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HomeMy WebLinkAboutpc 3-25 14 minutes [4-22-14] KAUA' I PLANNING COMMISSION REGULAR MEETING March 25, 2014 The regular meeting of the Planning Commission of the County of Kaua' i was called to order by Chair Kimura at 9:08 a.m., at the L-1bu` e Civic Center, Mo`ikeha Building, in meeting room 2A- 2B. The following Commissioners were present: Mr. Jan Kimura Ms. Amy Mendonca Mr. Herman Texeira Mr. Hartwell Blake Ms. Angela Anderson Mr. Wayne Katayama Absent and Excused: Mr. John Isobe The following staff members were present: Planning Department — Michael Dahilig, Leslie Takasaki, Kenneth Estes, Ka' aina Hull, Marisa Valenciano; Office of Boards and Commissions — Cherisse Zaima; Deputy County Attorney Ian Jung Guests : Office of the Mayor — Nadine Nakamura, Managing Director Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Kimura called the meeting to order at 9:08 a.m. ROLL CALL Planning Director Michael Dahilig noted that there were six Commissioners present. Mr. Dahilig said a few words in honor of Commissioner Herman Texeira as he has reached the end of his second three year term, and this would be his last meeting. Managing Director Nadine Nakamura expressed her gratitude and appreciation to Mr. Texeira for his exceptional service and dedication to what she feels is one of the most difficult, and demanding commissions. Mr. Texeira thanked the Mayor as well as his fellow commissioners, past and present, for the opportunity to serve, the Planning staff for their professionalism and cooperation over the years, and the County Attorney' s office, especially Deputy County Attorney Ian Jung. AIPT Z 2 2014 APPROVAL OF THE AGENDA On the motion by Herman Texeira and seconded by Angela Anderson to approve the agenda, the motion carried by unanimous voice vote. MINUTES of the meeting(s) of the Planning Commission There were no minutes for approval. RECEIPT OF ITEMS FOR THE RECORD On the motion by Herman Texeira and seconded by Amy Mendonca to receive the items for the record, the motion carried by unanimous voice vote. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (NONE) New Agency Hearing (NONE) Continued Public Hearing Adoption of administrative rules interpreting provisions of Chapter 8, Kauai County Code pertaining to the enforcement of Chapter 8 Article 17 Sin le Family Transient Vacation Rentals) = County ofKaua `i, Planning Department [Hearing cont'd 1/14/14, cont' d 2/25/14.1 On the motion by Herman Texeira and seconded by Amy Mendonca to close public hearing, the motion carried by unanimous voice vote. Adoption of administrative rules interpreting provisions of Chapter 8, Kauai County. Code pertaining gto the enforcement of accessory agricultural structures for commercial sale of farm products = County o Kauai, Planning ftartment [Hearing cont'd 11%12%13 , cont' d 2/25/14. On the motion by Herman Texeira and seconded by Wayne Katayama to close public hearing, the motion carried by unanimous voice vote. New Public Hearin To consider the adoption of Interpretive Administrative Zoning Rules and Re lations "KPAR"Ly the Kauai Planning Commission relating to 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 adapted interpretive rules = County of%aua `L [Postponed 3/25/ 14.1 On the motion by Herman Texeira and seconded by Amy Mendonca to close public hearing, the motion carried by unanimous voice vote. Zonina Amendment ZA-2014-4 Amendments to Chapter 8 of the Kauai County Code 1987, as amended, relating to the Agricultural Zoning, District and the re-designation of agriculture uses that are generally permitted, permitted with a use permit, and/or prohibited in each respective zoning district = County of Kaua `L On the motion by Herman Texeira and seconded by Amy Mendonca to defer public hearing, the motion carried by unanimous voice vote. Zoning Amendment ZA-2014-5, Amendments to Chapter 8 of the Kauai County Code 1987, as amended to remove Article 12, Constraint Districts = County efKaua`4 On the motion by Herman Texeira and seconded by Angela Anderson to defer public hearing, the motion carried by unanimous voice vote. Zoning Amendment ZA-2014-6, Amendments to Chapter 8 of the Kauai County Code 1987, as amended, relating to the inco1poration of non-zoned lands into the County of Kauai Agriculture Zoning District. These amendments identify lands not currently zoned by the County of Kauai and re-designate them within the Agriculture Zoning District = County of Kaua `i On the motion by Herman Texeira and seconded by Angela Anderson to defer public hearing to May 27, 2014 at 9 :00 a.m., the motion carried by unanimous voice vote, CONSENT CALENDAR Status Reports (NONE) Director' s Report(s) for Project(s) Scheduled for Agency Hearing on 4/8/14 (NONE) Shoreline Setback Activity Determination (NONE) GENERAL BUSINESS MATTERS There were no general business matters. COMMUNICATION (For Action There were no communications for action. COMMITTEE REPORTS Subdivision There were no committee reports. UNFINISHED BUSINESS (For Action) There was no unfinished business for action. NEW BUSINESS Adoption of administrative rules interpreting provisions of Chapter 8, Kauai County Code pertaining to the enforcement of Chapter 8, Article 17 (Single Family Transient Vacation Rentals) = County ofKaua % Planninz Department Mr. Dahilig circulated a copy of the report from the Small Business Regulatory Review Board (SBRRC) stating their approval of the rules as recommended. (On file) Mr. Dahilig provided a background on the Commission's desire for a clearer process codified in the rules on the TVR Certificate Program. He listed some of the elements of the proposed rules which focuses on requirements for renewal, timeliness, inspections, late renewals, rejection of late renewal applications, and forfeiture of certificates. Commissioner John Isobe' s previous concern on providing advance notice for renewals has also been looked into, and a report provided. Mr. Dahilig highlighted the following aspects that would be necessary to implement a notification process. • Timeline for notification + Valid email addresses for certificate holders in order to provide group email notification • A dedicated Planning staff member to oversee this function of the TVR program Ms. Anderson asked whether the Department has previously communicated via group email to which Mr. Dahilig replied no, this would be the first circumstance in which they formalize an email notification. Mr. Blake noted the report shows at least 36 different renewal dates, and asked whether this notification would be done as a courtesy, or a responsibility of the Department. Mr. Dahilig replied his understanding is that it was meant as a courtesy, and a means of good customer service. In addition, due to the amount of missed renewal deadlines, the question was posed whether it created a backlog of contested case hearings, which cost the Department more money. It is difficult to quantify, but Mr. Dahilig stated 95 percent of contested case hearings that backed up last year were a result of late renewals; therefore, there is a cost associated with lack of notification. Mr. Blake commented that these are commercial enterprises, and the certificate holder should be responsible; it shouldn't fall on the Department to remind them. He asked if it was possible to have a standard renewal date regardless of when the certificate was issued to make it easier to track, and prevent any from falling through the cracks. Mr. Kimura asked how a standard renewal date would affect the department to which Mr. Dahilig replied it is something the Department has wanted to achieve. However, there were a number of layering issues created by the passing of three sequential ordinances, one of which requires County Council approval to change the date of a renewal deadline. Mr. Blake feels it is not unreasonable to create a standard renewal date, which would leave the burden on the certificate holder. Mr. Dahilig cautioned that if they were not able to implement this notification process correctly, it may leave the Department open to additional exposure considering the litigious nature of this particular issue. Ms. Anderson agreed that providing notice could prevent future backlogs of contested case hearings, but she would like the notice to specify that it IS a courtesy, language be included . . . _ _ to state the voluntary nature of the notifications, and that there are safeguards placing the onus on the applicant to ensure the email address they provide is accurate. She also suggested language stating applicants must update their email address annually as part of the renewal process. She appreciates the Department' s use of technology to reduce additional paperwork, and feels it may potentially lead to expansion of other County programs through the use of email. Mr. Dahilig requested this item be deferred to. later in the meeting to allow Staff to amend the proposal to include a courtesy notice program. At the request of Mr. Katayama, Mr. Dahilig provided a summary and explanation of sections of the proposed administrative rules regarding violations, fines, and appeal process. (On file) Mr. Dahilig explained the different types of violation principles : 1 . If you currently have a certificate, but your use has not been evidenced for a year, it is automatically considered an abandoned use. It is the. responsibility of the land owner to prove otherwise. 2. If an active certificate is in violation of the Comprehensive Zoning Ordinance, the certificate holder is notified that he/she cannot operate under their current certificate until those zoning violations have been rectified; if it is not done within the year, it is automatically considered an abandoned use. Additionally, if an active certificate has a violation under other land use regulations administered by another agency e.g. Engineering, or Public Works, the same principles apply under the code. 3 . If there is no existing certificate, it is treated as a normal zoning violation: a zoning violation notice is issued, and the land owner is ineligible for an after-the-fact, non- conforming use certificate. Should there be a second violation notice, the Department issues a fine. Mr. Dahing explained fines are levied based on the severity of the violation with a capped authority of $ 10,000. He used the example that if someone receives a violation requiring a Class I permit, which they have ignored therefore receiving an additional violation, the Department is allowed to levy a fine per day. He pointed out that for use violations, it is made very clear that if someone is operating without a Transient Vacation Accommodation Unit Non- Conforming Use Certificate, the maximum fine of $ 10,000 is levied. Mr. Dahilig explained the shifts in Commission workload has freed up the Department' s Commission Support Clerks to function as Contested Case Clerks. Before forwarding an appeal to a contested case hearing officer, the Department first attempts to negotiate a fine levy and compliance plan with the certificate holder. If they are unable to come to an agreement, it then goes through the normal appeal process. Mr. Katayama asked to clarify a section in Part I relating to late renewal applications, asking where non-compliance timeline forfeitures fall in the fine schedule. He noted if a - certificate holder is 30 days late, the fee is doubled; is that a different fine schedule? Mr. Dahilig replied a late renewal is not treated as a punitive fine situation, instead the fee is doubled and treated as an Administrative Processing Fee. Mr. Blake asked what types of violations would take a year to correct to which Mr. Dahilig replied .situations where drastic alterations to a house need to be made to comply with a setback requirement would take some time. Although, the Department focuses more on the compliance aspect as opposed to the timeframe. Mr. Blake commented unless it is an "act of God", he does not understand why one year is given. Mr. Dahilig stated an interim fine levy to compel quicker compliance can be inserted into the fine schedule to make it clearer that if operations continue after the year is up, and a certificate holder has not come in for a compliance plan, they are operating without a certificate and are subject to the maximum fine, Mr. Blake asked for a definition of "seasonal". Deputy County Attorney Jung stated there is no definition of "seasonal" in the code, but the standard is one year. Based on the context of the proposed use, TVRs in Hawaii are generally utilized year-round. Mr. Katayama asked if the term "cease and desist" is appropriate for handling TVRs to which Mr. Dahilig replied yes, in situations where they are not renewing a certificate due to pending violations. Mr. Katayama asked if a cease and desist notice is appropriate in situations where an existing certificate holder is in the process of rectifying a violation; would the Department expect them to stop operations until the situation is mediated? Mr. Dahilig replied that is a policy decision that is relevant to the Commission because there have been concerns about why a TVR was allowed to continue operations while there is a violation that puts people' s lives in danger. However, there have also been concerns on the other side that if they are not allowed to operate while they are in the process of rectifying the violation, the Department could be brought to court for a fine or order that was not rightfully issued. In weighing both scenarios, the Department feels it is much clearer to hold the line on a cease and desist order. Mr. Kimura asked if there is a violation of the conditi ons of the certificate, is a fine issued, or is the certificate then taken away to which Mr. Dahilig replied State law regarding fine authority is principled on compliance first. Therefore, by law the Department must allow the opportunity to rectify the situation before issuing a fine. Mr. Kimura stated there are rules in place that state if the conditions are violated the permit will be taken away to which Mr. Dahilig explained in a situation where violations occur on a TVR operating under a special use permit outside the VDA, the Department could go the route of a revocation. However, in situations specifically based on fine authority,. the bulk of certificates do not have that condition or rule. Ms. Anderson referenced the section on Non-Conforming Use Certificate Renewals, asking if there were documents previously required that will no longer be required as part of the renewal process. Mr. Dahilig stated the documents required will track current law, and will be codified as part of the procedures. Item 4 will address the necessary backfill for missing documents required to complete the records, Mr. Katayama commented there needs to be clearer distinction between cease and desist orders issued for hazardous violations, which should levy harsher solutions as opposed to those being given the opportunity to remediate the issue. That distinction needs to be included in the administrative rules to ensure it is clear to the Commission should they have to adjudicate the matter. Mr. Dahilig pointed out that as stated in the rules, a cease and desist order can be tolled if the certificate holder submits to the appeal process. However, it does not address the severity level of when a cease and desist order should be issued. In response to Mr. Katayama, Mr. Dahilig stated in a situation where a violation affects health and safety, a cease and desist order would continue to stand. He requested some time during the break to work on language to help delineate that. On the motion by Herman Texeira and seconded by Wayne Katayama to defer this item to later in the agenda, the motion carried by unanimous voice vote. Adoption of administrative rules interpreting provisions of Chapter 8, Kauai County Code pertaining to the enforcement of accessory agricultural structures for commercial sale of farm products = County of%aua `i, Planning Department. [Hearing cont'd 11 /12/13 , cont'd 2/25/ 14. 1 Staff Planner Ka'aina Hull reminded the Commission that these rules were requested back in November, and read the following draft language into the record: 1. A fruit or vegetable stand reviewed under a use permit application shall be restricted to the display and sale of agricultural products grown .in Hawai 'i, value-added products that were produced using agricultural products grown in Hawai `i, logo items related to the producer 's agricultural operations, and other food items. 2. A fruit or vegetable stand reviewed under a use permit shall be restricted to the following development standards: a. It shall be open air, unenclosed structure except far secured areas no greater than 400 square feet in size. b. It shall not exceed 800 square feet in size. c. All other development standards including, but not limited to, setbacks shall be the same as those established under Section 8-8.2 of the Kauai County Code, otherwise referred to as the Agricultural District Development Standards, Ms. Anderson asked how the size requirements compare to other counties. Mr. Hull explained all other counties outright allow fruit or vegetable stands on agricultural lands. The size requirements are similar to Maui and Oahu where fruit and vegetable stands within a particular size requirement are approved over the counter•, should an applicant wish to go beyond that size requirement, it would then be bumped up to the use permit process. On Kauai, the use permit process is automatically implemented for fruit and vegetable stand structures . Mr. Hull noted that if the rules are passed to include the proposed size requirements, any application coming to the Department that exceeds the square footage would be automatically rejected, would not be forwarded to the Commission, and would only be able to be addressed through a variance process, which has much more stringent standards. Mr. Katayama asked what the process would be on an application for a building exceeding the size requirement to which W, -Hull-replied should these rules pass, the process essentially ends at the Planning Department; the applicant can attempt to go through the variance process to seek approval. Mr. Hull suggested the Commission look at mirroring Maui and Oahu in allowing outright use of fruit stands on agricultural lands within a certain size; anything beyond that size would then have to go through the use permit process. Ms. Anderson stated she feels that idea makes sense, and would be in support of allowing that type of amendment to the current ordinance to encourage the economics of farming, and make it easier for small farmers to sell their products. Mr. Hull noted this could be discussed further under the next item relating to the agricultural section of the CZO. Ms. Mendonca asked to clarify that this proposed rule would allow not more than 800 square feet for a fruit stand, and anything larger would only be able to be pursued through a variance, which would still need to come before the Commission. Mr. Hull stated yes, but explained that there would be a specific set of parameters to be reviewed under the variance, which is very different from a use permit process. He clarified that the use permit process is to establish compatibility of a use with the surrounding area; a variance permit process is to go outside the rules and regulations because of certain circumstances. He noted that the proposed rules not only limits the applicant, but also the Commission in what they can review: Ms. Mendonca expressed her opinion on past concerns of what is a favorable size of a fruit stand. She feels 800 square feet is large for selling flowers or produce grown on property, noting that larger structures would encourage other uses, and value-added products. Mr. Kimura asked how the proposed rules affect the Department of Transportation to which Mr. Hull stated no matter what is being proposed on a highway, if it requires access in a manner that alters the highway ingress and egress, permission from DOT must be granted. Mr. Blake asked whether the Department has any bearing on the overall design of a fruit stand to which Mr. Hull replied that is why the use permit process was established, to allow the Commission to review an array of designs, and determine whether they feel it is appropriate or not. Mr. Hull noted that based on discussions at a previous meeting, it seems the bulk of the Commission' s concerns were with the sale of value-added products. The Commission can look into limiting or outright prohibiting value-added sales on agricultural lands. The proposed rules were drafted based on concerns about size; however, should the Commission wish to look at restricting value-added products instead, they could do so. Mr. Blake expressed concerns that HRS 205 as it currently reads leaves a wide open interpretation of what is allowed. Mr. Jung replied that it must be looked at in two layers: 1 . The State Land Use layer which states what is allowed on agricultural lands 2. The County layer that has certain restrictions on how the use is defined and put into context. What State law allows can be further refined through .the second layer, which involves the County Zoning code to determine permissible uses, and the process to obtain a specific type of use, Mr. Hull pointed out, in speaking to staff on the Big Island, it was noted that if this type of rule had been implemented there, they would never have had the gourmet coffee industry they have today, which allows customers to drive to the fields, taste, and purchase the coffee. The Commission is currently walking the fine line of trying to promote the agricultural industry while trying to weed out operations that are taking advantage of agricultural lands. Ms. Mendonca expressed her opinion that limiting the size of the building will discourage temptation to go beyond what they should be doing on their property, and encourages smaller farmers to sell a variety of flowers and produce. Mr. Texeira commented that it is difficult to compare Kauai with the Big Island as we are 1l6a` the size, and they are able to have a broader agricultural situation. Kauai has a very limited amount of land that we need to protect. (The meeting recessed at 10: 18 a.m.) (The meeting resumed at 10:30 a.m.) Ms. Anderson reiterated that she feels it would make sense to allow farm stands as an outright, permissible use within a certain size, and require a use permit for anything beyond the size limitations. She expressed concern on limiting the Commission' s ability to hear proposals by applicants that may have farm stands that exceed the size limitations, and based on the proposed rules those would never come before the Commission. She feels they are in a position to make things easier, and more economically feasible for farmers to work their land. Mr. Kimura asked to clarify if her suggestion includes value-added products to which Ms. Anderson replied it' s something that would need to be described further. She suggested possibly requiring a percentage of product grown on the land to be incorporated into a value- added product such as honey or apple pie. Mr. Hull stated the Department could work on something for the Commission to review, and noted the original proposal on the CZO update that was released to the public did include outright permitting farm fruit stands up to 500 square feet. The idea behind that was to compel agricultural land owners to farm by making it easier to set up a small stand to sell their products on a small, simple scale. Ms. Anderson stated while the worst-case scenario must be considered, they must ensure what they have on the ground makes sense. Most farmers would not know that putting out a table of produce that sells for 25 cents is considered a farm stand; that should be outright permissible, and shouldn't require them to come before the Commission. She feels a reasonable solution can be found. Mr. Hull stated the Department could come up with something for the Commission to review, and if that is the direction they would like to go, he suggests the item be deferred until such language can be added to the proposed rules. The Commission received testimony from Marge Dente. Ms. Dente stated she purchased agricultural land 25 years ago, and was required to sign a statement that she would not do anything but agriculture. However, sharing her property line are two illegal vacation rentals, one of which has ceased operations. She has attended numerous hearings to protest illegal vacation rentals, and is glad the Commission is discussing that. Ms. Dente stated she does not have a copy of the proposed rules relative to that, but has requested a copy from the Planning Department. Ms. Dente expressed her support for small, agricultural stands as there is so much product to be offered. She noted that much of it is being wasted because there is no time to participate in a farmer's market. She noted that her road gets a substantial amount of neighborhood traffic, and the possibility of selling produce to their neighbors would be possible if small farm stands were outright permitted; she is in complete support of that. What she is not in support of is something that some would take advantage of, and that would create a tremendous amount of waste, traffic, or encourage pests and rodents: Ms. Dente commented that the proposed size limit of 800 square feet seems appropriate on a highway, but not on the road she lives on. Mr. Hull replied the size is much smaller in other counties for outright permits. Mr. Hull stated the Department would be taking direction from the Commission on what they would like to see. Mr. Texeira stated the intent is not to discourage small farm stands, but to eliminate those that are taking advantage. Mr. Texeira feels something should be in place to allow a farmer to get an over-the-counter permit for a very small farm stand up to a certain size. He wants to ensure the proposed rules prevent abuse. Mr. Hull stated issues like that can be addressed during the use permit process, noting that Kauai has the most stringent rules regarding farm stands, and shared the example of having a 5 foot by 5 foot fruit stand, as some children do, technically they would need to come before the Commission for a permit. Mr. Texeira asked Mr. Hull for a projection of what would be presented when he returns to the Commission based on the issues brought up during this discussion. Mr. Hull stated he would propose open-air structures no greater than 500 square feet with products grown on= property. Mr. Texeira asked if those proposed rules were in place, and someone came in with a structure much larger than the size limit, what would be. the Commission's justification for denying it if there is no ordinance in place. Mr. Hull replied it would need to be looked at on a case-by-case basis . He noted that in a recent application, the Commission did not outright deny the permit, but did include a. condition limiting the size of the structure. Mr. Texeira expressed his uncertainty on whether the Commission' s decision would be defensible if there is nothing in the books. Ms. Mendonca asked to clarify that the new draft stating open-air structures not more than 500 square feet would allow farmers to receive over-the-counter permits; would children with small stands be required to come in as well? Mr. Hull replied arguably yes. Ms. Mendonca then suggested that the rules include a size range starting at 100 square feet. Mr. Hull explained the CZO, and land use law in general states any type of commercial sales or structure requires a permit. In response to Ms. Mendonca's request for clarification, Mr. Hull explained that anything beyond the size limitation would not be outright permitted, and would require a use permit. Ms. Mendonca asked if they could say "no more than" a certain size. Mr. Jung explained by adding a base minimum of what size is allowable as a permitted use, and include a ceiling on the size, there is still the possibility of going into the variance provisions to go beyond those limits. There would need to be a justification on why a particular ceiling amount was incorporated; however, it certainly can be argued should a structure not be compatible with the agriculture district. Should the Commission want to move forward with this proposal, there can be more discussion and evaluation on what would be reasonable minimum/maxirnum sets for structure size as well as how to define value-added. Mr. Kimura suggested this item be deferred until Mr. Hull can come up with a proposal based on what has been discussed for the Commission to review. Mr. Blake asked if the structure goes beyond the size limits and requires the applicant to come before the Commission, how much weight does the Commission' s recommendation carry. Mr. Jung reiterated it would need to be reviewed on a case by case basis, and the standards used by the Commission relating to use permits are already in the County Code section 8-3 .2 Use Permits (e)(2), which reads: The Planning Commission may impose conditions on the permit involving any of the following matters: location, amount and type and time of construction, type of use, its maintenance and operation, type and amount of traffic, off-street parking, condition and width of adjoining roads, access, nuisance values, appearance of the building, landscaping, yards, open areas and other matters deemed necessary by the Planning Commission. There are a number of issues to evaluate for suitability, it is a judgment call, which is why a use permit is discretionary. Mr. Blake asked if there is an application for a structure well within the size limits, but the applicant wants to make value-added products there, will that be allowed? Mr. Jung stated currently the rules are very stringent, and an applicant technically would be allowed to do it. However, if the Commission wishes to create a proposal to allow, or prohibit certain types of value-added products they can do so . They have to consider what they want to prohibit, and whether they will allow value-added products prepared off-site to be sold at the location. Additionally, they could look at refining the definition of value-added items that are outright permissible, and what value-added products would need Commission approval. Ms. Anderson stated a portion of the proposal references products grown in Hawaii. She asked if they could limit that to products grown on Kauai to which Mr. Hull replied they would work on that. On the motion by Hartwell Blake and seconded by Herman Texeira to defer the matter to April 22, 2014, the motion carried by unanimous voice vote. To consider the adoption of Interpretive Administrative Zoning Rules and Regulations ("KPAR") by the Kauai Planning Commission relating to Chapters S . 9 and 10 of the Kauai County Code pursuant to Article XIV Section 14.03 .E of the Kauai Count+ Charter including the codification of previously adopted interrpretive rules = County ofKaua `r [Postponed 3/25/14.1 Mr. Dahilig provided some background on some interpretive zoning rules previously approved by the Commission relating to paint colors, kitchen and dwelling units, fruit stands, and transient vacation rentals. These rules would be codified should the Commission approve this proposal. Mr. Dahilig noted the four other items that need clarification relate to food trucks, film productions, minor food processing, and the preferred access for public access to mauka/makai lands. Referencing food trucks, Mr. Dahilig stated the issue with the food trucks is the question whether parking a food truck permanently on a property is still considered outside the realm of permitting; is it considered a vehicle or a structure? To address that, there must be guidelines to create a distinction between something that is a permanent fixture as opposed to something that is mobile. Mr. Kimura asked if a trailer would be considered a food truck to which Mr. Dahilig replied yes, anything capable of uses and licensure by the State for the transport of goods would be interpreted as a food truck, Referencing film use, Mr. Dahilig stated the Department receives frequent inquiries on what types of permits are required to film in certain areas. The intent of this proposal is to consider film productions as accessory uses to an area provided they obtain the required approvals from the Kauai Film Commission. The reason it is tied-in that way is to ensure that film producers coming to the island are aware of the customs, practices, and concerns of the local community, which is the type of orientation the Kauai Film Commission provides. Referencing minor food processing, Mr. Dahilig explained currently there is no . distinction between minor food processing and food processing. The intent is to create a clear separation between cottage industry type things life jams and jellies, ice cream, candy, etc. as opposed to a massive bakery or feed producing shed. This proposal .puts a. limitation on the size of minor food processing to control the use based on that distinction. Referencing open space, Mr. Dahilig commented the Commission recently had concerns regarding public access on an application that came before the Commission. The intent of this proposal is to implement collaboration with the Public Access, Open Space, and Natural Resources Preservation Fund Commission on applications that come before the Commission. This would allow the Public Access, Open Space Commission to provide input and guidance on where they feel the most preferred access would be rather than have the planners draw a line on a map . Mr. Dahilig reiterated these are new areas they are trying to address in addition to the codification of the existing rules, and they have been reviewed by the Small Business Regulatory Review Board who are satisfied with the proposals. Ms. Anderson asked what the impetus was to define minor food processing as opposed to food processing. Mr. Dahilig replied there have been situations where things like jams or jellies were being produced in a commercial area, but the scale of the production came into question as to whether it was becoming more industrial in nature. They are looking toward size limitation as a means to help distinguish the scale of the use rather than the nature of the use. As an example, Ms. Anderson asked if the sugar mills were zoned industrial or agricultural to which Mr. Dahilig replied many of the sugar mills preceded the zoning ordinance, and none of therm are in operation anymore. He noted that much of the production occurring in industrial areas around the island are at a scale more suited for much larger types of operations. Mr. Katayama asked if making this distinction would mean that minor food processing could be more easily established in a residential area to which Mr. Dahilig replied no, this definition is only permitted in industrial and commercial areas; it is an attempt to further define an outright permitted use in the use table. Mr. Dahilig further explained in certain situations minor food processing is outright permitted, but food processing requires a use permit; that is the need for the threshold to determine scale. Mr. Dahilig distributed copies of the use table for the Commission's review. Mr. Katayama asked whether this definition would apply to agricultural, industrial, and commercial, and that no use permit would be required for minor food processing to which Mr. Dahilig replied yes, further stating the distinction is necessary to determine at what scale a food processing operation would need to be bumped up to a use permit. Mr. Katayama stated that definition is not included in the proposed language. Mr. Dahilig pointed out Page 8 of the proposal outlines that, noting because Rule 1 . relies on definition interpretation, Rule 3. includes a size limitation that applies to minor food processing. Mr. Katayama noted that the examples listed in Rule 1 . do not really help determine the scale to which Mr. Dahilig replied the scale issue is addressed by the square footage. Mr. Katayama asked if it isn't something that's measurable, why do it? Why not leave food processing all as one. Mr. Dahilig replied it is a function of the code, and should the Department ever be asked to define "minor", they need a means to determine that. Mr. Katayama asked if it would be easier to remove the term "minor", but still keep the size limitation regardless of what they are processing. Additionally, he noted the value-added portion in Rule 1 . needs to be sharpened, or refined. Ms. Mendonca asked if it's necessary to list the examples of food products in Rule 1 : She pointed out that Rule 2 . states that foods for production must be in a raw, unadulterated state; however the items listed in Rule 1 . are not in its raw state. Mr. Blake commented ice - cream, or jam and jelly production are major production efforts though the product itself maybe small. He stated his idea of minor food processing is something produced out of someone's kitchen, or garage. Mr. Dahilig used the example of Aunty Lilikoi in Waimea that uses the storefront and facility to not only sell commercially, but also to produce things in the back; those are cottage industry type things that are encouraged, and should not be required to come through the permitting process. In reference to the open space issue, Mr. Texeira asked if subdivisions that were approved 20 years ago that haven't been looked at as closely as they should be would be considered by the Department. Mr. Dahilig replied this particular provision would not apply to situations that no longer need subdivision approval; it is not to remedy anything that occurred in the past. Mr. Katayama asked how this proposal on open space differs from how the Department is currently handling public rights-of-way. Mr. Dahilig replied it would make it a more public process allowing more input on where the access should be rather than have it be strictly an administrative call. Mr. Katayama asked how landowner rights are protected during this process. Mr. Jung explained the Subdivision Ordinance section 9-2.9 Public Access-Ways for Any Subdivision sets a threshold that a subdivision of six or more lots can be hit for mauka-makai access from a public street or rightWof way down to the ocean line for non-vehicular pedestrian public beach access. Mr. Jung stated the Director' s intent with this proposal is to have the Public Access, Open Space Commission, who are experienced in looking at these issues, offer recommendations or commentary on whether the access agreed upon by the land owner and the Commission is a viable access point. The Planning Commission views. it only as a recommendation, and ultimately makes the final approval. Beyond that, Council would accept the land as an easement to the County and indemnifies the land owner. Mr. Dahilig suggested the items on food tracks, film production, and open space be approved along with the recodification of the previously approved rules, and the item .on minor food processing be deferred due to its complexity. Mr. Katayama asked to clarify that under the proposed rules as long as a food truck is mobile, it is exempt to which W. Dahilig replied yes, from a zoning context. If it is in a residential area, it becomes the purview of the Public Works Department as it would be a right- of-way situation. Mr. Jung added that if they are on a private, residential property they would need a use permit. W. Texeira asked if a food truck is parked along a County roadway, is that allowable to which Mr. Dahilig replied, theoretically, but it becomes a matter of utilization of County roads, which is a Public Works matter. This proposal is to specifically address the zoning aspects. Ms. Mendonca asked if a food truck owner has his truck parked in the driveway of his home, and he sells his products to a customer, is he in violation. Mr. Dahilig stated yes because it is residential. On the motion by Herman Texeira and seconded by Amy Mendonca to approve the recodification of the rule amendments into the structure proposed as well as the rules on food trucks, film production, and open space referrals, and deferral of rules relating to minor food processing, the motion carried by unanimous voice vote. Adoption of administrative rules interpreting provisions of Chapter 8, Kauai County Code pertaining to the enforcement of Chapter 8, Article 17 (Single Family Transient Vacation Rentals) = Couniy of%aua `i Planning Department [Hearing cont'd 11/12/13 , cont' d 2/25/14.1 Mr. Dahilig distributed copies of the amended proposal. (On file) He noted the amendment of language in the first part of the amended Violations section to add the phrase, notice of violation, and/or a temporary cease and desist order where health, and safety issues exist. Under the fine schedule, the Department has added a fine of $ 1 ,000 per day for situations where a certificate has been consistently withheld. A new section V will be added to Courtesy Renewal Notices to state that upon. approval of the application, the Department will provide an email renewal notice no less than 60 days prior to the renewal deadline. This courtesy renewal notice will be a voluntary program that customers must sign up for should they want to receive these notices by email; this makes customers accountable for providing accurate contact email information. Mr. Kimura asked if renewals will still be accepted after the 30-day late renewal deadline to which Mr. Dahilig replied no, 30 days is the cut-off after which the renewal fee will be doubled. Mr. Kimura asked why give a deadline if they will be allowed an additional 30 days, noting that they are already receiving a renewal notice 60-days prior; why not just revoke the permit. Mr. Dahilig explained it would require going through Chapter 12 revocation procedures based on due cause, or the one year abandonment provision; there are no conditions on these certificates unless it is on agricultural property. Ms. Mendonca questioned whether not paying on time is due cause to which Mr. Dahilig explained that situation is what prompted the flood of contested case hearings, which was the reason for the Commission's desire to address ways to fix that. In response to Mr. Kimura, Mr. Dahilig noted that though these TVRs are outside the VDA (Visitor Destination Area), they are treated the same because of the grandfathering issues stemming from when the original law was passed in 2008. In response to Ms. Anderson' s question, Mr. Dahilig stated renewals are currently received by the Department via mail, or over-the-counter; digital transmittals are not allowed at this time. Ms. Anderson suggested something be included in the rules to provide clarity on how renewal packages are postmarked to ensure they are received on time. Mr. Dahilig pointed out Page 2 of the rules already include language to specify that. In response to Mr. Blake, Mr. Dahilig stated for clarity that once a certificate is late, the Department will not be providing any kind of notice. The Commission received testimony from Marge Dente, Ms. Dente restated her earlier testimony. She noted that one of the illegal vacation rentals bordering her property is ,still in operation despite the fact they have received three cease and desist letters from the County. Additionally, the case has gone through a hearing process which she has attended, yet nothing has been done to enforce those cease and desist orders; they are still operating, and advertising. She shared a recent incident in which guests of that vacation rental were taking photographs of her property for reasons unknown to her. Ms. Dente stated these are the kinds of problems being caused by vacation rentals, especially by those who take advantage of the law due to lack of enforcement. She stated the lack of County staff available to monitor these illegal vacation rentals is no excuse for allowing them to constantly break the law. She expressed her happiness that they are looking at tightening up the process, and asked where it goes once the proposal has been approved by the Commission. She noted she does not have copies of what is being proposed, and asked if there will be another opportunity for her to testify on it. Mr. Dahilig stated what is currently being proposed are administrative rules authorized by the County Code to be implemented by the Department. Should they be approved by the Commission, they will then go to the Mayor for approval. In response to Ms. Dente' s question on where to obtain copies of the rules, Mr. Dahilig pointed out that copies have been posted on the public hearing notification board since the last hearing back in November; there has been a substantial amount of time that these documents have been available to the public. In response to Ms . Dente' s concern on the still operating vacation rental, Mr. Dahing stated he could address that personally apart from the Commission meeting. Ms. Dente stated the rules have been in effect for a long time, but are not being administered. She questioned what will prevent that from continuing, even though they are being tightened up. She expressed her dismay as a property owner that no documents were available at today' s meeting for her to review as she has not apprised herself of what has been made available at past meetings. She further commented that because those documents are not available today, she has had to submit an application at the Planning Department to request them; however, by the time she gets them, they'll have already been approved. She is hoping what is approved today will be published so she will be able to review it so that she may bring up any concerns about these rules with the Mayor. Mr. Dahilig explained the process by which these proposed rules will be adopted. He pointed out that the documents Ms. Dente is seeking are currently posted on the public hearing bulletin board, and have been up there for a while. Ms. Mendonca shared the Commission' s views on the issue, provided an explanation on what the Commission is currently attempting to do, and expressed the Commission' s appreciation for Ms. Dente' s concerns as well as their desire to avoid future frustrations related to this issue. Ms. Dente thanked Ms. Mendonca for the comments, and pointed out there are numerous other people that have come to the Commission with the same issues and concerns. Ms. Mendonca stated the Commission will do their best to address those issues. On the motion by Herman Texeira and seconded by Ashy Mendonca to approve the administrative rules as amended, the motion carried by roll call vote 54 . 5 Ayes (Texeira, Blake, Katayama, Mendonca, Anderson); _1 Nay (Kimura) (The meeting recessed at 11 : 52 a.m.) (The meeting resumed at 1 : 14 p.m.) EXECUTIVE SESSION Pursuant to Hawaii Revised Statues Sections 92-5(a)(2) and (4) the purpose of this executive session is to discuss matters pertaining to o the evaluation of the Planning Director. This session pertains to the Planning Director' s evaluation where consideration of matters affecting privacy will be involved. Further, to consult with legal counsel regarding dowers, duties, privileges and/or liabilities of the Planning Commission as it relates to the evaluation of the Planning Director. On the motion by Herman Texeira and seconded by Hartwell Blake to enter into executive session, the motion carried by unanimous voice vote. (The meeting entered into executive session at 1 : 15 p.m.) (The meeting resumed at 2:33 p.m.) Zoning Amendment ZA-2014-4. Amendments to Chapter 8 of the Kauai County Code 1987, as amended, relating to the Agricultural Zoning District and the re-designation of agriculture uses that are eg nerally permitted, permitted with a use permit, and/or prohibited in each respective zoning district = County of%aua `L Mr. Dahilig requested the item be presented to the Commission, but have discussion and other issues be held until the next meeting as they want to take their time with this item. Staff Planner Ka'aina Hull provided an overview of the proposed amendments. (On file) Mr. Dahilig explained looking forward the Department would like to stay ahead of the curve in the event that County Council adopts IAL (Important Ag Lands) lands and sends it over to LUC (Land Use Commission) to ensure the regulation structure is in place. On the motion by Herman Texeira and seconded by Hartwell Blake to defer the item, the motion carried by unanimous voice vote. Zoning Amendment ZA-2014-5, Amendments to Chapter 8 of the Kauai County Code 1987," as amended, to remove Article 12, Constraint Districts = County ofgaua `L Staff Planner Marisa Valenciano provided an overview of the Director' s Report on the Constraint Districts, and distributed a summary of the report in spreadsheet form. (On file) The Commission received testimony from Keith Nitta. Mr. Nitta read his written testimony into the record. (On file) Mr. Katayama asked Mr. Nitta if he feels Ordinance section 22- 16.9 of the County Code is not adequate enough for both the drainage and the slope issue. Mr. Nitta replied no, he is not saying that. The point being made in the constraint district section of the CZO states a drainage master plan is required, which Mr. Nitta questions the need for. He feels the drainage ordinance by itself has been working well since its adoption, which during his time, resulted in drainage studies, drainage setback lines being placed on maps; and in his opinion it' s enough. Mr. Kimura asked for clarification on Mr. Nitta' s former job title to which Mr. Nitta stated he is a former planner. He provided a brief history of the structure of the Planning Department during his employment there, and what his responsibilities were as supervisor of the Subdivision section. Mr. Nitta stated his motivation in testifying, which is something he would not normally do, is that much thought went into the constraint district maps, and it is a very important document. It is a major foundation in the CZO mapping as it explains why certain areas were not placed in residential, etc. He does not want all the hard work, and effort that went into creating the constraint district maps to be lost as it is a reflection of everything that was done. He feels the constraint district maps should not be deleted, but noted that the real area of expertise is with the agencies that deal with these particular functions; the drainage is best handled by Public Works not only because they are engineers, but also because they are the department that advises Planning on those matters. Mr. Texeira asked Ms. Valenciano how she relates to the testimony just given. Ms. Valenciano replied Mr. Nitta has very good points, noting that many new things have come about since the CZO was adopted in 1972 . She agrees with comments that the drainage ordinance currently in place is working well just as it is. Mr. Dahilig stated he was always taught that if you have no idea where you come from, you do not know where you're going. That is the message he is getting from Mr. Nitta' s testimony. On the motion by Herman Texeira and seconded by Angela Anderson to defer the item, the motion carried by unanimous voice vote. Zoning_Amendment ZA-2014-6, Amendments to Chapter 8 of the Kauai Coun . r Code 1987, as amended, relating to the incorporation of non-zoned lands into the County of Kauai Agriculture Zoning District. These amendments identify the lands not currently zoned by the County of Kauai and re-designate them within the Agriculture Zoning District = Coun& of %aua `i. Staff Planner Kenneth Estes read the Director's Report into the record. (On file) A map of Kauai highlighting the non-zoned lands was distributed. Mr. Dahilig stated there are County lands that have no zoning, which is of concern to the Department. Much time and effort has been put into this analysis, and Mr. Dahilig would like to give the Commission time to digest the information presented. This item is scheduled to be revisited at an upcoming Commission meeting in May. Mr. Texeira asked about the ownership of the lands being discussed to which Mr. Dahilig stated it is a combination of State, County, and private; without zoning, there can be no regulation of the lands. Mr. Dahilig stated they are planning to zone them under Agriculture. Ms. Anderson requested the map include zoning information on the lands surrounding the non-zoned lands, and the layering of the IAL proposal. Mr. Katayama requested an ownership reconciliation be provided at the next meeting. Mr. Blake asked to clarify that if it is not zoned, it means nothing can be done with it, or that anything can be done. Mr. Jung stated he did look into that, and will brief the Commission at the May 27 meeting. On the motion by Herman Texeira and seconded by Hartwell Blake to defer the item to May 27, 2014, the motion carried by unanimous voice vote. ANNOUNCEMENTS The following scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter at the L-liu`e Civic Center, Mo `ikeha Building, Meeting Room 2A-2B, 4444 Rice Street, Li-hu` e, Kauai, Hawaii 96766 on Tuesday, April 8, 20149 ADJOURNMENT Chair Kimura adjourned the meeting at 3 :05 p.m. R: pectfullysubm3tted by: Cherisse Zaima Commission Support Clerk { } Approved as circulated (add date of meeting approval). ( } Approved as amended. See minutes of meeting. .