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HomeMy WebLinkAbout021513_AAC_Minutes_Approved as amended(cz)(tt) COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Committee : ARBORIST ADVISORY COMMITTEE Meeting Date February 15, 2013 Location Mo ' ikeha Building — Liquor Conference Room Start of Meeting: 9 : 10 a.m . I End of Meeting: 10 : 35 a.m. Present Chair Laurie Ho; Co-Chair Lawrence Borgatti ; Members : David Lorence; and Deputy Planning Director Dee Crowell Also Deputy County Attorney Jodi Higuchi; Board & Commissions Office Staff: Support Clerk Mercedes Youn; Administrator Paula Morikami; Administrative Aide Teresa Tamura Public testimony: Samuel Pratt, President of Niu Pia Farms Ltd. ; Jerry Nishek, Certified Arborist; Attorney Walton D .Y. Hong, Love Bernhelm, Alison Chuang, David LaCock, Karen Sherwood, Larry Smith, Koral McCarthy, Elijah Frank, Mindy Smith, Sharon Laton, Daisy LaCock, Nick Arnold, Beth Ann Chandler-Baptista. Excused Member Kawika Smith Absent SUBJECT DISCUSSION ACTION Call To Order Prior to the meeting being called to order, Eddie Topenio, Administrative Chair Lorence called the meeting to order at 9 : 10 Assistant to the County Council, gave the Oath of Office to member a.m. Lawrence Borgatti . AAC 2013-01 Selection of Mr. Lorence moved to nominate Ms. Ho to the Chair and Co- • Laurie Ho — Chair Elect position of Chair for 2013 . Mr. Borgatti Chair for 2013 • Lawrence Borgatti— Co-Chair Elect seconded the motion. Motion carried 4 : 0 Mr. Lorence moved to nominate Mr. Borgatti to the position of Co-Chair for 2013 . Ms. Ho seconded the motion. Motion carried 4 : 0 AAC 2013-02 AAC 2013 -02 Discussion and decision-making on a request for a recommendation from Niu Pia Land Company, LTD to the Arborist Advisory Committee, to seek removal of designated Exceptional Trees No . K- 12 Coconut Grove otherwise known as Niu, Coconut-palm or Cocos nucifera these tress are located in Waipouli, Kauai , Hawaii and situated on TMK: 4)-4-3 -007-029 and TMK: (4) 4-3 -007-030 on the makai side of Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 2 SUBJECT DISCUSSION ACTION Kuhio Highway 56 in Waipouli . (a) Communication dated 07/06/ 12 from Jerry Nishek, General Manager of Kauai Nursery & Landscaping, Inc. and Certified Arborist (WE- 7410A), to Doug Haigh Public Works Chief Buildings Officer, re ag rding a Preliminary Arborist Report for Coconut palms otherwise known as Niu, Coconut-palm or Cocos nucifera located in Waipouli, Kauai, Hawaii and situated on TMK: (4) 4-3 -007-029 and TMK: (4) 4-3 -007-030 on the makai side of Kuhio Highway 56 in Waipouli. Mr. Lorence moved to receive item AAC 2013 - 02 (a) . Mr. Borgatti seconded. Motion carried 4 : 0 Mr. Lorence called for public testimony on item AAC 2013 -02 . Mr. Pratt stated that his presence today is to request approval from the Arborist Advisory Committee to remove the dead and dying coconut palm trees on the subject property which is covered by the County' s Exceptional Tree Ordinance. But more importantly because the trees pose a severe safety hazard to the general public and should be dealt with immediately. Mr. Pratt gave the Committee a brief history on how his great-grandfather planted the coconut palm trees in 1911 as part of a 1 , 100 coconut seedling planting operation in Waipouli . He stated that the entire inventory of trees is approximately 100 years old, which places them at the far end of their average life span of 80 to 100 years. He indicated that approximately 12 to 15 individual coconut palms have expired and have begun to topple over due to decay. He indicated that a number of other individual trees are showing advanced signs of senile decay which is the beginning stages of death. Mr. Lorence stated that the Arborist Report is very well documented and as far as he can tell by looking at the photographs, a number of the coconut Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 3 SUBJECT DISCUSSION ACTION palm trees have already died. Mr. Lorence asked how tall the trees are. Mr. Pratt stated that the trees are estimated to be 90 feet tall which is taller than the buildings in the area. Mr. Borgatti stated that as a Certified Arborist, he noticed that there were more dead trees located on the Mauka side of the road. He asked why those trees were showing signs of decay. Mr. Jerry Nishek stated that some of the trees may have developed heart-rot which could be slowly spreading throughout the grove eventually killing the trees . He indicated that the heart-rot problem has been discovered in both the Wailua and Kapaa area and that the disease is slowly spreading and affecting more trees throughout the island. Chair Laurie Ho asked whether the coconut palm trees on the subject property located closer to the highway were younger than the trees located on the Makai side of the coconut grove. Mr. Pratt stated that records show that the trees are about the same age or similar in age, and that they were all planted by his great-grandfather. He indicated that historical records will show that the coconut palm trees in that area were planted between 1911 and 1914. Mr. Lorence asked Mr. Pratt if he had any intentions of re-planting saplings to perpetrate the coconut grove. Mr. Pratt explained that his family has been part of that area for many years, and at one time that area was known as the "Coconut Plantation" at Waipouli . Today, that area is known as the "Royal Coconut Coast" so having an absence of coconut trees would be funny. He further explained how important it was to his family that coconut palms trees remain in that area, and that they are planning to propagate the trees by using the existing healthy stocks and re- plant the saplings at the base of each tree they remove without disturbing the existing ground conditions. Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 4 SUBJECT DISCUSSION ACTION Mr. Borgatti asked Mr. Pratt besides asking for permission to remove the coconut palms was he also seeking advice and guidance from the Arborist Advisory Committee on how to remove coconut palms . Mr. Pratt said yes. He explained how important it is for Niu Pia Farms to properly remove the dead and dying coconut palms without disturbing the existing ground condition. Chair Ho asked whether it would be appropriate for the Committee to make a recommendation to the County Council to allow the removal of the dead and dying coconut palms immediately because it poses a safety hazard. In addition, the owners have indicated that they are going to re- plant new saplings at the base of each tree they remove without disturbing the existing ground conditions. Deputy County Attorney Higuchi brought to the attention of the Committee that relative to the adoption of Ordinance 240 in 1974, K- 12 was designated as Exceptional Trees . She explained that in 1979, the Planning Commission granted Niu Pia Farms preliminary approval to subdivide Lot 5 (TMK 4-3 -007-029) into Lots 5A & 5B . In October 1981 , the final subdivision was approved which is now known as TMK' s 4-3 - 007-029 and 4-3-007-030 respectively. Ms. Higuchi indicated that there was a need to amend Ordinance 240 to include both TMK' s. Mr. Pratt stated that Niu Pia Farms acknowledged the fact that an amendment needs to be made to Ordinance 240 . He noted that the majority of the dead and dying Coconut palms are located on TMK 4-3 - 007-030 . Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 5 SUBJECT DISCUSSION ACTION Chair Laurie Ho called for a motion based on the information received. Mr. Borgatti moved to support a recommendation to amend Ordinance 240 to include TMK' s 029 & 030, and removal of the dead and dying Cocos nuci era trees; re-plant new saplings at the base of each tree removed. Mr. David Lorence seconded the motion. Motion carried 4 : 0 AAC 2013-03 AAC 2013 -03 Discussion and decision-making on a request for a recommendation from Walton D.Y. Hong Attorney for Barbara Banke and the Jackson Family Investments, to seek removal of designated Exceptional Tree No. K- 13 ,Tropical Almond otherwise known as a False Kamani Tree or Kamani Ula or Terminalia catappa, located on real property known as Lot 53 on the Jackson Property in Haena, Kauai, Hawaii and situated on TMK: (4)-5-9-005 -002 approximately 80 feet mauka along Kuhio highway. (a) Copy of a communication dated 10/ 16/ 12 from Steve Nimz. ASCA Consulting Arborist (WE-0314AM) and Certified Tree Risk Assessor (#419), to Walton Hong, Attorney at Law, regarding a tree assessment to address a group of Tropical Almond otherwise known as a False Kamani Tree, Kamam Ula or Terminalia catappa located on real property known as Lot 53 on the Jackson Property in Haena, Kauai , Hawaii and situated on TMK: (4)-5 -9-005 -002 approximately 80 feet mauka along Kuhio highway. Chair Laurie Ho called for a motion to receive item AAC 2013 -03 (a). Mr. Lorence moved to receive the communication. Mr. Borgatti seconded the motion. Motion carried 4 : 0 Deputy Planning Director Crowell asked whether the False Kamani tree Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 6 SUBJECT DISCUSSION ACTION was located in a Conservation District. Ms . Higuchi explained that because the subject tree is located in a State Land Use Conservation District, she would need additional time to do research on whether there are jurisdiction issues regarding the removal of the subject tree. She suggested that the Committee defer this matter for continued discussion at its next meeting. Chair Laurie Ho acknowledged the request and then indicated that she would accommodate the public members who wished to give testimony on the subject matter. Public testimony Ms. Love R. Bernheim, member of the public, read her testimony, which is attached hereto . Included with her written testimony was a petition signed by 80 people supporting the preservation of Exceptional Tree K- 13 . The association of the tree has two burials, which are located within the roots and is a culturally and historically significant landmark. Mr. David LaCock, member of the public, read his testimony, which is attached hereto . He stated that he is the driving force to preserve Exceptional Tree K- 13 . He was emotional and expressed his fear that once the tree is gone there would be no way to replace this archeological treasure. Ms. Alison Chuang, member of the public, read her testimony, which is attached hereto . She stated that the tree is very special to her and her four year old granddaughter because of its shade and that it is the resting place of her granddaughter' s ancestral beings. She stated that it is her hope that the tree and its roots remain part of Hawaii ' s cultural heritage. Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 7 SUBJECT DISCUSSION ACTION Ms. Karen Sherwood, member of the public, read her testimony, which is attached hereto . She stated that the land that the tree is located on has been in her husband' s family for generations. Included with her testimony was a copy of her husband' s genealogy (Olanolan) which agrees with the records that have been handed down by her Kupunas. Ms. Millie Kihilokolo Olanolan, who was not present during the meeting, provided a copy of her written testimony, which is attached hereto. She stated her support in the preservation of Exceptional Tree K- 13 . Mr. Walton Hong, Attorney representing Barbara Banke and the Jackson Family Investments, read his testimony, which is attached hereto. He asked for the Committee ' s consideration for the removal of K- 13 from the exceptional tree list based on subsection (h) in the Ordinance which states that in the event a tree should be found that such designation as an exceptional tree is a total denial of the reasonable economic use of the property, the County may remove the tree from the protection of the Ordinance. Mr. Hong requested that he would like the opportunity at the end of public testimony to respond to the concerns brought forth by the public. Chair Laurie Ho acknowledged his request. Mr. Larry Smith, general contractor, stated that upon inspection of the property and the subject tree it was determined that the lot is not buildable if the tree remains on the property. Ms. Koral McCarthy, member of the public, voiced her concerns that the explanation by Mr. Hong in which he states that the exceptional tree is a total denial of the reasonable economic use of the property is not true. She indicated that the Jackson Family is very wealthy and that they already have a beautiful oceanfront home on the Makai side of the highway across from the subject property. Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 8 SUBJECT DISCUSSION ACTION She asked that the Committee look at the issue with emotion because their decision will affect the preservation of the two grave sites that have been on the property for generations . Mr. Elijah Frank, member of the public, stated that he grew up in Haena. In his thirty-six years of living there everyone in the community knows about the burials and has nothing but respect for them. He stated that the owner' s financial interest does not rest solely on the subject property because their economic interest is on a global level and that any financial gain would not be achieved. Ms. Mindy Smith, Property Manager for the Jackson Family Investments stated that contrary to belief that the Jacksons are just part time visitors, the fact is that the Jackson Family are on island more than a couple of times a year and have stayed for the duration of 2 months in the last 6 months. She indicated that the Jackson family are very respectful people and that they do not want to do anything that would offend the community. She pointed out that the economic status of the Jackson Family should not influence the process . Ms. Sharon Laton, member of the public, testified that the subject property is not a big piece of property and that she finds it hard to understand why the Jackson Family would want to put a house on it. She is hopeful that the people hired by the Jackson Family show respect for the people living in the area and even suggested that the owners donate the property for the cause so that the community would love them. Ms. Daisy LaCock, member of the public, testified that she grew up next to the subject property where the tree and the burials are located. She expressed with emotion how much the tree means to the people living in the area. She asked that the Committee make the right the decision to Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 9 SUBJECT DISCUSSION ACTION preserve the tree. Mr. Nick Arnold, member of the public and lifelong Haena resident, testified that he had the privilege to be raised in Haena and be part of that community. He stated that he understands that the decision to remove the tree does not lie with the Committee however, he asks that the Committee make a recommendation to the County Council supporting the preservation of the tree. He also asked that the Committee send a message to the County Council to let them know that the Haena community opposes the removal of the tree and that the area is very special to them. Ms. Beth Ann Pualam Chandler- Baptista, member of the public, gave an emotional plea to the Committee to preserve the ground area in which the burial site is located. She indicated that the burial site is a significant and cultural presence in the Haena area. She voiced her concerns on the handling of burial sites that are in close proximity of people homes . She stated that in respect to her ancestors who have passed on and who are interned on the property, removal of the tree would affect the burials . Mr. Crowell asked whether the two burials on the property are the only ones on the property. Ms . Baptista replied that the two burials are the only ones that have been accounted for however, she believes that more burials are on the subject property and that some of the burials were marked at one time but that was a long time ago . In addition, Ms. Karen Sherwood indicated that she would be submitting additional written testimony from the adjacent landowner Rick Berry supporting the preservation of the tree. Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 10 SUBJECT DISCUSSION ACTION Attorney Walton Hong thanked the Committee for the opportunity to respond to the public ' s concerns and comments . Mr. Hong stated that it is unfortunate for someone who is able to afford to buy a piece of property to be denied the same rights as anyone else. The applicant bought the piece of property because in the Conservation District, no matter how big of a property a person has, you are allowed to build only one residence of so many square feet; that' s the law. Mr. Hong explained that the Jackson Family is a fairly large family with a fair amount of visitors who come to visit and because of that very reason the family found that they were having trouble accommodating their family and friends who wished to visit the island. He further explained that when the opportunity presented itself, the Jackson ' s decided to purchase the subject property with the intent of building another residence to accommodate their family needs. Mr. Hong stated that the family' s ability to purchase the property is a factor to be considered. He indicated that by legal standard under the Exceptional Tree Ordinance, if found that the designation is a total denial of the reasonable economic use of the property, the County Council may remove the tree from the protection of the Ordinance. Mr. Hong stated that he is aware that there are two burials on the site; however, no one can really say where the other burials are. Mr. Hong stated that at the time when the Jackson Family was building their oceanfront home on the Makai side of Kuhio highway, some bones were discovered and they treated the situation with all due respect and in the manner in which the law required. He indicated that the same kind of respect and process would be taken should any burials be uncovered in the course of construction. He stated that all work would stop immediately and that they would have to notify the proper authorities (the Department of Land and Natural Resources Historic Preservation Division) who would determine the course of action to take. Mr. Hong stated that this type of action on the part of the land owners demonstrates respect for all burials Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 11 SUBJECT DISCUSSION ACTION uncovered. Mr. Hong asked Ms . Sherwood if he could be provided with a copy of the genealogy which she submitted to the Arborist Advisory Committee. Chair Laurie Ho stated that it becomes part of public record once it is submitted as public testimony. Mr. Hong respectfully asked that the standard set forth in the Ordinance be adhered to by the Arborist Advisory Committee. Mr. Crowell asked if the subject property was part of a kuleana. Mr. Hong replied that records show that the subject property (Lot 53) was once part of a kuleana that belonged to the Haena Hui and that both the non-kuleana and kuleana lands was chopped up and re-distributed. Chair Laurie Ho pointed out that the Committee had also received written Mr. Lorence moved to receive. Mr. Borgatti testimony dated 2/ 12/ 13 from Laurinda Nikkel and Arne Knudsen to the seconded the motion. Arborist Advisory Committee, supporting the preservation of Exceptional Motion carried 4 : 0 Tree K- 13 . Chair Laurie Ho called for a motion to receive the written testimony for the record, which was read by Ms . Love Bernhelm, and attached hereto . Chair Laurie Ho voiced her concerns regarding the burials on the subject property. She asked whether it would be premature for the Committee to contact the Burial Counsel to request information on how to proceed since no construction is being proposed. Mr. Crowell suggested that the Committee hold off in making any decisions until it hears back from the Deputy County Attorney. Mr. Lorence moved to defer. Mr. Borgatti Chair Laurie Ho called for a motion to defer item AAC 2013 -03 for seconded the motion. continued discussion at the next meeting pending receipt of Ms . Higuchi ' s Motion carried 4 : 0 Arborist Advisory Committee Meeting - Open Session February 15 , 2013 Page 12 SUBJECT DISCUSSION ACTION research on the Conservation Land District and if the County has any jurisdiction over the subject property. Announcements Next meeting — March 15 , 2013 at 9 : 00 a.m. in the Mo ' ikeha Building — Meeting Room 2A/2B . Adjournment With no further discussion, Chair Laurie Ho called for a motion to adjourn the meeting. Mr. Lorence moved to adjourn the meeting. Mr. Borgatti seconded the motion. Motion carried 4 : 0 At 10 : 35 a.m. the meeting was adjourned. Submitted by: Reviewed and Approved by: Mercedes Youn, Staff Support Clerk Laurie Ho, Chair O Approved as circulated (add date of meeting approval). (X) Approved as amended. See minutes of March 15, 2013 meeting.