HomeMy WebLinkAboutpc 8-26-14 minutes KAUAI PLANNING COMMISSION: . .
REGULAR MEETING
August 26, 2014
The regular meeting of the Planning Commission of the County of Kaua'i was called to order by
Chair Jan Kimura at 9:22 a.m. , at the: Lihu`e Civic Center, Mo`ikeha Building; in Meeting Room
2A/2B. The following Commissioners were present:
Chair Jan Kimura
Vice Chair Angela Anderson
Mr. John Isobe
Mr. Wayne Katayama
Mr. Sean Mahoney
Ms. Amy Mendonca
Absent and Excused:
Mr. Hartwell Blake
The following staff members were present Planning Department — Michael Dahilig, Leslie
Takasaki, Ka'aina Hull, Dale Cua, Jody Galinato; Office of Boards and Commissions - Cherisse
Zaima; Deputy County Attorney Jodi Higuchi=Sayegusa
Discussion of the meeting, in effect, : ensued:
CALL TO ORDER
Chair Kimura called the meeting to order at 9:22 a.m.
ROLL CALL
Planning Director Michael Dahilig noted there were six commissioners present.
APPROVAL OF THE AGENDA
Mr. Dahilig requested that item K. Committee Reports be taken before;Ttem F.
On the motion by Sean Mahoney and seconded by Mendonca to approve the
agenda as amended, the motion carried by unanimous voice vote.
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APPROVAL OF THE MINUTES (None) ,
RECEIPT OF ITEMS FOR THE RECORD
On the motion by Angela Anderson and seconded by Amy Mendonca to receive the
items for the record, the motion carried by unanimous voice vote.
COMMITTEE REPORTS
Subdivision
Subdivision Committee Vice Chair Amy Mendonca read the Subdivision Report into the
record. (On file)
The following Final Subdivision Actions were approved 3 -0:
S-2012- 14, Wailua Ranch, LLC, Proposed 3 -lot Subdivision
S-2014-10, Charles G. King Trust/Mary Bea P. King Trust, Proposed 2-lot Consolidation
On the motion by Sean Mahoney and seconded by Amy Mendonca to receive the
Subdivision Committee report, the motion carried by unanimous voice vote. .
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing (None)
New Agency. Hearing
Special Management Area Use Permit SMA 2015- 1 for development of a 10-lot
subdivision involving a parcel located along the he Makai side of Pe` e Road in Po`ipu and
immediately adjacent to The Point at Po` ipu resort facility_. furtheridentified as Tax Map Keys 2
8-021 : 041 , 044 through 068, and containing a total area of 13 , 078 acres = CIRI Land
Development Company,
Mr.. Dahilig:noted the following written testimonies that were received for the record:
e Roger and Lori Davy —. concerns, requesting deferral
s Tom and Jane Sweet — concerns
e Layton Construction — in support
s Carol Ann Davis-Bryant — in support
® - Ted Blake - in support
a Rick Shaw — in support
e Judy Foss — in support
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• Lorraine Osterer — in opposition
The Commission received testimony from Carol Ann Davis-Bryant who read her written
statement into the record. (On file)
The Commission received testimony from Rayme Meyer who stated she is unsure if she
is speaking for or against the project, but what she has been hearing a lot is that it could be
worse, which does not mean it's a perfect plan and could make improvements. She and her
husband are Po`ipu residents and are primarily concerned about the pedestrian access, and the
open space sightlines of the plan. Upon viewing the permit application, they were unable to
determine the specific footage allocated for the public access route; However, she heard this
morning that it is 30 feet, which conflicts with what was presented at various meetings,
indicating it could be as wide as 60 feet. She hopes it will be wider than 30 feet and generous
enough to maintain the natural feel being lost to the community with any development on this
historically open space. Additionally, to maintain the natural sense of that environment, she
feels no reason to pave the lateral setback. Ms. Meyer noted it is important to her that inviting
views from Pe`e Road be kept as open as possible, and requested that landscaping plans exclude
trees that are higher than roof lines, and barriers such as tall dense hedges or walls be prohibited,
and houses be strategically placed to show that the shoreline is there; there is concern that the
shoreline will not be visible as people pass by.
The Commission received testimony from Louis Abrams, a resident of Koloa, who stated
that representatives CIRI have taken the time to meet with members of the community both at
the property, and in a presentation to the Koloa Community Association. He noted they have
been willing to listen to viewpoints from community members, and have made changes to their
plans to address some concerns- noted. Mr. Abrams agrees with the recommendations -made in
the Director's. report to approve the permit with its 13 conditions.
The Commission received testimony from Ted Blake who read his written statement into
the record. (On file)
The Commission received testimony from Rupert Rowe representing Hui Malama 0
Kaneiolouma in support of the project as well as their "brothers" in Alaska! • He stated the Hui -
will be morethan happy to work with this particular group over any other development in the
area, noting that earlier testimony has already expressed what he wanted to say.
The Commission received testimony from Steve-Drake, President of the AOAO at the
Makahuena Resort, and one of 28 owners at the condominium. He=stated the association has had
a number of meetings with CIRI and has not been opposed to the project; however, they do have
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some concerns, some of which have already been raised in previous testimony. The particular
items of concern the association feels have not been entirely addressed are the following:
1 . Building .Envelopes - Without a narrow range of a building envelope, there is no way to
determine what the view plain will be. They have asked, and hope the Commission will
consider their request for more information from CIRI on that.
2. View Plain - The .existing view plain analysis that is included in the application- shows
what.the view. would. look like from the first floor of the Makahuena; however, the:first
floor ofthe Makahuena does not currently have any view, therefore something: needs to
be reworked in that analysis. Rather than using a computer generated view plain
analysis, actual photos from the resort and its surrounding areas should be taken to utilize
in the view plain analysis.,
3 . Landscaping Heights — There are concerns that future: owners may plant tall ironwood .
trees or. something similar, and there have been discussions with CIRI about possibly
including height limits on landscaping within their CC&R; however, nothing specific on
that has been produced.
41 Easement - As stated in previous testimony, ;the association was. also under the
impression that there would be a 60 foot easement, but it seems. substantially less than .
that now. The residents of the Makahuena Resort do not want the walkway immediately
against the property line, and feel a wider easement is beneficial for everyone.
5 . Dust -. The dust issue will be miserable, yet there is no, good way around it. It will be
difficult to mitigate as they. have previously experienced when construction vehicles from
the nearby Layton project were allowed to park on the CHU property; which created a
dust-storm of fine, red dust. This needs to be addressed for everyone in the whole
community, but specifically for the Makahuena Resort, which is directly downwind from
the project.
Mr. Drake stated those are the five main concerns he hopes the Commission will
consider..
The Commission received testimony from Chris Moore, a resident and business owner in
the K61oa area, in support of the development. . He stated he is thankful that it is 10 lots instead
of the 25 that they could. build, . and noted it is a very significant; location for the subdivision :
being: the southernwmost location, on the island enjoyed by residents and visitors coming in and
out every day. He toured the property in 2013.. with the community, noting the developers
informed them of the dozens of seabird. burrows in the bluffs below the property as well as
cautioned them to step lightly over the native plants in the area. Mr. Moore stated his focus is on
the construction. impacts, and urged the Commission to include conditions that minimize
impacts, and that grading be maintained as it is nowas much. as possible. During the tour, it was
mentioned that there is : a large ravine planned to be filled to create building paths; however, he
feels that it works well as a natural run-off and drainage. He feels the current conditions should
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include more "shahs" and less "shoulds" as he feels the area is significant and should be
disturbed as little as possible. Mr. Moore feels one of the .conditions that should be addressed is
a sewage treatment plant. Currently, it is implied that there will be 10 individual systems, but he
feels it would make more sense to have a central sewage treatment system for the development.
He commented that his understanding is that this application is strictly for lots, and homes will
be constructed in the future by other individuals, which is the reason he feels this current
application should address the pervious services for the roadways; utility infrastructure, and
sewage treatment. He feels this should be a model development of conservation and
preservation to set a new standard for the Planning Department and the island, and use as an
opportunity to stand out, including utilizing LEED design construction.
The Commission received testimony. from Lorraine Osterer, co-owner at the Makahuena
Resort, who stated the two parts of the development she is most concerned with are the grading,
and the septic as well as house placement. She noted the testing and percolation studies done
were shallow, and deeper test bores need to be done as it is quite rocky, and may present
considerable grading .problems, She pointed out that she is not opposed to the project; however,
she is questioning:whether or not the-amount of grading proposed needs to be done, noting the
surrounding properties developed huge condominiums without interfering with the natural slope
and grading by building into the slopes and tiered areas. She does not understand why:they
could not develop a similar number of lots or less with the same profit simply by pricing the lots
according to size. She requested- a review of the slope qualifications; stating that Open zoning of
any slope 10 percent or greater requires three-acre plots, not one. She pointed out the
topography map provided in Exhibit B shows that it is 64 feet high at Pe` e Road, and goes down
to sea level. That along with the large slope in the center of the lot would likely exceed the 10
percent limit. However, the geological survey only goes down to the heightof the cliffs because
of the dangers in going down lower. There are questions in her mind whether the Commission
would want to approve based on what she feels is a common-sense analysis rather than a
technical interpretation of the data.: Ms.. Osterer commented that fewer lots and less grading
would expedite the project, cost less, andr cause less disruption to the vacation rental area, less
risk to the environment, and less capital investment. She noted the significant dust caused last
year from trucks parking on the eastern side of this lot which created an unbelievable amount of
dirt and dust;:and this project is set for a period of two years in addition to_.the subsequent
building that will' occur once people buy the lots. She. feels;it has a serious impact ontthe
surrounding rentals and resort properties: It will be impossible to control the dust with existing
methods;dust.will blow, up and over any, dust fences. Other methods tried were not .very .-
effective. Ms. Osterer hopes if there will be that type of grading, it should. be limited to a
scheduled time period considering the dust, dirt, noise and pollution from the equipment, and
should not go on. for years.
Chair Kimura asked Ms. Osterer to wrap up her testimony. Ms. Osterer asked to continue
into some specifics to which Chair Kimura requested she wrap up testimony.
Ms. Osterer stated her concern with the septic system, no t the percolation studies seem
to be the same whether. you.have oceanfront property of not, and even though the acreage is right
it is porous lava rock going straight into the ocean, and she feels the septic plan should be to
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hook up to a central system, noting there are three systems that have capacity. If that cannot be
done, she feels the:house placements should be on ,the Pe` e half of the parcels, the drainage
tanks; and run-off storm drains on the makai side, and the septic systems pumped on the Pe`e
side. .
W Dahilig noted for the record that additional written testimony was received from the
following:
® _ Jenny and Art Cernosia
• Arnold and Jane Albright
The Commission received testimony in support of the project from Tommy Noyes,
whose family owns a rental property near the development site,-and have lived in Po`ipu for
close to 50 .years. . He urged that plans for the development include. paved pedestrian access that
will allow appropriate permeability for walking and biking through a residential area. He noted
that having a clearly demarcated path for pedestrian access prevents the creation of social paths
where people wander through an area, and.inadvertently trample the fragile plants growing there
A paved path would help protect those plants as well as provide firm, stable, slip resistant access
to kupuna and young people learning to bicycle. It would also create a pedestrian circulation
network within the area; which is a desirable feature for a livable community, and the
southernmost location known for watching whales is a notable attraction,
Ms. Osterer asked if she could provide additional testimony to which Chair. Kimura stated
she would be allowed to speak again when the application comes up under New Business. _
On the motion by Sean Mahoney and seconded by Angela Anderson to close the
agency hearing, the motion carried by unanimous voice vote.
Class IV Zoning Permit Z-IV-2014-23 Use Permit U-2014-21 and Special Permit SP-
2014- 1 to o erate a farmer' s market and conduct tourswithin 'a Rarcellocated along the southern
side of Kealia`Road, situated aoprox. V4 mile: mauka of its intersection with Kuluo Highway,
further identified as Tax Ma Key 4-7-008: 001 & 42 and affecting gpnrox; 100 acres of a lar er
parcel = Kauai Taro Company, LLe fDirector' s' Report received 8/12/141-
On the motion by Sean Mahoney and seconded by Angela Anderson to close the -
agency hearing, the motion carried by unanimous voice vote.
Class IV Zoning Permit Z4V-2015- 1 to allow establishment of a ou child care center
facili on a parcel located gong the western side of Ohelo Road in Wailua Homesteads situated
at its intersection-with:Kuamoo Road further identified as Tax Mgp Key 4-2-009: 018 and
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containing a total area of 10,007 s . ft. = Ke Kula Pono LLC. Director' s Report received
8/12/14.
The Commission received testimony from Tom Parisi who stated he is in support of the
application. He believes there is no finer endeavor than. educating preschool children and
providing for their physical,: social, and academic -development. He stated children engaged in
preschool have a stronger likelihood for success throughout their educational experiences.
Speaking as a resident of the Wailua Homesteads area, he welcomes Ke Kula Pono to the
neighborhood, and believes the school will lend a-special spirit and vitality to the community
with the presence of students and parents providing excitement and spirit. Parental support in the
preschool experience is to be commended, noting the benefits to children are great and the
influence in the community will be felt today as well as in years to comer He strongly endorses '
this application.
The Commission received testimony from Laurie Cicotello who is a neighbor of Ke Kula
Pono preschool. She is in strong support of having them come into the neighborhood, and feels
it would be fantastic to have little children in the neighborhood. She also feels it would help
with security in the neighborhood having people there throughout the day:
On the motion by Sean Mahoney and seconded by Angela Anderson to close the
agency hearing, the motion carried by unanimous voice vote.
(The meeting recessed at 10 :00 a.m.)
(The meeting resumed. at 10:23 a.m.)
Continued Public Hearing (None)
New Public Hearin u (None)
CONSENT CALENDAR (None)
EXECUTIVE SESSION (None)
GENERAL BUSINESS MATTERS
Contested Case No. 2013 -77 for Protest and ARpeal re Notice and imposition of Fine re
Tax Mau Kev 4-5-8: 008 : 034; Alleged Special Management Area Notice of Violation, dated
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September 30 2013 Notice of Breach of Con_ tract & Objection to Malicious Prosecution
Request of Hearing by Klaus H. Burmeister Es q.
Contested Case No. 2013 -78 for Protest and Appeal re Notice and Imposition of Pine re
Tax Map Key- 4-5-8 : 008 : 034. Alleged Special Management Area Notice of Violation, dated,
September 30, 2013: Notice of Breach of Contract & Objection to Malicious Prosecution
Request of Hearing by Blaus H. Burmeister, Es4,
Mr, Dahilig stated a letter was received by Richard Nakamura, Esq. recusing himself
from the matter, the reason being he was also hired by the County Attorney' s Office.to represent
the County of Kauai in the Tim Bynum lawsuit. Because of Mr, Nakamura's representation
capacity in that. lawsuit, an advisory opinion was given regarding the potential for a conflict of
interest; Mr. Burmeister has elected through his counsel that Mr. Nakamura recuse himself,
which Mr. Nakamura has done.
Mr. Dahilig explained this now prompts action to consider the option.of seeking another
hearings .officer for this hearing, which would require authorization from the Commission for the
clerk to procure another hearings officer should they wish to go that route. The alternative
would be for the Commission to hear the matter; however, it would be the Department's
recommendation due to the complexity of the case that another hearings officer be appointed.
Chair Kimura asked if the Department has anyone in mind to which Mr. Dahilig
explained they would go through the normal procurement process involving the Request for
Professional Services contracts that goes out every fiscal year and comes back with a number of
resumes for review and recommendation by the County Attorney's office.
Ms . Anderson asked if there is an estimated time for this particular contested case to
which Mr. Dahilig stated this is an actual appeal of a fine, which they have not yet gone through
a full contested case. He suspects it would entail pre-hearing motions, an evidentiary hearing
followed by a presentation of recommendations to the Commission by the hearing officer 4-6
weeks later. Ms. Anderson asked for clarification on the timeframe. for the evidentiary hearing to
which Mr. Dahilig stated it would be left up to the hearing officer to determine, but in the past it
has been given a day.
Mr. Katayama asked how they will avoid this kind of conflict in the future to which Mr.
Dahilig stated it would be a question better asked of the County Attorney, but.in this. case it was
a double procurement issue. Mr. Katayama asked if the Commission will be subject to that same
type of circumstance moving forward to which Mr. Dahilig stated his suspicion is the attorney' s
office is now aware of the appearance of conflict, and the predicament this has caused the
Commission and the Department. Mr. Katayama asked what the remedy is to which Mr. Dahilig
replied he cannot speak for the County Attorney as procurement of hearings officers is handled
by the County Attorney's office. In response to Mr. Katayama' s ,question on time sensitivity,
Mr. Dahilig stated should the Commission approve it today, they would move very quickly to get
anew hearings. officer onboard. Mr. Katayama asked what the specific.conflict was to which
Mr. Dahilig explained it was the question . of.whether Mr. Nakamura could appear to be impartial
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given the fact that he was advocating for the County. There was further discussion on general
procurement legalities.
Ms. 'Higuchi-Sayegusa explained the general procurement criteria for professional
services contracts. Because she was not part of the selection committee for the Bynum_ case, she
cannot speak to the exact selection process.
On the motion by John Isobe and seconded by Wayne Katayama to delegate to the
clerk of the commission the authority to' procure ' and appoint a hearings officer in
Contested Case Nos. 201347 & 78 the motion carried by unanimous voice vote,
COMMUNICATION (For Action), (None)
UNFINISHED BUSINESS (For Action)
Class IV Zoning Permit Z-fV-2014-22 and Use Permit U-2014-20 for the installation of a
70 feet high stealth monopine tower and associated equipment on a parcel situated in Lawa`i
situated alone the mauka side of K61oa Road, approx. 700 ft. east of its intersection with Mana
Hema Place, further identified as Tax Map Key L4 2-7-003 021 and' affecting a L000 sg ft
ortion of a1ar er parcel a rox. 4. 863 acres in size New Cin ular Wireless PCS Oba
AT& T). [Director' s Report received 7/8/14 hearing deferred 7/_22/14 hearing closed, action '
deferred 8/12/14.1
Staff Planner Ka' aina Hull noted the Director's Report was read into the record at the
previous meeting. (On file) Mr. Hull stated there was a miscommunication with the applicant
regarding his presence at the last-meeting; which is the reason-it was deferred.
Les Young; representing the applicant, was present, and apologized to the Commission
for not being present at the last meeting due to his misunderstanding of the application process.
In response to Chair Kimura, Mr. Young stated the applicant has no comments or concerns on
the Director's Report; noting the conditions set forth are acceptable: to the applicant.
On the motion by John Isobe and seconded . by Sean Mahoney to approve the zoning
permit and use permit; the motion carried by unanimous voice vote.
NEW BUSINESS (For Action)
Special-Management Area Use Permit.SMA (U)_2015-1 ''(Class III Zoning Permit Z-IIh
2015- 1 ' for information and concurrence) for development of a 104ot:`subdivision involvinga
Marcel located along the Makai side of Pe`e Road in Po ` ipu and immediately adjacent-to The
Point at Po` i u resort facilfty, further identified as Tax Ma ' Ke s 2=8-021 : 041 044 throw gh 068
and containing a total area of 13 .078 acres CIRI Land Develo 'meat Company,
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Staff Planner. Dale Cua read a summary of the Director's Report into the record. (On
file)
Mr. Dahilig stated there is one employee.that is :a beneficiary of the Native Alaskan tribe
that CHU provided a benefit for. That employee, Kenneth Estes, has been recused from the
matter and has not worked on the application.
Jennifer.Bank, attorney, for.the applicant was. present along with President and CEO of
CHU Sophie Minich, Vice- President of.CIRI.Dave Pfeifer, retired member of CIRI's Board of
Directors William Prosser,. Land .Use.Planner for PBR Hawaii Tom Schnell, Terrestrial
Vertebrate Biologist Reggie David, Owner of Esaki Surveying and Mapping Dennis Esaki,
Engineer Dave Grenier of Triad Engineering, and Jan Tenbruggencate,
Ms. Minch provided a personal background as well as a background of the CIRI Land
Development Company and its mission.
Mr. Schnell provided hard copies of a Powerpoint slideshow he intended to present. Due
to technical difficulties, Mr. Schnell provided a slide by slide overview of his presentation using
the hard copy printout. (On file)
Ms. Anderson referenced the rock wall surrounding the property, and_asked what the
height established for that wall. is to which Mr. . Schnell stated it averages about three feet,: and
acts more as a retaining structure, but will also delineate the property line from the public
shoreline access.
Mr. Isobe referenced the walkway in proximity to the rock wall asking for clarification
on whether it is abutting the rock, wall. Mr. Schnell explained it's shown on the map as being
parallel to the wall, but the path could be anywhere Within-the area shown between the rock and
shoreline, depending on where the most natural foot path would be. Mr. Isobe asked to clarify if
the :plan is to :have a rock wall as opposed to a tile wall;to which Mr. Schnell stated a rock wall.
Chair: Kimura. asked how the Koloa residents feel:about that rock wall, and questioned -
where the rocks-would be obtained from. Mr. ' Schnell stated the hope is :ao;get most ofthe rock
on-site during the cut and fill process on the property. They have not heard any specific
comment& for or against the, wall; though they haveheard; comments: about access easements and
the width of the path.
Referencing the original 25 lots, Mr. Isobe commented that it was mentioned those lots
were grandfathered in, and therefore not subject to the current CZO regulations; `what are those
regulations? Mr. Schnell stated he would refer that question to the Planning Director to which
Mr..-Isobe replied if it is a Department question, he would ask it at a more appropriate time Mr.
Cua. explained that lots within the Open zoning district that were established prior to the adoption
of the CZO mainlydiffer because they are not subject to the 10.percerit lot coverage., In ,this
particular case these lots allow up to 300 square feet. Mr. Isobe stated in that case then, they
would still be subjecUo the CZO _to which Mr. Cua replied yes. They would also be subject to
the setback and height requirements. Mr. Schnell clarified if they are in the Open district they
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would not be subject to the one acre minimum size. Mr. Cua stated yes, because many of these
lots were pre-existing, and average about 7,500 square feet.
Ms. Mendonca asked whether the applicant is working in line with the Department of
Land and Natural Resources' recommendations for the sloping of the rock wail. Mr. Schnell
stated Reggie David could come up and speak about those issues. Ms. Mendonca asked if in the
development of those subdivisions are they looking to do underground utilities, or will that be
done in the future to which'Mr. Schnell replied they are doingiunderground utilities.
Mr. Katayama asked for clarification on the property lines to which. Mr. Schnell stated
they will go up to the certified shoreline. Referencing the pathway depicted on the plot plan, Mr.
Katayama asked if it would be given an easement in favor of the County to which Mr. Schnell
replied correct; the rock.wall will remain with, the owner of the property on the mauka side of the
shoreline setback. Mr. Katayara asked where the detention ponds to contain runoff will be
located. Mr. Schnell replied most lots will have them downslope at the base of the rock wall on
the mauka side. Mr. Katayama asked whether..theyplanned to create a subdivision association to
maintain the roadway to which Mr. Schnell replied yes, there are no plans to dedicate the road to
the County; it will remain ,a private road.
Ms. Mendonca stated an earnest effort was made by the applicant to meet with the public,
but they all seem to have questions/concerns about the width of the.walkway. She asked if that
has been clarified so that everyone is on the same page. Mr. Schnell stated he is unsure that
everyone is in agreement, but explained that at one point the applicant was proposing more than
30 feet, but without the rock wall next to the Makahuena condo project. At one point they also
did depict an access driveway to access the shoreline open space area along with proposed
parking along the roadway down to the coast. The residents expressed their preference not to
have a roadway for cars to drive down and park on that side of the.property, which led to
the proposal of the parking lot up towards Pe`e Road and a pedestrian easement: The pedestrian
easement would be 30 feet from the property line to where the wall will be; he would have a
difficult time envisioning anyone building a house right next to that wall, and would think they
would leave a setback, which would make that walkway larger.
Ms. Bank added the 10 percent lot coverage limitation does not leave much land that can
be covered with impervious surfaces. It seems quite impractical to put a home so close to the
rock wall because it would waste much of the limited lot coveragewith 'a long driveway. They
do not envision anyone wanting to build up along that wall.
Chair Kimura asked to clarify whether the residents Mr. Schnell.mentioned who did not
want vehicle access to the shoreline were the condominium residents, or the community residents
to which Mr. Schnell replied he does not recall exactly whether it was the community at large, or
the neighboring condo owners. However, his recollection would be the neighboring condo
owners, though he cannot pinpoint exactly who stated that.
Mr. Dahilig stated for the record that the applicant approached the Public Access Open
Space Committee on this easement,- and their input helped craft the form, character, and location
of this easement prior to submitting their application to the Commission.
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Mr. Isobe asked for clarification that the Open Space: Commission approved the 30:fbot
easement. Mr. Dahilig stated they did not necessarily grant an approval, but they had no
objections, and did not indicate that the proposal was out of line. Mr. Isobe asked if the 60 foot
vehicular access was also. presented to the Open Space Commission, explaining his .reason for
asking is 'because :what he has heard and read in various testimony. is.,that there may be a
preference to move to the 60 foot .right-of-way; he was not aware that the. 60 foot right-of-.way
was a vehicular access.. He questioned if the 60:foot easement is preferred would the. Open
Space Commission have had concerns if it also allowed for vehicular access. Mr. Dahilig replied
he does. not know the answer to that, but offered to retrieve the. Open Space meeting minutes that
addressed that. W.Asobe.posed the same question to Mr. Schnell who replied he does not recall
the Open Space Commission meeting, but noted there are extensive meeting notes from that
hearing; and suggested they look at those. Mr. Isobe asked whether the applicant would object to
moving back to a vehicular access,. and widening the path to 60 feet: ;Mr. Schnell stated they ,
would prefer the 30. foot access .as is, noting.that it is not likely that anyone will build at the 30
foot line. Mr: Schnell stated the concerns raised with the original proposal for vehicular access,
parking lot, and park space were with noise and disturbances to the neighbors. Mr: Isobe stated
that is where he is confused because on one hand there may be a preference for a 60 foot - :
easement, but wonders if that preference includes vehicular access, or just purely to buffer it
from the condominium. Mr. Schnell stated, he had not heard .any of the- condo owners state they
would like 60 feet with vehicle access.
Chair Kimura asked how the community feels -about it, and .whether they asked for a
vehicular. access to which Mr. Schnell replied no, they:did not ask; it had just been proposed at
one time. Their comments were that it would create noise to. the neighboring condo. Chair
Kimura clarified that he was not speaking about the condo owners, .but of the K61oa community,
as a whole. Mr. Schnell stated they did a presentation for the Koloa Community`Association,
and he does not recall a strong preference one way or another.
(The meeting recessed at 11 :28 *a.m
) : .
(The meeting resumed at 11:38 a.m.).
Public Access Open.,Space Commission clerk Duke Nakamatsu distributed the minutes of
the Open Space meeting of January 23 201.4. The disposition of the Commission was a motion
made by Luke Evslin and seconded by Commissioner Blake: to accept the proposed plans, and
have the applicant work with the Planning Department to look at how to deal with the lands
makai of where the proposed shoreline would be, including all ofthe lands referred to as the
setback area; the motion: was carried unanimously 6-0, Mr. Dahilig explained subsequent to that
the applicant worked with Mr. Cua to.. determine:how to best handle the open
space/walkway/shoreline setback .area makai of the rock wall. He read from Page 6 of the
minutes: " Vice Chair Gegan asked whether parking stalls would be ADA accessible all the way,
down to the shoreline, and will be paved like the public access trail on the other side. Mr.
Schnell stated that they had this discussion earlier; but:they did not come up :with a resolution.
In some- ways keeping the area natural would be better as opposed to putting in a concrete
sidewalk, which would make the area look more. urban.
Page 12 of 31
Mr. Dahilig noted this was discussed in-house as well, and their department' s desire to
make the area look natural and honor the open space setting of the area; which is why they
recommended a foot-path. The Commission has the right to entertain a change to that condition,
but the intent was to keep the area in as raw a setting as possible.
Mr. Katayama referenced Page 3; second paragraph on the bottom, asking what that
discussion was about. Mr. Dahilig explained Chapter 9 of the County Code contains a section
that talks about required exactions for public access in a subdivision situation. The exaction
predetermined by Council at the time was that it should only be 10 feet. He used the example of
the Kahuaina subdivision, which has a 10 foot access. The discussion reflects the applicant' s
desire to go above and beyond the 10 foot exaction requirement. The whole discussion on
whether its 60 or 30 feet should be looked at in the context of the requirement of only 10 feet.
Ms . Bank added that they are aware that subdivision has a 10 foot public access easement with
the expectation that the County will accept thexesponsibility, and indemnify the land owner to
allow for public use. She stated CIRI is committed to providing access from the road down as
well as laterally along the shoreline. The question of width is dependent upon what the County
will accept as a grantee of the public easement. She explained that regardless of the width of the
easement the County accepts, there will not be any development makai of that, and even without
a formal grant of easement in favor of the County; the homeowners association will be required '
to keep it open in perpetuity for public access.
Mr. Katayama commented that reading the minutes reflects discussion on whether the
easement would be 60 or. 30 feet, and now it's at 20 feet. He wants to understand what the
representation of the applicant was to the Public Access Open Space Commission. Mr. Schnell
clarified that there were two different issues of easements,: one of which is the 30 foot wide
easement between the Makahuena condo and their property, and the:-shoreline lateral easement.
The Open Space Commission was more concerned about the lateral easement width, and wanted
to know what happens to the area from the certified shoreline to the ocean, why it was only 10
feet and not bigger. As Ms. Bank noted earlier, they can make it bigger; the intent is to allow
free flowing access to the- ocean; however, there is a liability issue mi how much land the County
wants to accept:
Ms: Anderson referenced the shoreline setback area, !the wall, and the access easement,
noting it does not specify whether it is paved or not. She asked if the applicant has objections to
paving the pedestrian path. Mr. Schnell stated there is not any objection to that; however, the
intent is to keep it as more of a rural,natural area. Ms. Bank added because of the lot coverage
limitation as well as the special management area concerns the desire is to not have an
overabundance of impermeable surfaces. Paving is do-able, but not their first desire; graveling it
in such a way that it' s not creating an impermeable surface is fine, but their preference is not to
concrete the walkway.
Mr. Isobe asked if the walkway is going to be dedicated to the County, does the County
have an obligation to provide ADA access, noting that they can still have a natural walkway, but
the elderly and those with disabilities will have difficulty getting to the shoreline. Since they are
now proposing the parking lot be on the upper side of the development, will there be a way for
Page 13 of 31
the elderly and others with difficulty walling on the natural path to get to the shoreline? He also
asked what would happen should the request to make the path more accessible come later. Will
the County then be responsible to make those improvements? Mr. Dahilig stated it is his
understanding that it depends on whether or not there will be any construction of a trail. If an
area is provided for pedestrian traffic. in the form of a non-constructed, natural trail, it is not
subject to ADA regulations. However, once a hardened surface or artificial access is
constructed, ;that must be compliant with ADArequirements. Mr. Isobe stated he understands
that; and. asked to clarify that if a request should come. in at a later point from members of the
public after the development has been:approved and completed, then the County would be
responsible to expend the funds to make those improvements should they agree to do so, . Mr.
Dabilig referenced the exaction regulations in Chapter 9 that essentially states the dedication of
an access area does not require-paving; it would be the County's call at that point. The County' s
policy is to not require paving, rather just dedication of the land.. Should there be a desire to
have a paved access in this case, it would have to be mutually agreeable with the land owners as
well as be compliant with the ADA. He. cannot: speak for the developers, but if at a later time,
the County changes its mind and wants to pave it; the ,County would need to bear the cost.
Mr. Katayama asked what:the County's responsibility is in getting shoreline access for
the public., Mr. Dahilig explained there are two mechanisms for doing so, one of which is an
SMA permit, the other. being a subdivision ordinance that requires mauka to makai access to the
shoreline if there is subdivision of a lot that is adjacent to a shoreline of a certain linear footage.
Mr. Katayama questioned why they are not asking for an easement, which would by statute
require the owner to provide shoreline access to the public. Mr. Dahilig stated he cannot speak
to the attorney's call on the matter, but explained that if something is dedicated in perpetuity it
would meet the intent of the Chapter 9 regulations. Mr. Katayama asked to clarify that an
easement in favor. to .the County will have other vehicles to provide, access to which Mr. >Dahilig
replied yes, the over-arching policy is to question whether:they could provide unfettered access.
The analysis they received from the Attorney' s Officemas a dedicated easement that runs with
the land that cannot be removed; and for which the County would bear the liability.
Mr. Isobe asked if the applicant would have a concern about building a 30 foot wide
hardened walkway from the parking lot area down to the open space area so elderly people or
people with disabilities could at least access the point; the lateral shoreline access can remain
natural.. He would. like to give everyone the ability to get as close to -the shoreline as possible.
He noted it: does not necessarily have to be concrete, but just some kind of hardened, or
potentially-pervious surface. Ms: Bank stated it is something they are willing to look at, and will
do so at the subdivision stage because they do not want to fall under the actual ADA parameters
given this is just a 10 lot residential subdivision, and not open for public business reasons.
Additionally, they do not want to create a situation where there will be . a lot of maintenance
involved, or where they would eat up a lot of surface area. Ms. Bank added that during the
recess, they discovered that it was not just the condo owners opposed to the paved vehicle
access, but also the larger community; there is a the general sense the people want to leave it
more. natural. They would be very cautious at this point on entering into details on-the types of
services they would put it there. Mr. Isobe stated he is just looking at it from an intent
perspective, and wonders whether it could be considered.
Page 14 of 31
William Prosser, lead consultant for CIRI, stated one of the difficulties they have is the
lot coverage issue. He would be willing to do some of the things suggested if the County would
agree that asphalt would be acceptable; however it counts toward the lot coverage, and is a major
penalty to the value of the property, which is something they've struggled with throughout this
process.. It's not an unwillingness by the applicant to' accommodate the public, but they must do
it in such away that does not penalize the lots.
Chair Kimura asked if it were possible to waive the lot coverage area for the sections of
the path should it be paved, and not count that portion toward lot coverage. Mr. Dahilig`said
things like that have been done in situations where an exaction was made to require something in
the permit, but it has to be levied; and cannot be something that is voluntarily constructed. He
stated for example that if the applicant objects to the condition, yet it is still levied upon them as
a mandatory condition of approval, the Department usually. does not count that levy toward the
allowable lot coverage area. Mr. Cua used Lots 8 & 9 as an exarnple;Astating the development
standards for each of those lots would= allowt up to 10 percent lot coverage, and in calculating the
permitted development on Lot 9, .there are three encumbrances affecting this parcel: the proposed
public parking, the access leading down to the shoreline, and the rock-wall One of the `
considerations in approving this project might be to allow each lot up to the 10 percent coverage
regardless of the existing public improvements; that would be a compromise. Doing so would .
prevent the penalization of future lot owners.
Mr. Isobe asked if that is how the condition is currently worded to which Mr. Cua replied
no. Mr. Isobe asked whether that could be done fairly easily to which Mr. Cua replied it could
be proposed as an amendment to the conditions of approval; these conditions would then carry
down to the subdivision:application-level. Mn Isobe asked to clarify that the conditions would
apply to specific lots as opposed to the subdivision as a whole to which Mr. Cua replied the 10
percent lot coverage -would be applicable to all of the lots.' With the exception of Lot 10; each of
the lots have some kind of encumbrance. Mr. Isobe asked to clarify that they could write a
condition to not have whatever encumbrances such as the parking lot, walkway and wall in any
way impede the 10 percent lot coverage.
Chao Kimura commented that if it ispaved it would help the condo owners with dust
control, and he personally feels it is a win-win-for everyone: .Mr. Dahilig stated the balance is
that they do have an open space area, which they are trying as much as possible to keep in its
natural state. He noted that if improvements are constructed; there are additional liability and
maintenance burdens placed upon the County; many of the immunities set forth in State law to
protect itself from injury or tortious claim will be lost.
Ms. Mendonca asked if seven parkingstalls will be sufficient, and how did they come up
with that number. Should they do the paving.of the easement; would seven stalls be sufficient to
draw more people to come. Mr. Dahilig stated they determined that to be a reasonable number,
noting that what keeps something open is the amount of human usage on it; however, a copious
amount of human usage would no longer make it an open space, but rather a park. The concern
was to look at what makes the most sense,: and to preserve the access while retaining the natural
character. Ms. Mendonca asked that in making the determination were'the seven stalls just a
Page 15 of 31
number they picked to which Mr. Cua stated the seven stalls. were proposed by the applicant.
There is no formula to calculate for public parking.
Chair Kimura asked if they do pave. the. walkway; what if they do not include a parking
lot and instead just have a loading/unloading area where one can stop fora designated amount of
time. Mr. Dahilig stated that would become an enforcement issue for the Parks Division, and
still does not relieve the County of any type of liability. Chair Kimura commented that
sometimes. you have to weigh the responsibility of:the County against what is right for the
community
Mr. Dahilig stated what would make the most.sense is for other agencies to be involved
in this .discussion such as Parks and Recreation, Public Works; and the :Attorney's. Office, noting
that as much as this. Department,should weigh in on this, other aspects: such as enforcement and
implementation.will go beyond Planning's department. He suggested that should the
Commission wish to see an improved access some type of Monetary,levy should be put into
escrow to have other County agencies sort .out .whether or not some type of hardened access,can
be accommodated, The condition of approval can,be required, but the problem will lie with
other agencies that should be part of this: discussion. Chair Kimura suggested a deferral until the
Department can sort that part out. : Mr. Dahilig replied that could be done, but noted that
numerous department heads will need to be contacted to sort out the various liability,
enforcement and ADA access issues that will be involved, and he does not anticipate that is
something that can be done in a 24 week it's a very heavy conversation to have.
Mr. Katayama stated he thought. they were discussing a path or easement for access, and
questioned whether- they are now talking about the open space being . dedicated to the County as
well. Mr. Dahilig stated his understanding of the. discussion; is whether or not to require some
kind of hardening of the. surface, and turn it into more than: a natural -path that mayxequire some
enforcement for parking.
Chair Kimura asked if it is left in its natural state would people still be able to drive on it
to drop things off to which Mr. Dahilig stated they would be able to drive and drop off, but
would need to walk down. If the.Commission sees fit to require other arms of the County to
enforce and implement, that. conversation:should happen with those agencies: : That would. .
require research, and would likelytake some amount of time. Mr. Dahilig stated some kind of .
disposition should be. taken on this at some point, noting that they have been sorting out legal
issues of a particular access in Kilauea for over six.years;. which involves similar-elements. .
Mr. Isobe stated his understanding is what is currently proposed is a natural pathway that
will result in an easement in favor: of the County:. He stated for clarification that .should they
harden that natural pathway to allow reasonable access for all that would constitute as
development, and would result. in the loss of:immunities and. liabilities that are currently afforded
to the County. -The: request .then is .to: allow those agencies who would be responsible to monitor
and potentially defend the County. against those liabilities the opportunity for input, which would
take a good amount. of time. He questioned whether, they:could do a condition that would' kick
this to subdivision so. all of those things can occur because this will ultimately have to=go :back to
the Subdivision Committee, at which point the various aspects of the path can be discussed. He
Page &of 31
commented that he grew up and played in this area as a child,but now that he is older, he would
have much more difficulty accessing that shoreline; in ten years he will have even more
difficulty. All he is asking is whether something can be considered to allow easier access for all
to visit the shoreline, and determine whether or not that would be good public policy.
Mr. Dahilig replied 'he: feels that is a good path forward, but would suggest that the intent
of what the other agencies involved should be doing between now and subdivision should be
looked at. Additionally, they must ensure there is an understanding by the applicants that
additional requirements beyond what is allowable under Ordinance 777; which is'the mandatory
exaction for beach trails, may include hardening of the surface; that law currently does not
require that. He explained that the subdivision realm is typically not as discretionary as with an
SMA permit. He suggests an additional disclosure that they agree;to waive any objtection
entering into subdivision of the potential condition that there may be that requirement for
subdivision approval.
Mr. Dahilig stated he thinks that is a good path forward. He suggested that in terms of
the intent of what the agencies should be doing in that interim period between now and
subdivision should be looked at, and that there is an understanding by the applicants that
additional requirements beyondwhat is allowable under ordinance 777; which is the mandatory
exaction for beach trails, may include hardening of the srface which that law currently does not
require. He , further suggested as a disclosure the applicants agree upon entering into subdivision
to waive any objection of the potential condition; which would be levied at the subdivision
approval level.
Ms. Bank noted that Condition 4 in the Director's report states the applicant will have to
establish those details at subdivision approval, and everything the Director.just stated makes
sense to her. However, her concerns are two-fold, one of which is that they are not waiving any
10 percent lot coverage issue, and the second of which is that if they are required to do an
improvement, which changes the-legal 'nature of the propertyin terms of liability, that the
liability does not rest with the .applicant. They want to ensure the understanding that they will do
the improvement-to dedicate something to the County; who will need' to be prepared to receive
the improvement along with the liability. Chair Kimura stated that is the reason the Director
suggested meeting -with the. other agencies that will be involved prior to it going to subdivision.
Mr. Prosser added during the course of community interaction; :they originallyproposed a
road down there with parking'. Based on the broad response theyreceived from the cornrnunity,
they agreed to remove that and to attempt to keep the path as it is. This puts them in a difficult
position between responding to community desires and satisfying the Commission 3s' requests,
Mr. Prosser stated there are people that are adamant about not having vehicular access. The
applicant's choice would be not to have any kind of vehicular access; but they are amenable to
make improvements to accommodate other members of the community. Ms. Bank stated they
can commit to doing their due diligence in determining what kind of liability the land owner
would face.
Page 17 of 31
Chair Kimura agreed with Mr. Dahilig's suggestion to have a discussion with the
different agencies that would be involved to offer a chance for them to comnient on this, and see
if they are agreeable to it as well.
Mr. Katayama referenced Exhibit B in the grading plan, and asked if they will be grading
any of the access or easement locations. If so, does that constitute as improvements? Mr.- Prosser
stated:that question would best be.. referred to the civil engineer when they go over the grading
plan. Mr. Katayama clarified that his question is more along the lines of if any change in the
topography would constitute as an improvement to which Mr. Prosser stated he does not know
the answer to that.
Chair Kimura commented that public access is very important to this Commission, noting
that developers in the past have not provided that.
(The meeting recessed at 12:30 p.m.)
(The meeting resumed at 1 :,26 p.m.)
Reggie David; consulting biologist, stated he has lived :in Hawaii for over 40. years, has
worked with seabirds on Kauai for well over 30 years, and has been very involved with the Save
Our Shearwaters. (SOS) program for. over. 30 years.: He referenced a letter from DOFAW that
raised some eoncems, which. is why the applicant asked him to come to the site and take a look at
the areas of concern; the original surveys of the property were done in 2011 . He provided some
information on the Wedge-tail Shearwater species, which come from the same family as
Newall's Shearwaters,.but are a lot different in that Newall's and Hawaiian Petrels nest far
inland, and fly across the coastlines inland and out across lit, populated areas. Wedge-tails are
not endangered; though they are protected under the Federal Migratory Bird Treaty Act. They
are a coastal species, and unlike other coastal species; the outlook on -Wedge-tails is good; their
population is increasing substantially, on Kauai in particular,. which is good news. To offer
some perspective, Mr. David explained 20 years ago, SOS would get one or two Wedge.-tail.
Shearwaters : a year; last- 52 percent of the birds. that were turned into SOS: were Wedge-tails.
Manyof those were birds that were picked up in coastal areas just sitting in front of burrows, and
not necessarily injured or in any danger. He noted there is a fair amount of Wedge-tail activity
on the site, and most of the area where the Wedge4ail population is concentrated on this property
is below the shoreline setback area. Upon visiting the property yesterday, he noted that the
production out of the burrows is low, likely due to attacks from dogs or cats as they're trying to
nest. This .time of year, every active burrow should have a chick present, but they found very
few chicks, and lots of empty burrows. Mr. David noted there seems to .be a decent cat
population on the property as well as cat feeding occurring on one of the developments adjacent
to the property, and people running unleashed dogs through the site. 1In-speaking with the
applicant, they have agreed to work with a seabird biologist to resolve any issues on the property
with the seabirds. An example of that is noted in the DOFAW letter regarding the retaining wall,
which is three feet high on the ocean side, but only a foot high on the inland side, raising
concerns that the birds may have difficulty getting back over the wall should they come inland.
Once the wall is built, the biologist would go to the site to see if it is an issue and resolve it if
necessary. Another thing the applicant is looking into doing is restoring some of the habitat
Page 18 of 31
below the shoreline setback area with native Naupaka that the Wedge-tails like to nest in.
Additionally, they intend to do some predator trapping, and to work in conjunction with
DOFAW to allow them access for seabird monitoring, cat trapping, and help enhance the seabird
population. Mr. David stated there will be no night construction;` which will prevent any issues
during fledgling season. Any lighting will be standard seabird lighting to minimize potential
downing of this or other species. ' They will also be putting together an education and outreach
program for potential lot buyers that identify the native seabird species on the property, how
valuable they are, appropriate behavior, how to control pets, what to do if you find a downed
bird, etc. There will also be a seabird and native species awareness training model for all the
construction workers on the site.
Referencing the letter from DLNR, Ms. Anderson asked if there is anything in that letter
that the-applicant would be opposedto incorporating into the conditions of the permit. Ms. Bank
read the first bullet point of the letter:
The eastern most parcel, which is Lot 1, be removed from the plan and kept open or
undeveloped. The parcel currently contains nesting seabirds. Establishing residential structures
so close to the colony would place birds in harm 's way by striking a building and/orfalling into
the residential area.
Based on Mr. David's technical and scientific disagreement; th& applicant objects to that,
and is not willing to forego the ability to put. a single home on that parcel. The other condition
regarding the buffer: with it sloped; 50 percent on the residential side is not something the
applicant opposes, but according to Mr. David; the wall may not be an issue, and they feel it
would be premature r to require something if it is not needed. Mr. David added that there may
potentially be better Ways to do it by providing small ramps.
Ms. Bank stated Condition 3 establishment of a cement footpath is something the
applicant is opposed to unless the County is willing to accept the liability that comes with
creating a footpath, including building something in the shoreline setback area, which will likely
require a shoreline setback variance and other permits: The applicant is not in agreement with
that. The other points in the DOFAW'letter to allow DOFAW. to conduct predator management
and seabird population monitoring is acceptable as well as no nighttime construction; Aheyhave
already committed- in their application to doing all heavy construction during the non=nesting `
season, which they know is a very short window. The final bullet point regarding cooperating
with DOFAW for the restoration of a coastal habitat, 'funding the removal of non-native
vegetation, and out-planting and maintenance is something the applicant is not opposed to as
long as it does not turn into a shoreline variance issue.
Mr. David stated during the original botanical survey done on the site,"there were 86
plant species found on the property; most of them were in the bowl area and along the edges
close to the'roadway Of those 86 species, 8 'were indigenous, none were rare; and the areas they
looked at for seabird habitat restoration would be below the shoreline setback where there are not
a.lot of invasive, noii-native species. The idea is to draw the birds down to a better, habitat that is
further away from the existing developments, they will be in better shape, and better able to pull
off fledglings, which would increasethe population significantly.
Page 19 of 31
Mr. Dahilig asked to clarify Ms. Bank's comment. on the last bullet point on whether it
was an objection. Ms. Bank stated the commitment is that there will be funding available to do
some re-vegetation, but pointed out that the DOFAW letter does not indicate the amount of
funding, which leaves it open-ended, and feels it should state a "reasonable amount" of funding.
Mr. Dahilig asked whether or not the applicant was objecting to the on-going maintenance to
which Ms. Bank stated the maintenance would be acceptable for the specified area that Mr.
David designated as a good area::to encourage nesting: the open area on the west side, and below
the shoreline setback. area on the east end. of the site. Mr. Dahilig asked if the applicant would
object to having that recorded as. part of the individual lot responsibilities, explaining that once
the subdivision happens, it will be the maintenance responsibility of the individual lot owners to
do; is that an acceptable means of having the condition enforced. Ms. Bank stated yes, adding
that any public easement areas in the subdivision that are not dedicated to the County will
eventually be granted to the. Homeowner's Association, which each homeowner will belong to.
Mr. Dahilig asked if they are comfortable with the language on the standard of restoration being
the fulfillment of the condition to which Mr. David stated that `. `restoration" is a term that is
fraught with interpretation, and would be.betterto say "enhance as much as practicable".
Chair Kimura stated he does not feel it is right that the applicant should be responsible to
maintain the bird habitat once it is restored. He feels that should be the responsibility of DLNR.
Mr. Dahilig stated. at:this point the discussion is on what the applicant is amenable to folding into
the permit, and what they have objections to . Chair Kimura stated he understands that, noting
that if he wanted. to put up a development he would do what he needed to make it happen; but he
does not feel it is the applicant's responsibility to maintain it. If DLNR wants to save the birds
and maintain the habitat, it should fail on them to be responsible for it once the initial habitat has
been restored. Mr. Dahilig stated he is simply trying to respond to help facilitate the question on
the realm of acceptability on the part of the applicant,
Ms. Bank stated no matter what the Commission decides ,with respect to DOFAW's
concerns, the open space easement area will be the responsibility of the'Homeowner' s
Association. : They need to be reasonable obligations, but ifthat means ensuring the naupaka is .
surviving to make the area for bird restoration, she does not think that would be excessive.
However, if DOFAW suggests they start building fences and other things that may require
permitting,: that' s another matter.-The applicant is comfortable doing modest things.
Ms. Anderson referenced the first bullet point regarding Lot 1 , noting it was mentioned
that Mr. David. had conflicting science as to whether there were nesting birds on that lot; and
asked for elaboration. Mr. David replied there are definitely birds attempting to nest on that lot,
but it is also the confluence of three pathways, and when he was on site, he saw three cats.
Therefore, it is not a good place for them to be nesting without significant management, and the
only way to do that would be to. nstall a cat-proof fence and install numerous cat traps. Under
the current conditions of the property, the birds are not doing: supremely well,. and if the applicant
were.to do habitat management below the shoreline setback area and some trapping in that area,
that would be a. benefit to the birds using that property. . Within the area that would potentially be
used as a houselot, half of that is bare ground or short grass; very few birds nest in that. There
are a series of small islands of naupaka running between the two or three trails where there are a
number of failed nests or abandoned eggs. He pointed out that the area that will be used for
Pa6e .20 of 31
residential building is not where birds are nesting, and if they are able to develop and manage a
habitat site, they will enhance the productivity of the birds in the Lot 1 area.
Ms. Anderson asked if the applicant would be able to limit the building envelope
considering:the .particular situation on that lot. Ms. Bank replied the building envelope is already
going to be limited because of the 1-0 percent lot coverage -issue as well as the setback. However,
in working with Mr. David, she has learned that the current nests in the potential development
area don't necessarily predict whether there:will be a nest in the same area the following year;
it's not a static pattern that the birds will return to year after year: Mr. David added that the
burrows containing chicks that they saw yesterday were not normal burrows, but rather just
scrapes on the ground underneath some bushes. These seabirds are attracted to the numerous
bird activity in the area, and will nest anywhere they can find to do so. The specific location of
any one nest this season is not sacrosanct.
Referencing Lot 1 , Mr. Katayama asked if their survey done in June 2013 , was there any
evidence of a Newall's Shearwater-population to which Mr. David replied Newall' s Shearwaters
and Hawaiian Petrels nest in a completely different habitat, and are wet forest birds; there were
none on the property. The closest.colony used to beat Koloa Honu behind the mill, but that
colony went extinct in 2002. Mr. Katayama asked what the migratory pattern for Newall ' s
Shearwaters is over the property during fledging season. Mr. David replied 33 years of SOS data
show.that the Po`ipu area had moderate nu mbers of ' s and Hawaiian Petrels coming down. In
the last eight or nine years, the numbers have been incredibly low; it depends on which colonies
are doing well. It is currently not a high fallout area. Mr: Katayama asked if they would be ;
supportive of establishing a habitat outside of Lot 1 to preserve the use of it rather than using the
lot to maintain a habitat. Mr. David stated there is plenty of space on the property to replace the
birds that would be directly impacted by the development of Lot 1 . There is also a significant
amount of ground makai of the shoreline setback; which alreadyhas birds in it; enhancing that
habitat will increase the number of birds. Essentially the birds nesting below the shoreline
setback area on LotT will stay there, and unless it is managed well,' they may not produce well.
Mr. Kimura stated the Commission would go around the table with questions, and then
move onto the next speaker.
Mr. Katayama asked to clarify that Mr. David was referencing the shearwater and the
tropic bird to which. Mr. David stated the tropic bird does not nest on the property, just the .
shearwater. Mr. Katayama asked to discuss DLNR' s concern about whether the applicant is
willing to maintain the habitat as a requirement: Mr. Dahilig explained the comments from
DLNR were received only the day before and it was difficult fort them to do an analysis in that
short period. - He did consultwith Mr. Cua to draft some conditions that they can go over when
they get to the recommendations portion. Mr. Katayama stated his concern is having a 10
percent reduction in the lots is a bit onerous to which Mr. Dahing stated the Department shares
the same concerns. Given the unsubstantiated assertion that there isn't an ability to balance
development of Lot 1 with protection of the species, the Department's recommendation would be
to not adopt Condition 1 because it seems arbitrary at this point: .There is room to discuss a
substitute condition to state existing nesting sites will not be disturbed as'part of construction
considering only 10 percent of the lot can be touched. They will go over the conditions later.
Page 21 of 31
Ms. Mendonca asked if that condition would be applicable to the applicant, or the
purchaser who buys the property. Mr. Dahilig stated his understanding is that the land below the
certified shoreline, with the exception-of the easement that will be provided, is being.proposed to
be managed by the Homeowner' s Association, which will be made up of the 10 lot owners.
They will assume the responsibility of-implementation of the conditions collectively. Ms.
Mendonca asked if the applicant has responded to DOFAW regarding their letter. ' Ms. Bank
replied Mr. David' s original report that was submitted with the application is dated August 2011 ,
and that.was :the material. DOFAW reviewed.: In preparation for this hearing the; applicant asked
Mr. David to visit the property again, at which time the discovery was made that the colonies
were being destroyed by predators; that information isn't in the report: There has been contact
with DOFAW, but she does not believe they are: aware of Mr. David' s most recent findings as
they themselves only became aware of that in the last two weeks. Ms. Mendonca asked to
clarify when the applicant received DOFAW's letter to which Ms. Bank replied they received it
that morning. Ms_ Mendonca asked if the applicant was surprised with the first point: made to
which Ms. Bank replied DOFAW had intimated concerns about Lot 1 - which is why they asked
Mr. David to go back out there. Mr. David explained DOFAW requested a site visit about a
month ago, which is the first time theyhad indicated they had a problem with Lot 11 They
requested the applicant do one. less lot;:which changes the project significantly, and they decided
to attempt to develop some better science to try to understand their reasoning, which is the stage
they are currently at. They-have not :yet1ad another conference with DOFAW. The applicant is
willing' to do things within the site. Ms: Mendonca shared her. opinion that two, experts providing
an analysis is_better than just one; and asked whether there was any time given the applicant to
contact DOFAW and try to resolve the issue.
Mr> Isobe stated he agrees with Mr. Katayama that Condition l is a little onerous given . .
the size of the subdivision. He asked to clarify that given the nature of Wedge-tail Shearwaters'
survival instincts, if they provide a habitat more conducive of that the birds would naturally
gravitate toward that area; and hopefully begin to nest there. Mr.,David: replied yes, an& no,
explaining that some birds that had been unsuccessful in the previous season may go elsewhere.
Additionally, having a Iot of seabird activity in. the area attracts new-birds, but because these
birds reach sexual maturity fairly late, there may be several years whereyoung birds-will be
flying around trying to learn about nesting. There is currently some nesting going on in that
area, and. enhancing that habitat will eventually increase-the.colony: ; Mr. Isobe asked; to clarify
that the area he is referring:to is along the shoreline, and not on Lot 1 to Which Mr. David replied
the bulk of the birds arewithin the shoreline setback area along the length of Lots 1 , 4, S and 6;
there are no. nests currently in the open space easement shoreline area, but if a habitat was
created; they would most likely move into that area. The bulk of thenesting birds on the entire
property are. not nesting within the developable area of Lot 1 Mr. Isobe cominented that he
agrees with Chair Kimura that the on-going maintenance of the area should rest with DLNR, not
necessarily the property owners.
Dennis Esaki provided some information on individual waste water systems for the
project. Mr. Esaki stated the 10 individual.wastewater systems will be approved by the.
Department of Health and designed; constructed, and maintained to their specifications, and
alleviates the concerns about sewage in that area.
Page 22 of 31
Mr. Mahoney asked to clarify that it will be septic systems, to which Mr. Esaki replied
yes, which is prevalent around Kauai because much of the island is not on a sewer system.
Ms: Anderson noted there was testimony that there was a centralized sewer system in the
area, and asked if that alternative had been explored to which Mr. Esaki replied the developer has
explored that. Ms. Bank explained there is no centralized public system that they can hook up to:
There is a County system, and also a private septic system on- a :neighboring property, but they do
not have the approvals from the Public Utilities Commission to serve the public, which would be
the case with any private wastewater plants that exist: The applicant did `not receive any offers
to hook up to any public system; and upon speaking with a wastewater consultant, this option
was the most common, practical, simple, and could be done appropriately. Mr. Prosser stated in
exploring that issue, they were never able to establish excess capacity in any of the existing
systems that would even allow that as a possibility.
Mr. Katayama stated the report submitted used a 5mbedroom, or 1 ,000 gallons per
houselot flow rate, and asked why that number was used to which Mr. Esaki replied that would
allow for the biggest system, as opposed to a smaller one that may become overburdened; that
would be the maximum building footprint. In response to Mr. ' Katayama's questions regarding
flow rate safety factors, Mr. Esaki stated the wastewater systems would be approved by the
Department of Health; a septic tank with solids tested annually , and the liquids going into a
permeable soil leach field, also tested annually. Mr. Katayama 'asked if the sites tested for the
percolation tests were all good to which Mr. Esaki stated, yes, but will likely need to have
permeable soil brought in for certain areas.
Mr. Isobe asked whether the majority of the single family residences in the Po`ipu area
are on septic systems to which Mr. Esaki replied yes. Mr. Isobe then asked whether the larger
projects such as the condos are on private wastewater systems to which Mr. Esaki'replied yes.
Mr. Katayama how many units would be the threshold to put in a private wastewater
system to which Mr. 'Esaki replied it's 50 lots or more.
Civil Engineer Dave Grenier of Triad Engineering provided some personal' background.
He explained the grading process incorporated several' design elements to address drainage, and
erosion. One of the major concerns is limiting the amount of erosion or-soil entering the ocean,*
He explained the design elements of the grading plan, which include establishing a solid barrier;
the rock wall, which will be placed at the building setback line. The idea is to construct that first,
which then acts as a physical barrier for erosion and drainage, and also demarcates where
pedestrians can access the shore: Drainage. basins will also be created to collect nzn-off as well
as sumps for road drainage; and roof drains. There is a three-step process that will be put in
place to address the erosion. The second concern associated with the construction is the dust
issue, and in addition to establishing best management practices based' on the NPDES process,
they will prepare a dustmitigation plan, which will be made part of the grading permit
application and contract. The grading mitigation plan will include a'sprinkler system set-up
while the grading operation is taking place, and limiting the amount of open area; they would
Page 23 of 31
establish the wall first, then grade the area and stabilize it with vegetation. There will be no
grading occurring between the certified shoreline and the building setback.
Mr. Katayama referenced the topographic map, noting the changes in elevation crossing
against the path, and asked if that would constitute improvement, or will the County be putting
all the improvement in. Attorney Higuchi-Sayegusa replied that it could, and it could be a
trigger for ADA requirements. However, if the developer handles improvements such as
grading, but the intent is to convey it back to the .County, it may not require the full-blown ADA
requirements. The key is to ensure access, and once they look at the possibility of installing
permeable surfaces or creating construction, they may have to look at ADA compliance; leaving
it a relatively natural way that may include some grading, they may not have to conform to the
ADA requirements.
Ms. Mendonca stated she heard the wall will be up to five feet when it was originally no
more than three feet. Mr. Grenier replied it was his understanding it was a minimum of three
feet, and because the terrain is not level, a few places will be at five; five will be a. small
percentage. Ms. Bank added the three feet assertion was. her error and she apologizes: Ms.
Mendonca asked if the wall height is in hand with-DLNR's proposal to which Ms: Bank stated
DLNR's proposal is only regarding the slope of the wall so birds ,do not get stuck; they are not
concerned about the height. Mr. Grenier added.DLNR' s concern was that the mauka side would
be three feet high, but they will be filling it in up to six inches to a foot from the top of the mauka
side. They want to ensure that drainage does not overtop the wall, which could increase erosion.
Ms. Mendonca stated she is a bit confused, and commented that it would be nice for
everyone to come together so there are no regrets later. Because it has to come back to the
Subdivision, Committee, she needs to know .what is coming down the road.
Mr. Isobe stated he read in a testimony something about blasting in the area, and asked if
any areas will be dynamited to which Mr. Grenier stated they do not see any need for blasting.
He asked how they will make the area .on the ocean side of the wall, walkable if they do not do
any grading. Mr. Grenier stated there is a fair amount., of area, about 100 feet. from the certified
shoreline to where the wall is. Rather than making it a formal walking path, their concept is to
continue to allow people to pick- the best path; and use the natural paths already there. Mr. Isobe
asked assuming no improvements are made, and the easement is dedicated to the County, how
will the public know whether they are within the ,boundary of the public area? Ms . Bank stated
on, one side the wall will do it; the other side will not-be obvious. The mutual research and due
diligence done prior to the subdivision approval will determine to what extent it can be
delineated„whether .rocks will be placed to help , guide people to a certain area, or whether it will
be left raw as it is now where people are already walking. . Should they be discouraged from the
delineation, the public will really not NEED to know where-to. go. They will be permitted to go
outside of the public access easement area dedicated to the County. :and within the public
easement area that falls under the responsibility of the Homeowners Association. If the County
were willing to. accept. a wider public access easement, the applicant would be willing to do that, .
but it would still not require a finely delineated path for the publiato continue to walk along that
property. Mr. Isobe stated he is trying to understand it from a legal liability perspective stating,
for example, that if he breaks his leg while walking and decides to sue, who would be
Page 24 of 31.
responsible? Ms. Bank stated the Hawaii ;Recreational Use Statute states that if you allow
access to your propertythatis undeveloped, and not for commercial reasons, there is protection
for the private landowner because the State wants to encourage private land owners to allow that.
However, if you begin to invite people on your property, or make it more attractive and inviting,
that changes the calculation a bit. Leaving it unimproved and open offers some protection under
the Statute; and also by granting the area as an easement to the Homeowners Association; they
would have the insurance and liability obligations. - Both parties will likely be named, and as
long as the appropriate indemnifications are in place, it- will be much like any other public access
to a beach. ' Mr. Prosser added one of their challenges has been working within the SMA system,
and trying to determine how much design work to do, and how many questions should they -
address. They tried to cover as many as they could think of, but in reality they are less than 30
percent designed. What they really need to do is try to move forward, and then have a
mechanism to come back and answer those questions. As they move forward to getting the
design complete, they will answer every one of those questions. There are some very legitimate
problems to reconcile, and they will do that through easements;' covenants, and agreements with
the public sector, but they must have time to do that. The conditions that have been proposed are
things they expect to be able to answer. in a suitable:fashion so the Planning Departmenf and the
applicant can come up with congruency. Mr. Isobe stated it's obvious the Commission will not
get all of the answers to all of the questions at this point, but he questioned whether all these
issues can be resolved at Subdivision Committee, and is that the appropriate place for those
issues to be resolved. Mr. Dahilig stated yes.
Mr. Kimura requested CiRI President and CEO Sophie Minich to come forward. He
asked that should this application be approved that.-they consider allowing Native Alaskans and
Native Americans have the first opportunity to purchase the lots. It's not a condition, just a
request. Ms. Minch replied she would love to have Native Alaskans, Native Americans, or
Hawaiians purchase the property. To the-extent that they ca&affordto buy it, she would love to
see that happen. Ms. Minch also commented that what they typically do in Alaska, and what
theywill. attempt to do with this project to the extent they are allowed here, is to hire local
workers and companies.
The Commission received additional testimony from Lorraine Osterer who passed around
several photos of the current view from the roadside, which is blocked by the overgrowth of the
lot, and other views from around: the property., She rioted that during community meetings, as
well as in their presentation today; CHU presented only two options for consideration: -the 25-lot
subdivision and the 1 04o subdivision, which influenced all of them to prefer the smaller
subdivision. However, in the early stage CHU stated they would accomplish' that-by the grading
to meet the 10. percent requirement. If the argument of 10 lots is successful it still does not
answer if they could better serve the public by not risking so much environmental damage, and
surrounding property damage by less extensive or minimal 'grading.- Since grading approval is
not part of the public process, she requests the Planning Commission recommend controls in the
grading to exclude blasting, vibration, and: chemical use through dissolving methods, to at- least
require an environmental assessment of such processes, and to require a significant bond for the
environmental damage to neighboring properties. Ms. Osterer stated the same would apply for
the proposed septic systems and storm drainage basins for the amount of landscaping and
Page 25 of 31
dredging that has to occur. She noted this area is pristine right up to the shoreline, and the
grading foreseen along the property line would be approximately 25 feet from the units at
Makahuena, which has sliding glass doors and- floor `to .ceiling windows along the entire side of
Building 4 as. well-.as lanais with ocean .views. She stated a possible compromise would be to
delete the access. corridor from the. grading leaving it natural. Ms. Osterer stated interested
parties were told .they would be notified by CIRI's liaison about any hearings such as this one,
but they were not, and she is concerned that those parties. have not had an opportunity to provide
testimony. She stated. that residents were led to believe that the landscaping and building height
restrictions would minimize the view plain interference; and the placement of the houses would
be defined.; She hopes that will occur on the subdivision plan. Ms. .Osterer would prefer that the
views not be disturbed with buildings on the upper.portions of Lots 3 to 8.
,(The meeting recessed at 2: 51 p.m.) .
(The .meeting resumed at 3; 15 p.m.)
Per the Chair's request, Mr. Cua read the following- amended conditions into the record:
(On file)
• Condition 4; The establishment, of a public-footpath or constructed path to allow pedestrian
access along the makai side of the wall shall be explored at Subdivision. As represented- on
the preliminary subdivision map, the public access parking and open space easements shall
be identified on the final subdivision map and incorporated into the descriptions of affected
lots. Additionally, . the applicant will be responsiblefor the preparation of necessary
documents and it shall be ready.for execution upon final subdivision approval and
recordation of the final subdivision map. :
• Condition 5 (I " Paragraph deleted in its entirety) - To protect, . . ,species the following shall
be required
a) Lot 1 shall be developed to avoid disturbing existing Wedge-tail shearwater nesting sites.
b) The rock wall along Lots 1 to 7 on the mauka side shall be adjusted so that the seabirds
can walk up to the slope on top of the seawall. Coastal vegetation such as naupaka shall
be encouraged along the makai side of the rock wall.
.c) The applicant shall allow DLNR access to the property to conduct predatory
management pursuant to a revocable right-of-entry.
d) No nighttime construction using bright, artificial lights shall be permitted in the area.
Although shearwaters are not present from January to March, 'bright lights along coastal
areas are known to have negative impact on the green sea turtle through disorientation.. .
e) : The construction of the subdivision infrastructure shall be accomplished during the non-
nesting season from January. to March: The placement of all construction material,
equipment, and machinery is restricted to the. residential side of the wall.
f) The. applicant shall work with DLNR DOFAW toward restoration' of coastal habitat in
the open space easement area in the makai: western portion of the property. This includes
the cost of removal of invasive non-native vegetation, and the planting of appropriate
seabird friendly vegetation within the open space easement-in the makai western corner
of the property. -
Page 26 of 31
g) Furthermore, .in order to minimize adverse. impacts on the federally listed threatened
species Nawall 's Shearwater and other seabirds, if external lighting is used in connection
with the proposed development all external.-lighting shall be of the following type:
downward facing shielded lights; spotlights aimed upward, or spotlighting of structures
shall be prohibited.
• Condition 8 — The applicant shall substantially commence construction of the project
development within one yearfrom the date offnal subdivision' approval and shall complete
construction of the development within two years from the commencement- of construction
activities.- The Planning Department shall be notified in writing the official date of
construction.
• Condition 14 — Pursuant to Section X9,2(a) of the Kaua `i County Code the amount of land
coverage 'created on Lots I through 10 including buildings and pavement shall not exceed 10
percent.of the lot area. It is 'noted that the land coverage on these lots shall exclude areas
that are designated for public improvements. As represented on the preliminary subdivision
map the following represents the lot coverage calculation.
Foregoing the areas represented in the preliminary subdivision map; 'if anyof the lots are
revised during the subdivision process the permissible lot coverage remains at 10 percent of
the lot area, and it shall exclude areas designated for public improvements
Mr. Katayama asked to clarify that the permissible lot coverage based on the proposed
area of the lots is represented by the purple line on the map; where does the coverage end. Mr.
Cua explained the developable areas for each of the lots, with the exception of Lot 10, is the area
mauka of the orange line that represents the rock wall, -.Mr. Kimura asked for clarification that
the applicants are responsible to take care of the birds all the way to the ocean to which Mr. Cua
replied affirmatively.
Mr. Katayama asked to clarify the area below the orange line to which Mr. Cua explained
is the area within the shoreline setback area. Mr. Dahilig added the title is vested with the lot
owmer, but responsibility for management of that area is with the Homeowner' s. Association.
The dark purple. line is the shoreline as determined: by the Board df-Land and Natural Resources.
Mr. Katayama stated for clarification, that the lot is the orange line and green line to which'Mr.
Dahilig explained the orange line is what he would characterize as - the building envelope because
it is the`location of the rock wall that will be constructed. Anything mauka of t hat orange`line,
with the exception of lot 10, is where the permissible lot coverage would be calculated. Mr.
Katayama again asked to clarify if it were the green line UP to the orange line, or thIe purple line
to which Mr. Dahilig replied the lot of record goes down to the purple line:
On the motion by John Isobe and seconded by Sean Mahoney to approve the
Director's Regbft for the SMA permit as amended; the motion carried by unanimous roll
call vote
Class IV Zoning_Permit Z-IV-201423 , Use Permit U-2014-21 ,and Special Permit SP-
2014- 1 -to operate a farmer's market and `conduct tours °Within a parcel located along the southern
Page 27 of 31
side of Kealia'Road situated gpDrox. %4 mile mauka of its intersection with KfU6 Hi hwa
further identified as Tax MgR Ke 4-7-008: 001 & 42 and affecting gR12rox. 100 acres of a luger
parcel = Kama `i Taro Company. LLC. f Director's Repoirt received 8/12/14_1
Staff Planner Ka'aina Hull provided an overview of the application, rioting the Director' s
Report had been previously accepted into the record. (On file)
He stated there is already an existing open-air structure that is 2,200 square feet in size,
where the applicantis proposing to sell only products grown on thesite as well as value-added
products primarily derived from products grown on the site. In addition to ;the farmer's market,
the applicant is requesting the ability to provide farm tours of the operation, restricted to existing
cane haul roads.
The Department has no objections to the-farmer's market, and its direct impetus to the
land and the, growth of products, and farming of the land. Tours of farmer' s markets and.
commercial .venues,that sell agriculture products grown throughout the state of Hawaii are .
outright permitted on agricultural lands under State, law; this particular applicant is restricting
themselves to only products, grown on that specific property. Given that the tours will be
conducted; on existing. cane haul roads the Department does not anticipate any displacement of
agricultural activities, and could provide further impetus for farming activities on the site. The
Department' s one concern with the tour operation is with the hours of operation, and has
recommended they be; conducted no later .than 6:00 p.m.
Chair Kimura asked if this market would be strictly for the farmers in that particular area
to wNch_Mr. Hull replied it would .be for produce; grown on the specific property listed in the
application: .
Adam Asquith, representing the applicant, was present and had no questions or concerns
with the Director' s report.
Mr., Mationey.asked .whether allr the produce will be grown on the farm in question to
which Mr. .Asquith replied yes; noting: they began and primarily remain.a taro farm. However,
they are bringing in other farmers to .grow.other vegetables and, produce,
Ms. Anderson asked if the applicant has any plans to produce value-added; products, Mr.
Asquith. stated they currently make poi and cook taro; which is sold. through his kids': school,
which they will continue to do and, sell at the market. Ms. Anderson asked whether those value-
added products are limited to the products grown on property to which Mr; As replied yes,
they also grow kabocha, which they use to make pumpkin pie.
Mr Katayama asked why;the applicant wants to be so limited in their hours of operation.
Mr. Asquith explained one of the long-term goals has always been to have a farmer's market
there so that their farmers do not have to run around the island to sell their produce, and can
spend most of their time farming, and have set times to sell their produce. Mr. Katayama asked
why they, don't consider having longer hours and more days. of operations, : Mr. Asquith; stated
they will take that _opportunity if its offered, but they based their hours on the fact that other
Page 28. of 31
markets did not seem to offer ` pau hana" hours, but they would be happy to extend the hours if
given the opportunity.
Ms. Mendonca asked what the 2,200 square foot building is currently being used for to
which Mr. Asquith explained it is part of his Occupy Kealia movement where they stored
equipment with the intent of starting .the farmer' s market. 'But it is basically an empty storage
space. ; Ms. Mendonca asked if it is accessible 'from the outside for the public to see; or is it set
back. Mr. Asquith stated it is the old maintenance shop located in the gravel area as you come
off of the highway onto Keaiia Road just before you head up the hill; right next to the arena. Ms.
Mendonca asked how many farmers are. involved:to which Mr. Asquith stated they currently
have about a half dozen farmers,;and he is constantly seeking and encouraging more farmers to
join them. There y
are many young people who idea of farming, but- the realitof farming
is very different; he goes through a lot of farmers. To support.the market, he imagines they
would need twice as many as they currently have. Ms. Mendonca asked if the 2,200 square foot
building will be redone to display all of the products to which Mr. Asquith replied yes::
Mr. Isobe asked to clarify that the applicant is not in objection to expanding their hours of
operation to which Mr. Asquith-replied they would not object to expanding the market hours.
Mr. Hull added the Department has no objection to expanded hours of operation; but there may
be concern with times beyond 6:30 p.m. or any kind of nighttime operation given the close
proximity to other residences.
Ms. Mendonca stated farming is: not easy, and she gives the applicant credit for all .their
sincerity. However, she is bothered bythe fadthat there is an already established 2,200 square
foot building that they are calling a fruit stand. She asked how that affects Other fr uit stands that
have been before the Commission. Chair Kimura stated his opinion that they are not building
anything; the structure is already there. Ms. Mendonca asked if that makes:it an exception to the
rule.to which Chair Kimura stated. he does not think they will be utilizing-the whole building
Mr. Dahilig explained these permits are looked at on a case by case basis; and in this particular
case, the structure is a landmark building°that defines that particular ahupua'a. Having some
kind of activity, and have the building be put to use rather than. rot away is something they see as
an opportunity. It is a fruit stand in use or activity, but in actuality it activates a landmark
building, and does not: see an incompatibility issue.with the existing structure being used as a
fruit stand. Ms. Mendonca asked if that was an opinion, or something they can rely on to which
Mr. Dahilig stated that is the Department's recommendation. Ms. Mendonca stated she is
concerned because they see a lot of farmers before the Commission that want to d.o this, but may
be hesitant to apply, but this may set a precedence that she feels could be great: She just does not
want to go through the same thing they did previously in arguing about square footage.. Chair
Kimura commented that this is an 'existing building that: multiple people will use, and while itis a
big building he does not have a problem with the fact that -numerous different people will be
using it Ms. Mendonca stated the Commission's intention is to encourage farming, and the
more the merrier; but she is concerned they will open a door they cannot 'close;
Mr: Asquith stated the building is still a farm building, and the only structure on the
property where there is power and water. It is still used to repair equipment as well, and is not
just going to be a fruit stand. Additionally, it has bathroom facilities and a storagearea.
Page 29 of 31
At the request of Mr. Katayama, Mr. Hull read Condition 3 into the record:
Condition 3 — The hours of operation for the farm market and ag tour will be 8:30 a.m. to
6.30 p. m., seven days: a week,
On the motion. by Sean Mahoneytand seconded by Amy :Mendonea to approve the
zoning permit, use permit, and special permit, the motion carried by unanimous voice vote.
Class IV Zoning Permit Z-N-2015-1 and Use Permit U=2015-1 to allow, establishment of
a gqu p child care center facility on a parcel located along- the western side of Ohelo Road in
Wailua Homesteads situated at its intersection with Kuamoo Road further identified as Tax
Map Ke 4-2-009: 01 & and containing a total area of 10,007 s . ft. Ke Kula Pono LLC.
[Director' s Report received. 8/12114.1
Staff Planner Jody Galinato provided an overview of.the application; noting the facility is
in an existing residence where the applicant currently resides.
Chair Kimura asked whether any of the neighbors have complained about the child care
center being there to which Ms. Galinato stated no, but she did receive a.letter from an adjacent
neighbor in favor of the project.
Malia Finazzo- Krueger, applicant and owner/teacher of Ke Kula Pono was present. She
does not have any questions or concerns with the Director's. Report, but did want to point out that
she has been in communication.and is working with all the agencies that have submitted
comments on the prof ect;
Mr. Mahoney commented that because it is in a residential. area, concerns with traffic,
parking, and safety should be paramount: : He also_pointed out that being in a residential area,
they must be considerate of where they are for, the safety of the children as well as. the traffic and
parking issues that may arise. Ms. Finazzo-Krueger agreed, and :stated' she has a specific' .
staggered. dro p-off. in which every parent has a specific time for dropping:off to prevent all the: .
parents showing up at the same.time; the neighbors are aware of that. : Additionally, it has been
made very clear to the :parents that :they are not to park just anywhere, there are specific parking
areas.
Mr. Katayama asked.in processing these applications, at what point .daes the review
process consider the child care component, noting that this is a home that is being turned into a
child; care facility.Is there: a review:proeess that looks into the safety.:aspects of that other. than .
the; standard comments from the various , departrnenis? Ms. ,Galinato explained that the
Department.of Health and Human Services .does go out to.. site, . and based on the size.of the
structure allocate the number of teachers required, and how many children are-aliowed. The
previous application was different in that the applicants chose not to reside: at the house;. and .
convert it to a daycare center. During that process, the Department learned the applicants did not
need a building permit, therefore,:. they did not have an additional system to. ensure they complied
with agency comments. Because of the concern for the safety of the children as well as the
peace of the neighborhood, the Department has been monitoring the facility, and have spoken to
Page 30 of 31
DHHS who has the ability to pull the license if need be. That is the reason for Supplemental #2
to the Director's Report to add Condition 9, which states . . . the applicant provide written
approval from all agencies including building division prior to commencement of the proposed
use.
Mr. Katayama asked if the results of the DHHS review are part of the application packet,
and if not, can it be made to be a part of the packet. Ms . Galinato stated the applicants are
already very regulated by DHHS, and the Department is working on it. Mr. Katayama asked if
there would be anything included to say that DHHS has reviewed and signed off on it to which
Mr. Dahilig stated it could be included as part of the 360 process with other agencies.
Mr. Isobe asked to clarify that Supplemental #2 of the Director's Report is an additional
condition added to the preliminary recommendations, which would bring it to a total of 9
conditions to which Ms. Galinato replied yes.
On the motion by Amy Mendonca and seconded by Angela Anderson to approve the
zoning permit and use permit, 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 Lihu`e Civic Center, Mo`ikeha Building, Meeting Room 2A-2B, 4444
Rice Street, Lihu` e, Kauai, Hawaii 96766 on Tuesday, September 23, 2014.
ADJOURNMENT
Chair Kimura adjourned the meeting at 3 :53 p .m.
Respectfully submitted by:
Cherisse Zaim
Commission Support Clerk
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