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HomeMy WebLinkAboutpc 2-11-14 minutes [3-11-14] KAUAI PLANNING COMMISSION REGULAR MEETING February 11, 2014 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Kimura at 9 :23 a.m., at the Lihue Civic Center, Moikeha Building, in meeting room 2A- 2B; The following Commissioners were present: Mr. Jan Kimura Mr. John Isobe Ms. Amy Mendonca Mr. Herman Texeira Mr. Hartwell Blake Ms. Angela Anderson Absent and excused: Mr. Wayne Katayama The following staff members were present: Planning Department — Dee Crowell, 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 9 :23 a.m. ROLL CALL Deputy Planning Director Dee Crowell noted that there were six Commissioners present. APPROVAL OF THE AGENDA On the motion by Herman Texeira and seconded by Hartwell Blake to approve the agenda, the motion carried by unanimous voice vote. MINUTES of the meeting of the Planning Commission Reg�xlar meeting of January 14, 2014 AR , 1 2014 On the motion by Herman Texeira and seconded by Amy Mendonca to approve the minutes of the January 14, 2014 meeting, the motion carried by unanimous voice vote. RECEIPT OF ITEMS FOR THE RECORD There were no items received for the record. HEARINGS AND PUBLIC COMMENT Continue Agent Hearing (NONE) New Agency Hearing Class IV Zoning Permit Z-IV-2014-8 and Use Permit U"2014-8 to permit an existin 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 Hiahway intersection, further identified as Tax map Key 1 -6-06 ; 028, and containing a total area of 3 .314 sq . ft. = Susan L. Straizht Trust. lDirector's Report received 1/28/14 .1 On the motion by Herman Texeira and seconded by Angela Anderson to close agency hearing, the motion carried by unanimous voice vote. Special Management Area Use Permit SMA (U)-2014-4 to construct a single-family residence on a parcel located along the western side of Kuai Road in Po ` i u situated a rox. 350 ft. mauka of its intersection with Hoone Road; further identified as Tax Man Key 2-8-018 : 033 and containing a total land area of 14. 123 sq, ft. = Nadine M. Rosenberger Trust. On the motion by Herman Texeira and seconded by Amy Mendonca to close agency hearing, the motion carried by unanimous voice vote. 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 2/25/ 14 (NONE) Shoreline Setback Activity Determination (NONE) i EXECUTIVE SESSION At the suggestion of Deputy County Attorney Jung, Chair Kimura moved the executive session to the end of the meeting. GENERAL BUSINESS MATTERS There were no general business matters. COMMUNICATION (For Action) There were no communications for action. COMMITTEE REPORTS Subdivision Subdivision Committee Chair Hartwell Blake read the Subdivision report into the record. The following tentative subdivision actions were approved 3-0: S-2014-10=Charles G. King Trust, Mary Bea R King Trust, Proposed 2-lot consolidation S-20144 1 =Steel Bridge Estates Condo, Clayton G.K. Oshita, Proposed 2-lot boundary adjustment The following final subdivision actions were approved 3 -0: S-2013-07=Kukui 'ula Development Co. (Hawai `i), LLC, Proposed 16-lot subdivision S-013- 15=County ofKaua `i, Department of Water, Proposed 5-lot subdivision On the motion by Herman Texeira and seconded by Amy Mendonca to accept the Subdivision Committee report as read, the motion carried by unanimous voice vote. UNFINISHED BUSINESS (For Action) There was no unfinished business for action. NEW BUSINESS Class IV Zoning Permit Z-TV-2014-8 and Use Permit U-2014-8 to permit an existing non-conformine 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, further identified as Tax map Key 1 -6-06: 028 , and containing a total area of 3,314 sq . ft. = Susan L. Straight Trust. [Director' s Report received I/28/14.1 Staff Planner Dale Cua read the Director' s report into the record. (On file) Jonathan Chun, representing the applicant was present with applicant Susan Straight, Mr. Chun made two points of clarification: 1 , The existing use is for a single-family residence, and not a preschool or church as the Director' s Report currently shows. 2. The flood-zone as shown on the flood map in the application submitted is zoned "X", as opposed to "AE" as is listed in the Director' s report. He asked that the Commission take a look at the zoning map included in their application. Mr. Chun stated there are likely questions as to why the applicant is requesting a use permit as opposed to just continuing to operate under the existing non-conforming use; the property is a recognized grandfathered use. Ms. Straight is seeking to acquire a loan, and the lender will not lend money toward a non-conforming use, insisting that a condition of the loan be that it is a conforming structure. Mr. Texeira asked to clarify whether the structure is a church facility or preschool, to which Mr. Chun stated, no, it is not. Ms. Straight added it has been a residence ever since its construction, and to her knowledge has never been used for anything commercial. Mr. Texeira asked if there were any plans to change its existing use to which Ms. Straight replied absolutely not. Mr. Texeira stated that the property is only 3, 314 square feet, therefore, the home takes up quite a bit of the property. Ms. Straight stated yes, but it still leaves a reasonable front and back yard area. On the motion by Herman Texeira and seconded. by Hartwell Blake to approve the class IV zoning permit and use permit, the motion and its second were withdrawn to allow the planner to read the Department's recommendations into the record. Mr. Cua read the Department's recommendations into the record. (On file) Mr. Texeira asked whether the required setbacks for the State and County roadways are all in place, and the building itself does not impinge on that. Mr. Cua replied the current setback requirements will be applicable to any new development. He further explained at the time the house was built, it was in compliance with the standards imposed at that time, and is grandfathered in to the current requirements. Ms. Anderson asked to clarify whether the motion includes the slight amendments to the Director' s report as noted by the applicant. Mr. lung stated the record would be reflected to correct the typographical errors in the Director' s report relating to the existing use_ and flood zone designation. On the motion by Herman Texeira and seconded by Hartwell Blake to approve the class IV zoning permit and use permit, the motion carried by unanimous voice vote. Special Management Area Use Permit SMA (0 20144 to construct a single-family residence on a parcel located along the western side of Kuai Road in Po ` ipu, situated approx. 350 ft. mauka of its intersection with Hoone Road, further identified as Tax Map Key 2-8-018: 033 and containiniz a total land area of 14, 123 sq. ft. = Nadine M. Rosenberger Trust. Mr. Cua read the Director' s report into the record. (On file) Mr. Texeira noted there are several other residences in the area that have an ADU (Additional Dwelling Unit) on their property, and approving more will begin to change the neighborhood. He acknowledged that this is allowable, but wondered how this will impact other residences in the neighborhood. Mr. Cua explained there are three parcels within the neighborhood that have ADUs, and for the properties that do not have ADUs, he believes there are restrictions due to the lack of space on the parcel. . Ms. Anderson asked for clarification on the use of septic, noting the representation on the application is that there will be two single family residences — one of which will be an ADU, and the other the main residence — that will share the septic tank. She is of the understanding that if this is a three bedroom unit, that would restrict the next development to two bedrooms. Mr. Cua stated yes, his understanding is that each individual wastewater system is allowed to serve up to five bedroom units. Ms. Anderson stated her assumption that the five bedrooms equals a certain capacity of people, and expressed her concern that if this development is used as a vacation rental, there may be an increase in that capacity. Aside from the amount of bedrooms, is there a limitation on the number of occupants to use the septic system? Mr. Cua explained the Planning Department regulates land use, pointing out that certain regulations such as the design of a septic system falls under the State Department of Health. Building occupancy regulations fail under the County of Kaua` i Building Division to conform to building codes. . His understanding of the building code is that each person requires a certain amount of square footage, and if a building does not meet occupancy requirements, it would be addressed during the building permit phase. Ms. Anderson stated her reason for bringing it up is because it is located in a SMA area near the beach, and if there will be substantially more occupancy than what is assumed in five bedrooms, that should be anticipated. Mr. Texeira stated the proposed ADU is 2, 120 square feet which is a single, two-story unit, and stated that it should be rented as a single ADU unit. However, he asked what prevents the applicant from converting it to an additional ADU unit? He asked if the Department would consider whether the size of the unit is too much, or do they simply allow what conforms to the lot size and setback requirements. Mr. Cua replied if the ADU conforms to the development standards in that zoning district, that is what they look at. Mr. Texeira asked whether the Planning Commission can make a determination on whether an ADU is appropriate. Mr. Jung stated from an SMA standpoint, scenic value can be considered by the Commission as to whether a structure obstructs view plains; however, size of structures are set by the zoning district. Mr. Texeira expressed his concern with other applications he has viewed with large building footprints, and commented that he hopes the applicant will be tasteful in consideration of the area. Mr. Blake offered some personal history on George Rosenberger. Mr. Kimura asked if the applicant intends to use one of the homes as a TVR, which seems to be the case based on information included in the Director' s report, or will the applicant reside in the home. He commented that he would like to be prepared for that to ensure the TVR aspects are taken care o£ Mr. Chun replied that the applicant will not reside in the home. The property is CPR approved, the back unit has been approved as allowed in the SMA, and is currently under construction; that unit has been sold and is no longer owned by this applicant. This front unit is the second unit of the CPR project, and is still owned by the applicant, though he will not be living in the unit and is offering it up for sale. Mr. Chun stated there is no way to determine how the person who ultimately owns it will use it, but noted the unit is located in the VDA (Visitor Destination Area) where TVR use is allowed. He also pointed out there are numerous units in the neighborhood that are currently being rented out as TVRs; this will not be the only one. Mr. Kimura referenced a past TVR approval, and asked to clarify that the Commission allowed only one TVR on one lot regardless of the CPR: Mr. Jung replied no, and explained for projects within the VDA, the R-4 designation allows for four units per acre; there is a different standard for agricultural TVRs. Mr. Chun stated the applicant is in general agreement with the Director' s report; however, there are two requests he would like the Commission to consider. One is related to comments by SHPD (State Historic Preservation Division) indicating their requirement for an archaeological inventory survey on the parcel. Because the applicant does not own the back unit, it seems a bit excessive to have to do a full archaeological survey for a single-family unit on a front parcel of a residential property that is ready to build, and should not be required considering there is no indication or evidence of burial or archaeological sites on the property. However, the applicant would like the Commission to allow him to resolve that condition directly with SHPD, noting the condition as it currently stands would require the applicant to do the survey no matter what SHPD determines . Mr. Chun requested the condition be reworded to state they will resolve all requirements, or comments from SHPD, which will allow them to work directly with that agency. Should SHPD still require the archaeological survey, the applicant will fulfill that. Mr. Chun also referenced the condition requiring the applicant to apply for a building permit within one year, stating knowing there may be an issue to resolve with SHPD, the applicant would like to request the one year timeframe be bumped up another year, or be left blank. Mr. Kimura noted SHPDs comments are there for a reason, and is unsure if that can be changed. Mr. Jung explained that he thinks SHPD ' s recent transition period has resulted in them being more conservative in their reviews and attaching conditions to certain projects. Under the law, archaeological .surveys are only required when there are known burial or historic sites. The applicant will still need to resolve issues with SHPD, and whether or not an archaeological survey is required is something that can be worked out directly with them. Mr. Kimura commented Po ` ipu has a historical background including burial sites and villages. Mr. Chun explained the particular area is very rocky, and generally not an area the ancient Hawaiians would use for burials; however, these are issues the applicant would discuss with SHPD . Mr. Kimura referenced a property in Hd'ena that wasn't a burial site, but where numerous bones were found as it had been a place of war; he surmised they may find the same at this property. Mr. Cua read Condition 7 as it currently reads: As required by SHPD, the applicant shall prepare an archaeological inventory survey involving subsurface testing. The AIS shall be conducted by a qualified archaeologist in order to adequately identify historic properties in the project area, and to determine the appropriate course of mitigation. Mr. Cua stated his interpretation of what the applicant is asking is to amend Condition 7 to read: The applicant shall resolve and comply with the applicable requirements as recommended by the State Historic Preservation Division. At the request of Mr. Kimura, Mr. Cua read from Page 4 of the Director's report under the section entitled Cultural Historic Resources : The subject property has been disturbed by previous activities; however, the State Department of Land and Natural Resources Historic Preservation Division indicated that no archaeological inventory survey has been conducted on this lot. SHPD is apprehensive since prior archaeological studies have identified historic properties in proximity to the project area and since it is immediately abutting the parcel containing the Kaneiolouma Heiau complex. Asa result, SHPD recommends that an AIS with subsurface testing be conducted. Mr. Kimura reiterated there is a reason that SHPD is asking for the AIS . Mr. Jung stated if they amend the condition to require compliance with SHPD, the applicant can work with SHPD to determine if an AIS is really required; small testing can be done without a full blown AIS which is very extensive. Mr. Isobe stated he has no objections to the amendment proposed by the planner, stating he is confident the applicant can work with SHPD to fulfill the requirements of the agency, He acknowledged that government can be difficult to work with especially when taking very conservative positions. He feels the applicant should be given the opportunity to work with SHPD, and should they insist on requiring an AIS, then so be it. Mr. Isobe expressed his concern with the building permit condition as well, and asked why that requirement was included, and why it is necessary to require anyone to build within a specific period of time. Mr. Cua stated that requirement had been imposed on similar projects in the area by previous Planning Commissions, and the requirement was an effort to be consistent with SMA rules. Mr. Isobe asked to clarify that if the building permit is good for two years, but construction does not take place in two years, the lapse of the building permit would deem it invalid to which Mr. Cua stated yes. Mr. Isobe . added there is also a proposed condition requiring the applicant to resolve issues with other agencies, and noted the timeliness of that is out of the applicant' s control, therefore, the building permit may expire before the other conditions are met. Mr. Kimura surmised the reason that condition was put in has to do with the Coco Palms issue in which they had a time limit they did not fulfill. Mr. Crowell further explained that in the 1990' s SMA permits were valid within two years, and had a usual condition that stated substantial construction would take place within those two years. It has morphed into the current condition; however, given that the AIS is now coming in to play, the Commission can choose to approve a different timeline, or the applicant will need to come back before the Commission to request an extension. If the permit lapses, the Commission will need to go through the formal revocation process. Mr. Isobe asked to clarify that the SMA permit is good for two years, and if the applicant does not comply with all of the conditions of the SMA permit, the applicant would not be able to continue constructing the building to which Mr. Cua stated unless he comes back for an extension. Mr. Isobe stated if that is the case, why would a condition be included to require them to build within two years? Mr. Jung explained the vagueness of past language on what substantial construction, or final approval was that prompted this language in an attempt to narrow it down. Because this is a small project, the two year time limit seemed adequate. Mr, Isobe asked how the time limit works if the applicant still needs to resolve the applicable requirements. There is no timeline for the other departments and agencies to resolve the conditions with the applicant, which essentially forces the applicant to return to the Commission for an extension, Mr. Jung replied each code section requires a Department to take action within a certain time unless the applicant needs to provide more information. There was further discussion on time line requirements, the process by which an applicant would resolve issues with other departments/agencies, and how to determine whether an extension is justified. Mr. Isobe asked if the applicant' s construction drawings were ready to be submitted to the Building Division to which Mr. Chun stated preliminary construction drawings are done, part of which are attached to the application. Mr. Chun has been in contact with the contractor, but there is concern that if the AIS has to be done it will take more time; should something be found, redesign would be required. Having those two conditions together makes it difficult to be able to say they will be able to comply with the time frame, and Mr. Chun just wants to make that clear to ensure the Commission is not surprised should the applicant need to come back for an extension. Mr. Kimura reiterated that conditions are included for a reason, and the applicant could always come back for an extension; that has occurred in the past. The Commission's expectation is that the application fulfill the obligation on time; however, it is understandable if they are unable to do so due to unexpected circumstances. Ms. Mendonca stated Koloa is a very sensitive area which is known for findings and artifacts. She questioned if the applicant has no problem with working with SHPD, are they not prepared to come back for an extension in the event something is found on the property? The Commission is not trying to stop the development, they are just saying that if the applicant goes through the systematic procedure, and something comes up during the AIS, the Commission would take that into consideration to allow for extended time. Mr. Chun reiterated the applicant has no problem working with SHPD, and has done so on other projects. However, his request is to reword Condition 7 to give the applicant the flexibility to work directly with SHPD. He: also requested Condition 9 relating to the one year time frame be looked at, but feels amending Condition 7 is most important considering they are unsure of how soon they can get things resolved. He reminded the Commission that Condition 7 does impact Condition 9, Ms. Mendonca expressed her confusion with what the applicant is trying to accomplish by amending Condition 7. Mr. Chun explained the applicant would like the opportunity to work directly with SHPD on whether there are other alternative methods of determining the existence of historical artifacts or burials on the property. Ms. Mendonca asked that if the applicant were to be allowed to work with SHPD directly, would they be willing to present a report to the Commission for review to which Mr. Chun replied yes, and suggested language similar to the last sentence in Condition 8 be added to reflect that. Mr. Blake asked to clarify that if the Commission is dissatisfied with the report, they could refuse it and require the applicant to try again. Mr. Kimura stated it would not come back before them, it would be addressed by the Department. Mr. Blake stated the Department is aware of what is required, and have the ability to determine whether it is satisfactory; if it is not, the burden shifts back to the applicant to address any concerns raised by the Department. Mr. Cua read the Department's recommendations into the record. (On file) Ms. Anderson asked because of the property being a potential archaeological site, is it allowable under the rules to extend the SMA permit timeline from two years to three years to which Mr. Jung replied yes. Ms. Anderson recommended an extension of the SMA permit timeline to allow three years to complete construction, a push-back of the construction start date to two years, and to have a status report within one year on the progress of working with SHPD. Mr. Kimura asked to clarify whether that extension be granted only IF something is found on the property, or whether it should be from the get-go. Ms. Anderson stated her recommendation would be to provide extra time from the get-go, and not conditional on any archaeological findings. Mr. Blake asked what the applicant' s understanding of subsurface testing was to which Mr. Chun replied it would generally require them to dig test trenches of a certain depth and length throughout the property, and to inventory anything that might be found. Prior to that, the archaeologist who would be supervising that needs to work out the details of that. Documentation of the findings are then sent to SHPD. Mr. Blake stated if that is the requirement pursuant to the current Condition 7, and the applicant would like to enter into some other type of negotiation with SHPD, what does the applicant foresee doing other than trenching? Mr. Chun replied he is not an archaeologist, but upon speaking with archaeologists on other projects, it was noted that there is a recognized heiau adjacent to the property, and they would want to determine whether or not any of its walls extend onto the applicant's property. There are ways to do that without digging, noting that digging could potentially damage things wanting to be preserved. Ms. Mendonca referenced the last sentence under Cultural Historic Resources on Page 4 that states SHPD recommends an AIS with subsurface testing be conducted which, in her opinion, is part of their requirement. Mr. Cua stated there are two ways to address those types of comments, one of which is to condition it to state the applicant shall resolve and comply with the specific requirements of those reviewing agencies. Another approach is to include verbatim comments as stated by the agencies; this case was a combination of both. Ms. Mendonca asked because it is in a highly sensitive area that is known for many archaeological findings, will making any changes to the planner' s recommendations set a precedence for other applications considering this seems pretty standard in all recommendations relating to archaeology studies. She noted that the applicant has to talk to SHPD anyway, and doesn't see why they should change the condition in that case. Mr. Kimura clarified that if the condition remains the way it is, the applicant will be required to do the AIS, which is why they are asking to amend the condition to allow them to work with SHPD to determine if there are alternative methods to addressing their concerns. If SHPD still requires an AIS, the applicant will have to ,comply. Mr. Blake noted that in the past SHPD has taken a long time to make a decision on anything, and asked if that has changed. He feels that if someone can communicate one on one with the person at SHPD responsible for making these decisions, there would be a quicker resolution. Mr. Jung explained the SHPD review process, and stated he feels that SHPD may be taking a conservative route in this particular application because of the recognized heiau in close proximity to the proposed development. Should the applicant be required to do a full AIS, he would have to hire a qualified archaeologist, and prepare a full report, which could be very time consuming and expensive, for SHPD to review and determine whether there are no historic sites there, or whether further documentation is required. However, even if an AIS is not done at the outset of construction, should anything inadvertently be found during any phase of construction, all work will need to cease and the applicant would need to go through a separate process of mitigation and requirements through SHPD; either way, the historic property will be addressed. Mr. Blake stated he understands that; however, he expressed concern with government-induced delays due to government requirements at both the State and County level, Mr. Jung noted SHPD has required timeframes, and an applicant could legally challenge any delays pursuant to HRS Ch, 91 , Mr. Kimura stated that most people, himself included, could probably not afford to fund an AIS and feels the demand to require the applicant to do so is a bit harsh. In response to Mr. Kimura's question on whether that requirement is a standard, Mr. Jung explained he doesn't think so, but stated the requirement was likely included because of the property's close proximity to a heiau. Mr. Kimura does not see a problem with allowing the applicant to work directly with SHPD on how to determine the historic aspect of the property; however, he does not feel the . timeline for construction should be changed. He noted should the applicant be held up due to working with SHPD, they can come back for an extension. Ms. Mendonca stated Condition 7 starts with the words As required by SHPD, and assumes this recommendation was made by SHPD. . Considering the cost of an AIS, is it possible to say that though it is required by SHPD, the Commission will allow the applicant to directly negotiate with SHPD on the type of testing that may be required. That way the Commission acknowledges what SHPD requires, but also includes an additional condition that though it is required, the Commission will allow the applicant to work directly with SHPD on alternative methods. Mr. Isobe proposed an amendment to Condition 7 to read: The applicant shall resolve and comply with the applicable requirements as recommended by SHPD. Evidence shall be provided to the Planning Department that reflects resolution or compliance to the requirements of the foregoing agency prior to building permit approval. In response to Ms. Mendonca, Mr. Kimura clarified that condition means whatever SHPD recommends is what the applicant must do . Mr. Isobe added that the applicant must bring that information back to the Planning Department prior to building permit approval. Mr. Texeira stated SHPD made a recommendation to the Department that the applicant prepare an AIS, and considering SHPD has already reviewed this application, what would change should the applicant go .back to SHPD? Why would SHPD change their position? Mr. Cua stated it was previously mentioned that they are taking a very conservative approach due to the project's proximity to a heiau site. As a result of such a conservative approach, SHPD has made this requirement. Nothing has changed with the application; however, the applicant is requesting to state their case to SHPD .to reevaluate their recommendation. If SHPD still recommends the AIS, the applicant must still fulfill that, but the way the condition currently reads, the applicant would have to fulfill the AIS no matter what; modifying the condition gives the applicant the opportunity to work with SHPD to determine what is actually required. Mr. Jung added the applicant may feel that because there are no known historical sites in the area, the AIS is not appropriate. Mr. Texeira questioned why the Department would make that recommendation knowing all those factors to which Mr. Cua stated it was the planner' s preference to word the condition that way. Mr. Texeira asked if the applicant has been in touch with SHPD at all to which Mr. Cua replied the application did not indicate that. Mr. Chun stated the applicant has not been in touch with SHPD as they only found out about the condition upon receiving the Director' s report on February 10, 2014. He noted SHPD will be invited on site, or other arrangements be made. Mr. Chun reiterated he is not disagreeing with SHPD's concerns, but he feels there is not enough information to warrant a full AIS , which is what they would like to discuss with SHPD. Mr. Texcira asked Mr. Chun that as an attorney did he not anticipate there would be a problem to which Mr. Chun replied he did not anticipate a full AIS; he expected a comment to recommend a report which has different criteria than a survey. He commented that SHPD ' s recent reorganization seems to have resulted in a more conservative requirements. Ms. Anderson commented about the assumption on conservative recommendations, and pointed out the other side can be taken as well in looking at the history of the destruction of historical and cultural sites, which is the reason AISs must be done in areas in close proximity to known areas. She is not familiar with SHPD, but she does know the history of land use in Hawaii, and the areas that have been destroyed due to lack of knowledge of what is on the land. If below the surface testing is not done, they will never know, and the people digging for the cesspool or septic are not archaeologists nor will there be an archaeologist on site. Therefore, there may be things that are destroyed, and there will be no record of it. She cautioned the assumption that there is a conservative stance, noting that there is background behind that to preserve what may be left of archaeological sites remaining in Hawaii. Mr. Kimura commented Mr. Isobe' s recommendation is basically the same, but allows the applicant to work with SHPD directly. The applicant must comply with whatever SHPD then requires; there is no way for the applicant to get out of that. The applicant' s concern is that SHPD may not have enough information on the property, and asking for an AIS may be a bit much. Mr. Kimura strongly feels SHPD will not change its mind, but would like to be fair to the applicant in allowing them the opportunity to work with SHPD directly. Mr. Isobe stated there is much speculation on what SHPD is thinking, and he feels it would be appropriate for the applicant to go back and ask; if remains are found, there are other provisions that would automatically kick in that would force a cease and desist to resolve the issues. Mr. Isobe agrees with the applicant that requiring a full blown AIS for a single family dwelling is a bit excessive. (The meeting recessed for a caption break at 11 : 18 a.m.) (The meeting resumed at 11 :35 a.m.) At the request of Ms. Mendonca, the condition as amended was read: The applicant shall resolve and comply with the applicable requirements as recommended by the State Historic Preservation Division. Evidence shall be provided to the Planning Department that reflects resolution or compliance with the requirements of the foregoing agency prior to building permit approval. Ms. Mendonca asked if this amended condition will combine Condition 7 and 8 to which Mr. Kimura replied no, Condition 7 is separate, and deals specifically with SIIPD. On the motion by John Isobe and seconded by Hartwell Blake to amend Condition 7 as read, the motion carried by unanimous roll call vote. Referencing the main motion currently on the floor, Ms. Anderson recommended a change to the time frame to allow for an extension of the SMA permit for three years, and for construction to begin within two years. Mr. Jung clarified that Condition 9 be amended to replace one year for commencement of construction with two years, and to replace two years for completion of construction with three years, Mr. Kimura stated that time frame was included for a reason, and it has been abused in the past. Ms. Mendonca asked to clarify that the time frames currently stated in the condition are standard to these types of permits, noting the Commission has seen that often in past applications. Mr, Crowell clarified that the time frame of one year applied to this condition is shorter than normal; historically it has been two years for substantial construction. Ms. Mendonca replied that she has seen this time frame often in past applications, and stated it. is pretty standard. Mr. Crowell stated that he feels the concern is that should the applicant be required to do a full AIS, one year will not be sufficient. Ms. Mendonca replied that the applicant would be able to come back for extension should they get hung up on that requirement, Mr. Blake stated he understands Ms . Anderson's concern as that is likely to happen, and adjusting the time frame will save the trouble of having to come back for an extension; however, he also agrees that because this is a visitor destination area where things change quickly, he would prefer the applicant come in for an extension so new conditions can be imposed if warranted. Ms. Mendoca commented that because this is in a high historical area, she would think the applicant had prepared for this kind of rcquirement, and should have anticipated SHPD' s potential conservative requirements considering they were aware of a 'heiau nearby. Mr. Blake stated historically, everyone knew there was something back there; however, no one knew how significant those grounds were until very recently. He surmised the people living in Po` ipu were not aware of the significance of the grounds. Mr. Isobe asked if and when the applicant comes back before the Commission, are they able to add additional conditions to the application beyond what is presently there. Mr. Jung stated it depends, but noted that the applicant would be coming back for a modification to the time frame, and generally the Commission would not be able to amend any conditions other than the one being requested by the applicant. If the Commission finds there is additional impact that was not realized at the time of the original approval, the potential to amend other conditions is there if it is justified; it' s difficult to give a yes or no answer as it needs to be evaluated on a case by case basis. In response to Mr. Isobe, Mr. Jung explained the permit does not automatically expire in one year, and to get rid of the permit, the formal revocation process would need to be invoked. Mr. Blake asked if the applicant comes in to request an extension, the Commission does not necessarily need to grant it, so what prevents them from adding or amending conditions. Mr. Jung stated that they have looked at the context of how to evaluate additional impacts based on the delay of the project; however he will need to research the legality of whether or not additional conditions can be added to the applicant' s request of a narrow modification of a specific condition. Revocation can only occur due to non-compliance to which Mr. Blake stated they are in non-compliance if they are not done, therefore, the Commission could vote no on the request to modify the time frame; otherwise it becomes an automatic thing. Mr. Kimura stated it would depend on the reason they are requesting the extension. Mr. Blake stated that when the application is approved, it is done so with a specific condition on the time frame; he does not see why they could not deny the extension request and have the applicant start over. Mr. Jung stated there are numerous hypotheticals that would need to be researched, Mr. Kimura reminded the Commission of the current motion on the floor. There was further discussion on time frames, extension. requests, and whether or not the Commission can add or amend conditions at the time of the extension request. Mr. Kimura asked if the planner, the Director; and the Attorney can come up with an amendment to the time frame based on the delay of SHPD' s decision. Mr. Jung stated there are numerous what-ifs, and it is very difficult to speak in specifics as they have to evaluate the request for modification in the context of what currently exists on the property. It is unlikely that new conditions can be imposed when an applicant comes back for an extension request, but other issues can be Iooked at depending on what is happening on the property. The simple issue they are trying to determine with the current application before them is whether or not one year is sufficient; if it does come back, it will be evaluated by the planners as to what is happening on the property at that time. Mr. Kimura noted in the past the Commission has made these types of decisions that have come bade to haunt them, and he feels if they do something for one, they should do it for all. He noted the County has been threatened in the past by applicants who have wanted the same conditions as others have had. His concern is if the Commission allows this for this applicant, others will demand the same. Mr. Blake replied applicants can threaten all they want, noting these decisions are fact- driven, and just because something is granted for one, does not mean they must do the same for the next person. As long as the Commission can explain why they are saying no, it should not be a problem if the issue is taken to court. On the motion by Angela Anderson and seconded by John Isobe to amend Condition 9 to reflect the change in time frame, the motion failed by roll call vote: 2 Ayes (Anderson, Isobe) ; 4 Noes (Mendonca, Texeira, Blake, Kimura) Mr. Texeira stated they received a letter of testimony to which Mr. Kimura asked whether it was allowable for the Commission to receive testimony during a Commission meeting. Mr. lung clarified that email testimony is allowed to be received up to seven days after the agenda has been posted. It would be essentially the same as accepting testimony from someone present at the meeting. The Commission received testimony via email from Billy Kaohelaulii (On file) Mr. Texeira asked if a copy of the testimony could be forwarded to SHPD. On the motion by John Isobe and seconded by Hartwell Blake to approve the class IV zoning permit and use permit with the amendment to Condition 7 as read, the motion carried by unanimous roll call vote. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 924 and 92-5 (a)(4), and Kaua'i County Charter Section 3 .07(E), the, Office of the County Attorney requests an executive session with the Planning Commission to provide a briefing and discuss legal issues concerning the implication, enforcement, and contested case hearing process regarding Kaua'i County Code Chapter 8, Article 17, specifically the sections enacted under Ordinance Nos. 864, 876 and 904. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or Iiabilities of the Planning Commission and the County as they relate to this agenda item. . On the motion by Herman Texeira and seconded by Angela Anderson to defer executive session to the February 25, 2014 meeting, the motion carried by unanimous voice vote. ANNOUNCEMENTS Topics for Future Meetings Select Committee Reort 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 . This item will be placed on the February 24, 2014 Mr. Isobe requested an executive session item on the goals and objectives of the Planning Director be placed on a future agenda. 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 2A213, 4444 Rice Street, Lihu'e, Kauai, Hawaii 96766 on Tuesday February 25, 2014. ADJOURNMENT Chair Kimura adjourned the meeting at 12: 15 p.m. Respectfully submitted by: Cherisse Zaima Commission Support Clerk ( ) Approved as circulated (add date of meeting approval). ( ) Approved as amended. See minutes of meeting.