant has not complied with the conditions of the 2008 decision and order. He
pointed out the following points of clarification to address public concerns.
Page J 12
• In addition to honoring the conservation easement condition, the applicant granted
additional conservation easements beyond what was required by the Department, the
total of which covers more than 90 percent of the property.
• The road area the applicant is responsible for has been maintained numerous times
over the years. The road spanning the U.S. Fish and Wildlife sanctuary area has not
been maintained because the applicant has not received permission from U. S. Fish
and Wildlife to enter their property to do so.
• The applicant has not stopped access to the river and the beach. The community and
the public continue to have access through Kahili Quarry Road. He surmised that
perhaps U.S. Fish and Wildlife Services has stopped people from entering their
property, but the applicant has not prevented access to the river or beach.
• There has been testimony of trees being poisoned with the innuendo that the applicant
is responsible. The applicant has nothing to do with that, further noting it would be
counterproductive for the applicant to do so as it mars the view plain with dead trees.
• There was no agreement to allow access to the waterfall, and the decision and order
of 2008 specifically states it is at the discretion of the applicant. There was no
requirement for access to the waterfall, and never has been, by either this owner or
the previous owners; anyone going there in the past had been trespassing.
.. . .. ...... . .. . . . . .. . ...... .. .... . .... . ..... . ...
• The size of the maintenance building is roughly 2,500 square feet, and is within the
size realm of other conservation buildings on Kauai.
• Though the Federal government had expressed interest in purchasing the property in
the past for the purposes of expanding the refuge, they have never officially made an
offer on the property, and has never put such a purchase in their annual budget.
• A separate commission under the Kauai County Charter, the Public Access, Open
Space & Natural Resources Preservation Fund Committee, is charged with whether or
not public access to certain areas should be allowed. That Commission has NOT
stated this waterfall is something they are willing to have the County acquire, nor is a
priority for County acquisition. As the Planning Department earlier mentioned, that
issue has no nexus with the maintenance building, or the conservation manager' s
dwelling. Under the charter, the Commission would be best advised to obtain
guidance from the Commission charged with looking at public access issues.
• In reference to the condition regarding the completion of the house, the actual
condition requires the house to be complete within five years from the time of the
issuance of the building permit; they are still within the five year period and are
almost done.
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• In reference to the conservation plan, the applicant is in the process of doing a
conservation maintenance plan, which is being worked on by their consultant as part
of their agreement with Hawaiian Islands Land Trust (HILT). They will be
consulting with HILT to determine the best ways to maintain the easements, and the
wildlife within that area. In anticipation of that being done, the applicant is
requesting the approval of the maintenance building, which will likely be a
requirement of the conservation maintenance plan. At a minimum, the applicant is
looking at doing.the following:
o Setting traps on a regular basis to check for rats, cats, dogs, other mammals
that may be a danger to the birds in that area.
o Maintaining the flow of the river to ensure there are no blockages of the
smaller tributaries.
o Fencing to separate the residential area from the conservation easement.
They are seeking concurrence from HILT on those initiatives which will require
work, people, equipment, and regular action on the part of the applicant. The
applicant is in the process of getting the conservation plan, and is not violating the
requirements of the Planning Department,
Mr. Chun stated there is no showing in the actual facts that the applicant is not complying
with any of the conditions imposed by the Commission. On that basis, he respectfully asks that
the Commission consider the request to construct a maintenance building and conservation
manager' s dwelling.
. . .. ........... ........
Mr. Texeira asked to clarify that they are stating all of the conditions as originally
approved have been met. Mr. Chun replied upon completion of the house, that condition will be
met. He noted that they are required to submit a status report, and rather than repeat what it
contains, he will state that they are on board with meeting the conditions. The only one that
needs working on is the issue with the Department of Public Works regarding whether or not a
separate grading, and/or SMA permit is required on the County portion of Kahili Quarry Road;
they are working with PW to resolve that issue.
Mr. Isobe thanked Mr. Chun for clarifying some of the issues brought forth during public
testimony. He expressed his appreciation for the commentary provided regarding the role of the
Planning Commission relative to public access to the waterfall, and agreed that is not the place of
this body and should be put before the Open Space Commission per the Charter. However, he
disagrees with the timing of this application, and the conservation plan, commenting that given
the amount of misunderstanding, and miscommunication on past actions, he would prefer the
conservation plan be completed to ensure clarity on what it will entail, which will help the
Commission determine whether the additional proposed structures are sufficient to implement
the plan. He further noted that whatever plan is developed needs the approval of HILT, and once
those issues have been vetted, he is hoping it will provide better understanding of why certain
things are being requested. Mr. Chun agreed with that rationale, and stated it would need to be
considered.
Mr. Chun acknowledged that this is a sensitive conservation area, and the flora and fauna
in this area need to be protected; the applicant has addressed this through his actions of creating
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over 90 percent of conservation easement areas. The question then becomes how best to protect
and maintain this property. After the conservation issues have been resolved, which could take a
year or two, the applicant would then have to come before the Commission for approval of the
related structures, which would likely take an additional year before the building plan approval,
As a result, they are looking at a three to four year delay in actually caring for this sensitive
conservation area. Working simultaneously on the conservation plan, and the amendments to the
original permit will enable the applicant to begin actual conservation efforts in a timely manner.
Mr. Isobe understands, and is not necessarily disagreeing; however, he would be more
receptive to the applicant' s reference to timing if it appeared that the community, the applicant,
and HILT were all in unison and working mutually on a basis of understanding; that is not the
case. The potential for misunderstanding, accusations, and innuendos can be minimised by
getting the plan to help the community, the government, and the land trust better understand
what will be done. Immediately following that would be determining the infrastructure elements
required to implement the plan, A draft of the .plan for everyone to review would help increase
understanding.
Mr, Chun stated the unfortunate thing is that the majority of the testimony given, and
echoed in the Plan=' g nin Department report is not regarding caring for the fish and wildlife, but
regarding access to the waterfall. He expressed dismay that the focus is not on the main issue of
caring for the fish and wildlife in the conservation area.
- . . . Mr. Isobe reiterated he agreed that access is not the. role of this -body, and that discussion
should occur with the Open Space Commission; however, it is the role of this body to ensure the
facilities being proposed are necessary, and consistent with the proposed use of preserving,
protecting, and conserving this special area. Mr. Chun agreed that it is a valid concern, and
suggested the Department could look at a condition to address that.
In reference to the conservation plan as it relates to the request for the additional
structures, Ms. Anderson stated it does not appear to be simultaneous if the final conservation
plan is not before the Commission. Section 5 .2 of the conservation easement states the owner
has the right, but not the obligation to conduct land management or environmental restoration
activities. Based on the discretion by the applicant shown in a separate issue regarding access,
which she does see as a completely separate issue, there is no guarantee that any conservation
actions will be taking place. How can the Commission approve a conservation manager's house
and barn if there is no obligation for the applicant to do any conservation activities? Mr. Chun
replied the applicant is planning to do conservation activities, and what that entails will be
subject to discussion with HILT. Mr. Chun believes those concerns can be addressed, and the
applicant is willing to do so; there are a number of ways they can address that.
Ms. Anderson explained the intent of her request is not to single this applicant out, but to
gain a better understanding about how the Commission can approve permits without full
information. She asked whether the applicant is doing the conservation plan in lieu of a farm
plan to which Mr. Chun replied yes, because it was represented during the first hearing that farm
activity could not be conducted because of the existence of archeological inventory. Therefore,
the first conservation easement area was created. Ms. Anderson stated the remaining property is
Page 15
roughly 12 acres for which she, as a Commissioner, would still expect a farm plan. Mr. Chun
stated it would be the Department' s decision whether or not to require that; however, most of the
land is wetland, and would not be suitable for farming. Ms. Anderson explained this is an on-
going issue; however, because it is zoned agriculture, it requires a farm plan. She noted she was
not here for the previous hearings when the initial conditions were set, but within any sort of
modifications, she would like the Commission to look at the issue of the main house being
assessed as a farm dwelling, and whether it is meeting the requirements of State law.
Ms. Anderson referenced the condition regarding the maintenance of the road, and
contradictions between public testimony and what Mr. Chun attested to. She asked what the
extent of the road maintenance was, noting the condition required drainage, and covering the
road with crushed coral. Mr. Chun referred the question to the applicant' s contractor Rohn
Boyd,
Mr. Boyd explained the intent has always been to maintain the road for vehicles entering
and egressing for the purposes of construction. The finishing of the road was always intended to
be done upon completion of the project as having large concrete trucks going along the road will
inevitably damage the road, the drainage, and improvements; for large projects, it is always the
intent to complete improvements at the end of the project. The road has always been maintained
during the course of construction due to rain and erosion on the road, and is done roughly twice a
year. Maintenance consists of filling of the ruts, rough grading and crowning as necessary, and
prevention of water rivulets to ensure it remains a passable road, Mr. Chun commented there
was .a .time..that .another.. company utilized. that. road, .and..asked Mr. Boyd ho.w .the..road was .
improved by that company to which Mr. Boyd replied they rough graded it. He added it was for
the purposes of the Kilauea Stream restoration, and was done concurrently with the applicant' s
construction project.
Mr. Chun added they are currently in discussion with the Department of Public Works
whether additional permits are required for drainage improvements on the road.
Mr. Blake asked whether the manager's house being proposed is to manage the main
house, or the conservation easement area to which Mr. Chun replied that person would be
responsible for both, and will be the employee of Mr. Somers. Mr. Chun fiuther explained the
government is not involved, noting that the conservation easement has been given to HILT
which is a private, non-profit organization. Part of the discussion with HILT will address what
contributions the applicant will be making in terms of staff, equipment, and manpower to
maintain the conservation easement.
Mr. Blake asked what type of structure the maintenance building will be, and whether it
will be a residence to which Mr. Chun replied it is a steel, barn structure, and will not be a
residence.
Ms. Mendonca asked if it is a steel structured building that is to be used for maintenance,
what would have been the need for the loft, and the deck. Mr. Chun replied the loft was intended
for storage above the machinery that would allow the items stored above to remain clean and
dry; they can address that in. other ways. The deck is essentially a cement slab, and is not
Page 16
necessary, therefore it can be taken out. The bathrooms were to provide actual bathroom
facilities for the workers in the field, but that can also be addressed in other ways such as
bringing in portable toilets.
Ms. Anderson stated there has been conflicting testimony on the ownership of the north
portion of Kabili Quarry Road, and asked if the applicant is aware of the ownership, Mr. Chun
explained the north portion is owned by a private land owner over which the County of Kauai
has an easement; COK owns the south portion of the road as part of a separate lot. Ms.
Anderson asked if the applicant has maintained the right-of-way for the County to which Mr.
Chung replied only up until the U.S. Fish and Wildlife parcel.
Mr. Dahilig commented he acknowledges the difficulty of the issue, . and wants to ensure
the Commission is comfortable with any type of action they choose to take. It seems the desire
is for more information to assist in guiding a decision. Mr. Dahilig asked if the applicant would
be agreeable to a deferral on the item subject to submission of a draft conservation plan with
some evidence from HILT that this is in a generally agreeable form along with the
memorialization of their intent to execute that document. At such time that document becomes
available, it will be brought before the Commission for review. Mr. Dahilig asked if the
applicant is willing to delay the 60 day action timeline on the application to allow for this
information to be made available. Mr. Chun stated the applicant would agree to the timeline
waiver as well as the deferral.
Ms. Anderson expressed-concern-with-that suggestion,. .noting because of the..specific
discretion allowed in the conservation easement that essentially allows the applicant to do no
conservation whatsoever, having an agreement that has not been finalized does not place them in
a better position. She would like to see a final, executed conservation plan prior to making a
decision.
Mr. Dahilig does not have an objection to that; however due to the time constraints of the
decision timeline, he would like to leave it to the applicant to determine whether that
contingency would be agreeable. Mr. Chun stated he agrees with the Director, assuming there
are procedural, not substantive questions in terms of the agreement. Ms. Anderson stated she did
not hear a yes or a no on the agreement to provide a solid, executed conservation plan agreement
to which Mr, Chun replied they will be aiming toward that; that is the commitment of the
applicant. He acknowledges the Commission' s desire to know what concrete things the
applicant will be doing to justify the proposed structures, and stated there is something that can
be included in the conservation agreement stating what they will be doing.
Mr. Kimura stated the term referencing the owner' s discretion is questionable according
to the numerous public testimony they've been hearing.
Mr. Jung stated by Statute the Commission is required to take action within the
prescribed periods of time, and that if the applicant does not agree to waive, the Commission still
must take action within that time-frame. Because of the uniqueness of the situation where the
County permit condition required a conservation easement, but the terms of that easement are an
independent, third-party agreement between the landowner and HILT, HILT must negotiate the
Page 17
specific terms. If it is held up on their end, there is a possibility it would get held up here, and
potentially result in a claim against the County for not taking action within the specified timeline.
Ms. Anderson asked if the application has a preservation plan for the cultural sites in
mind to which Mr. Chun replied yes, his understanding is the preservation plan has already been
submitted to SBPD for their review and approval. Ms. Anderson asked if that could be provided
to the Planning Department as well to which Mr. Chun agreed,
Ms. Anderson referenced access to Kilauea waterfall, and commented that it would be
her recommendation to refer that issue to the Open Space Commission for consideration as a site
to be preserved, and accessed by the public, especially since there has been so much testimony
regarding its significance and the importance of access. Mr. Kimura requested that the applicant
inform them of what his discretion would be in allowing access to the waterfall when this
application comes before the Commission again. Mr. Chun stated they have had this discussion
with KNA, and the applicant stated that at this point in time no public access to the waterfall will
be allowed until certain understandings can be reached such as supervision, liability, hours,
clean-up, etc.; they have not received any response from anyone on those issues. Mr. Kimura
suggested the applicant arrange a meeting with KNA to discuss the issue, and hopefully come to
an agreement.
At the request of the Commission, Mr. Dahilig stated he would come up with a
recommendation to submit to the Open Space Commission regarding access to the waterfall.
On the motion by Amy Mendonca and seconded by Angela Anderson to defer the
Class N zoning permit and use permit modifications as stated by the Planning Director,
the motion carried by unanimous voice vote.
NEW BUSINESS (NONE)
ANNOUNCEMENTS
The following scheduled Planning Commission meeting will be held at 9:00 a.m, , or
shortly thereafter at the Lihu `e Civic Center, Moikeha Building, Meeting Room 2A2B, 4444
Rice Street, Lihu`e, Kauai, Hawaii 46766 on Tuesday, February 11 , 201.41
ADJOURNMENT
Chair Kimura adjourned the meeting at 5: 11 p.m.
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Respectfully submitted by;
L %�Pi'u� cv
Cherisse Zaima
Commission Support Clerk
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