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HomeMy WebLinkAbout031513_AAC_Minutes_Approved as amended_1m(cz)(tt) COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Committee : ARBORIST ADVISORY COMMITTEE Meeting Date March 15, 2013 Location Mo ' ikeha Building — Meeting Room 2A/13 Start of Meeting: 9 : 05 a.m. End of Meeting: 10 : 11 a.m. Present Chair Laurie Ho; Co-Chair Lawrence Borgatti; Members : David Lorence, and Deputy Planning Director Dee Crowell Also present: Deputy County Attorney Jodi Higuchi; Board & Commissions Office Staff: Support Clerk Mercedes Youn; Administrative Aide Teresa Tamura Public testimony: Attorney Walton D.Y. Hong, Love Bernhelm, Robert MacCallum, Beverly MacCallum, Judy Broherton Excused Kawika Smith Absent SUBJECT DISCUSSION ACTION Call To Order Chair Laurie Ho called the meeting to order at 9 : 05 a.m. Agenda Mr. Lorence requested that item AAC 2013 -05 , of the agenda be amended to properly reflect the scientific name of the Monkey Pod Tree as Pithecellobium saman. Chair Laurie Ho called for the approval of the agenda, as amended. Mr. Lorence moved to approve the agenda, as amended. Mr. Borgatti seconded the motion. Motion carried 4 : 0 Approval of Open Session Minutes of March 15 , 2013 Minutes Chair Laurie Ho requested that the minutes of February 15 , 2013 be amended to properly reflect Lawrence Borgatti as Co-Chair. She added that at the last meeting, the committee voted Lawrence Borgatti as Co- Chair for 2013 . She also requested that on page five (5), of the minutes be amended to properly reflect the name as Mr. David Lorence rather than Dr. David Lorence. Mr. Lorence moved to approve the minutes, as Chair Laurie Ho called for the approval of the minutes, as amended. amended. Mr. Borgatti seconded the motion. Motion carried 4 : 0 Arborist Advisory Committee Open Session March 15 , 2013 Page 2 SUBJECT DISCUSSION ACTION Communications AAC 2013 -04 Copy of communication dated February 22, 2013 from Mr. Samuel W. Pratt President of Niu Pia Land Company Ltd. , to Planning Director Michael Dahilig, as it relates to TMK (4)-4-3 -7-029 (and 30) Exceptional Tree removal. Ms. Higuchi brought to the attention of the committee that at the last meeting, the committee voted to approve the removal of the coconut palm trees. She clarified that no action was needed by the committee because Niu Pia Land Company was not seeking to remove the trees from the maps, i.e. , remove the designation of the grove but instead they wanted to remove the dead trees and replant new saplings, which is allowed in the ordinance under sub-section §22-5 .7 (c) of the Kauai County Code 1987, which states trees in a grove may be removed, subject to approval of the County Planning Department. Chair Laurie Ho thanked Ms. Higuchi for the clarification and called for a Mr. Crowell moved to receive item AAC 2013 - motion to receive item AAC 2013 -04 . 04. Mr. Lorence seconded the motion. Motion carried 4 : 0 Additionally, Chair Laurie Ho questioned whether it would be appropriate to amend the ordinance to reflect both TMK' s (4)-4-3 -007-029 and (030) which describes the location of the grove. Ms. Higuchi stated that an amendment to correct the ordinance would be appropriate at this time because the original designation for the coconut grove was extended to the whole parcel. She assured the committee that her office would work with the Office of Boards and Commissions and the Administration to correct the ordinance for transmittal to the Mayor for introduction to the County Council to amend the ordinance. Arborist Advisory Committee Open Session March 15 , 2013 Page 3 SUBJECT DISCUSSION ACTION Ms. Tamura clarified for the committee that the only action that would be taken at this time is the motion to recommend to the County Council to correct the ordinance and that the motion to remove the coconut palms is void. Business AAC 2013 -03 Discussion and decision-making on a request for a recommendation from Walton D .Y. Hong, Attorney for Barbara Banke and he Jackson Family Investments to seek removal of the designated Exceptional Tree No . K- 13 also known as Tropical Almond False Kamani tree or Kamani Ula or Terminalia catappy 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 qpproximately approximately 80 feet mauka along Kuhio highway. Deferred on 2/ 15/ 13 Chair Laurie Ho opened the floor to receive public testimony. Mr. Walton Hong, Attorney for Barbara Banke and the Jackson Family Investments, stated that at the last meeting, a question was raised by Mr. Crowell as to whether or not the County had jurisdiction under the tree ordinance since the subject property is located in a State Conservation District. He noted that within the Conservation District the uses are regulated not by the County but by the Department of Natural Resources (DLNR) and the Board of Natural Resources. He stated that it is his understanding that the County Attorney was going to do further research on whether the County does or does not have jurisdiction and until such time that the findings are revealed, he is unclear on how to proceed with this issue. Chair Laurie Ho stated that the committee is in receipt of a confidential legal opinion but is unclear at what point that opinion can be publicly released. Arborist Advisory Committee Open Session March 15 , 2013 Page 4 SUBJECT DISCUSSION ACTION Ms . Higuchi stated that it would be appropriate for the committee to generally share the findings which state that the Exceptional Tree Ordinance is preempted by State law as it relates to trees within the State Conservation District. Mr. Hong stated that as long as the advice from the County Attorney states that the County is preempted by State law he really has no business here today. He assured the committee that they would be working with the Department of Land and Natural Resources in meeting all of their requirements. Mr. Hong also acknowledged the public concerns regarding the burials and that his clients would certainly address those burials. He thanked the committee for their time and consideration. Mr. Crowell asked how the committee would move forward on this matter. Ms . Higuchi recommended that the committee refer the matter including all testimonies/documents to OCCL (Office of Conservation and Coastal Lands) because they have jurisdiction and oversight regarding this matter. Chair Laurie Ho called for a motion to refer the matter and all documentation as it relates to Exceptional Tree K- 13 to the Department of Land and Natural Resources, OCCL Division . Mr. Lorence moved to refer the matter to the Department of Land and Natural Resources, Office of Conservation and Coastal Land Division. Mr. Crowell seconded the motion. Motion carried 4 : 0 Chair Laurie Ho asked whether the legal opinion should be made part of the record. Ms. Higuchi explained only if the committee votes to waive its rights to confidentiality can the opinion be released publicly, but first, she would need to seek the County Attorney' s advice on whether it would be appropriate to release the opinion to the public. Arborist Advisory Committee Open Session March 15 , 2013 Page 5 SUBJECT DISCUSSION ACTION Chair Laurie Ho felt that it would be appropriate for the committee to include the confidential legal opinion as part of the record because the committee ' s decision was based on the opinion. Ms . Youn suggested that the committee receive the confidential legal Mr. Lorence moved to receive the confidential opinion dated March 6, 2013 for the record Chair Laurie Ho agreed, and legal opinion dated March 6, 2013 from Ms. Jodi called for a motion to receive the legal opinion for the record. Higuchi. Mr. Crowell seconded the motion. Motion carried 4 : 0 It was brought to the attention of Chair Laurie Ho that Ms. Bernheim wished to give testimony. Love Bernheim, member of the public, stated that based on the discussion is she right to assume that the matter is going to be referred to the OCCL. With that said, she asked whether all current and past documentation including a letter dated March 20, 1990 from Mrs . Helena Hana Santos to Mr. Don Hibbard, Director of the Historic Preservation Program, would be transferred to OCCL. Ms. Bernheim brought to the attention of the committee that in 1990, Ms. Santos testified that the subject tree is the oldest tree in Haena and there are two (2) graves located on the subject property. She added that Ms . Santos was 61 years old at the time of her testimony and that the tree has been around since her childhood which would make her year of birth 1929, which means the tree is at least 84 years old and has survived two (2) tsunamis and two (2) hurricanes . Ms . Bernheim indicated that she had questions on public easements and public land trusts in which she called OCCL, the tax assessor' s office and even the Planning Department but she got the run around every time she called. She asked if there was a member on the Arborist Advisory Arborist Advisory Committee Open Session March 15 , 2013 Page 6 SUBJECT DISCUSSION ACTION Committee who represents the Planning Department. Ms . Bernheim asked whether a conservation easement is something that would go through the Planning Department. Mr. Crowell stated that because the subject property is located in a State Conservation District the County has no jurisdiction. Ms. Bernheim indicated that when she called OCCL, who is the authoritative body, she was told that they had never heard of a conservation easement. Mr. Crowell stated that in theory a conservation district is considered a conservation easement because the development standards are different when it comes to State Conservation Districts. Chair Laurie Ho mentioned that a lot of the inquires coming from Ms. Bernheim should not be addressed by the Arborist Advisory Committee because the purpose of the Arborist Advisory Committee is to determine which trees are to be designated "exceptional trees" by reason of historical or cultural value, aesthetic quality, endemic status, age, rarity, location, or size. For clarification, Ms . Bernheim asked when the permitting process begins would the matter then be referred to the OCCL including the transfer of the documentations. Ms . Higuchi stated that once the applicant moves forward with a certain action in the Conservation District the OCCL regulations will have to be met by the applicant AAC 2013 -05 Exceptional Tree nomination submitted by Robert MacCallum, Brad Kreller, Peggy Lenahan, Don Healy Ransbury, Jim Nelson, Dawn Olsen, Dorathea Liverman, and Joseph Crivelli, received on February 7, 2013 . The applicants seek to designate the Arborist Advisory Committee Open Session March 15 , 2013 Page 7 SUBJECT DISCUSSION ACTION existing seven even (7) Monkey Pod Trees also known as Rain Tree, Pithecellobium samara or Albizia saman located at 440 Aleka Place, Kapaa, Kauai, Hawaii 96746, and situated on TMK: 43 -02- 13 , to be considered and nominated as exceptional trees pursuant to Section 22-5 . 3 of the Kauai County Code as amended. Mr. Borgatti requested to remove himself on the appearance of a conflict Mr. Borgatti left the meeting at 9 : 30 a.m. of interest. Robert MacCallum, member of the public, read his testimony which is attached hereto . He stated that he and his wife have developed a deep respect and abiding malama for the beauty of the islands; that respect has motivated them to do their part as stated in the exceptional tree ordinance to "preserve the environmental character of Kauai. Beverly MacCallum, member of the public, stated that the Monkey Pod Trees have been hacked away for the last two (2) years to such a degree that one of the trees is almost dead. She was emotional and expressed her concern for the safety of the trees and that it was evident that the tree has not recovered from past pruning wounds . Mr. Crowell asked if it was right to assume that the Owners Association Board is planning to do something with these trees. Mr. MacCallum stated that the board put forward a plan to the owners which, apparently, has been declined and that the problem is that the board operates in secrecy. He indicated that since the vote to decline the plan some of the owners have not heard any word from the board. He expressed his concern that the trees should be afforded proper care and protection and none of the trees should be removed in an unwarranted fashion. Arborist Advisory Committee Open Session March 15 , 2013 Page 8 SUBJECT DISCUSSION ACTION Mr. Crowell asked if there were any board members present. Mr. MacCallum said no . Judy Broherton, member of the public, stated that as a developer in Washington State she understands the conflict with builders and homeowners who want to clear their land for development. Ms . Broherton expressed her disagreement with the board' s plans to increase the parking lot by adding additional parking stalls. Chair Laurie Ho acknowledged that both Ms. MacCallum' s and Ms . Broherton ' s written testimonies are included in the Exceptional Tree nomination application form. Mr. Lorence moved to receive. Chair Laurie Ho called for a motion to receive for the record the Mr. Crowell seconded the motion. exceptional tree nomination application and written testimonies as it relates Motion carried 3 : 0 to item AAC 2013 -05 . Mr. Lorence stated that committee has the task of determining whether the seven (7) Monkey Pod Trees are to be designated "exceptional trees" by reason of historical or cultural value, aesthetic quality, endemic status, age, rarity, location, or size for posterity. He stated that an exceptional tree must stand on its own merits and must fit the criteria as he previously indicated. Mr. Crowell asked if the location of the trees is considered a grove. Mr. Lorence stated that seven (7) trees would not be considered a grove. Mr. Crowell voiced his concerns regarding the designation of these trees as exceptional trees. He indicated that the trees were planted in the parking lot for landscaping the hotel roughly forty (40) years ago. He stated that the Planning Department tries to encourage developers to plant canopy Arborist Advisory Committee Open Session March 15 , 2013 Page 9 SUBJECT DISCUSSION ACTION trees such as these to cool down the parking area, however if the developers knew now that forty (40) years down the road those trees would be designated as exceptional trees they would have fought tooth and nail not to plant any trees. He also pointed out that the Planning Department is looking into the CZO (Comprehensive Zoning Ordinance) update that would require the developers to plant trees however, if this sort of thing happens too often then they would have come up with other alternatives for the developers that say if you plant these trees, the trees would never be placed on the exceptional tree list. Mr. Crowell stated that although he agrees that the trees are beautiful and provide shade for the parking lot area, he would have to vote against designating these Monkey Pod Trees as exceptional trees for reasons he stated. Mr. Lorence noted that there were two (2) assessments done by two (2) different arborists which suggested that the trees were not healthy and judging by the documented photos he tends to agree with both arborists and is not convinced that the trees are exceptional in terms of their size, age and health. He indicated that he has seen quite a few monkey pod trees, even older ones at the National Botanical Garden, and felt that these monkey pod trees does not fit the criteria in which the Arborist Advisory Committee is looking for. Mr. MacCallum stated that they have met the requirements of the criteria such as age, rarity, and size as indicated on the nomination form. Mr. Lorence stated that the application looks like it was properly submitted however, the Arborist Advisory Committee must look at the trees and ask are these trees exceptional. He voiced his concern about the conflict between the owners association and the board and unfortunately, he felt that the committee is caught in the middle. Arborist Advisory Committee Open Session March 15 , 2013 Page 10 SUBJECT DISCUSSION ACTION Chair Laurie Ho echoed both Mr. Lorence and Mr. Crowell ' s feelings that the issue seems to be between the Board of Directors for the Association of Apartment Owners and a group of concerned owners at the Islander on the Beach. She also agreed that the seven (7) Monkey Pod Trees is not considered a grove of exceptional trees. Mr. MacCallum states that he agrees with Chair Laurie Ho, that the underlying issue is complex and whether or not the trees are designated exceptional he is seeking a remedy to the problem which is to try to balance the environment and in this case, the board' s proposal to add additional parking stalls . He asked advice from the committee on how to best approach this conundrum that would not require the removal of any of the monkey pod trees . Chair Laurie Ho asked Mr. Crowell if he could (as courtesy) meet with the applicants to address their concerns regarding issues that are not within the committee ' s purview but more of a Planning Department issue. Mr. Crowell agreed. Mr. Lorence moved to deny the nomination of Chair Laurie Ho called for a motion. the seven (7) Monkey Pod Trees for exceptional tree status. Mr. Crowell seconded the motion . Motion carried 3 : 0 Adjournment Chair Laurie Ho called for a motion to adjourn the meeting. Mr. Crowell moved to adjourn the meeting. Mr. Lorence seconded the motion. Motion carried 3 : 0 At 10 : 11 a.m. the meeting adjourned Arborist Advisory Committee Open Session March 15 , 2013 Page 11 Submitted by: Reviewed and Approved by: Mercedes Youn, Staff Support Clerk Laurie Ho, Chair ( ) Approved as circulated (add date of meeting approval). (X) Approved as amended. See minutes of June 6, 2013 meeting.