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HomeMy WebLinkAboutpc 2-25-14 minutes [3-11-14] KAUAI PLANNING COMMISSION REGULAR MEETING February 25, 2014 The regular meeting of the Planning Commission of the County of Kaua' i was called to order by Chair Kimura at 9 : 18 a.m. , at the L1hu` e 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 W. Hartwell Blake Ms. Angela Anderson Mr. Wayne Katayama The following staff members were present: Planning Department — Michael Dahilig, Leslie Takasaki, Jody Galinato; Office of Boards and Commissions — Cherisse Zaima; Deputy County Attorney Ian Jung; Deputy County Attorney Stephen Hall Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Kimura called the meeting to order at 9 : 18 a.m. ROLL CALL Planning Director Michael Dahilig noted that there were seven Commissioners present. APPROVAL OF THE AGENDA Mr. Dahilig requested that .Item 1. 1 . be moved after Item E. On the motion by Herman Texeira and seconded by Wayne Katayama to approve the agenda as amended, the motion carried by unanimous voice vote. MINUTES of the meeting of the Planning Commission Workshop of January 28, 2014 Regular Meeting of January 28, 2014 MAR t 1 2014 . On the motion by Herman Texeira and seconded by Amy Mendonca to approve the minutes of the Workshop and Regular meeting of January 28, 2014, the motion carried by unanimous voice vote. RECEIPT OF ITEMS FOR THE RECORD There were no items received for the record. GENERAL BUSINESS MATTERS Petition for Declaratory Ruling, Tax Map Key 4-9-005 : 014 and 4-9-009 : 033 , regarding Facilities Clearance forms for Additional Dwelling Units for Property located in Koolau, Anahola, County of Kauai State of Hawaii = Jeffrey S. Lindner and Ana Marie Lindner. Deputy County Attorney Stephen Hall represented the Planning Commission. Deputy County Attorney Ian Jung representing the Planning Department, and Tom Bush, representing the petitioner were present, Mr. Jung suggested, as discussed with Mr. Bush, that pre-hearing statements and witness and exhibit lists be due on March 17, 2014 in preparation for the evidentiary hearing to take place on April 8, 2014 at 9 : 00 a,m, If the Commission has no opposition to these dates, Mr. Jung will generate the order to set the deadlines for the parties. On the motion by Herman Texeira and seconded by Hartwell Blake to approve the deadlines, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (NONE) New Agency Hearing (NONE) Continued Public Hearing Adoption of administrative rules interaretingprovisions of Chapter 8, Kauai County Code pertaining to the enforcement of Chapter 8 Article 17 (Single Family Transient Vacation Rentals) = County ofKauai Planning Department. [Hearing continued 1/14/14.1 Mr. Dahilig requested that public testimony be opened, but that the matter be deferred until March 25, 2014 pending action by the Small Business Regulatory Review Board. This item appeared on their agenda last week; however, due to Legislative matters the item was deferred. The Commission cannot take action on the rules at this time. On the motion by Herman Texeira and seconded by Hartwell Blake to defer this item to the March 25, 2014 meeting, the motion carried by unanimous voice vote. Adoption of administrative rules interpreting provisions of Chapter 8, Kaua` i County Code pertaining to the enforcement of accessory agricultural structures for commercial sale of farm products = County ofKaua `i, Planning Department [Hearing continued 11/12/131 Mr. Dahilig noted action is not available on this item due to pending action by the Small Business Regulatory Review Board, The Commission received testimony from Jimmy Nishida. W. Nishida expressed concern with a section of HRS 205-2 relating to Hawaii grown products being allowed for sale on a farm. He commented that there are 3 farm stands in his neighborhood, each selling only the produce grown on their property. His interpretation of HRS 205 is that it is not intended to expand the market for Hawaii grown products, but rather directly relates to the land and farmers, making it easier for someone to set up a farm stand to sell their own produce. He stated by allowing Hawaii grown products, it essentially enables someone to set up a farm stand selling produce they have not raised themselves, but instead buy from another farmer to sell; he does not feel that is the intent of HRS 205-2. Mr. Isobe asked whether Mr. Nishida has a basis for the comments he made on HRS 205- 2 to which Mr. Nishida replied no, it is just his interpretation. He feels it does not promote an individual' s farming. Mr. Blake commented that agricultural products are not limited to what is grown in the ground, but can include livestock and poultry. He expressed concern that HRS 205-2 would not prevent someone from selling hamburgers or steak should they choose to do so. On the motion by Herman Texeira and seconded by Amy Mendonca to defer the item until March 25, 2014, the motion carried by unanimous voice vote. New Public Hearin (NONE) To consider the adoption of Interpretive Administrative Zoning Rules and Regulations ("KPAR") by the Kauai Planning Commission relating to o Chapters 8, 9 and 10 of the Kauai County Code Pursuant to Article XIV Section 14,03 .E of the Kauai County Charter including the codification of previously adopted interpretive rules. POSTPONED to 3/25/14. Mr. Dahilig noted that this item cannot be opened for public testimony, and that this item is listed for Sunshine Law purposes for public notice. No action is needed on this item. Zoning Amendment ZA-2014- i , Request to Amend Condition No 19 of Zoning Ordinance PM-2004-370 and Zoning Ordinance PM-2005-374 relating to the Kukui`ula Workforce Housing moiect that is adiacent to and east of Po`ipfx Road, on former McBrYde Sugar Comp'anyplantation lands, further identified as Tax Map Key 2-6-0004: 019 (portion), and containing an area of 9.4 acres, more or less = Kukui`ula Development Company Mxwai`i) LL Co On the motion by Ferman Texeira and seconded by Angela Anderson to close public hearing, the motion carried by unanimous voice vote. CONSENT CALENDAR Status Reports 2014 Annual Status Report for Special Management Area Use Permit SMA (M-2006-04, Project Development Use Permit PDU-2006-6 and Class IV Zoning Permit Z-IV-2006-9, Tax Map Key 4-3-002: 15 , 16 and 20, Kapa`a, Kauai = Coconut Beach Development, LLC On the motion by Herman Texeira and seconded by Amy Mendonca to accept the consent calendar, the motion carried by unanimous voice vote. EXECUTIVE SESSION There were no items for executive session. COMMITTEE REPORTS Subdivision Subdivision Committee Chair Hartwell Blake read the Subdivision report into the record. The following tentative subdivision action was approved 3-0 : S-201442 = Kealoha and Kimberly Estrella, Proposed 24ot consolidation The following final subdivision action was approved 3-0: S-2013- 17 = County ofKauaY, Department of Water, Proposed 24ot subdivision In response to Mr. Katayama's question relating to S-2014-12, Mr, Jung explained the disposition of the easements as previously discussed during the Subdivision Committee meeting, On the motion by Berman Texeira and seconded by Wayne Katayama to accept the Subdivision Committee report as read, the motion carried.by unanimous voice vote. GENERAL BUSINESS MATTERS Select Committee Report to the Planning Commission re ag reling a recommendation for a new Chapter to the Rules of Practice and Procedure of the Planninm 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 . (The meeting recessed at 9 :48 a.m.) (The meeting. resumed at 10 : 06 a.m.) Mr. Texeira thanked the Commission members and County staff members for their contributions to this report. Mr. Jung provided an overview of key points in the report to the Planning Commission. (On file) Mr. Katayama stated he feels this is a good template not only for the Planning Commission, but also for other County bodies with the authority to appoint directors. Mr. Jung replied that the Office of Boards and Commissions, and the Department of Personnel Services are working to standardize the evaluation process. As apart of this particular rule set, there is a point to reconcile that standardized process with DPS ' s current process. The evaluation process will be referred back through the new administrative policies for evaluation procedures by DPS. This rule set is leading the charge in trying to establish the first protocol amongst all the boards and commissions; the Planning Commission is seeing it first. If it works out, the idea is to possibly move it forward with the other commissions. Mr. Jung continued the overview of the report. Mr. Kimura asked should there be no Planning Director, and the Deputy refuses to step up and decides to quit, who would be next in line. Mr. Jung replied that is when the selection process is implemented. These proposed rules could possibly shorten the length of time it takes to make that selection because it sets forth a process and procedure for appointing someone, Mr. Jung added that there is also the opportunity to appoint an interim director, which would be the authority of the Commission to do. Mr. Kimura asked if that could be added to the rules to which Mr. Jung stated yes, the purpose of the current discussion is to make recommendations, amendments, additions, or points of clarification. Mr. Kimura reiterated his concern, and asked whether the Deputy could lose his job should he refuse to step up to the Director position. Mr. Jung replied not necessarily as he would be the Deputy Director acting as the Planning Director pending the selection of a new Director. Mr. Kimura asked what if the Deputy refuses to do that to which Mr. Jung there will always be "what ifs", and there can only be certain speculative schematics to any situation. He added that the Commission can certainly add to the rules the appointment of an interim director. Mr. Kimura pointed out that is what the Commission did when the last Director and Deputy Director both stepped down at the same time; they appointed Mr. Dahilig to the position of Director. He asked if there is a process in place should that happen again to which Mr. Jung replied this process currently being discussed is the selection process, but if the Commission would like to highlight issues or certain problems, that can be added to the commentary, In response to Mr. Kimura's question on whether that' s necessary, Mr. Jung replied it would be appropriate for the Commission to discuss that as that would be a policy issue rather than a legal issue; Mr. Jung was just asked to outline this report. Mr. Jung continued the overview of the report. (The meeting recessed at 10:25 a.m.) (The meeting resumed at 10:44 a.m.) Mr. Jung summarized the proposed policies and procedures . Mr. Kimura asked how long the Commission would have to make a recommendation on a nominee to which Mr. Jung referred him to Page 2 of Exhibit 1 of the report that outlines the selection process. Mr. Kimura asked if a timeframe could be included for putting in nominations to which Mr. Jung replied that would be left up to the select committee; however, the idea is to allow for flexibility. Mr. Texeira added that a key component was to allow for that flexibility, and asked the other subcommittee members for their input on the idea of a timeframe. Mr. Kimura stated he is not asking for a timeframe to be included, but wanted to clarify whether that was an oversight to which Mr. Texeira replied no, it was not an oversight, adding that the intent is to do it as efficiently as possible, but also to ensure the Commission does a good job in the selection process. At the request of Mr. Blake, Mr. Kimura restated his previous concern on the process of selecting an interim director should the Director and Deputy Director positions becoming vacant at the same time. Mr. Blake mentioned seniority as an option for selecting the interim Director while they are going through the selection process. There was discussion between Mr. Blake and Mr. Kimura on potential scenarios and circumstances which would affect how the Commission would go about the selection process. Mr. Texeira pointed out that the committee did discuss seniority as well. Mr. Dahilig stated for clarification that currently when both the Director and Deputy are unavailable to sign documents, the next most senior staff member is given the authority to move things along. Mr. Katayama referenced Exhibit 1 section 1- 14-1 and asked why that was contemplated, as opposed to just starting with the formation of a committee tasked to find a list of candidates. Mr. Jung replied if a Commission member has a particular person in mind, they can go through the nomination process, which would be the simplest way to do it. If that nominee fails, the process of formulating a select committee or permitted interaction group can be implemented. Mr. Katayama asked why the Commission wouldn't advertise the position to help determine the population of candidates. Mr. Isobe stated he feels the intent of the sub committee' s action was to address expediency as well as to ensure a comprehensive approach. Commission members could simply vote against the candidate nominated if the desire was to move forward with the selection via subcommittee or other means. However, eliminating the first step would eliminate expediency, especially in the event that all seven members have in mind and agree on a specific candidate such as the Deputy Director. Mr. Katayama stated there needs to be a balance between expediency and fiduciary responsibility, and does not know how that would occur by members of the Commission offering a short list of candidates. Mr. Isobe acknowledged that and stated that the Commission may-want the ability to have that first step, but it does not mean they HAVE TO do it. Mr. Katayama asked if a candidate were to be nominated by a Commissioner, would a super vote be more appropriate to which Mr. Isobe stated he personally did not believe so, noting it would be no different than any other nominee coming before the Commission that may have been selected via another process. There was further discussion on the nomination process. Ms. Anderson referenced Step 1 of the selection process and expressed concern with where the pool of nominees comes from. She feels it is important for members of the public that may be interested in serving as Planning Director to have some sort of notice besides just the public notice for the agenda. She asked if there is a way to add notice to the public to the procedures, which would increase the pool of candidates the commissioners can select from. She anticipates that each member has their own social network, and feels Step 1 needs to be open to more members of the general public to put their name in the hat; that process needs to be outlined so the public is aware of that. Mr. Blake commented that they wanted to have multiple ways to go about the selection process, noting it was determined it should be left up to the Commission how they want to proceed. Ms. Anderson stated her understanding of the need for expediency and the ability to anticipate any type of situation. She suggested an adjustment to the rules to allow for nomination of a candidate for interim Director followed by a vetting process that would allow the Commission an open pool of candidates to choose from for Planning Director, which could be the same person at the interim candidate or a new person. Mr. Jung noted this will go through a significant process, and explained that should the Commission accept this report, the next step would be to schedule a public hearing pursuant to Chapter 91 . Additionally, it could be put on the next agenda for further discussion. Any proposals for changes or amendments would best be discussed during public hearing. Mr. Jung noted the Commission is free to continue to discuss it now if they wish, but pointed out there will be a process that ensues. Ms. Anderson asked for clarification that acceptance of the report does not necessarily mean the Commission is accepting this as the final version to which Mr. Kimura replied no, they are just accepting the report at this time. Mr. Jung added they are required to give 30 days' notice to the public that rules are being proposed, and accept testimony. Ms. Anderson commented that she feels it is important that when ideas that come to the table through discussion that language be made available at subsequent hearings in order to make recommendations. There was discussion between Mr. Jung and Mr. Katayama on public notice of . nominations of a candidate. On the motion by Wayne Katayama and seconded by Amy Mendonca to accept the Select Committee report, the motion carried by unanimous voice vote. On the motion by Herman Texeira and seconded by Angela Anderson for the Planning Director to schedule a public hearing for April 8, 2014 on the proposed Chapter 14 rules, the motion carried by unanimous voice vote. UNFINISHED BUSINESS (For Action) Class N Zoning Permit Z-IV-2014-05 and Use Permit U-2014-05 to construct a farm dwelling with garage, lanai and pool on Lot 13 of the Seacliff Plantation Subdivision in Kilauea further identified as Tax Man Key 5-2-004: 086 and containing a total area of approx. 5.082 acres = K le and Keate Barker. [Director' s Report received 11 /12/13 , hearing closed and action deferred 12/10/13 , deferred 1/14/14.1 Mr. DahiIig noted as per the Commission ' s request at the last meeting, a farm plan as well as further clarification from the State Office of Planning has been distributed. Staff Planner Jody Galinato stated that Supplement 6 includes the letter from the State Office of Planning as well as the preliminary recommendation with the conditions that were read into the record at the last meeting. Santo Giorgio; representing the applicant, was present. The Commission received testimony from Jimmy Nishida. Mr. Nishida stated his main concern with the farm plan is that it is forcing rich people to farm. He noted it is difficult for farmers to make money as it is, as they are in a niche market. He shared the opinion of a fellow farmer who stated the applicant will not farm, and will hire an attorney or falsify Schedule F, but they will not farm. Mr. Nishida stated he agreed with a comment the Chair had previously made that these agriculture subdivisions are created, but no farms appear; they are just large lot subdivisions. He stated the reason is because these lands are so costly to subdivide that by the time they are up for sale, the market value is so high that only ... . . ... .... . . .. rich people can afford to purchase these properties. Mr. Nishida commented he does not understand how they can force a farm plan on someone that has no intention of farming, and offered some background on why the farm plan -was implemented by the Planning Department. He feels that rather than focusing on forcing farm plans, the Department should work on rural zoning that accurately reflects the zoning on the agriculture land, and give some kind of unit incentives to encourage land owners to do what they are supposed to. Mr. Nishida does not agree with the farm plan as he feels it was instituted to justify a subdivision. He worries that if too much pressure is placed on these developers to comply with a farm plan, they will try to rezone the land to rural which, in his opinion, is far worse. Mr. Nishida expressed great concern with the abundance of "gentleman farms", and large, high-end homes proliferating these agriculture lands. Mr. Katayama referenced Condition 9, and asked if the farm plan is a one-time submission to which Ms. Galinato replied yes. Mr. Katayama asked if the use permit is still valid in a subsequent transfer of title even if the farm plan changes . Mr. Jung stated yes, the permit is transferable and nuns with the land. The requirement for farming is still implied; however under the Right to Farm Act, they cannot restrict the type of farming that goes on. Mr. Katayama clarified that his question is whether the review of the accuracy and activity of the farm plan is relative to what the applicant has presented to the Commission. Mr. Dahilig stated that change of ownership does not trigger modification of a permit. . Mr. Kimura asked if the new owner does not comply with the conditions, can the Commission pull the permit to which Mr. Dahilig stated if there is non-compliance with the terms and conditions of the permit, they can move for modification or revocation of the permit. However, that cannot be done solely based on the change of ownership. Mr, Jung explained if a permit condition is not complied with, that could potentially lead to the new permit holder to appear before the Commission to show the reason for non- compliance. If it is found the condition is not being complied with, the permit could either be modified, or it could be revoked; there is a process in place for further review, but there must first be an alleged violation to the condition. Ms. Anderson stated Condition 9 does not require the actual implementation of the farm plan, it just states one must be submitted. She suggested the implementation of the farm plan along with a status report be required as well. Ms. Mendonca referenced Condition 9, and asked if that will apply to a change of ownership to which Mr. Jung replied just as the permit nuns with the land, so do the conditions; the new owner will be required to comply with those same conditions. Ms. Mendonca agreed with Ms. Anderson' s recommendation as there is no way to tell whether the new owners will continue to adhere to the farm plan presented. Mr. Jung stated the applicant is trying to obtain a use permit because of scenic value issues as the parcel is in a Special Treatment Area_ The farm plan is to show that the applicant will farm on the property as required by State law, but the Right to Farm Act allows a new owner to change the model of farming if they wish. Ms. Anderson asked for clarification that the requirement is under State law, but the County is required to enforce it to which Mr. Jung affirmed. Mr. Katayama asked if the Department would have an issue with making amendments to the conditions as described by the Commission. Mr. Dahilig replied the advice given by the Attorney' s Office is that condition may not be enforceable given the conflicts with State and County laws as well as general land use laws. If the Commission wishes to include that the Department will not object, but it may not be enforceable. W. Jung stated for clarification that Ms. Anderson was requesting a status report to show compliance with the farm plan and any updates. Ms. Anderson stated yes, adding that her request was not conditioned on a change of ownership. She stated that if a farm plan is being required, the onus is to be able to track whether or not it is implemented. Mr. Dahilig stated if the Commission would like to take responsibility of reviewing enforcement, he would like to determine what the parameters would be. Ms. Anderson replied her intention is not to make the time frame burdensome, but it is of concern to her to ensure that they are able to track implementation of the farm plan; -she suggested a time frame of two to five year increments. Mr. Jung stated the Commission needs to determine whether the Planning Commission or the Planning Department would do the reviews, and what the parameters will be. Mr. Katayama stated he feels five years is reasonable, and the review should be done by the Director as it will give him the opportunity to review the farm plans for fiarther clarity relating to future law. Mr. Kimura asked if they approve this permit with its current conditions, should there be any future ruling that defines farming, will this permit be grandfathered in. Mr. Jung replied that the issue of grandfathering is very fact-dependent, and it would depend on the context of how the law has changed. Mr. Dahilig read Condition 9 as amended into the record: The applicant shall submit a farm plan to the Planning Department prior to building permit approval. Status of implementation and maintenance effort as laid out by the farm plan shall be submitted every five years to the Director. Mr. Texeira asked if this condition will be precedence-setting, and if so, can it be applied to previous applications? Mr. Dahilig replied this is not precedence-setting. Mr. Texeira asked for clarification that no previous applicants are compatible with this condition to which Mr. Dahilig replied nothing specifically requiring a five year status report has been approved in the past. Ms. Anderson added her intention is to have policies be consistent for future permitting of agriculture dwellings, and feels requiring five year status reports on farm plans should be included across the board. Mr. Dahilig noted that the Department has conditions requiring an annual submittal of Form F for non-residential agriculture structures. Mr. Isobe requested clarification on over-the-counter Class I and Class II permits, asking how it will be consistent with what they are doing with the use permits. He stated that he assumes 90 percent of these types of permits are over-the-counter, and the reason this particular application is before the Commission has nothing to do with the dwelling, but with the view plains. Yet, they are imposing a requirement on the dwelling that has nothing to do with the view plain issue. He asked, under a Class I or Class II permit if there was no view plain issue how would the Department ensure the five year review condition is implemented for all agriculture dwellings that require a farm plan. Mr. Dahilig replied that the Commission' s desire to enforce agricultural activities more strictly on this application is what prompted the discussion which led to the amendment to the condition; the farm plan condition was not something that had been laid out prior to that. Mr. Dahilig stated he is unable to answer the question of consistency because there is no formal action at this point. Mr. Isobe stated, in fairness, if a farm plan is being required as part of an overall condition relative to approval of a residence on a property, a five year review of that plan should also apply to everyone else applying for a farm dwelling under Class I and Class H permits. It should not only be limited to applicants that come before the Commission under a use permit, especially if that use permit has nothing to do with approval of a dwelling. Mr. Kimura stated he disagrees with that as he feels it will make it more difficult for the farmers to farm if they have to provide a farm plan when they are not residing on the property; they are just using the property to farm. Mr. Dahilig clarified that Mr. Isobe's question was specific to residential structures. Mr. Isobe stated, for example, if an individual owns an agricultural lot and wants to build a home on that lot, 90 percent of those applications are overAhe-counter approvals. Mr. Katayama asked to clarify that a Schedule F is required annually for Class I and Class II permits to which Mr. Dahilig replied, no, that requirement is only for non-agricultural structures. Mr. Katayama asked what the conditions are for a residential building under Class I and Class II permits, Mr. Dahilig stated if it' s on agricultural land, the Department required a farm dwelling agreement; however that is sometimes pre-empted if there is a first mortgage on the property. Mr. Katayama stated that the Department could impose certain kinds of additional conditions as well to which Mr. Dahilig replied yes, and added that the Department would want to bring the Class I and Class II permits into alignment with whatever decision is made on this particular application. In response to Mr. Kimura, Mr. Giorgio stated the applicant is in agreement with all the conditions, including Condition 9 as amended. (The meeting recessed at 11 : 55 a.m,) (The meeting resumed at 12 : 00 p.m.) Mr. Dahilig asked the applicant if he would be agreeable to the status report being submitted before, January 1 , 2019 as opposed to saying five years to which Mr. Giorgio agreed. Ms. Anderson stated this is the third time the applicant has appeared before the Commission, noting that part of the issue has been the sufficiency of the farm plan. She suggested the Department look into ways to define, and make rules pertaining to, what is required within a farm plan, which would provide applicants with more guidance on what is sufficient. Mr. Dahilig replied the Department can provide a template or checklist to applicants. Ms. Anderson stated for clarification that the majority of the farm plans do not come before the Commission, but because it is a requirement for a farm dwelling application she feels there should be consistency in the requirements as well as an idea of what a farm plan should consist of as different people may have a different idea of what a farm plan is. Mr. Isobe asked for clarification on whether the Department is now going to require a farm plan and subsequent five year review for all agricultural residences from this point on. Mr. Dahilig replied should this application be approved as is, it will be something he needs to have that discussion with his staff as it is at the Planning Director' s discretion whether or not to align Class I and Class II permits with what the Commission is recommending for this application. There is no yes or no answer, but it will prompt an internal discussion on whether the Department can handle the monitor or review of such volume. Mr. Isobe asked to clarify that this condition would only be applicable to applications that come before the Commission to which Mr. Dahilig replied it would be applicable only to this particular application. Depending on the circumstances of each individual application, it is possible to apply the same condition, but there is no way to make it a mandatory condition. Mr. Texeira asked if this is something the Director will look into and make recommendations to the Commission for possible action to which Mr. Dahilig stated things. would need to be considered on a case by case basis. Mr. Isobe asked for clarification that this may be the only application that the Commission would require a review of the farm plan; they are singling out this application and treating it differently. Mr. Kimura replied not necessarily because they have always asked for the same requirements for this particular subdivision. Mr. Jung stated it is not an issue of singling someone out; a farm plan being contemplated is a reasonable application given State law. The Commission' s concerns about possible enforcement of the farm plan prompted the recommendation for a status review. The Director needs to discuss with his staff and evaluate whether or not an across the board policy can be implemented. Should .another application come before the Commission in the near future, which raises similar concerns, the same discussion can take place. Mr. Kimura asked if Mr. Isobe ' s intent is that this condition would apply to someone wanting to build a house and farm on 1 -acre of land as he feels it shouldn 't, noting that this particular application is in a special designation. Mr. Isobe stated he assumes there have been dwellings in this particular subdivision that have been approved over-the-counter with no farm plan requirement, and all that was required was a farm dwelling application. Therefore, there is no consistency, even within the same subdivision, on how residential applications are being approved. Mr. Kimura stated that a use permit is different from an over-the-counter Class I and Class H permit, which justifies the five year status review. Mr. Dahilig provided background on how the Department comes up with their recommendations. He noted the use permit process is the Commission' s broadest discretionary authority, and wanting to see a more robust agricultural use of a property is within the province of the Commission's discussion. However, the fact that the Department did not ask for a farm plan in their initial proposal is indicative of their analysis. Mr: Isobe clarified that the reason this application is before this Commission is due to a view plain issue. He questioned how is a farm plan and subsequent five-year evaluation related to whether or not the view plain is going to be detrimentally impacted. The current discussion is that a farm plan should be required to ensure proper use of agricultural lands whenever dwelling units are being constructed; however, that has nothing to do with view plain issues. The intent of his questions is to gain an understanding of how that ties together, Mr. Katayama commented that as the land was intended for agriculture, he feels a farm plan is an acceptable requirement for the use permit. Considering the context of what the land was intended to be used for; he feels the issue of protecting a view plain is not as critical as the support of the agricultural activity. Mr. Katayama stated he feels the farm plan is sufficient given the applicant' s farm plan does not require anything that would be detrimental to the view plain. Mr. Kimura stated he thinks Ms. Anderson' s concerns were with the possibility of a new owner deviating from the farm plan. Ms. Anderson stated for clarification that her concern had nothing to do with a change of ownership, but rather to the use of the property being consistent with its agricultural zoning. It has been mentioned that the owners signed a farm dwelling agreement that states they are deriving their income from the farm, and when applicants come before the Commission to state the use of the property, there should be a way to ensure that is what is occurring. She hopes for consistency in the form of a policy that requires a farm plan for approved farm dwellings as well as a way to check for implementation of that plan. Ms. Mendonca asked if Class I and Class U permits require some kind of proof that the land will be used for farming. Mr. Dahilig stated that a farm dwelling agreement is required to erect the structure, but there are not up front requirements for proof of farming. On the motion by Wayne Katayama and seconded by Herman Tezeira to approve the recommendations and conditions set forth in the Director' s report as amended orally, the motion carried by roll call vote: 6 Ayes (Mendonca, Anderson, Isobe-with reservations, Texeira, Katayama, Kimura) ; 1 Silent (Blake) Zoning Amendment ZA-2014- 1 q Request to Amend Condition No. 19 or Zoning Ordinance PM-2004-370 and Zoning Ordinance PM-2005-374 relating to the Kukui`ula Workforce Housing project that is adjacent to and cast of Po` ipu Road, on former McBryde Sugar Company plantation lands farther identified as Tax Map Key 2-6-0004; 019 (portion), and containing an area of 9.4 acres more or less = Kukui `ula Development Comnany (HawaNj LLCM Mr. Dahilig read a summary of the Director' s report into the record. (On file) Mr. Jung explained this action is an amendment to a current zoning amendment; dependent upon action here, it will get forwarded on to the County Council for final disposition. Tom Shigemoto, representing the applicant, was present. Mr. Shigemoto thanked the Commission for expediting this important amendment. He explained there was a requirement to build 75 units; 45 for workforce housing for Kukui ` ula' s employees and 30 for the general public. The applicant was approached by a County Council member who asked if they would be willing to dedicate the land to build more permanent affordable units, which is the reason they are before the Commission today. The Mayor and the County Housing Director agree that this is a good deal for the County and the community. Ms. Anderson asked how the 150 units will be divided relative to income. Mr. Shigemoto replied that would be determined by the County Housing Agency. As it stands currently, they can go up to 180 percent of the median income; however the County Housing restrictions only allow up to 140 percent of the median. There will also be units that go below 80 percent of the median, so overall it is a better project than if Kukui`ula were to build it. The County Housing agency will determine the income breakdown of the units. On the motion by John Isobe and seconded by Amy Mendonca to approve the zoning amendment, the motion carried by unanimous voice vote. ANNOUNCEMENTS Topics for future meetings Ms. Anderson suggested discussion on Transfer Development Rights, which looks at ways to allow owners of property to transfer their right to develop to other areas such as from rural areas to higher density areas. Mr. Isobe stated his recollection is that the rules do not require the Planning Department to notify TVR applicants that their permits are due; however he had asked the Department to review whether such a condition would potentially cut down late applications. He asked if there were any results from that. Mr. Dahilig stated he has had discussions with his enforcement chief, and it was determined that notices would pale in effort to the amount of time it takes to process a contested case hearing. Mr. Isobe asked to clarify that the notice requirement would be potentially cost effective to do to which Mr. Dahilig replied it could be if there is a correlation between the notices off-setting the contested case hearing based on non-renewal. Mr. Isobe requested that when this item comes up for consideration the Department be prepared to amend the rules accordingly, and asked for a written amendment. Mr. Blake stated applicants are given 60 days to renew, and if you miss that deadline there is another 7 day window followed by an additional 30 days if necessary. He stated the third chance should be the end of it. Mr. Dahilig acknowledged the relevancy of that statement, noting the time frames were in response to the Commission' s desire to have clear guidelines on the renewal process. If the Commission feels it is too- liberal, that can be discussed. Mr. Kimura added he feels notification is a privilege, not a right. Mr. Blake noted that the renewal date of each application is different, which would require someone to be looking at the calendar every day. He feels that after you receive your initial approval, the renewal dates should be the same for everyone to ensure they don't fall through the cracks. Mr. Dahilig stated some of the renewal dates are set as a consequence of the way legislation was written. To make a change to renewal dates would require an ordinance, or . reissuance of the permits. However, the Department could provide an analysis of that if the Commission wishes. . .. . .... . . . . . . . Mr. Blake would like to have a future discussion on what a farm dwelling is. Mr. Dahilig announced there is a Historic Preservation basic seminar on March 15 from 9:00 — 12:00 at the Kauai Veterans Center. The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the Lihu'e Civic Center, Moikeha Building, Meeting Room 2A2B,_4444 Rice Street, Lihu'e, Kauai, Hawaii 96766 on Tuesday, March 11, 2014. ADJOURNMENT Chair Kimura adjourned the meeting at 12:44 p.m. Respectfully submitted by: r Cherisse Zaima Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) . ( ) Approved as amended. See minutes of meeting.