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HomeMy WebLinkAboutdraft pc 5-13-14 minutes KAUAI PLANNING :COMMISSION REGULAR MEETING May 13, 2014 The regular meeting of the Planning Commission of the County of Kaua'i was called to order by Chair Kimura at 9: 15 a.m: at the Llhu`e: Civic. Center,-Mo`ikeha Building, in meeting room 2A- 2B. The following Commissioners were present: ..... Mr. Sean Mahoney Ms. Angela Anderson :, Mr. Wayne Katayama Mr. Jan Kimural . Mr. John Isobe . Absent and Excused: Mr, Hartwell Blake Ms. Amy Mendonca The following staff members were present: Planning Department Michael Dahilig, Leslie Takasaki; Office of Boards and Commissions — Cherisse Zaima; Deputy County Attorney Ian Jung; Deputy County Attorney Jodi Higuchi-Sayegusa Discussion of the meeting, in effect, .ensued: : . CALL TO ORDER Chair Kimura called the meeting to order at 9: 15 a.m. ROLL CALL Planning Director Michael Dahilig noted that there were five Commissioners present, APPROVAL OF THE AGENDA Mr. Dahilig requested that Item I. 1 be moved to the first item for action. On the motion by John Isobe and seconded by Wayne .Katayama to approve. the agenda as amended, the motion carried by unanimous voice vote. TIN Page 1 of 34 MAY ' 2014 MINUTES of the meetins(s) of the Planning Commission Meeting of April 8, 2014 Meeting g_f April 22, ,2014 On the motion by Angela Anderson and' seconded- by Sean Maloney to approve the minutes of the April 8, 2014 and the April 22 2014 meetings, the motion carried by unanimous voice vote. RECEIPT OF ITEMS FOR THE RECORD On the motion. by John Isobe and seconded by Wayne Katayama to receive the items for the record, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing There was no continued agencyhearing. New Agency Hearing Class IV Zoning Pemut Z-IV-2014- 11 and Use Per nit'U=2014- 10 to construct and operate a library facility on a property located on the corner of Kawaihau Road and Maiiihuna Road, further identified as Tax Map KU 4=6-014: 0031 on a portion of a total property area of approx. 52. 166 acres = State v Hawai `i De artment o Education. Director's R' ort received 4/22/14.1 On the motion by John Isobe and seconded by Angela Anderson to close agency hearing, the motion carried by unanimous voice vote. Continued Public Hearin There was no continued public liearing. New Public Hearinf� There was no new public hearing. ' ' Page 2 of 34 CONSENT CALENDAR Stat s .Reports 2014 Annual Status Report from David Pirie Materials Superintendent, Jas W Glover Ltd., for Class IV Zoning Permit Z-N-92-38 Use Permit U-92-36 and Special Permit SP-92-6; Tax Map Keys (4) 2-9-006:, 005 & 006Pon) = Grove Farm Company-(OwnerWas W;Glover. Ltd (Lessee) Director's Reports) for Project(s) Scheduled for Agency Hearing on 5/27/14 Class N Zoning Permit Z-IV-201.4- 12, Use Permit U-2014- 11 and Variance.Permit V- 2014-3 to allow installation and height variance for a 100 ft high stealth monipine tower and associated equipment on a parcel situated in Llhu` a immediately west of the Kauai Hu_ mane Society facility and along the mauka side of Kaumuali`i Highway, further identified as Tax Map ; Key 3-4-005 : 018, affe cting a 2,500 sq. ft. portion of a larger parcel approx. 25.42 acres in size = Verizon Wireless Shoreline Setback Activity Determination There was no shoreline setback activity determination, On. the motion .by Sean Mahoney and seconded by. Wayne Katayama to accept the consent calendar, the motion carried by unanimous voice vote. GENERAL BUSINESS MATTERS Petition for DeclaratoKy Ruling, Tax Ma Ke y 4-9-005 : 014 and 4-9-009: 033 regarding Facilities Clearance form for Additional Dwelling Units for Property located in Koolau; Anahola CoRgjy of Kauai State of Hawaii = Je r S in and Ana Marie Lindner, Deputy County Attorney Ian Jung represented the County of Kauai Planning Department in this petition.. Deputy. County Attorney Jodi Higuchi-Sayegusa resumed as counsel for.the Commission.during.this petition. (This portion of the minutes are;transcribed :verbatim) Chair Kimura: Good morning, . I'm calling to ,order the contested case hearing for,.petition . .. to this Commission for declaratory ruling from Jeffrey_ and Ana Marie Lindner, Tax Map Key 4- 9-005: 014 and 4-9-008 : 003 [sic]. Before we start this hearing l'd like to .explain the hearing procedures, First, we wll .begin the opening statement, the petitioner will have an opportunity first thenthe Department will. follow, . Next, we will begin. the evidentiary hearing,.we will also , start with the petitioner' s presentation, and follow with the Department' s presentation. Any Page 3 of 34 witnesses will need to be sworn in. After the petitions we will take public testimony. Each member of the public is entitled to three minutes per application and any oral testimony will be transcribed and forwarded as part of the record for the Commission to consider as part of its deliberations. If you have not signed up to testify, please do so now to my right, the staff will be happy to assist you. ; If there is any written testimony, please also forward it to the staff on my right. . After public testimony, I'll allow for any rebuttal by the parties again starting with the p etitioner dri&fbllbwing with the D eP artment, At that point`the;cvidenti aryportion of the hearing will conclude. I will then ask for closing statements. The Commission-will then have one of two options: deliberate and make a decision on the petition, or allow for the supplemental of proposed Findings of Fact Conclusions of Law Decision and Order by both parties for further deliberation. Each party will have 30 days to propose findings. In either case, the Commission will meet once more to finalize a formal Decision and Order. With that, I have the parties come forward- and.state their name for-the record. Parties come forward: Tom Bush: Good morning, Chair and members of the Commission. Myname is Tom Bush and I'm the attorney for the petitioners, Jeffrey Lindner and Ana Marie Lindner, Ian June: Good morning, Chair and members of the Commission. Deputy County. Attorney Ian Jung on behalf of the Planning Department, Chair Kimura: Okay, opening statements. Mr. June: I think before we get into opening statements, counsel and I for the petitioner have taken a look at their exhibit list that they submitted on March 17, 2014, and the Planning Department has no problem stipulating to the documents 1 through 1 fin that proposed exhibit list which I believe you have in your packet. Chair Kimura: Is this the one you're talking about? Mr. June: That's correct, yes. Chair Kimura: Mr. Bush, would you like to begin? Mr. Bush: Sure, it' s my understanding that the petitioners and the County have stipulated, basically, to a lot of the salient facts, The real issue here is" going to be simply whether, in fact, the petitioner' s realtor who walked the forms through to the�different departments actually did that, and whether those forms were then provided to Mr. Lindner when they were lost in the flood. If you read the pre-hearing statement that we provided, petitioners seek a declaratory ruling that they 're entitled to receive a completed additional dwelling unit Facilities Clearance form for each of two properties that they own or control. You've read the tax map key numbers for the property, one is on `Aliomanu! Road and that's tax key nuihber 4.9-005 : 014; the other is on Koolau Road, `and that's TMK number 4-9-009-033 . Here's what happened, and just let me tell you briefly what happened. In October 2006 petitioners received completed ADU Facilities Clearance forms from the Planning'Department for both of those properties. ' However, what ' happened was those original forms were lost when Mr. Lindner's house was flooded in 200$. Page 4 of 34 The problem is the time to apply for such forms expired at of June 15, 2007 so they couldn't simplyre-do it again, but the originals were lost. Chair Kimura: What's- the date: on that again?. Mr. Bush: In October 2006 theyreceived completed ADU Facilities Clearance forms from the Planning Department for both the : 'Aliomanu Road property and the Koolau; Road property. Those forms -- and what they can do with those forms is they can use those.-forms to apply for a building permit. They don't guarantee you a building permit; but,they are necessary to-be able to get a building permit to have an ADU facility built on the properties: However, what happened .was, unfortunately, the house was flooded in.2008 and the forms were lost. So, what the law allowed, which the County understands, and they agree, is that you can petition the government-making bodyto seek a duplicate if something is lost as long as ,you've made efforts to try and get it. And that's what we've done, in other,:words we made requests of the. , Department of Water, the Planning Commission, and so forth to try and get copies of those forms. What we've been able to get is. not: a. completed form, but the penultimate form, that is the form that is signed off by every department or approved by every department except for the final signature of the Planning Department. So what we're here today to ask. this Commission is to allow a recreation of that ADU facilities clearance form which was lost in the flood in 2008 so it can then be used to apply for a building permit. In the exhibits that have been stipulated you'll see that there' s a stipulation that the Lindner's own or control the properties; that those lots are in a State Land Use Agricultural District and zoned by the County of Kauai as Open, and so under County zoning laws the residential density is . one dwelling per: acre; that.the County allows an Additional; Dwelling Unit on those lots — that' s the ADU — on certain conditions which include that the ADU Facilities Clearance form be completed before you can apply for a. building permit. .Thaf s .the. form that was lost, and that' s the form that needs to be recreated. That form needed to have been certified by June 15, 2007, in fact, it was certified in October,2006 but then was: lost .in 2008. The last thing is that the building permit must be issued on or before December 15, 2014 so we're conning up against_ time constraints, which:is why we need to bring this before the Commission now to seek your approval to recreate the ADU Facilities Clearance form that was Iost in the flood. You have before you the declaration of Malia Powers who 's here .today, that' s Exhibit 3 . If you look at Exhibit 3 there' s a cover letter. from Mr. Lindner's attorney, Lorna Nishim tsu; and then there' s Malia's declaration that follows, which attaches as Exhibits A.and. B : the forms, or copies of the forms that she walked through the different departments. She is here today to provide testimony to explain to the Commission what she did. . Mr. Jung: Again, Deputy County Attorney Ian Jung.on behalf of the Planning . Department. This particular case is sort of an unusual case because we're in a situation where the law does not allow for the Planning Director to, basically, re-execute on any ADU Facilities Clearance forms. after June 15, , 2007, . So there is a potential dispute on whether or not the. forms were created but the. burden,. as Mr.. Bush;had.indicated, is on the petitioner to prove that they , actually came in and went through the process to. get the form, and prove that in good faith. It' s evidenced in the exhibits that there are signatures on there, but the reality is there is no Planning Page 5 of 34 i Department final signature that's normally required when you sign off on the ADU Clearance forms. So we're in the situation where the Director no longer has authority to sign off on these forms, so the matter then comes back up to the Planning Commission to evaluate whether or not the petitioner worked in good faith to get these forms recreated, as the case law indicates in our pre-hearing statement. If there is a document that is lost, mislaid or accidentally destroyed the document can be recreated but the burden, again, is on the petitioner to prove up their case in terms of looking at whether or not form was walked through or not: Because; unforhu ately the Planning Department did not keep a copy of the ADU Clearance form because on November 221 2006 when the law changed, only at-that point did it require the Planning Department to hold onto the originals of these forms: if any forms were submitted prior to that November 22, 2006, date,. that's an issue of whether or not they should have been kept, but the originals were handed back to the original applicants,' so -we're going to have to go through and hear the testimony of Ms: Powers and how'she 'walked the process through. If you find 'it fit 'to re=execute the document you certainly have the authority to do that Chair Kimura: Mr. Bush do you have any witnesses? Please call them. Mr. Bush: Yes, I'd like to call Ms. Powers at this time: Chair Kimura: Raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth? Malia Powers. I do: Mr. Bush: Good morning; Ms. Powers. Can you state your name for the record,` please? Ms. Powers: Certainly, Malia Powers. Mr. Bush: And what is your occupation? Ms Powers: I air a licensed real estate agent for the last 22 years here on Kauai. Mr. Bush: In 2006 did you assist Jeffrey Lindner and Ana Marie Lindner in processing Additional Dwelling Unit`Facilities Clearance forms for the properties the owner controlled identified as TMK numbers 4=9-015 : 014 [sic] located on `Aliomanu Road and 4-9 ' 009: 033 located on Koolau Road both in Kauai. Ms. Powers: ''Yes, I absolutely, a hundred percent did. Mr. Bush: Can you explain to the Chair and the Commission members what exactly you did Ms. Powers: Certainly. I was very excited to assist; and happy. ' I 'took the form around I took it to all' the different department's and then 'at the:end I took it back to Planning. I specifically remember I spoke with Vil,` and he said "let me get someone who can sign"; so he Page 6 of 34 got — it was either Wesley or Norman — and he signed off. And then I took the forms and I took them back to Jeff. Mr. Bush: Can you look at Exhibit 3 . I've given you a copy of Exhibit 3 and that' s been stipulated into evidence. If you look at the second page of Exhibit 3, the second and third pages, is that your declaration or affidavit? Ms. Powers:. Yes, this is my affidavit. Mr. Bush: So is that affidavit true and correct to the best of your understanding? Ms. Powers: Yes, it is. Item number 7, it does state that either Vii or- Wesley did sign off, but it was actually Wesley or Norman. I did speak with Vil when I first walked up to the counter, but that is correct. Mr. Bush: Okay, then can you look at what is Exhibit A to Exhibit 3 . Ms. Powers: Okay, what is the.qucstion? Mr. Bush: Can you look at that? Ms. Powers: Yes, Mr. Bush: Okay, so do you recognize that as an Additional Dwelling Unit Facilities Clearance form that you walked through on behalf of Mr. Lindner for the `Aliomanu Road property? Ms. Powers: Yes, in fact, if you hook at the first square there, where it states. his name, that' s my handwriting. Mr. Bush: And so your testimony is, as I think you testified previously, that you went to each and every one of these departments including the final department, and they all signed off. Ms. Powers: That is correct. Mr. Bush: And similarly, can you look at Exhibit B to your Exhibit 3. Ms. Powers : Okay. Mr, Bush: Do you recognize that document? Ms. Powers: Yes. Mr. Bush: What do you recognize that as? Page 7 of 34 Ms. Powers: The ADU Clearance-form; and again in the first box there, that is my handwriting. Mr. Bush: Okay, and what property was that for? Ms. Powers: This was for the Moloa`a Koolau Road, Mr. Bush: So again, for this Koolau Road property did you similarly go through each and every department and get them all to sign off in some form or fashion on the document before giving it back to Mr. Lindner? Ms. Powers: Yes, in fact, I did them simultaneously. ' Mr. Bush: When you said you did them simultaneously, what do you Ms. Powers: I meant together, it was at the same time: Mr. Bush: The forms for both properties were walked through at the same time. Ms. Powers: Yeah. Mr. Bush: I don't have any more questions for Ms. Powers. Ms. Powers: Okay, thank you.' Chair Kimura: Mr. Jung, Mr. Jung: Ms. Powers, you can stayseated; I have a few questions for you. Again, Deputy County Attorney Ian Jung. Good morning, Ms. Powers. One of the issues that we're looking at is the processing of the forms, and you said you were a realtor for 22 years? Ms*. Polders: Yes: Mr. Jung: Okay, so in the normal course of you working inrealty, 'do you normally keep copies of the forms that you produce for a client? Ms. Powers: At this time I was assisting him, and normally I would but these aren't properties that I have as listings. So, if I was doing a listing file or a sale, we're required for seven years to keep a copy. Mr. Jung: Okay, and in this particular case was this the first time you walked an ADU Clearance form through the Planning Department and various other agencies noted? Ms. Powers : It was not the first time. Mr. Jun a: Do you recall if you kept copies from the other projects? Page 8 of 34 Ms. Powers: No . Mr. Jun a: So is your normal course in being a consultant on these issues to pass off the originals to your client, and then be done with it? Ms. Powers: I will say it' s not so much to be done with it, like I said I was assisting in a matter that wasn't a listing. At this rime, I took it around, I had all the appropriate — it would have been nice forme to have a copy, but I did hand it to him, and it was completed, and I hundred percent walked it through. I have no question. Mr. Jung; Then looking at Exhibit 3 again, I know your attorney did some due diligence to go through the various agencies through FOIA which is the Freedom of Information Act to recreate these documents, but in looking at the form itself there are two signature blocks that are missing. One is the Health Department, the other is the last Planning Department signature. Ms. Powers: Yes, Mr. Jung: Do you recall getting the signature of the Department of Health? Ms. Powers: Yes. I recall getting every single signature, going to Vil, him. getting Norm or Wesley, they signed. I was very happy I had gotten that and I was able to do that for Mr. Lindner. I brought it to him and very happily handed it to him. . Mr. June; I want to turn your attention to right under the first block, the second block there that says Planning Department use only. There's two Planning Department blocks. Ms. Powers: That is correct. Mr. Jun a: You recall getting both Planning Department — Ms. Powers: Yes, yes. Because as we know you have to have every single department and in .the end you go back to Planning, and then they re-sign. Mr. June: Okay, no further questions Chair. Chair Kimura: Okay, Mr. Bush do you have any more witnesses? Mr. Bush: I don't have any more witnesses that I need to call. Ms. Powers: Am I all pau? Mr. Bush: Yeah. Chair Kimura: Mr. Jung do you have any witnesses? Page 9 of 34 Mr. Jun f.: We'll call Deputy Director Dee Crowell. Chair Kimura: For both parties, after your witnesses speak in this cross examination, we're going to take a five minute break. (To Mr. Crowell) Raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth? Dee Crowell: I do. Mr. Jun a: Mr. Crowell can you state your name and address for the record. Mr. Crowell: Dee Crowell. Do you want my work address? Mr. Juniz: Work address is fine. Mr. Crowell:' 4444 Rice Street, Suite A-473. Mr. Jung: What's your current position title? Mr. Crowell : Deputy Planning Director: MM: And do you recall when you started as Deputy Planning Director? Mr. Crowell: I started in December of 2010: Mr. Jun a: Previous to that you also served as Planning Director. Mr. Crowell: Correct. I'm trying to forget that, but yes. Mr. Jung: And what years were those? Mr. Crowell: From 1993 to 2003 . Mr. Jun a: During your time as Planning Director did you administer ADU regulations? Mr. Crowell: I was responsible for that, yes. Mr;_Jung: So you are familiar with the ADU regulations. Mr. Crowell: Yes, Mr. Juno: Is it your understanding that the permitting of ADUs, which were originally referred to as ` Ohara units, was first considered with the adoption of Ordinance 430, which was also referred to as the ` Ohara Ordinance in 1982. Mr. Crowell: I believe so. Page 10 of 34 Mr. Jung. At that time, ADUs were pretty much only limited to residentially zoned lots, correct? Mr. Crowell: It was limited to residentially zoned lots, yes. Mr. Jung: Later in February of-1989- the Council then adopted Ordinance 551 to allow the construction of ADUs on lands other than residentially zoned such as Open district and Agriculture district. Mr. Crowell: I believe so. Mr. Jung: Do you recall if Ordinance 551 placed a cap in terms of a period of time when people could. come in for ADU Clearance forms? . Mr. Crowell : I believe at that time it was a two year period. Mr. Jung: So is it your understanding then that since the adoption of the Ordinance 551 there has been about six other Ordinances that followed? Mr. Crowell: That's my understanding. Mr. Juna: And for the record they are Ordinance number 594, 644, 707, 729, and 843 . The first of those four ordinances basically extended the expiration of ADUs on lands other than residential from 1991 to 2006, correct? Mr. Crowell: I believe so. Mr. Junf;: And the fifth ordinance, Ordinance 843, which we're operating now with this particular contested case, was adopted by the Council to extend the ability to construct ADUs on lands other than residentially zoned lands to December 15, 2009, correct? Mr. Crowell: To get your building permit by 2009, yes. Mr. Jung: And then the.. last. ordinance was Ordinance 886 which further extended that ability. to, construct to December. 15; 2014, correct? Mr. Crowell: Correct. Mr. Jung; So is it your understanding that the permitting of ADUs required two steps: one, filling out the ADU Clearance form and two, applying for the building permit? Mr. Crowell : Correct, Mr. Jung: And is it your understanding that ADUs Facility Clearance form originated with the Department of Public Works? Page 11 of 34 Mr: Crowell: Yes, Mr. Jun a: So taking a look at Exhibit i please indicate for us which agencies are required to sign off on the form. Mr: Crowell : It starts off with the Planning Department, then goes to: . . I can't read this. Mr. Jung: Do you want a clearer version? Mr. Crowell: Yes, please. I believe it' s Public Works, Health Department, Fire Department, Department of Water, and back to Planning Department, Mr. Juno: So what is your understanding ofthe role that Planning Department plays on the sign off on the form? Mr. Crowell: Looks like we signed off initially to verify that the property qualifies for an ADU, and then we notify: them that 'fees are going to be assessed, then we do the final check-off after all agencies have reviewed. Mr. Jung: Okay, so essentially it's for CZO compliance? Mr. Crowell: Right. . Mr._ Jung: As well as, I believe at the bottom there it says road widening reserve too*, right? Mr. Crowell: Right. Mr. 'Jung: So it's to ensure that there's adequate ingress and egress from the County or State roadway, is that correct? Mr. Crowell: Well, access to 'a paved surface, Mr Jung: So is it your understanding that prior to the adoption of Ordinance number 843 the Planning Department required the original ADU Facilities Clearance forms to be kept by the applicants? , Mr. Crowell: Yes. ' Mr. Jung: And then post Ordinance 843, is it your understanding that the new subsection which was then 8-26. 1 (d) (6) required the Planning Department to maintain the original ADU Clearance forms? Mr.. Crowell: Yes. ' Mr. Jung: And if you could just state in the record what you're looking at there. Page 12 of 34 Mr. Crowell: This is Ordinance 843 . Mr. Jung: So is it your understanding that the Article 15 in the CZO now prohibits the Planning Director to execute ADU Facilities CIearance forms after June 15, 2007? Mr. Crowell. I think so. We no longer look. atahese things, and haven't for the last four years, well, seven years. Mr. Jung: But the understanding, the question is, is there an interpretation that the Planning Department cannot execute these forms.because the Council put in a. specific date there? Mr. Crowell: Right, Mr. Jung: And that date is June 15, 2007, is that correct? Mr. Crowell: It is June 15, 2007, Mr. Jung: Is it your understanding that if it is found by the Commission that the Lindner's obtained all signatures, the ,Planning Director can certify the ADU Facilities Clearance form complete based on case law relative to lost or destroyed public records through proper procedures? Mr. Crowell: That's my understanding. Mr. Jun : Is it your understanding that in order to compel the execution of a new ADU Facilities Clearance. form when it's purported -to be lost, mislaid, or accidentally destroyed falls upon the Lindner's to prove. Mr. Crowell: Yes, Mr. Jung: No further questions, Chair. Chair Kimura: (to Mr. Bush) You want to cross examine Mr. Bush: Mr. Crowell, as I understand it then, ,prior to. November 2006 when the ordinance was last amended, the Department of Planning did not keep originals nor apparently did they keep;. any copies of ADU Facilities Clearance forms that were brought to them for execution, is that correct? Mr. Crowell: That's correct. Mr. : Bush: Thus, can you.look at Exhibit 6 please. Exhibit 6 is a Freedom of Information Act requesting forms for the two units for the two properties at issue here that was submitted to Page 13 of 34 the Department of Planning for the County of Kauai on February 28, 2013 seeking to get copies of whatever ADU forms they may have kept. Do you see that? Mr. Crowell: Yes. Mr. Bush: Can you switch now to Exhibit 8. You recognize Exhibit 8 as the response of the Planning Department that they don't have any records. Mr. Crowell : Correct. Mr. Bush: And that was, as I take it, pursuant to the practice at least of the Department prior to November 2006 where they didn't keep records of ADU Facilities Clearance forms that were brought to them for final execution. Mr. Crowell: Correct. Mr. Bush: Thank you, I don't have anything further for this witness. s . Chair Kimura: You may step down. Mr. Jun-: I have one more witness, Chair: I'd like to call Mr. Lindner. Chair Kimura: Please raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth? Jeffrey Lindner: I do. Mr. Jung: Good morning, Mr. Lindner. It's been alleged that the flooding incident damaged your original ADU Facilities Clearance form. Do you recall the date of that flooding incident? Mr. Lindner: It was October 12, 20089 Mr. Jun- : And do you recall if the flooding incident was due to rain from. storm, or was it from a broken pipe or something? 1 . Mr. Lindner: It was rain from storm. Mr. Jana: Malia Powers testified' that she was hired to process the forms for you, is that correct? Mr. Lindner: Yes, well, no I didn't pay her. She was not hired, she did us a favor. W.-Jung: But you did direct -Malia Powers to obtain the fully executed ADU form, Mr. Lindner: Yes. Page 14 of 34 Mr. Jung: When you received the original form did you actually have the original form in your hand, or. did you just put it away in a file somewhere? Mr. Lindner: I had it in my hand, and then I put it in a file. Mr. Jung: Did you make any copies of that form Mr. Lindner: No. Mr. Jung: Did you keep any of the ADU Facilities Clearance forms with other documents that were destroyed in the flooding incident? Mr. Lindner: I. lost other documents. I didn't lose other ADU forms, no. Mr. Jung: So these are the only two that you're. aware of that you purportedly had originals to: Mr. Lindner: Well, no, actually I lost another,ADU that Malia had gotten later on a property that was obtained after the time you kept copies.. So we were .able to get a copy of that. Mn Sung: So you found an original version, or a copy? Mr. Lindner: No, we were able to get a copy from:the Planning Department for the third one that I lost. Mr. Jung: _Okay, no further questions. Chair Kimura: Do you want to cross examine, Mr. Bush? Mr. Bush: Not based on that. I don't think there is any need. Chair Kimura: Okay, you may step, down. Thank you.. Do you have any more witnesses, Mr: Jung? Mr. Jung: No, . Chair. Mr. Kimura: Does anyone in the public want to speak on this, or want to testify? Seeing none. Mr. ,Bush or Mr. Jung do you have any follow, up evidence? Mr. Jung: Given there's no public testimony, no, Chair. Chair Kimura:. Mr. Bush? Mr. Bush: No, I don't have any further evidence to present. Page 15 of 34 i Chair Kimura: Mr. Jung can I have your closing statement. Mrs: It's up to the body, but I can certainly defer the closing statement if the body will want any proposed Findings of Fact Conclusions of Law on this, or proposed Decision and Order. Chair Kimura: Mr. Bush do you have 'any closing statements? W. Bush: Again, I could defer as well, but I would want to say that it's well established in Hawaii — it' s cited in our brief that the government has the ability to recreate forms that were lost or destroyed as long as the petitioner acts in good faith. Arid I think that we've' certainly shown good faith, there's no indication that there's anything other than good faith with respect to these folks. Unfortunately, the Planning Department's policy prior to November 2006 was not to keep any copies of the form, so when they-were destroyed in the flood, these forms at least, could not be recreated. Apparently Mr. Lindner testified that there was a form that was done after the policy was changed, that: form was able to be recreated so that law was able to be mitigated. Unfortunately, we've had to come before, and use the Commission' s time and energy to try and recreate the forms but it's really what's only fair for the petitioner who is acting in good faith. . And in our brief that I had set forth; the relief that was requested is that the petitioners be deemed to have obtained completed ADU Facilities Clearance forms for the `Aliomanu Road and the Koolau Road properties as of October 21 , 2006, which is consistent with Malia Powers' declaration, or her affidavit which is in evidence as well as her testimony today. And we have a version of the form that is signed off by everybody except for the final folks; that is the Planning Department sign-offs. We have the form that can easily be. recreated and then that can be used to apply for a building permit and we understand that it doesn't guarantee a building permit, but it allows at least the process to move forward, which it's been stymied, absent this Commission' s intervention. Thank;you. If you have any questions for me I'd be happy to answer. Chair Kimura: Commissioners, any questions for either party? Mr. Jung: If I could just inter] ect, normally what we would do — this is one of the first tunes we're doing a'contested case without- the assistance of a hearings officer. Normally what we would do is prepare a proposed Findings of Fact Conclusions of Law Decision and Order, but if the Commission wants to make a decision today, subject to Mr. Bush's chiming in on this, you can do that and then we can work on a proposed Decision and Order to be finally evaluated by you. Mr: Bush: I would prefer that process only because there is a time limit for the building permit, and there' s work that' s going to have to be done. We've tried to bring this forward for some time now, and we're happy that we have our hearing today, so we really appreciate that. Chair Kimura: At this time can I entertain a motion to close this contested case hearing? Wayne Katayazn (mic off, inaudible) Page 16 of 34 Jody Higuchi-Sayegusa: Yes, and then instead of having a decision made today you can propose or ask the counsels to submit any additional Findings of Fact. Mr. Katayama: Can we then move into executive session to — Ms. Higuchi-Sayemisa: Discuss the decision?. Yes, I :believe that's fine. ..If there's. a proper motion.. If you folks, decide that. you want,to deliberate,today — Mr. Katayama: I think for me. it's just some clarification,and some additional Findings of Fact would help render a decision. Mr. Bush: The issues are set forth in the brief, so we've presented what really is just sort of the nub of the..issue here. . If there's particular. questions that any commissioner has regarding -.. any facts, we're certainly happy to entertain that prior to the closing of the contested case; hearing.. I guess what I don't want to have happen is the contested, case hearing close and there be some sort of factual record that needed to have been developed that we can't develop now because the contested case hearing is closed. If you want to move into an executive session to discuss what additional factual findings you may want before you close the contested case hearing.I' d be-in favor of that. Mr. Katayama: I would prefer that. Mr. Kimura: So .what do we do.? Do ,we. defer and then go into executive?, : ; Ms. Higuchi-Sayegusa: If you wanted to go into exec now to clarify what facts you needed, and then come on record again, and then make those specific requests to the parties we can do that. ' p - ; .Chair Kimura: Is that acceptable.to both parties? Mr. Bush: That's: fine with me. Mr. Jun a: That's fine as long as the issue of any factual interpretations can be allowed to be discussed amon st the P . arties. . g Chair Kimura: I need a motion to 'go into executive session. Ms. Hi chi-Sae sa: Just to clarify, the transcripts even in exec session can be . discoverable in; any court, and any deliberation should not be done in exec, session, and the . questions during exec session should be strictly legal questions. Mr. Katayama Do.. you want to read the ground rules of the executive session. Ms. Hi cgu hi-Sayegusa: The Commission may go into an exec session on any agenda item for one of the permitted purposes listed. in HRS 92-5 (a) without noticing the exec session on the agenda where the exec session was not anticipated in advance, HRS section 92-7 (a). the Page 17 of 34 executive session may only be held, however, upon affirmative vote of 2/3 of the members present which must also be the majority-of the members to which the board is entitled, HRS 92-4 the reason for holding the exec session shall be publicly announced. On the motion by Wayne Katayama and seconded by John Isobe to enter into executive session to clarify the legal proceedings based on the petitioners and the Department's presentation of fact, the motion carried by unanimous voice vote: (The meeting resumed in executive session at 10:09 a.m) (The meeting reconvened in open session. at 10: 51 a.m) Chair Kimura: We are still in the evidence hearing.. After having our executive session, we as Commissioners had some questions for the witnesses. - We would like to call back some of the witnesses. We will start with`. , is it the realtor'you guys want to start with. . . or Mi. Lindner? Mr. Katayama: Why don't we start withAngela and her question. Ms. Anderson: I had a question for the attorneys. My question goes to the authority of this body to sit in equity and make a decision, a declaratory-judgment or declaratory ruling. I've reviewed the cases cited, but I'm just unclear as to our role here: Ms. Hi cgu hi-Sayegusa: If I could have the attorneys respond to take a position on this body' s authority under the rules and under the case law. Mr. Bush: Yes, certainly, I can try`that. You've looked at the case law. The case law ' allows, basically, for the responsible government party to recreate the lost or destroyed document. So in this instance the responsible party is apparently not the Planning Director himself. In other words, we can't petition him, but we can petition the Commission which would be the proper adjudicative body. That is the body that has the ability to, we believe, grant authority to the Planning Director, and then sign off on the last box, so to speak. Your decision in this proceeding is in itself subject if there' s a dispute, can then go up to the next level, which would be the circuit court which would hear an appeal from a contested case proceeding: ' But this is not something that originally arises in the circuit court. The circuit court would just send us back down here, and then it would ask us to go up there if either party weren't satisfied with whatever the result. I don't know if that answers your question or not: Mr: Junua Again; Deputy County Attorney Ian Jung. Like I mentioned I think we're in sort of an unusual situation because the current ordinance prohibits the Planning Director from signing on the actual ADU Clearance form. When you have' to read ' base law into this, and the case law is cited in the briefs, if there is a document the government approves then the government can come in and re-look at. documents that were lost,' mislaid, or destroyed: ' But in order to effectuate that they have to prove that the document existed. What happened here was the•petitioner filed a declaratory relief request. So this body normally would see appeals of the Planning Director's decision in terms of decisions the Planning Director 'made; then it comes as an appeal up to this body to be almost like another layer of review. It's almost the same function Page 18 of 34 when you. get into declaratory ruling where there' s a question of law, and the petitioners are asking one thing. It' s coming down to a question of fact and whether or not it happened or not because right now there is no executed original or executed copy. As the evidence showed, they go through the process to try and say this is what we did, this is how we did it,. and they got examples, but still the Planning Director cannot sign off on it because of the way the law is written. So the question then comes to going through proper procedures is what the case law says. So in proper procedures as you guys, as the quasi-judicial reviewing body, could look at and make a factual determination of whether or not the document: existed. If it. did exist then you could issue the declaratory order to say to the Planning Director we believe the witnesses so you can execute on this. You have to read it sort of in concert with the actual case law and how to apply it. Unfortunately in Hawaii we don't have much case law on extra jurisdictional case law, but at the end of the day it comes down to whether you believe the witnesses or not because no original exists right now. Apparently it' s been destroyed and no copies were made either by the Planning Department or the applicant themselves. Mr. Katayama: Any .comments on that? Ms. Higuchi-Sayepusa: No. Nothing forme. Mr. Kimura: What' s the first witness you guys want to call up? Mr. Katayama: I guess Mr. Lindner. Mr. Kimura: Mr. Lindner can you step back up please? Mr. Lindner, I just want to remind you that you are still under oath. Thank you.- Angela, I'll start with you, your questioning. Ms. Anderson: I have no questions. Mr. Katayama: Mr. Lindner, on the event that caused the loss of your documents, you said there were three ADU approval documents that were lost. Mr. Lindner: Amongst other things, yes. Mr. Kata a: Among other personal items. Were there any claims whether insurance or casualty losses filed to demonstrate the extent of the loss? Mr. Lindner: It was mostly papers, no, there was not. Mr. Katayam.a: The events that lead up to the loss of the documents, how did that occur? You said it was a flood. Mr. Lindner: I didn't really know immediately. . There was papers, there was flood, there was things thrown out, and basically it was maybe a month or two after that when I went to — I forget what the date was. When we had to get a building permit, I went and talked to Avery and Page 19 of 34 we started drawing plans, and then when we went to submit, I looked and it was in those papers there. Mr. Katayama: So when was the loss discovered? Mr. Lindner: The loss was around October. Mr. Katayama: No, for the documents of the three ADU approvals. Mr. Lindner:- It was maybe a month after that. _Mr. Katnama: So on and about'2008. Mr. Lindner: Yes. Mr, Katayama: When was the petition to replace the documents filed? Mr. Lindner: First, Joan Braun went and talked to Planning and looked through the files, and it wasn't clear whether they had the files several times. I think then Avery went and talked. So it was probably 2007, something like that, there was communication going back and-forth trying to find the document. Actually since 2007 I've been trying to — Mr. Katayama: But the event was 2008. Mr. Lindner: I mean', 2009 to now, yes: Mr. Kata ama: Last question, Chair. Do you have any record of payment of fees that were identified in the ADU applications? Mr.` Lindner: Checks? Mr. KatUama: Yes. Mr. Lindner: Possibly. Those might have been stored somewhere. I have not checked on that. Mr. Katavama: Thank you. Chair Kimura: You said that you required a third ADU application, right? Mr. Lindner: Yes. Chair Kimura: And the County had that. Mr. Lin Yes. That was one I think Joan found, yes. ' Page 20 of 34 Chair Kimura: Do you have it on hand by any chance? Mr. Lindner: I can get that. That was `Ahomanu Estates. I could probably make a phone call and get you the tax map key for it. And we have the ADU, and we have the date on it a well. Chair Kimura: Can you remember what the date was? Mr. Lindner: I think we got it in 2007. I think, I don't know the exact date. Chair Kimura: If you could provide us with that application, when it was signed, that would be great. Mr. Lindner: Sure. Chair Kimura: Okay, any more questions ffor W. Lindner? Seeing none, thank you very much. Please step down. Next witness is.. .the realtor, do you have any questions-for her? W .Katayama: Deputy Director Crowell. Chair Kimura. Mr. Dee Crowell, can you step forward please. Mr, Crowell, I just want to remind you that you are still -under oath. Okay, Angela, we'll start with you Ms. Anderson: No questions. Mr. Katayama: In Exhibits A and B as submitted and stipulated to by counsels in the ADU application form, in the second block the Department determines fees: that are applicable to the application. At what point in the application process are those fees collected? Mr. Crowell: I don't remember. I believe it could wait until as long as you applied for your building permit. You don't need to pay it when you get your .clearance because it all depends on what it.is. at the time. of the building permit: Mr. Katayama: So the amounts that are fixed on these applications, are they then valued at the time of the application on the ADU permit, or the time of the building permit? Mr:Crowell: it's, valued at the time you pay for.it because you could pay for it right then and therein order to vest your application, but you could wait until you apply for your Mr. Katgyama: Generally, in the ADU application process when are payments accepted? Mr. Crowelh It's at any point during the process. Mr. Katqyama: So at the initial application where the Planning Department fixes the value, the applicant can pay? Mr. Crowell : Yes, Page 21 of 34 Mr. Katayama: Is there, a document retention policy post November 2006 for ADU applications that have been approved or not approved? Mr. Crowell: Yes, we keep a log. Mr. Katayama: What about the actual documents themselves? - Mr. Crowell: I believe we have.the documents. ...... ..... . . .. . . Mr. Katayama: Originals or copies? Mr. Crowell: Originals. Mr, Katayama' And what is the retention policy for the'originals?` Mr. Crowell: In terms of? 1VIr. Katayama: How long.do you keep it before you can destroy it? Mr. Crowell: I think we would keep *it at least until the deadline for applying for the building permit. Mr. Katayama: December 14, 2014? Mr. Crowell: Right, Mr. Katayama: Thank you. Mr. Isobe If I understood your response correctly on the fees, the payment of the fees can occur anytime from the time the application is initially applied for all the way through to the building permit approval process? Correct? Mr. Crowell: Yes, correct. Mr: Isobe: So your department or someone in the County would have a record then to show whether.or not'the' es have, in fact beenpaid or not been paid? Mr. Crowell: I believe so: Mr. Isobe: Would your department be able to go back and check to see whether or not these fees have, in fact, been paid? .. Mr. Crowell: If we have it, we'll find it. Mr. Isobe: Okay, thank you. Page 22 of 34 Chair Kimura: Is there a particular .order that the applicant has to go through to have that application signed or approved by different agencies? Mr. Crowell: No particular order. It's whoever can — Chair Kimura: Can sign it at the time? Mr. Crowell : Yes.: . Chair Kimura: Who is the last person that signs off on it? Would that department wait until the Board of Health signs it, then you guys sign after that? Or would you sign before the Board of Health? Mr. Crowell: We're the last ones to sign. And we sign only after Mr. Kimura: After you have all agency comments? Mr. Crowell: After we see the whole form is filled out and execution of a road widening reserve, if any. Chair Kimura: Because I notice the two didn't have any Board of Health signatures on it. The two applications. ..Mr. Crowell: Right. So that's why you wouldn't see our signature on-it until Department of Health signs off. Chair Kimura: Okay, any more questions for Mr. Crowell? You can step down, I have a question for the realtor. Ms. Powers, can you step up please. I just want to remind you that you're still under oath: Did you go by the Board of Health and ask them fora copy of this application? Ms. Powers: Yes, in fact, I see the notes that you're referencing to on the site, you can see it says per Health, .it was approved. I spoke with.Lori, in fact she just sent over an email. They don't actually keep record .of this particular document, but what they do keep.record of is the log. when someone comes in, an&what they have to say. . .So she did email us over her log that did . verify that I was there on the 2401. Chair Kimura: But it doesn't necessarily mean that they approved it, right? Ms. Powers: We have the notes. Chair Kimura: Do you have comments on it? Page 23 of 34 Mr. Bush: If I could interject, during the break, and I have it on my phone, but the Department of Health forwarded their log which shows comments on October 241' and the comments that would have been put in the box. Ms. Powers : When she approved it, Chair Kimura: Do we accept these types of elements? Ms._Hiochi-Sayeausa: You could make a specific request of witnesses for further evidence on any issue. You could take a look at his phone. Ms:Powers: ` It' s`just to show record that I was there: Chair Kimura: I understand that, that they said that you were there, but it doesn't really tell me if they signed the document or not, or they approved, or they talked about it, or what their comments were on the application. Ms. Powers: You can see her wording. Ms. Higuchi-Sayeausa: If it's not visible to you folks you could ask that the witnesses provide that specific information before your decision making. Chair Kimura: Oh no, I trust that -- Mr. Bush: I have it here on my phone, and I'd be happy to show it to the Commission members. Pve shown it to — Chair'Kimura' Is it just saying that she was there?- She logged in? Ms. Powers: Do you want me to read it? Ms. Anderson: Read it into evidence. Ms. Powers `. So ' it shows the information on the property, and then on one of the applications it shows that there's an existing septic; and on the other one it says that there is no existing septic. It says that the existing septic has capacity, and then the other one says` that it would be a new unit_ A new septic because there's no existing septic. Chair Kimura: Okay, thank you, Anymore questions for Ms. Powers? Mr. Katayama: Just a quick question. Exhibits A and B which are the two ADU applications, where were those copies from? Ms. Powers: I believe that they were from the Department of Water who had a copy on file. And I can say that I've been in real estate for a long time, and been doing this and can most Page 24 of 34 definitely assure you that I walked this form through. County came — Planning — and they signed off specifically. Most definitely, a hundred percent, :so, there's no question. . Mr. Katayama: When was the date of,your appearance before the Department of Health again, I'm sorry I missed that. Ms. Powers: What was the date of appearance? Mr. Katayama: According to that log? Ms. Powers: It was on the 24'b of October. Mr. Katayama:. .Was it.before or after Department of Water? Ms. Powers: I.don't rememberspecifically. if I: went to Lori first, or if I spoke with Keith over at Water next, but it was on the same day. Mr. Katayama: Were both applications handled together? Ms. Powers: Yes. And if you look you can see that the sarne people are signing ,each one. Mr, Katayama: Well, the Fire has no signature for Exhibit. 2 Ms. Powers: The Fire is noted with the date and his initials above. Mr. Katayama: For Exhibit 2? , it Ms.; Powers: On the ADU form, yes, excuse. me for Exhibit 2. Mr. Katayama: Okay, thank you. Ms. . Higuchi-Sa wsa: D4you folks have any specific requests for any:additional _. . evidence to ask the testifiers or parties? Mr. Katayama: Well, the Department will research if any of the fees were paid. Can we ask the petitioner if they could do; the same? Ms. Hi chi-5a a sa: Yes. Mr. Bush: I'd ,lust like to point out that, apparently, the payment of fees isn't an absolute requirement, though, for the issuance of the ADU, right? And quite frankly I haven't looked at it so I don't know whether there is a record of payment or not, but either way, it doesn't sound to be determinate because if you could pay it at any point, you could pay it before you get the final signature, presumably, and that would show that you actually got the final signature. So I'm not sure how probative that evidence would be-under these circumstances. I just .want to point that out. Page 25 of 34 Chair Kimura: So what does this body want to do? Mr. Katayama Well, could we ask the attorneys to submit their Finding of Facts? Ms. Higuchi-Saxegusa: Yes. Mr. Katayama: Then we can make a decision and allow our attorney to draft a Decision and Order. Mr. Jun I can make a suggestion. If you want a proposed Findings' of Fact Conclusions of Law we could certainly do that contingent on the possibility of adding that additional pieces of evidence that's being requested of the'Comm ssion:` From theTlanning Department's side we could go back through our records and look at it. If it's .there, it's there, if it' s not we'll have to bring that back as an issue but we`-could prepare the proposed FR: dings'of Fact just contingent on the possibility of two additional facts: payment coming from the petitioner, and receipt of payment coming into the Planning Department, Chair Kimura: I also requested -the third ADU application. The complete application just for the dates! I want to verify the dates: Ms. Anderson: There's also been testimony regarding the Health Department notes. Are the parties willing to stipulate as to having additional exhibits that was introduced? Would that be on the record? Mr. Bush: I don't have any issue, I just emailed the notes, in fact, to the Planning Department right now while we were talking so that they have a copy. We could certainly submit that. If we're submitting additional 'stuff in any event we could 'certainly add those notes, that's not a problem. Ms. Higuchi-Sayeausa: I believe the Department is printing it out right now and we can provide that to you folks today. Chair Kimura: Okay, so what do.we do? . Ms. Higuchi=SaYeQusa: So again, you can ask that the parties submit their proposed _ Findings of Fact Conclusions of Law with those additional facts to. be included whether or not they find it or not. You can close the hearing before then, therefore; the two proposals is what will be in consideration at your decision making portion at the next meeting date. Chair Kimura: So do we defer this?` We close and then defer? Ms. Higuchi-SayeQusa: Decisions making, Yes. Chair Kimura: Is that what this body wants to do? Okay, I need a motion: Page 26 of 34 On the. motion by Angela Anderson and seconded by Wayne Katayama to close the contested case hearing, the motion carried by unanimous voice vote. Ms. Anderson: Are you proposing to do one stipulated Finding of Facts Conclusions of Law, or will there be two submittals? Mr. Jung: We could look at doing a stipulated one, but again it would be contingent on the body making the decision concurring with the testimony or not. Planning Department doesn't have the authority to, obviously, concur to the testimony. It's going to be ultimately up to you folks. So we can stipulate to all the exhibits, and then the law is pretty clear on the issue, so if you want us to, we could certainly do a joint Conclusions of Law, but again it comes down to concurrence of the testimony. So, we could leave that portion open for you guys to make your decision on. So it would be in the form of one document contingent on decision making through the Decision and Order, which comes after the Findings of Fact Conclusions of Law. Mr. Bush: We would certainly stipulate to as much as possible, but then I would have to draft additional Findings of Fact regarding the testimony of the witnesses. That' s what you're asking for. Normally in a contested case hearing, at the end of the contested case, each side presents their Findings of Fact Conclusions of Law, and they may be divergent. In this case, they're likely quite similar except as Mr. Jung has explained that the County doesn't want to take a position on the veracity of the witness or not. I'm not so limiting. I want to take a position on the veracity of the witness, obviously, because we believe Ms. Powers is credible, and Mr. Lindner is credible as well. So with that difference, we would submit as much as we could together and then I might submit a supplemental with respect to those facts. There was discussion to determine the deadline for the attorneys to submit proposed Findings of Fact Conclusions of Law. Chair Kimura: So we'll receive the submittal of the proposed Findings of Fact Conclusion of Law Decision and Order for further deliberation on June 13 . Mr, Bush: That' s fine. One thing I could ask — I understand that a copy of the Department of Health log is being now passed out to all the Commission members so if we could perhaps enter that as exhibit, just so we can refer to it as Exhibit 12 which would be next in order. Ms. Higuchi-Sayegusa: That' s fine. Chair Kimura: The Board of Health would be Exhibit 12. Mr. Jung: The Planning Department would stipulate to that document as it is an email from the Department of Health. On the motion by Wayne Katayama and seconded by Sean Mahoney to defer decision making to July S, 2014 with a deadline of June 13, 2014 for the attorneys to submit Page 27 of 34 the proposed Findings of Fact Conclusions of Law; the motion carried by unanimous voice vote. (Deputy County Attorney Jung resumed as counsel for the remainder of the meeting.) Page 28 of 34 Letter dated February 27, 20.14 from Attorney and Counsellor at Law Harold Bronstein rW,arding the Planning Commission's. June 8 2010 4pproyal for Building Location Material Design Review for Lot 12, Wainiha Subdivision 5-84-58 (Tax Map Key(4) 5-8-009-051, Ha`ena, Kauai, Hawaii) and to render the Shoreline Setback Determination (SSD-2010- D/Shoreline Setback Commission Report (SCR-20104) and design review approval as null and void nursuant .to the Hawaii Supreme Court's opinion filed on January 27 2014 in the consolidated cases SCWC-30573 and SCWC-1-1-0000345 = CraigDobin Harold Bronstein, representing Caren Diamond and Beau Blair, stated his letter relates to an SMA permit,back in 1983 , for this subdivision,. : Mr. .Bronstein stated .the last time he appeared before the Commission was in June of 2010 At which time the. Commission gave a conditional approval for setback based. upon a shoreline that was determined by BLNR. (Board of Land and Natural Resources). One of the conditions ofaliat approval reads:,; Construction-of the proposed residence shal[not commence until determination is made . by the Circuit Court.regarding the appeal for shoreline determination. . Mr.: Bronstein stated they have gone through ,that .whole process, noting the Hawai i Supreme Court ruled in favor. of IVIs. Diamond and Ms. Blair. He stated that.decision makes it clear that BLNR' s ;decision is.vacated; .it' s gone, they need to start over. again.. He commented .tbat everything is based on the shoreline, but there is; no certified shorelinc. without which a setback cannot be determined The Commission must acknowledge that what.the Commission did on June 10, 2010, is null and void, and they must inform.,the Building Division that they cannot issue a.building permit based on this. Walton Hong, .representing David Burris stated Mr. Dobin sold the property in February . of this year to Mr. Burris, which the Planning Department.was made:aware of. Mr. Hong read part of his response to. Mr. Bronstein .into the record as follows: : Mr. Robin obtained.approval for his single family residence .on Lot 12 based on the then certified shoreline. The original shoreline cert fication;was at the crest ofthe beach dune as established by the State surveyor, and this was appealed by Caren D. iamond and Beau Blair to the Board of Land and Natural Resources which upheld the State surveyor. They then appealed that decision by,the Board of Land and Natural Resources to the Fifth Circuit Court; .and the Fifth Circuit Court remanded the matter ,back to BLNR; saying look at this again. Upon.the remand, the Board of Land.and Natural.Resources again certified the shoreline at the same. place, at the crest of the beach, dune; which was again appealed to the Circuit Court. The . Circuit; Court reversed the Board. of Land and Natural Resources. . We took an appeal from those , two reversals,: the two appeals, were. consolidated to the Intermediate Court of Appeals: The Intermediate Court of Appeals reversed. the. Circuit Court, saying the Circuit Court,was wrong, and that the Board of Land andNatural,Resources shoreline should be correct. . Upon the granting of a writ of certiorari, the Hawai 'i Supreme Court took on the case and ultimately reversed the Intermediate Court ofAppeals;and remanded the matter back to the Circuit Court with instructions to remand.the matter back to the Board of Land and Natural Resources, Mr.. Hong: stated he has been in communication with Mr. Bronstein as well . as Deputy Attorney General Linda Chow who represents the Board .of Land and Natural .Resources in this . matter, to. determine whether. a stipulation could be reached as to where the shoreline, when remanded, could be. .. They offered to stipulate that the shoreline be where Caren Diamond and Beau Blair as well as the Circuit Court said it should have been, which is approximately 20 feet Page 29 of 34 inland of the crest of the beach dune._ However, Mr. Bronstein: wanted to wait until the Hawaii Supreme Court issued its judgment to remand the matter back to the Circuit Court, and then the Circuit Court remand the matter back to BLNR before discussing any stipulated shoreline.` He noted that there is precedent for the parties to enter into any kind of a stipulation as to where the certified shoreline should be so this is not something new; Mr. Hong believes there are two lots in this same subdivision that had'stipulated shorelines. He stated he has discussed this with Mr: Burris who has emphatically stressed thathe`is not seeking to maximize the size of the residence on Lot 12. Mr Hong explained he did a calculation based on the shoreline setback rules and found that if the certified shoreline were to be moved back approximately 20 feet where Caren; Beau, and the Circuit Court want it to be the way the formula works would result in the shoreline setback Tine being moved about three to four 'feet. Mr 'Burris' does not need or want to redesign the House plans; and if the setback is moved back he can inake the residence smaller or shallower, still keeping the same basic design and utilizing the same' buildizag materials and colors already clearly approved bythePlanning Commission. Mr. Hang stated he acquired a copy of those plans; which show a deck fronting the shoreline side of- the house and is of sufficient depth: that it can, be shortened or removed should the shorelmesetback be moved 20 feet from the dune crest. The rest of the house can-remain as is without violating any new shoreline'setbacks: rMr. Burris acknowledges that he cannot°begiri construction ontheresidence until a determination is made by the Circuit Court, -which will follow the direction' of the Hawaii Supreme Court, which will then go back to BLNR to certify a new shoreline. Since Mr. Burris does not wish to change the design' and location of the already approved' residence except to shrink it if necessary to comply with the new shoreline setback, Mr. I Hong is requesting that the permits or approvals not be revoked.` Tf for some unforeseen reason Mr. Burris plans to change the design, layout, building inaterial, or color in away significant enough to justify starting over, he will do so. To'revoke the permits and have Mr. Burris come eback before the Commission for approval of the same house desi gn would be a'waste of every time: Mr. Hong reminded the Commission that when the Dobinresidence' was approved; it was agreed dthat it was of sufficient distance from the shoreline, it met design concerns, and would incorporate building materials and colors .-acceptable and compatible with the surrounding area: He questioned what has changed from a design standpoint that would' make' it invalid today. The only issue would be the shoreline setback line for which the house could be simply modified without affecting the current design,' Mr: Hong feels the shoreline setback is not sufficient enough reason to revoke the permits. They ask that the permits not b e revoked; and for the Commission to stay the matter until the certified'shoreline 'setback Irene, can be determined: Ms. Anderson asked to clarify that Mr. Hong' s suggestion to stay the matter 'would mean the applicant would come back before the Commission with an amendment-to the original SMA design; how does he propose the stay would remedy the issue of the setback line. Mr, Hong explained the stay would prevent the revocation of any permits at present. : allow the applicant td. .come back for a modification, if necessary, rather than starting the process all over again. Mr. Horig distributed copies of the approved floor' -plan of the residence and explained how the current layout would likely not impact the shoreline setback; however, if it should it can easily be modified by. shrinking or removing the deck. Page 30 of 34 Mr. Isobe, asked for clarification that if the Commission does stay, the matter, if there is a need for an amendment, how will Cbe stay save time? What processes would not be required for . an amendment as opposed to a new application? Mr. Hong explained submitting a new application would require obtaining brand new plans, landscaping plans, site, plans, completing a new checklist of requirements which is voluminous and time:consuming. : Mr, Isobe questioned wouldn't the applicant submit the same plans with the exception of whatever changes needing to be made, and wouldn't the Commission still need o go, through the public hearing process similar to reviewing a new application?, Mr. Hong stated if the shoreline setback line. is determined to be moved back three feet, he would send a letter to the Commission requesting approval of the modifications to the plans already approved by removing the deck, At the request of Mr. Kimura, Mr, Jung further explained that normally if the.County Were to take away permits it would have..to go through the. Chapter 12 revoestion proceedings. However, since this..is a Hawaii Supreme Court. Order, due process has already been laid out and the issue already ,evaluated_ . He provided a brief explanation of the shoreline .setback : determination process In this case there were two approvals, one forth design review; which_ came through as a condition of the SMA for the subdivision, Concurrentlythere .was the shoreline setback determination, which is now considered null and void because of the:Hawai `i Supreme Court ruling. Even if the stay is granted, the applicant would still need to come before the Commission for review of the house design and location as well as where the shoreline setback determination will be drawn. It will essentially be the same process. Mr. Kimura asked .to clarify that the..applicant would need to .resubmit his: application toy,:, which Mr Jung replied t hat would-be.the best thing to do considering one permit piggybacks on the other. . The reason this matter is currently before the Commission: is because Mr. Bronstein requested the recognition of the court' s ruling. Mr. Dahilig further.explained,that the. Hawai`i .Supreme Court's ruling on the shoreline setback determines that the approval previously granted was not an appropriate, factual determination, therefore, it is null and void. Because of that determination, even if a stay were proposed, the Department:.would req uire. another analysis of the application to ensure: conformance:with the Supreme Court's directives. It-is the position of the Planning Department 1.that the approvals previously.granted are null and void. Mr. Bronstein agreed with Mr. Dahilig and read from Page 44 of the Hawaii Supreme: ., Court's decision which states that BLNR' s ultimate shoreline determination is invalid. He noted everything is predicated on shoreline, and until they know what the actual certified shoreline setback is, it's premature to stay anything; they would have to start the process al'1 over, again. He noted that the Commission did make the approvals conditional, recognizing that the appeals were going on, and the conditions state the applicant should come back and inform the Commission.along the way. Mr .Bronstein referenced a letter from .Mr. Hong from; 2011 which . . acknowledges that should the shoreline. move, they .will need to start over. IN Mr. Katayarna asked what the Commission is following at this point as far as the revocation to which Mr. Dahilig replied it is a judicial order. He provided a brief explanation of Page 31 of 34 how this differs from a Chapter 12 revocation proceeding. The appealed action by BLNR was deemed null and void, which in turn nullifies any Commission actions reliant upon it. Mr. Katayama asked hove far back does this decision go to which Mr. Dahilig "replied it starts where the line is drawn, explaining that the SMA permits are still available for implementation and do not need to be rehashed. However,' any proposal related to design:elements,-etc. must be re- reviewed from the context of anew BLNR'decision.' ' Mr: Isobe stated far clarification that the recommended motion is to revoke the "use permit to which Mr. Dahilig replied no;`it's to revoke the design review approval pursuant to the Hawaii Supreme Court' s ruling. Mr. Jung reminded the Commission that there are two issues, both of which did not require any type of agency hearing. One was simply a shoreline setback determination which was premised on BLNR's certification; it was the first decision made by the Commission in ' which they just accept the .decision of the Planning Director with no formal hearing. The other was the design review that was a condition of the SMA Master permit for the subdivision. Both of those are Conting, ent -upon where the certified shoreline is and both approvals have been consideredonuh and void by the Hawaii Su- upreme Court because of the invalidation of the certified shoreline: Mr. Isobe asked what permit or document would the Commission be modifying to which Mr. Dahilig replied it is the SMA permit. However they are not modifying or revoking that particular permit in and of itself, but rather one of the conditions of that permit which was for approval 'of the design plan. Mr. Isobe stated for clarification that at some pointm time the shoreline will be certified at which`point the applicant would resubmit a new or modified design and related-elements: Mr. Dahilig added in between that there would be a shoreline setback determination that would come to the Commission for consent. Mr: Isobe stated when the revised design comes before the Commission, the only thing they would be reviewing is whether or not the design elements conform to .the.new certified` shoreline setback; they are not saying the building cannot be constructed. Mr. Dahilig replied affirmatively: On the emotion by Angela Anderson and seconded by John' Isobe to 'render the: Shoreline' Setback Determination: SSD-2010-1 1Shoreline Setback'Com mission Report SSCR-2010-1 and design review approval as' null and void pursuant to the Hawaii Supreme Court's opinion filed. January 27, 2014, the motion carried by unanimous voice vote. NEW BUSINESS 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 as Tax Map Key 4-6=014:' 0031 on a onion of a total ro ert area of approx. 52. 166 acres = State oLHawai`i. Department ofEduration. (Director's Report received 4/22/14 Page 32 of 34 Mr. Kimura asked if all the Commissioners have read and understand the Director' s report, and if so, he would like to move on to the applicant' s presentation. Architect and Prime Consultant for the project Glenn Yokotake of KYA Design Group was present along with Tammy Kelii Kapali — Planner at PBR Hawaii, and Kimi Yuen — Senior Associate at PBR Hawaii. Ms. Kapali provided an overview of the site plan and floor plan with Mr. Yokotake providing visual indications on the exhibits displayed. (Power point presentation and full proposal on file) Ms. Kapali noted this project is not proposing any increase in student population, and there will be no-significant anticipated increase in water demand, wastewater generation, or electrical loads. Additionally, no improvements to Kawaihau Road or Nonou Road are warranted. The library will connect to. existing County infrastructure which is already available to the Elementary School. W. Katayama stated the existing cafeteria is a Civil Defense shelter, and at one of the community meetings the public asked if the new library will be designated as such as well. Ms. Kapali stated the library is currently not a designated shelter for the school or community; however, it will be built to withstand hurricane force winds. Mr. Katayam.a asked whether. the . building specifications will meet the Civil Defense criteria to which Mr. Yokotake replied yes, they are meeting the ASTM E1996 Large Missile Impact requirements, which is stipulated by the IBC 2006 codes and will resist 88 mph flying debris. He reiterated that it is currently not a designated shelter; however it is designed to be. Mr. Kimura asked if the five foot overhang would affect the building should they want to designate it as a shelter to which Mr. Yokotake replied no, it would not affect it. On the motion by Sean Mahoney and seconded by John Isobe to approve the CIass IV Zoning Permit and Use Permit, the motion carried by unanimous voice vote. COMMITTEE REPORTS Subdivision No subdivision meeting was held. ANNOUNCEMENTS Mr. Dahilig distributed copies of the Department' s intake ledger as requested at the previous Planning Commission meeting. The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the LThu`e Civic Center, Mo `ikeha Building, Meeting Room 2A-213, 4444 Rice Street, Lihu`e, Kauai, Hawaii 96766 on Tuesday, May 271t 2014. Page 33 of 34 ADJOURNMENT Chair Kimura adjourned the meeting at 12:16 p.m. Respectfully submitted by: :Cherisse Zaim - Commission Support Clerk { ) Approved as .circulated (add date of mraeeting approval). A ro ( ) pp, ved as am' ended.. Sce minutes of meeting, Page 34 of 34