HomeMy WebLinkAboutPlanning 062315 MinutesKAUAI PLANNING COMMISSION
REGULAR MEETING
June 23, 2015
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair Anderson at 9:12 a.m., at the L-ihu`e Civic Center, Mo`ikeha Building, in meeting room
2A -2B. The following Commissioners were present:
Chair Angela Anderson
Vice Chair Sean Mahoney
Mr. Louis Abrams
Ms. Amy Mendonca
Mr. Wayne Katayama
Mr. Kimo Keawe
The following staff members were present: Planning Department — Michael Dahilig, Kaaina
Hull, Leslie Takasaki, Jody Galinato, Dale Cua, Marisa Valenciano; Deputy County Attorney
Jodi Higuchi - Sayegusa, Office of Boards and Commissions — Administrator Jay Furfaro,
Commission Support Clerk Darcie Agaran
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Anderson called the meeting to order at 9:12 a.m.
ROLL CALL
Chair Anderson: Roll call.
Planning Director Dahili Six (6) members present, Madam Chair,
Chair Anderson: Thank you.
APPROVAL OF THE AGENDA
Chair Anderson: And if we can have an approval of the agenda.
Mr. Dahilix Madam Chair, the Department would recommend handling Items I.1. and I.2. first.
These are items related to extension of time for an SMA Permit, as well as request to amend the
PDU relating to Rice Camp. We would then recommend moving to a New Hearing and I
apologize, I sent a crib sheet out to the Commissioners. Moving the New Hearing, to Item F.2.a.
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only after those items on I.1. and I.2. Then move on to action on Item F.2.a. and then move into
New Hearings ... back to New Hearings on the remaining items relating to the homestay
applications, and follow with action on each of those things. And again, I just want to caution
the Commissioners to just please be aware of and cross - reference the actual TMK and
Application Number, and the ... versus looking at solely the tag number that's usually in the
corner here. So just make sure that you're looking at the right application for today because we
have a number of applications that are going through. Some of those numbers may not
correspond and may be related to last meeting's tagging, so just be aware of what application
we're on. And just to reiterate Madam Chair, we'd recommend going with again Items I.1. and
I.2, New Hearings on Item F.2.a., action on Item F.2.a., then move to New Hearings on the
remaining items, and then action on the remaining items afterwards.
Chair Anderson: Okay. Do I have a motion for, ..to approve the agenda with amendments as
stated by the Commission Clerk?
Mr. Mahoney: Move to approve.
Ms. Mendonca: Second,
Chair Anderson: All those in favor? (Unanimous voice vote) Any discussion? (None) Any
opposed? (None) Alright, motion carries 6:0.
MINUTES of the meeting(s) of the Planning Commission
Meeting of May 26, 2015
Mr. Dahilig: Thank you, Madam Chair. We are now on Minutes of the Planning Commission
for meeting of May 26, 2015,
Chair Anderson: Do I have a motion to approve the minutes for May 26, 2015?
Mr. Mahoney: Move to approve.
Mr. Abrams: Second.
Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any
opposed? (None) Motion carries 6:01
RECEIPT OF ITEMS FOR THE RECORD
Mr. Dahilig: Thank you, Madam Chair. We're on Item E, Receipt of Items for the Record. We
have passed out a pretty thick set of testimony that was provided prior to the meeting, and it's
listed as, ..it's been provided in this packet here just for clarification for the Commissioners, so
we ask that this testimony be also received for the record this morning.
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Chair Anderson: Do I have a motion to receive the items for the record?
Mr. Keawe: So moved.
Ms. Mendonca: Second.
Chair Anderson: Okay. All those in favor? (Unanimous voice vote) Any opposed? (None)
Motion carries 6:01
GENERAL BUSINESS MATTERS
Extension of Time for Special Management Area Use Permit SMA(U)- 2014 -6, Tax MaR
Key (4) 2- 6-006: 021 = Tom Stirling
Mr. Dahilig: Thank you, Madam Chair. Let's move to Item I.1., which is the General Business
Matter extension of time for Special Management Area Use Permit SMA(U)=2014 -6, at Tax Map
Key (4) 2 -6 -006 parcel 21. Applicant here is Tom Stirling and there is a Director's Report for
this matter. Jody Galinato is our Planner for this particular item and she'll make the
presentation.
Staff Planner Jody Galinato: Good Morning. Do you want me to read the whole report in light
of the time or...?
Chair Anderson: Please summarize.
Ms. Galinato: Okay. This was an SMA Permit that was approved June 24, 2014, and it had a
timeline to commence construction within one (1) year and complete construction within two (2)
years. The delay has been attributed to resolving the requirements imposed by the Department of
Health regarding the setback for the septic tank. The, ..I'm sorry. The Applicant has
demonstrated good faith in complying with the requirements of the SMA Use Permit. Since the
Building Permit is being processed, it would be the Department's preference to grant a six (6)
month extension to obtain building permit approval and allowing eighteen (18) months to
complete the construction. Therefore, approving the extension request would allow a total of
three (3) years to complete the project from the Planning Commission's SMA Permit approval in
2014. The Department considers the time given to complete the project is sufficient. If the
Applicant is unable to comply with the amended timeline and therefore requests another time
extension, the Applicant will be advised that any new laws, ordinances, or regulations that have
been implemented within this timeframe may be applicable to the project. The
recommendation ... I'll hold off until after the Applicant has spoken.
Chair Anderson: Does the Commission have any questions for the Planner at this time?
Mr. Katayama: I do. Hi, good morning Jody. Specifically, what is the issue between the
Department of Health and the Applicant?
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Ms. Galinato: They were trying to fit the ... this was approved under the old shoreline setback
and they're trying to fit the septic in a leach field outside of the setback. Am I correct?
Avery Youn: Close,
Ms. Galinato: Okay.
Chair Anderson: Alright. I see that we have the applicant here. Does the Applicant have any
comments regarding the Director's Report or any requests?
Mr. Youn: Yes, I do. My name is Avery Youn. I'm the authorized agent. The problem started
when the Planning Department required that road right -of- -way reserve be established in the
front, which took away seven (7) feet of which the leach field could probably be placed in there.
But it didn't have enough room once the roadway right -of- -way was established, so we had no
alternative but to move it between the residence and the shoreline, then we ran into trouble with
the shoreline setback. There was this new septic system that we tried to get approval for which
required a seepage pit, or like a cesspool, that the septic tank would feed into. It took about a
year in negotiating with the Department of Health, only to find out that at the end they will not
approve it and that's why we're back here. This application has been with the Planning
Department for over a year now. We finally got it resolved and we have a few more agencies to
go through to get to Building Permit, but that triggered the problem; the location of the leach
field and it could not go in the shoreline setback, so we had to look at alternatives.
I think the final solution is a seepage pit on the side of the house, which we barely had enough
room for. To get the seepage pit, we needed to get a variance from the Department of Health and
we finally got it, I believe last week.
On the issue of only having six (6) months left to get a Building Permit, I think ... if any of you
are familiar with building permit processes, it may take longer than that. So we were hoping that
we'd have at least a year just to get the Building Permit done. As far as the eighteen (18) months
to begin construction, that's fine, but we don't know what else might happen because it's so
close to the shoreline. Because of the new shoreline setback ordinance, it created some glitches
in the process and we're only through two (2) agencies so far; we've got five (5) more to go. So
if at all possible, because we've been in the permit process for over a year now and we have only
six (6) months... It could probably be done if everything is met today with the Planning
Department requirements and we could get it signed off within the next few days, then we could
probably be alright in getting the permit within the next six (6) months with the other agencies.
But if we're going to run into any more glitches, it would be preferable if a year to get a Building
Permit would be allowable. And like I said earlier, the eighteen (18) months to begin
construction ... once we get the permit to begin construction immediately after that should not be
a problem. And that's my only comment.
Chair Anderson: Okay. Does the Commission have any questions for the Applicant?
Ms. Mendonca: I have one. Avery, good morning.
El
Mr. Youn: Good morning.
Ms. Mendonca: This ADU is being built above the existing residence right now as I understand
it, correct?
Mr. Youn: That's correct.
Ms. Mendonca: What type o£ ..was there already a septic tank there for the existing residence?
Mr. Youn: Cesspool only.
Ms. Mendonca: Oh, okay. So you had to remove or fill that cesspool and go with the septic?
Mr. Youn: I believe the Department of Health will allow us to use that cesspool as a seepage pit,
provided we put in a septic tank. There is no septic tank now.
Ms. Mendonca: And that's what you're putting in now?
Mr. Youn: Yes. Previous to that, it required a leach field and the only location on the side that
had enough land area would've been within the shoreline setback. But because this lot is so
narrow, it became subject to the new shoreline setback ordinance, which wouldn't allow it. So
that's why we had to go through the various procedures through the Department of Health.
Chair Anderson: Okay. Any other questions?
Mr. Abrams: I think I cleared it up. We're still within the SMA Permit regulation in regards to
the total two (2) years. Is that what you're proposing? Or does this take us over it?
Ms. Galinato: The total is three (3) years; one (1) year to commence, two (2) years to complete.
Mr. Abrams: And an SMA Permit is good for...?
Ms. Galinato: For the three (3) years. They just haven't commenced within the one (1) year.
Mr. Abrams: Okay.
Mr. Dahilig: I think you're referring to what is the default requirement in the rules that it goes to
two (2) years unless otherwise stated in the conditions of approval.
Mr. Abrams: Okay. Thank you.
Chair Anderson: Okay.
Mr. Dahiliu: And Madam Chair, just for the record, we wouldn't have any objections should the
Commission wish to revise our recommendation to go up to a year per the Applicant's request.
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Chair Anderson: Okay. Given the fact that we've amended the agenda, I'd like to provide time
at this time for the public to give comments. If anyone in the public would like to give testimony
at this time on this agenda matter, please step forward.
Okay, seeing none. Do I have a motion? Or actually if we can have the Planner go ahead and
read your recommendations.
Ms. Galinato: It is recommended that the Commission approve the extension of time to allow
the Applicant additional time to commence the construction of the project and that Condition 9
be amended to read as follows: The Applicant shall obtain the necessary Building Permit and
commence construction within eighteen (18) months from the date of approval of this permit,
and complete construction by June 26, 2017. And that would be with the six (6) months that we
previously recommended. We can amend it to twenty -four (24) months if that's your wish.
Chair Anderson: Okay. If you can clarify, I know that the Clerk has ... or the Director has stated
that there's no opposition from the Department regarding the change in timeframe, but for that
recommendation, can you read it with the amended... amendment of adding the six (6) months?
Just so it's clear for the Commission.
Ms. Galinato: Sure. Condition No. 9 would be amended to: The Applicant shall obtain the
necessary building permit and commence construction within twenty -four (24) months from the
date of approval of this permit, and complete construction by...
Mr. Dahilia. December.
Ms. Galinato: December 26, 2017. And furthermore, the Applicant is advised that all applicable
conditions of the approval shall remain in effect. Should the Applicant be unable to comply with
the development timeline in Condition No. 9 and requests another extension of time, the
Applicant is advised that any new laws, ordinances, or regulations that have been implemented
within this timeframe may be applicable to the project.
Chair Anderson: Okay. Do I have a motion from any of the, ..well first of all, is there any
questions for the Planner regarding the recommendations?
Okay, so do I have a motion from the Commission regarding this application?
Ms. Mendonca: Madam Chair, given the circumstances as Youn explained, I so move to accept
the Planner's change and the amendment to the recommendation.
Mr. Dahilig: I guess, quickly, June or December?
Ms. Mendonca: I'm sorry.
Mr. Dahilim: June or December?
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Ms. Mendonca: December.
Mr. Dahilia. December, okay.
Mr. Mahoney: Second.
Chair Anderson: Okay, any discussion? Okay, seeing none. All those in favor? (Unanimous
voice vote) Any opposed? (None) Motion carries 6:0.
Request to Amend Project Development Use Permit PDU- 2014 -6 and Class IV Zoning
Permit Z -IV- 2014 -6 to increase the overall density of Phase II of the project from 84 to 90 units
further identified as Tax Map Keys: 3 -6 -004: 009 and 3 -6 -009: 001. Lhu`e = Rice Camp
Partners, LP.
Mr. Dahilig: Thank you, Madam Chair. We are now on Item I.2., request to amend Project
Development Use Permit PDU- 2014 -6 and Class IV Zoning Permit Z -IV- 2014 -6 to increase the
overall density of Phase II of the project from 84 to 90 units, further identified as Tax Map Key:
3 -6 -004 parcel 9 and 3 -6 -009 parcel 1, Lihu`e. The applicant is Rice Camp Partners, LP. Dale
Cua's handling this particular matter.
Staff Planner Dale Cua: Good morning Madam Chair, members of the Commission. I'll go
ahead and just summarize the Director's Report for you. The action that's being requested is the
Applicant is looking to modify and increase the overall density for Phase II of the project. The
density increase would be from a total of 84 to 90 units.
A little bit of background on the project. On December 10, 2013, Planning Commission
approved the subject permits to allow development of a senior affordable housing project and to
construct the project into two (2) phases; Phase I allowed the construction and operation of a
sixty (60) unit affordable housing project for senior citizens, Phase II involves the construction
of twenty -four (24) rental units. Project is comprised of six (6) one -story 6 -plex buildings and a
single two -story building. Each 6 -plex will include four (4) one (1) bedroom units and two (2)
two (2) bedroom units. The two -story building will include an elevator, fourteen (14) one (1)
bedroom units and ten (10) two (2) bedroom units. Additionally, a community center and two
(2) separate laundry buildings are being proposed. The community center would house the
management office and a central mail center.
As represented in the Applicant's correspondence, they are seeking to amend the foregoing
permits to increase the overall density of their project from 84 to 90 units.
Just moving on to the conclusion of the report. Based on the foregoing findings and evaluation,
it is hereby concluded that the request to amend the overall density of the project may be
considered and the increase in density is compatible with the surrounding uses.
The Department's recommendation, based on the foregoing evaluation and conclusion, it is
hereby recommended that the subject request to amend the overall density of the project from 84
to 90 units be approved. And that concludes the Department's... Director's Report.
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Chair Anderson: Thank you. Does the Commission have any questions for the Planner at this
time?
Okay, seeing none. Is the applicant here?
Makani Maeva: Good morning Chair Anderson and members of the Planning Commission. My
name is Makani Maeva and I'm the representative for Rice Camp Partners, LP. I'm here to
answer any questions that you may have about our request.
Chair Anderson: Do you have any comments on the Director's Report or anything additional to
note?
Ms. Maeva: The only thing I might say is that the sixty (60) units of affordable housing that we
completed in February and in April of this year were 100% occupied within the first month. So
there's a pent up demand for this type of affordable housing here in Downtown L-ihu`e. Our
intent is to use the vacant parcel that we did not have water facilities for when we originally
began construction, and to build the additional units on that vacant parcel. We are planning to
use the same local contractor, the same architectural (sic); we'll use the same non -profit and
manager. So we anticipate that we'll be able to fill it up right away. And the units would be
rented to kupuna making less than 50% of the area median income. I should also say that the
land is leased from the County of Kauai as an affordable housing project for the next sixty -five
(65) years.
Chair Anderson: Thank you. Does the Commission have any questions for the Applicant?
Hearing none, okay. Again, as was done in the previous agenda item, if there's anyone in the
public that would like to give testimony on this matter, please come forward.
Okay, noting that there's no public testimony at this time on this matter. What would the
Commission like to do?
Mr. Mahoney: Madam Chair, move to approve.
Mr. Keawe: Second.
Chair Anderson: Okay. All those in favor? (Unanimous voice vote) Any opposed? (None)
Okay, motion carries 6:01
Ms. Maeva: Thank you very much.
Chair Anderson: Thank you.
HEARINGS AND PUBLIC COMMENT
He
Continued Agency Hearing (None)
New Agency Hearing
Class IV Zoning Permit Z -IV- 2015 -31 and Use Permit U- 2015 -30 to allow construction
of a farmworker housing unit featuring 2 bedrooms /2 bathrooms and office space on a parcel
located along the makai side of Koolau Road in Moloa`a, situated approx. 'h -mile east of its
intersection with KiE6 Highway, further identified as 6020 Koolau Road, Tax Map Key 4 -9-
009: 012, CPR Unit 43 and affecting an area approx. 2.564 acres of a larger parcel = John & May
Outzen.
Mr. Dahilig: Thank you, Madam Chair. We are now on the New Hearing for Item ... the New
Agency Hearing under Item F.2.a., Class IV Zoning Permit Z -IV- 2015 -31 and Use Permit U-
2015-30 to allow construction of a farmworker housing unit featuring two (2) bedrooms, two (2)
baths, and office space on a parcel located along the makai side of Koolau Road in Moloa`a
situated approximately' /2 -mile east of its intersection with Kuhi6 Highway, further identified as
6020 Koolau Road at Tax Map Key 4 -9 -009 parcel 12, CPR Unit 43 and affecting approximately
2.564 acres of a larger parcel. John and May Outzen are the applicants for this particular matter.
Madam Chair, the Department would recommend opening the agency hearing at this time.
Chair Anderson: Is there anyone in the public that would like to give testimony on this agenda
item?
Okay, seeing none.
Mr. Dahilig: Madam Chair, we do not have anybody signed up for this particular matter. Given
the lack of members signed up and the lack of people willing to testify on this item, the
Department would recommend closure of the agency hearing at this time.
Chair Anderson: Okay, do I have a motion to close the agency hearing?
Mr. Mahoney: Move to close the hearing.
Mr. Abrams: Second.
Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any
opposed? (None) Motion carries 6:0.
NEW BUSINESS
Class IV Zoning Permit Z -IV- 2015 -31 and Use Permit U- 2015 -30 to allow construction
of a farmworker housing unit featuring L2 bedrooms /2 bathrooms and office space on a parcel
located along the makai side of Koolau Road in Moloa`a, situated approx. '/z -mile east of its
intersection with Kuhi6 Highway, further identified as 6020 Koolau Road, Tax Map Key 4 -9_
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009: 012, CPR Unit 43 and affecting an area approx. 2.564 acres of a larger parcel = John & May
Outzen.
Mr. Dahilia: Thank you, Madam Chair. We would like to move actually onto action on this
particular item and I'd like to turn it over to Dale for his report.
Mr. Cua: Thank you, Madam Chair. I'll just do a quick summary of the report. The subject
project is located in Moloa`a. It's situated within a CPR Unit 90 of the Moloa`a Hui Phase I
Condominium. Pursuant to Chapter 8 -2.4 of the Kauai County Code, the construction and use
of a farmworker housing requires a Use Permit when the proposed is situated within the
Agriculture Zoning District and a Class IV Zoning Permit is a procedural requirement when
obtaining a Use Permit within the Agriculture Zoning District.
As stated in the application, the Applicant is proposing to construct a farmworker housing
structure approximately 1,200 square feet in size, containing two (2) bedrooms, one (1) office
space, and two (2) baths. The proposed structure will be utilized by members of the Outzen
family who run the current farming operation. A little bit of property information. The project
site involves CPR Unit 90 of the Moloa`a Hui Phase I Condominium and has an area of 2.654
acres. This CPR Unit is one of many others within a portion of a 281 -acre parcel.
On April 23, 1998, Planning Commission approved Variance Permit V -97 -6 and Class IV
Zoning Permit Z- IV -97 -29 to allow deviation from the one -time subdivision limitation within the
Agriculture Zoning District. The Commission approved a reconsolidation of twenty -two (22)
lots into two (2) lots; Lot 1 is approximately 592 acres, Lot 2 is approximately 132 acres. On
Lot 1, the subject parcel, was originally represented to have only nine (9) dwellings to be utilized
solely by those engaged in farming activities on Lot 1 and their respective families.
The surrounding properties are agricultural in nature with related uses. West of the subject
parcel are agriculture lands that are either vacant or in agricultural or residential use. One of the
western bordering properties has a commercial fruit/snack stand operation. East of the property
is the ocean. Properties to the north and south of the parcel contain agriculture lands that are
either fallow or in agricultural and residential use.
I'm going to move on to the conclusion of the report and then I'll hold off on the
recommendation after public testimony.
Chair Anderson: Okay,
Mr. Cua: So preliminary conclusion. Based on the foregoing findings and evaluation, it is
hereby concluded that the proposed construction and use of a farmworker housing structure
should be compatible with other uses on the property. The use should not be detrimental to
persons, property, or the environment in the surrounding area. The Applicant should institute the
"Best Management Practices" to insure that operation of this facility does not generate impacts
that may affect the health, safety, and welfare of those in the surrounding area of the proposal.
And that concludes the Department's Report for now.
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Chair Anderson: Okay. Does the Commission have any questions for the Planner?
Yes,
Mr. Katayama: Hi, Dale. When was the last farm plan submitted for this property?
Mr. Cua: For this particular parcel, there was a ... not a complete farm plan, but they show areas
of the property that was utilized in farming.
Mr. Kata,� So what is the agricultural activity on this property?
Mr. Cua: They have a mixture of uses that I understand, but maybe I'll have the Applicant
explain to you folks what agricultural operations occur on the property.
Mr. Katayama: Okay, thank you.
Chair Anderson: Okay. Any other questions for the Planner?
Okay, is the Applicant here? If you can please approach, and please state your name for the
record.
John Outzen: John Outzen,
Chair Anderson: Thank you. And do you have any... going first to the Director's Report ... any
comments or additional statements that you'd like to make?
Mr. Outzen: Well, we have ... do you want to know what we're farming on that property? We
have sixty -five (65) longan trees on there right now that we've been farming for the last ten (10)
years. They are twenty (20) year old trees, so they produce a lot of longan and we've developed
a good market here in the last ten (10) years. We live in Hd'ena right now. It's hard to farm that
property from Hd'ena, so we're hoping we can move out there and farm it full -time; that's our
goal, to live there and farm that full -time.
Mr. Keawe: You're talking about also members of your family moving there?
Mr. Outzen: Right, right. I have three (3) sons.
Mr. Keawe: Three (3) sons, right?
Mr. Outzen: Yeah.
Mr. Keawe: So they're the farmworkers?
Mr. Outzen: Pardon?
Mr. Keawe: They are the farmworkers?
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Mr. Outzen: They are the farmworkers right now, yeah.
Chair Anderson: Any other questions for the Applicant?
Mr. Katayama: Madam Chair.
Chair Anderson: Yes,
Mr. Katayama: Is that the extent of your agricultural development plans?
Mr. Outzen: No. Once we get to live there, we're going to have other different kinds of fruit
trees and other crops we're going to plant there. We'll have diversified and it's going to be
utilized every inch of that property to grow everything we can, basically.
Mr. Katayama: I guess it's more a question to the Department. As we have applications for
farmworker housing, as part of the criteria, would the Department be asking for an update on
their farm plan?
Mr. Dahilia: I think the interface with this particular type ... even though it's couched as a Use
Permit, a lot of it is also incumbent on the statutory requirements that are folded in along with
the use on the property. So the threshold of whatever they sell is really more so what we look at
in this particular case versus you know the type of farming that goes on. The law allowing this
type of, I guess you would call temporary dwelling unit, is really more so permissively couched
in the value of the crops that they sell as reported on their Schedule F versus whether or not they
have a sustainable ag plan or not. I don't know if Dale wants to comment on the ... further,
Mr. Katayama: I guess that's the center of the issue that needs to be identified is that is the value
of the investment, a rational investment given the activity, and if the focus on, in this case is
agricultural activity, if you are making an investment in dwellings or tractors or whatever it is,
new plantings, does that make sense for that activity?
Mr. Dahilig: I think that ... in some respect, that's a business decision.
Mr. Katayama: Well, it becomes a use decision because here, I think wisely so, the County has
allowed a very special dispensation for certain activity which would make a needed resource for
agriculture activity available in a very special situation in support of that agriculture activity.
Now if you're making an investment, and everyone has a right to make an investment, does it
make sense based on the activity or is it really something else?
Mr. Dahilijz: And the reason why I guess I would couch that as a business ... I would say that it's
a business decision, it's a business decision based off of the way the law is set up and whether
the Applicant wants to bear the risk that he /she, or whatever entity it may be, may not meet the
annual $35,000 threshold. So they bear the risk that their unit essentially may not be allowable if
they're not yielding the statutory required $35,000 a year in agricultural sales. So whether they
want to make that upfront investment or not I think is their risk to bear. But from an analysis
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standpoint, at least from the Department, they've submitted the paperwork pursuant to the
ordinance to prove that their Schedule F's and their tax forms do show that they've gone above
and beyond the threshold as set by the Council, which makes them in its essence eligible for this
special program.
Mr. Kata,vama: So if left unfettered, how does this not become a way of circumventing housing
development in ag -zoned land?
Mr. Dahilig: And I think that's where the question then comes in for us to ... how do we enforce
the program? Essentially is the question I would see it as, and so the annual recertification, ..this
is only, I believe, the third application that has come through.
Mr. Cua: Second.
Mr. Dahilig: Second one, second application that has come through, so from a programmatic
standpoint it's ... this has proven that the thresholds as set by the Council do ... do deter a large
amount of these applications from coming in. This is an extraordinary threshold that is set. So
from an enforcement standpoint, we can easily monitor at this point given the amount of
homestay ... oh, I'm sorry, homestay. We're on homestays today, but the amount of farmworker
housing units that we actually have on our books and if approved, this would be our second one.
The first one I believe was the Wooten's that came in.
Mr. Cua: Yeah.
Mr. Katayama: I think, you know, the path that the Department is going on in becoming an
enforcement agency relative to its other duties, in terms of planning for the development of the
community for the island, as well as sort of monitoring the growth of the island, I would view the
enforcement portion of the least desirable path to proceed under. And again, I think the
ordinance is a wise one, I think it's a good one. I'm just cautious that investment decisions can
be made on a lot of different assumptions, business assumptions. And I just want to be assured
by the Applicant, in this case, that it is an agricultural business assumption that's moving this
decision as opposed to a developmental issue. I know that under farm dwelling, the structure
needs to be completely removed once they do not demonstrate the threshold, but $35,000 is a
very modest threshold for the investment. I mean for a $1,500...1,500 square foot home, ..let's
say if you use $20 a square foot, which is a very, very modest development cost, I mean what is
the rate of return on that investment versus a tractor or a processing plant or even a fruit stand?
So I mean, again, I think those elements, if embedded in a farming plan, ag plan, would go in a
large way supporting these kinds of incremental decisions.
Mr. Dahilig: I have no disagreement with that.
Chair Anderson: Okay, any further questions for the Applicant or for the Department from the
Commission?
Ms. Mendonca: I have one for Dale. What is the total acreage that you're basing your
recommendation on?
13
Mr.
Cua: The
recommendation is
just limited to the CPR Unit that the Outzen's own. It's
not,
..it doesn't
apply to the entire
Moloa`a Hui Condo,
Ms. Mendonca: Okay. So he. ..is he farming one (1) acre of land in vegetable production?
Mr. Cua: Well, if you go back to the report, his CPR Unit is a little over 2.5 acres.
Ms. Mendonca: And that's where he plans to build a house?
Mr. Cua: Yeah.
Ms. Mendonca: But the entire use of his farming activity totals out to how many acres?
Mr. Cua: From what I understand, he's looking to utilize his entire 2.5 acre piece.
Ms. Mendonca: Well, you say there's currently one (1) acre of land in intensive vegetable
production, and remaining five (5) acres are intensive fruit tree production. He said he has sixty -
five (65) trees, lychee trees, I'm just curious how do you fit sixty -five (65) trees on two (2) acres
of land?
Would that be an error?
Mr. Cua: If you go back to his exhibits in his application, you can refer to page 15 where he
outlines what his proposal would entail. He has an area designated for his future vegetable
garden to be worked around his existing longan trees. I mean, granted that his exhibits is not to
scale, per se, but I think the intent is to expand his agricultural operations.
Ms. Mendonca: So the five (5) acres in intensive fruit trees right now, that's not correct?
Chair Anderson:
total acreage.
Perhaps if the Commissioner can address the Applicant, you can clarify the
Ms. Mendonca: Yeah, I just thought maybe that was a misprint?
Mr. Outzen: Yeah, I would be happy to. It's over 2.5 acres. It easily fits sixty -five (65) trees on
there, fruit trees. They're twenty (20) year old trees and there's still room for more crops, a
garden, and a house on there. It doesn't sound like it's that big, but if you actually see how big
that piece of property is, you'd be amazed. There's actually over sixty -five (65) trees on there,
but we have sixty -five (65) trees that are producing, you know, at least 500 pounds of longan a
year, so.
Chair Anderson: Are there any further questions?
Mr. Abrams: Yes. Dale, this CPR Unit, does it allow an ag farm dwelling there now?
14
Mr. Cua: No.
Mr. Abrams: It does not?
Mr. Cua: No. This is one of many CPR Units that weren't designated to have density. In the
original proposal, a total of nine (9) was allotted for the entire Moloa`a Hui. There was
amendment made to increase it to thirteen (13). With this new farmworker housing ordinance, it
allowed opportunities for legitimate farmers to apply for farmworker housing through a Use
Permit.
Mr. Abrams: Okay, thank you.
Chair Anderson: Any other questions?
Alright, if we can have the Planner please read your recommendations.
Mr. Cua: Moving on to the recommendation. Based on the foregoing evaluation and conclusion,
it is hereby recommended that the subject request to construct and use a farmworker housing
structure under Use Permit U- 2015 -30 and Class IV Zoning Permit Z -IV- 2015 -31 be approved
with the following conditions: (1) the farmworker housing structure shall be constructed and
operated as represented. Any changes to the operation and/or the respective structures shall be
reviewed by the Department to determine whether Planning Commission review and approval is
required. (2) The commercial farm at the subject site for which the farmworker housing unit
operates in conjunction with shall maintain gross annual sales of agricultural products of at least
$35,000. (3) The commercial farm at the subject site for which the farmworker housing unit
operates in conjunction with shall remain dedicated to agricultural use pursuant to Section 5A-
9.1 of the Kauai County Code. (4) The farmworker housing unit shall be used exclusively for
housing of farmworkers and their immediate family. ( §a) Pursuant to Section 8 -7.9 of the Kauai
County Code, as amended, "farmworker" is a farm owner, employee, contract worker or unpaid
intern in a program that qualifies under the Fair Labor Standards Act who works no less than
nineteen (19) hours per week in farm- related operations on a commercial farm. For the purposes
of a farmworker housing, a commercial farm owner may qualify as a farmworker only when he
can demonstrate the following: (i) That the proposed farmworker housing will be the farm
owner's exclusive residence and (ii) that the affected lot has been subject to a condominium
property regime (CPR) and that the respective CPR unit does not qualify for any allowable
permanent density. Condition 5, total floor area of the farmworker housing structure shall not
exceed 1,200 square feet of floor area. For the purposes of farmworker housing, the total floor
area shall mean the sum of the horizontal areas of each floor of a building, measured from the
interior faces of the exterior walls. The total floor area shall include enclosed attached accessory
structures such as garages or storage areas, but it shall exclude unenclosed attached structures
such as breezeways, lanais, or porches. (6) The structure shall have a post and pier foundation.
No concrete slabs shall be used in constructing of the farmworker housing. (7) The owner or
lessee of the property shall not charge the farmworker or their immediate family members for
rent or electricity. (8) The land upon which the farmworker housing is located shall not be
subdivided to create separate lots for farmworker housing and the commercial farm. (9) The
subject permits shall be subject to revocation if the farmworker housing and the commercial farm
15
are designated as limited common elements of separate condominium units. (10) The owner of
the farmworker housing unit shall annually certify to the Director of Planning that the respective
farmworker housing units meet the requirements of the Kauai County Code, Section 8 -8.6, as
amended, and that they meet the subject permits' conditions of approval. (11) If any interest in
the property that is subject to the Use Permit is transferred, conveyed, or sold, the successor in
interest shall immediately notify the Director of Planning of such change in ownership. (12)
Prior to the issuances of a Building Permit, the Applicant shall demonstrate to the satisfaction of
the Planning Director that the Applicant has recorded in the Bureau of Conveyances or Land
Court, as the case may be, the requirements and conditions set forth under the subject permits,
and under Section 8 -8.6 of the Kauai County Code. (13) In order to minimize adverse impacts
to the Federally Listed Threatened Species, Newell's Shearwaters or other seabirds, all external
lighting shall be only of the following types: downward- facing shielded lights. Spotlights aimed
upward or spotlighting of structures, landscaping, or the ocean shall be prohibited. (14) The
Applicant is advised that should any archaeological or historical resources be discovered during
the ground disturbing/construction work, all work in the area of the archaeological/historical
findings shall immediately cease and the Applicant shall contact the State Department of Land
and Natural Resources, Historic Preservation Division and the Planning Department to determine
mitigation measures. (15) To the extent possible within the confines of union requirements and
applicable legal prohibitions against discrimination in employment, the Applicant shall seek to
hire Kauai contractors as long as they are qualified and reasonably competitive with the other
contractors, and shall seek to employ residents of Kauai in temporary construction and
permanent jobs. It is recognized that the Applicant may have to employ non - Kauai residents for
particular skilled jobs where no qualified Kauai resident possesses such skills. For the purposes
of this condition, the Commission shall relieve the Applicant of this requirement if the Applicant
is subjected to anti - competitive restraints on trade or other monopolistic practices. (16) The
Applicant shall implement to the extent possible sustainable building techniques and operational
methods for the project, such as Leadership in Energy and Environmental Design standards or
another comparable state - approved, nationally recognized, and consensus -based guideline,
standard, or system, and strategies, which may include but is not limited to recycling, natural
lighting, extensive landscaping, solar panels, low- energy fixtures, low- energy lighting and other
similar methods and techniques. All such proposals shall be reflected on the plans submitted for
Building Permit review. (17) Prior to Building Permit application, the Applicant shall resolve to
the satisfaction of the Water Department and Public Works Department, as well as any other
applicable agencies, said agencies' concerns as referenced to and noted herein under the subject
permits. Any revisions shall be identified accordingly on the final site development plan and
building construction plans for Building Permit review and processing. (18) The Applicant is
advised that prior to and/or use, additional government condition, ..government agency
conditions may be imposed. It shall be the Applicant's responsibility to resolve those conditions
with the respective agencies. And finally, the Planning Commission... (19) The Planning
Commission reserves the right to add or delete conditions of approval in order to address or
mitigate unforeseen impacts this project may create, or revoke the permits through proper
procedures should conditions of approval be violated or adverse impacts be created that cannot
be properly addressed. And that concludes the conditions of the permit.
At 9:56 a.m., Commissioner Keawe stepped out of the meeting.
16
Chair Anderson: Does the Applicant agree with the recommendations and the conditions as set
forth by the Department?
Mr. Outzen: Yes, I do.
Chair Anderson: Okay. Do I have a motion from the Commission?
Mr. Abrams: Move to approve Staff's recommendation.
Mr. Mahoney: Second.
Chair Anderson: Okay, any discussion?
Ms. Mendonca: Could I ask Dale one (1) question? Is it...?
Chair Anderson: Yeah.
Ms. Mendonca: Dale, this building is being built for the workers and according to Mr. Stirling
(sic), their ... your sons work with you?
At 9:58 a.m., Commissioner Keawe returned to the meeting.
Mr. Outzen: Yes.
Ms. Mendonca: So the.. they do not have any other jobs except to work with you on the farm?
Mr. Outzen: No, they have jobs, but they come and work part-time with me.
Ms. Mendonca: Okay. No other questions.
Chair Anderson: Alright, any further discussion? (None) Okay, all those in favor? (Unanimous
voice vote) Any opposed? (None) Motion carries 6:0. Thank you.
Mr. Outzen: Thank you, thank you very much.
HEARINGS AND PUBLIC COMMENT (Continued)
New Agency Hearing (Continued)
Class IV Zoning Permit Z -IV- 2015 -15, Use Permit U- 2015 -14 to allow conversion of an
existing residence into a bed and breakfast operation on a parcel located along the western side
of Kuamoo Road in Wailua Homesteads, situated within the Wailua Terrace Subdivision and
approx. 125 ft. south of the Ohelo Road/Kuamoo Road intersection, further identified as 5663
Ohelo Road, Tax Map Key 4 -2 -009: 011, and containing a total area of 18,739 sq. ft. = Mohala
Ke Ola Management, LLC.
17
Mr. Dahili &: Thank you, Madam Chair. I guess ... let's move on to the New Agency Hearings
for the homestay applications starting with F.2.b., Class IV Zoning Permit Z -IV- 2015 -15, Use
Permit U- 2015 -14 to allow conversion of an existing residence to a bed and breakfast operation
on a parcel located along the western side of Kuamoo Road in Wailua Homesteads, situated
along the Wailua Terrace Subdivision, approximately 125 feet south of the Ohelo Road/Kuamoo
Road intersection, further identified as 5663 Ohelo Road, Tax Map Key 4 -2 -009 parcel 11, and
containing a total area of 18,739 square feet. The applicant here is Mohala Ke Ola Management,
LLC. There is a Supplemental Director's Report to this matter. Madam Chair, we also have
written testimony from ... I guess ... Huber and Lois Graham, we have Talbert Tacbian in
opposition, Phil and Cosie Tacbian in opposition, Tina Sakamoto in opposition, and a letter from
Andrew Kass. And Madam Chair, I do have four (4) individuals that are signed up to testify on
this particular item. At this time, we'd recommend opening the agency hearing for this matter.
Chair Anderson: Okay,
Jonathan Chun: If I may, Madam Chair and Mr. .'Madam Chair, I1. Just out of observation on
the agenda items, there are numerous items on the agenda on F.2. Most of them are
recommending denial, there are two (2) in which my clients have submitted that are
recommended for approval. I would suggest perhaps to move the items that are recommended
for approval to ... you can hear those first so that they can be finished and then move on to the
Contested Case items. Just a suggestion.
Chair Anderson: Okay. We'll...okay, so we're just starting the Agency Hearing and this is for
Mohala Ke Ola Management, LLC. There is, I believe, four (4) people who have signed up to
testify on this matter. If we can read the first person.
Mr. Dahilia: Okay. Amy Hicks, followed by Shelly Sikkema, followed by Andy Kass,
Amy Hicks? Amy Hicks? Shelly Sikkema.
Shelly Sikkema: I'm reading this for Brianna Burgard since she's off the island. So I'll be, ..my
name's Shelly Sikkema, but I will be reading it for her. My name is Shelly Sikkema.
To the Planning Commission on the County of Kauai, my name is Brianna Burgard. I'm off
island at the time of this hearing and have requested my testimony be read. I am the long -term
tenant for over 1 % years at 5663 Ohelo Road, Kapa`a; also referred to as the ADU Unit on the
property. I have lived there for over a year and a half, and have witnessed the running of the
B &B on this property. There has never been an issue with any noise level, and I actually live
twenty (20) feet from the front door. We say good night to one another, just like the Walton's.
Parking has never been an issue, and the guests and I always park inside the property. I have
been in the house daily, actually. The Summer family treats me and the guests as their own
family. I call their children my "peanuts ". I have thoroughly enjoyed having the guests on the
property and have made many friends. There appears recently to be some confusion with the
Planning Department as to whether the owner, Darcy Summer, lives on the property because it
was in an LLC. I can most certainly testify that she does and even prior to me renting the ADU,
I have been on the property visiting the family many times. They take great pride in their B &B,
and it is a family -run operation. The "peanuts" even chip in and help out when they can, in
between school, dance, piano, guitar, sailing, and voice lessons. I am in full support of this B &B
being granted their permit. I hope I am able to enjoy many more years on this property
experiencing a family -run operation, and meeting many new friends from all over the world.
Sincerely, Brianna Burgard,
Chair Anderson: Thank you.
Mr. Dahilig: Andy Kass, followed by Carl Imparato.
Andrew Kass: Aloha members of the Planning Commission, Chair Anderson. My name is
Andrew Kass. I submitted written testimony in this case as well, but I wanted to come here and
speak my word as well. I am in favor of this application.
I understand the need of the Planning Commission to regulate homestays and B &Bs and TVRs,
and ... but it's been my experience that this is a genuine B &B with a family living there and
running it themselves. Coincidentally, when I moved here in 2003, I met somebody who invited
me to a party; it turned out to be at this B &B. So at the time, over twelve (12) years ago, it was
being run as a B &B by a person who hosted a ... also friends and relatives over. So it's not like a
new operation, it's not a conversion of a regular residence into a B &B; it's a property that's been
run as a B &B for many, many years now.
Fast forward to last year when I met Darcy and her family, and you know, they've invited me
over. My daughter has played at their house. They had pool parties, sleepovers, and I've seen
guests over there. So they integrate their guests into their family activities. It's a real family -run
operation.
And finally, just wanted to add that, you know, this is the kind of B &B operation that we need on
Kauai. People who ... they might move here recently, but they become part of the community.
I've known Darcy and her family ... I said for a year, but I've seen her at the Farmer's Market
buying produce to feed her guests as part of the breakfast. I've met them through sailing. Our
children have met at the sailing camp and gone to their dance recitals. They participate in many
activities here on the island. And I feel it's the type of operation, a bed and breakfast family run
that the law is intended to allow, and I hope you can grant this permit. Thank you.
Chair Anderson: Thank you.
Mr. Dahilig: Carl Imparato.
Before Mr. Imparato does his ... come up, I do want to circulate a copy of testimony he's given
for all homestay applications, so that will be folded into the record for each application.
Carl Imparato: Thank you. Aloha Commissioners. My name is Carl Imparato and this
testimony is on ten (10) of the eleven (11) applications that are before you today. It also applies
to the l l a', but that's the one I wanted to come and speak on separately. Pardon me.
1W
The Planning Commission has not yet given in -depth consideration to the important matter of the
criteria that are needed to prevent homestays outside of the Visitor Destination Areas from
commercializing and undermining residential neighborhoods, but nonetheless, before you today
are eleven (11) applications for homestays. Some of the applications are for legitimate small
scale accessory uses in appropriate locations and they may warrant your approval, others are not.
So the question is what criteria are you going to use to separate the two?
For this current batch of applications, I believe you need to look at four (4) things to ensure that
homestays are neighborhood compatible uses that are truly accessory to residential uses. First,
impose explicit conditions that require the property be the primary, full -time residence of the
property owner, and that the homestay rentals can only take place while the owner is actually in
residence on -site. Secondly, explicitly limit the homestay to no more than one (1) bedroom to be
rented to no more than two (2) adults, to ensure that the homestay use is truly an accessory use,
rather than the primary use, and does not simply become a TVR in disguise. Third, evaluate the
cumulative parking, wastewater, disaster evacuation, and other impacts on the neighborhood of
all transient rentals, both TVRs and homestays in the neighborhood, to determine whether those
impacts are acceptable; some cases they may be, some cases not. And finally, impose adequate
enforcement conditions, including the Applicant's acknowledgement that it's advertisements for
the homestay are admissible evidence of the nature of the rental, and make it clear that violation
of any of the permit conditions is sufficient ground for permit revocation.
Looking to the future as part of the general rule making on homestays that needs to take place, I
believe that you ought to first consider a requirement that the resident owner must have lived on
the property for at least two (2) years before posting transient guests, that's anti - speculation thing
to think about, consider limiting the percentage of transient rental properties in non -VDA
neighborhoods, and create a private right of action as in other communities that will give
residents standing to bring enforcement complaints and civil suits for monetary and injunctive
relief. There's one final, very important issue that I'd like you to consider. When you issue
permits for homestays and TVRs that "run with the land ", you're creating negative financial
impacts on the neighboring homeowners. Any realtor's going to tell you that when you have a
"run with the land" permit, that substantially increases the market value of that property. And
because the County's real property tax assessment office does not distinguish between homestay
or TVR properties that have "run with the land" permits and the nearby homes that do not have
such permits, the homestay/TVR properties drive up the assessed values for all homes in the
neighborhood, driving up the property tax bills for all neighboring homeowners. And I verified
this with the real property tax assessment office. So for this reason, I believe it's critical...
Mr. Dahili &. Three (3) minutes, Madam Chair.
Mr. Imparato: I'm almost done here.
Chair Anderson: Okay, if you can conclude.
Mr. Imparato: For this reason, I believe that it's critical that you obtain an independent legal
opinion regarding the County Attorney's claim that homestay permits and other use permits must
20
run with the land rather than the applicant. In concluding, I hope that the Commission will act to
ensure that homestays are truly mom and pop accessory uses and not TVRs or mini hotels in
residential neighborhoods. And I thank you for your time and courtesy.
Chair Anderson: Thank you.
Mr. Dahiliz Madam Chair, that's all I have signed up to testify on this particular item. The
Department would recommend making a final call for any other testimony particular to this
application.
Chair Anderson: Is there anyone else in the public that would like to give testimony on this
particular application? Please step forward.
Tina Sakamoto: Good morning Commission. My name's Tina Sakamoto. I'm a property owner
at 5681 Ohelo Road and I'd like to thank. ..as far as being notified of this permitting, there was a
prior issue, I believe it was a childcare permitting that came up and I wasn't provided the
adequate notification to testify, so today I'm appearing before you because I'd like to speak in
opposition to this permitting. I agree with Carl's testimony; many of his items I wanted to
address and there were more, so yes I believe those are all very valid considerations. I am also
concerned because this is a long -term rental that homestays might decrease the number of
affordable housing, so that's an issue I'd like to also bring forward. I have a long -term tenant in
my home and both of them have also expressed concerns that they're in opposition of bringing
commercialization into residential areas. A point, as a landlord, I'm concerned about is safety.
When we're bringing transient visitors into our neighborhood, there's a safety issue. We know
nothing of them, we don't know if there's a sexual predator, so I'm concerned about the safety
and proper notification, probably liabilities, too, with an element coming into our neighborhood
that would be detrimental. So I am in opposition to this permitting. Thank you.
Chair Anderson: Thank you. Anyone else in the public that would like to give testimony on this
particular application? Please step forward.
Okay, seeing none.
Mr. Dahilig: Madam Chair, it would be the recommendation of the Department to close the
agency hearing on this particular application.
Chair Anderson: Do I have a motion from the Commission to close the agency hearing?
Mr. Keawe: So moved.
Mr. Mahoney: Second.
Chair Anderson: All those in favor? (Unanimous voice vote) Any opposed? (None) Okay,
motion carries 6:0. Agency hearing is now closed.
21
Class IV Zoning Permit Z -IV- 2015 -21, Use Permit U- 2015 -20 and Special Permit SP-
2015-5 to allow conversion of an existing, residence into a homestayoperation on a parcel
located along the western side of Hailima Road in Lawa`i, situated immediately across its
intersection with Aka Road, further identified as 3307 D Hailima Road, Tax Map Key 2 -6 -001:
091, CPR Unit 2, and containing a total area of 67,236 sq. ft. = Michael Levy & Alexis Boilini
Trust,
Mr. Dahilia. Thank you, Madam Chair. We are now on the Agency Hearing for Item F.2.c.,
Class IV Zoning Permit Z -IV- 2015 -21, Use Permit U- 2015 -20 and Special Permit SP- 2015 -5 to
allow conversion of an existing residence into a homestay operation on a parcel located along the
western side of Hailima Road in Lawa`i, situated immediately across its intersection with Aka
Road, further identified as 3307 Hailima Road, Tax Map Key 2 -6 -001 parcel 91, CPR Unit 2,
and containing a total area of 67,236 square feet. The applicant is Michael Levy and Alexis
Boilini Trust. Madam Chair, we do have ... again, supplemental submittals from Mr. Chun
concerning this application, as well as a letter from Ms. Sakamoto in opposition, as well as
agency comments from the Office of Economic Development, County of Kauai, State of
Hawaii relating to homestays and Bed & Breakfast operations in the Agriculture District in
opposition to all the ag applications, and so that's a letter that has been distributed to the
Commissioners.
I do not have anybody signed up to testify on this particular item, Madam Chair. The
Department would recommend opening the agency hearing and making a call for any other
testifiers for this particular item.
Chair Anderson: Okay. Is there anyone in the public that would like to give testimony on Item
2.c., Class IV Permit Z -IV- 2015 -21, Michael Levy and Alexis Boilini Trust?
Okay, if you can please approach and state your name for the record.
Ms. Sakamoto: My name's Tina Sakamoto. I'm a resident of Lawa`i. And for the items that
Carl mentioned in the previous testimony and what I've already testified, those are my concerns
and I am in opposition. Being a resident of Lawa`i, I'm concerned about my grandchildren and
my great - granddaughter. Their safety and being exposed to potential safety hazards with
transient visitors coming in, which we know nothing about and I believe that would jeopardize
our safety, our peaceful enjoyment, and our peace of mind. So I am opposed to this permit also.
Thank you.
Chair Anderson: Thank you.
Is there anyone else in the public that would like to testify at this time?
Bill Cowern: Aloha. My name is Bill Cowem and I live up Lawa`i Valley. For the record, I
spent ten (10) years as the Vice President of the Farm Bureau here and the last nineteen (19)
growing and developing a 3,500 acre tree farm on the island. Most of the issues before the
Commission today, including this one, refer to homestays on ag land.
22
The Planning Department has recently put forth a requirement that each subject property must
earn more than 50% of the family income from the agriculture on the property. I would like to
discuss the reasonableness of that requirement. This chart, the one I have here, is from the
USDA website, and it depicts the medium sources of income from the 2.1 million family farms
in the United States. You'll notice that there are only negative numbers from the "on- farm" side
of that chart. While most of the income from family farms comes from off -farm income. This
off -farm income includes outside jobs, investments, rentals, and since the average age of the
head of the family farm is about sixty (60), social security and retirement payments. The USDA
breaks down family farms into three (3) categories; residential, intermediate, and commercial;
this chart includes all of those. The average on -farm income for all types of family farms in the
United States is roughly - $2,000 a year. The average for residential is about that as well, but
the.. Jet me hand this around.
So the applicants before you are being asked to accomplish something very few, if any, of the
roughly two (2) million residential family farms are able to accomplish across the entire United
States. And what about the land they're on? Most are listed in the Agricultural E category. As
you know, ag lands are classed A through E; A and B being prime agricultural lands, C and D
being marginal, and E being the dregs. That designation means they're not suitable for growing
most crops. Usually it includes high- levels of aluminum in the soils which tie up critical
elements like phosphorous, meaning that they stunt growth. But there are also issues of slope,
excessive rainfall.. .
Mr. Dahilix Three (3) minutes, Madam Chair,
Mr. Cowern: And small lot sizes. One (1) of the applicants, this applicant, is on a site with a
70% slope; otherwise known as a cliff, alright. The net result of all these facts is a recognition
that the requirement put forth by the Planning Department is not reasonable at all and is
unachievable and looks more like an excuse to deny permit applications than anything else.
Thank you.
Chair Anderson: Thank you. Is there anyone else in the public that would like to give testimony
on this application?
Alexis Boilim: I have two (2) letters that I was going to submit that (inaudible). Can I do that?
Chair Anderson: You can bring, ..you can submit them onto the record. First, come and submit
your name, and you can read the name of the testimony and we'll.. .
Ms. Boilini: I don't need to read the testimony, unless you want me to, but can I read the
testimony? But it's for my own.. .
Chair Anderson: We can receive it for the record and we'll review.
Ms. Boilini: Do I read it or no?
So I can't testify for myself (inaudible)?
23
Chair Anderson: You'll have another time to wherein. ..in which you can give any comments on
the Director's Report.
Mr. Dahilig. And Madam Chair, we'll distribute submitted written testimony from Dan and
Kathy Tutour from Evergreen, Colorado, and Judy Edmonds from California Wine Country,
Chair Anderson: Okay. Is there anyone else in the public that would give testimony at this time
on this application?
Ms. Boilim: Can I ask another question? I'm sorry. I also wanted to submit this, but I don't
know if I should do it during my own.. .
Chair Anderson: If you have something that is referring to your application, then you will have
the opportunity as the Applicant when we are going to take action on the matter to present
whatever you need to present.
At this time, and for the public's awareness, we are taking. . 'we Ire opening the Agency Hearings
for each of the applications. It gives the opportunity for the public that's here to give comment
and then after the Agency Hearing is closed, or if it remains open, we could ... we will be moving
onto the action portion where we will take, ..we will invite the Applicants, as well as the
Planners to give the review. And then the Applicants have the opportunity to present their
application and any questions, and then we will move forward with whatever action on that
particular matter. So at this point, we're in the Agency Hearing, giving opportunity for public
testimony. Just to clarify.
Mr. Dahilig. Madam Chair, given the lack of further testimony, the Department would
recommend closing the Agency Hearing on this particular matter.
Chair Anderson: Okay. Alright, do I have a motion from the Commission to close the Agency
Hearing on this matter?
Mr. Mahoney: Move to close the hearing, Madam Chair.
Ms. Mendonca: Second.
Chair Anderson: All those in favor? (Voice vote 5 ayes) Any opposed? Okay, motion carries.
Oh, one (1) opposition?
Mr. Abrams: Yeah.
Chair Anderson: Okay. We'll have one (1) opposition so noted. Motion carries 5:1.
Class IV Zoning Permit Z -IV- 2015 -22, Use Permit U- 2015 -21 and Special Management
Area Use Permit SMA(U)- 2015 -8 to allow conversion of an existing residence into a homest4y
operation on a parcel located along the makai side of Weke Road in Hanalei Town, situated at its
24
I
ntersection with He`e Road, further identified as 5404 Weke Road, Tax Map Key 5 -5 -004: 015,
and containing a total area of 6,048 sq. ft. = Parnell H. & Michelle I. Kaiser,
Mr. Dahilig: Thank you, Madam Chair. We are now on Item F.2.d., Class IV Zoning Permit Z-
IV- 2015 -22, Use Permit U- 2015 -21 and Special Management Area Use Permit SMA(U)- 2015 -8
to allow conversion of an existing residence into a homestay operation on a parcel located along
the makai side of Weke Road in Hanalei Town, situated at its intersection with He`e Road,
further identified as 5404 Weke Road, Tax Map Key 5 -5 -004 parcel 15, and containing a total
area of 6,048 square feet. The applicant is Parnell and Michelle I. Kaiser,
Again, Madam Chair, we do have two (2) pieces of written testimony; one (1) from Mr.
Imparato, as well as one (1) from, I believe, Barbara Robeson and Caren Diamond concerning
this particular matter. The Department would recommend opening the Agency Hearing on this
particular matter at this time.
Chair Anderson: Okay. Is there anyone in the public that would like to give testimony on this
matter?
Mr. Dahilig: I have Carl Imparato, followed by Barbara Robeson.
Mr. Imparato: Aloha, Planning Commissioners. My name is Carl Imparato. I live in Hanalei.
My written testimony incorporates the four (4) sets of conditions for evaluating homestay
applications; owner- occupancy, maximum size, cumulative impacts, and enforcement that I
discussed earlier in my other testimony for the other applications before you today. But as to this
particular application for homestay permits, I believe that the application is very deficient as it
has many inconsistencies; some of which obscure the scope and the nature of what is being
proposed.
The application states, on page four (4), that the height of the house is 34 feet and the height
limit is 40 feet; that's not correct. On page seven (7), the application acknowledges the height
limit's 25 feet, but somehow now the height of the house is not 34 feet, but 25 feet. So does the
structure comply with the CZO or not?
The application states on page four (4) that the lower level is garage and storage, but the floor
plan in Exhibit I shows a bedroom, a bathroom, a living room, and a wet bar; for most intents
and purposes, a second unit on the lower level.
The application states on page four (4) that the Applicant will rent only one (1) of the bedrooms
in the house, but on page eight (8), the application states that the owner will reside in the house
and that the "remaining bedrooms will be available to rent ". The application goes on to state on
page eight (8) that a homestay can be allowed under a Use Permit as an accessory to the existing
single - family house, but clearly if three (3) of the four (4) bedrooms in the house are rented to
transient guests, that's not an accessory use of the structure; it's the primary use.
In summary, the application raises the question of whether the real plan is for the owner to
simply claim that the downstairs will be the owner's corridors, allowing the entire upstairs unit to
25
be rented as a so -called homestay. And if that's the case, I say "if', but if that's the case, would
that really be any different than renting this single - family house as a TVR? The Planning
Commission needs to ensure that homestays truly are mom and pop accessory uses of homes and
not TVRs, or mini hotels, in residential neighborhoods outside the Visitor Destination Areas. If
this was an application to rent one (1) bedroom as a homestay, it would be reasonable to evaluate
it using the requirements that I listed earlier; including explicitly limiting the rental to a single
bedroom and no more than two (2) adults, and only to periods when the owner- occupant is on-
site. But based on the application, it appears that this so- called homestay might not be that. It
might not be an accessory residential use, but would rather be another commercial or resort use,
essentially another TVR, outside the Visitor Destination Area. I, therefore, support the Planning
Director's recommendation to deny the permits. And I thank you for your time.
Chair Anderson: Thank you.
Mr. Dahilig: Barbara Robeson.
Barbara Robeson: Barbara Robeson for the record. Also speaking for Caren Diamond and
myself with the testimony that you have, so Aloha Planning Commissioners. We have reviewed
the application that was dated April 22, 2015 and we also reviewed the Planning Director's
report dated June 9, 2015. Based on the information from both of those documents, we hope the
Commission will support the Director's recommendation to deny the proposed homestay permit.
So we'll like to cover a few items that are included both in the application and the Director's
Report.
The first one, the analysis and evaluation of the Special Management Area impacts in the
application, we believe are incomplete and they fail to disclose the cumulative impacts within the
SMA that currently exist from the current number and concentration of alternative visitor units in
the Hanalei residential neighborhood.
Next, in the application, the analysis and evaluation of the Kauai General Plan policies
regarding alternative visitor accommodations omitted the most recent and relevant policies that
were not sufficiently assessed in the application. The application conflicts with the North Shore
Development Plan and did not disclose that the structure was or is some kind of multi - family
dwelling unit, which is prohibited in the area. You can look at the footnote. And the contents of
the application suggests a vacation rental and not a B &B/homestay.
For the safety, health, and welfare of residents and visitors in Hanalei, we believe they would be
impacted by adding another alternative visitor accommodation or vacation rental that's in the
tsunami evacuation zone. For example, just an overview here of the Hanalei area, the 2010
census resident population for Hanalei was 450 persons and the census for 2010 housing units
occupied by residents was 186 units. The TVNCs, the TVRs in Hanalei, according to the
permits that have been issued is for 125 units. And based on the average TVR occupancy, which
there's a footnote there that tells you where that information came from, it's about 6 persons per
unit, so that means that there would be 750 persons. ..a potential of 750 persons versus 450
residents living in the tsunami evacuation zone in Hanalei. The cumulative impacts and the
intensity of use from the high number of TVRs in the Hanalei area has disproportionately
26
affected the health, safety, and welfare of residents. And as you can see from the map in our
testimony, we got that information from the VRBO map and the large concentration of
alternative visitor units in Hanalei is already past the point of saturation in the residential
neighborhood.
Below on the testimony there's...we took the...
Mr. Dahilig: Three (3) minutes, Madam Chair.
Chair Anderson: If you can conclude your remarks.
Ms. Robeson: Okay. Please look at this table here, before you make your decision, because it
lists the application comments and the discrepancies on what they said. And in accordance with
the General Plan, no more approvals for alternative visitor transient vacation uses should be
approved in the Hanalei area. The proposed use is incompatible with the zoning in Hanalei and
this application should be denied. Thank you for your time.
Chair Anderson: Thank you.
Mr. Dahilig: Madam Chair, that's all I have signed up to testify on this particular item.
Chair Anderson: Is there anyone else in the public that would like to give testimony on this
item?
Mr. Dahilig: Madam Chair, seeing none, the Department would recommend closing the Agency
Hearing on this particular matter.
Chair Anderson: Do I have a motion to close the Agency Hearing?
Mr. Keawe: So moved.
Chair Anderson: Okay, do I have a second?
Mr. Mahoney: Second.
Chair Anderson: Any discussion? (None) Okay, all those in favor? (Unanimous voice vote)
Any opposed? (None) Motion carries 6:01
Class IV Zoning Permit Z4V- 2015 -23 and Use Permit U- 2015 -22 to allow conversion of
an existing residence into a homestav operation on a parcel located along the eastern side of
Kipuka Street in the Weliweli Houselots Subdivision in Po`ipu, situated approx. 150 ft. east of
the Muku Placgl9puka Street intersection, further identified as 1960 Muku Place, Tax Map Key
2 -8 -024: 020, and containing a total area of 11,174 sq. ft. = Bret K. & Ellen Knop . Trust.
Mr. Dahilig Thank you, Madam Chair. We are now on Item F.2.e., Class IV Zoning Permit Z-
IV- 2015 -23 and Use Permit U- 2015 -22 to allow conversion of an existing residence into a
27
homestay operation on a parcel located along the eastern side of Kipuka Street in the Weliweli
Houselots Subdivision in Po`ipu, situated approximately 150 feet east of the Muku Place/Kipuka
Street intersection, further identified as 1960 Muku Place, Tax Map Key 2 -8 -024: 020, and
containing a total area of 11,174 square feet. The applicant is Bret K. and Ellen Knopf, Trust,
Madam Chair, I do not have anybody signed up to testify on this particular item, nor do I have
any submitted written testimony. The Department would recommend opening the Agency
Hearing at this time.
Chair Anderson: Okay, is there anyone in the public that would like to give testimony on this
agenda item?
Please step forward.
Steven Hanley. Aloha, good morning. My name is Steven Hanley. I live at 2490 Kipuka Street
in K61oa. I wrote a brief letter that I'd like to read.
Dear Kauai Planning Commission Members, my wife Ramona and I are neighbors of Bret and
Ellie Knopf. We have lived two (2) houses away from the Knopf `Ohara for the last six (6)
years. We support the homestay application submitted by Bret and Ellie as they truly embody
the Aloha spirit. Ellie's family has been part of the Hawaiian Islands since the late 1800's. Ellie
is the 4t' generation of her family to have a presence in Hawaii. Of all the beautiful people I
have met during our brief residence in Kauai, none embody the Aloha spirit like Ellie and Bret
Knopf. The Knopf s spend quality time with every visitor they meet on Kauai and they show
them in a very relaxed and humbled manner the truly beauty of Kauai and true Hawaiian Aloha.
Bret and Ellie care deeply about Kauai, and they are able to pass their love of the island and
Hawaiian culture to visitors on a daily basis. We have been blessed to be the Knopf s neighbors
for six (6) years and counting. We support their homestay application, so they can continue to
spread the important message of Aloha and their love of Kauai to our island's guests. Mahalo
nui loa for your time and consideration. Aloha.
Chair Anderson: Thank you.
Is there anyone else in the public that would like to give testimony?
Mr. Dahiliz Madam Chair, seeing none, the Department would recommend closing the Agency
Hearing at this time.
Chair Anderson: Okay, do I have a motion to close the Agency Hearing?
Mr. Abrams: Move to close.
Chair Anderson: Do I have a second?
Mr. Mahoney: Second.
Chair Anderson: All those in favor? (Unanimous voice vote) Any opposed? (None) Motion
carries 6:01
Class IV Zoning Permit Z -IV- 2015 -24 and Use Permit U- 2015 -23 to allow conversion of
an existing residence into a homestay operation on a parcel located along the eastern side of
Lili`uokalani Street in Ktiauea, situated at its intersection with Kolo Road, further identified as
2535 Lili`uokalani Street, Tax Map Key 5 -2 -011: 038, and containing a total area of 1.956 acres
= Nicki Lorayn Pignoli Trust,
Mr. Dahilig: Thank you, Madam Chair. We are now on Item F.2.f., Class IV Zoning Permit Z-
IV- 2015 -24 and Use Permit U- 2015 -23 to allow conversion of an existing residence into a
homestay operation on a parcel located along the eastern side of Lili`uokalani Street in Kilauea,
situated situated at its intersection with Kolo Road, further identified as 2535 Lili`uokalani Street, Tax
Map Key 5 -2 -011 parcel 38, and containing a total area of 1.956 acres. The applicant is Nicki
Pignoli Trust.
Madam Chair, I do not have anybody that has submitted written testimony on this particular item
and the Department would recommend opening the Agency Hearing at this time.
Chair Anderson: Is there anyone in the public who would like to give testimony on this agenda
item?
Okay, seeing none.
Mr. Dahilig. Madam Chair, given nobody signed up and nobody willing to testify on this
particular item, the Department would recommend closing the Agency Hearing at this time.
Chair Anderson: Do I have a motion from the Commission to close the Agency Hearing?
Mr. Abrams: So moved.
Mr. Mahoney: Second,
Chair Anderson: Any discussion? (None) Okay, all those in favor? (Unanimous voice vote)
Any opposed? (None) Motion carries 6:0. Thank you.
Class IV Zoning Permit Z -IV- 2015 -25 and Use Permit U- 2015 -24 to allow conversion of
an existing residence into a homestay operation on a parcel located along the southern side of
Aka Road in Lawa`i, situated approx. 450 ft. south of the Kiani Road/Aka Road intersection,
further identified as 3265 Huaka Road, Tax Map Key 2 -6- 013: 046, and containing a total area of
8,751 sq. ft. = Darryl L. Chong /Julie Beth K. Simeona Chong.
Mr. Dahilig: Thank you, Madam Chair. We are now on Item F.2.g., Class IV Zoning Permit Z-
IV- 2015 -25 and Use Permit U- 2015 -24 to allow the conversion of an existing residence into a
homestay operation on a parcel located along the southern side of Aka Road in Lawa`i, situated
approximately 450 feet south of the Kiani Road/Aka Road intersection, further identified as 3265
29
Huaka Road, Tax Map Key 2 -6 -013 parcel 46, and containing a total area of 8,751 square feet.
The applicant is Darryl Chong and Julie Beth Simeona Chong,
Madam Chair, I do not have anybody signed up to testify on this particular item, but I do believe
that the testimony from the Office of Economic Development in opposition to this ... written
opposition to this matter is received for the record. The Department would recommend opening
the Agency Hearing at this time.
Chair Anderson: Is there anyone in the public who would like to give testimony on this agenda
item?
Ms. Sakamoto: My name is Tina Sakamoto and I am a resident of Lawa`i. My concern is that
today we have four (4) homestays coming before you requesting a permit in Lawa`i. Now, are
we becoming an unofficial and illegal VDA? That's four (4) in Lawa`i, so I see a deterioration
of our peaceful enjoyment, an erosion of our neighborhood, there'll be noise, quality of life will
be diminished. And because there isn't an official ... I guess it would be comment or complaint,
that does not mean they exist, and I'm sure you've heard them before, other testifiers submitting
comments on how their lifestyle, their homes were either invaded, or there was noise. So there
are issues of compatibility, so I'm asking you to deny this permit also. Thank you.
Chair Anderson: Thank you.
Is there anyone else in the public that would like to give testimony at this time?
Ellie Knopf My name is Ellie Knopf. It was my case that was read before this. Thank you,
Steve. My great- grandfather opened the first bar and lodging accommodations on our island in
Waimea in 1899. To me, the homestays are about Aloha; we live there, we meet our guests. I
have been to Julie and Darryl's residence as guests, invited us for dinner, and Julie and Darryl
are all about Aloha. It was very important that we park in a certain place when we came for
dinner, so as not to disturb the neighbors. My feeling is Julie and Darryl are, again, about Aloha
and they care as much about the residence they live in as their guests that come to visit them.
Thank you.
Chair Anderson: Thank you.
Okay, if there's anyone else, please approach.
Nicki Pi oli: Nicki Pignoli, for the record, and my case was just heard by the County Planning
Department just prior to this. I just want to say in reference to the fears that are being expressed
over and over and over about B &B residents, I don't think there's a single case in. ..on record, a
single complaint from a B &B visitor who has, in any way, broken the law on Kauai, has
sexually molested any children, has broken into any houses. I mean we ... granted we do have a
criminal element here on the island, but it is not B &B visitors. And the reason why there are
four (4) applications in Lawa`i today is based on the fact that the Planning Commission did not
send out cease and desist orders to every single B &B owner, only some of us were told to cease
and desist, and the majority of the people in Lawa`i were the lucky recipients of those notices.
30
So there are a lot more B &Bs out there, they're just not appearing before Planning today. Thank
you.
Chair Anderson: Thank you.
Is there anyone else in the public that would like to give testimony at this time? We'll have you
and then...
Ms. Boilini: I guess I just wanted... I'm Alexis Boilim and I live very close to Julie and Darryl,
and what Ellie said is so correct. They are the nicest, most Aloha, friendly people that I think I
know besides these other people. (Laughter in background) But I just wanted to clarify
something. When you talk about sexual molestation and crime, I don't see any tourist as well
performing those bad deeds, but we're seeing a lot of locals lately that are... There area lot of
anger issues on this island that could be because of all the divisiveness that maybe our leadership
might be participating in actually that is making people angry at each other and now there's
anger on both sides because of these issues that come up before the County. And we're seeing it
out there, you know, we see it all across the United States, you know, where we see people
getting really angry at each other and that's too bad. I just hope our leadership will come
together here and try to do something about the divide that's happening in our communities
because bed and breakfasts are all about Aloha, and I think Julie and Darryl are a great example
of that and their guests are too. Thank you.
Chair Anderson: Thank you.
Okay. If there's anyone else in the public that would like to give testimony at this time.
Lorna Hoff Aloha Commission. My name's Lorna Hoff and I just want to reiterate what Alexis
said about Darryl and Julie Chong. They are one of the couples that do show Aloha and again, I
want to bring up about ... I believe the lady mentioned that if there are complaints, people don't
complain. All these people have gone ... this system has gone throughout to neighbors two (2)
miles away, and just in general, when you approach people and ask them, if you had a complaint
about something, would you know where to go to complain? And they look at me and just
laugh, and they just say of course, there's always a Department that's available to complain to.
And just to give you an example, with the trash, I went to the Trash Department with the new
cans and they're wonderful. They just solved the problem for me and bent over backwards. So
the County is willing to hear any complaints and people know that they can come forward and it
would be at least taken... thoughts would be taken to solving the problem. Thank you.
Chair Anderson: Thank you. Okay.
Cathy Cowem: Thank you. My name is Cathy Cowern and I'm also one of the applicants today.
I wanted to address a couple of the concerns that were brought up by the people who apparently
want to see this stopped. One of the benefits of being a bed and breakfast is that I personally
screen everybody that comes to stay in my home. I've been doing it for a very long time and we
have the ability to sort of recognize when somebody might be a problem. So the chances of
31
having a guest who is a safety risk, I think with us is a whole lot less than at a hotel where
reservations are made blindly online or through a reservation agency.
And the other concern about Lawa`i. Lawa`i is a very large area and I know...I think we all
understand the ahupua`a of Lawa`i Valley is huge. And so the fact that there's four (4) of us in
Lawa`i Valley, we're all very far apart. It's not like we're all right in a clump, you know,
ruining neighborhoods. In fact, our property is very isolated; I know Julie's property is very
isolated, as is Alexis'. So thank you for the opportunity.
Chair Anderson: Thank you.
Is there any public testimony on this agenda item?
Okay, seeing none.
Deputy Director Kaaina Hull: Absent any further testimony, Madam Chair, the Department
would recommend closing the Agency Hearing on this particular item.
Chair Anderson: Do I have a motion to close the Agency Hearing?
Mr. Abrams: So moved.
Chair Anderson: Do I have a second?
Mr. Mahoney: Second.
Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any
opposed? (None) Motion carries 6:0.
Class
IV Zoning
Permit Z -IV- 2015 -27, Use Permit U- 2015 -26 and
Special
Permit SP-
2015-7 to allow
conversion of an existing
residence into a homestay operation on a
parcel
located
along the makai
side
of Kalihiwai
Road in Kilauea, situated Wrox. '/ -mile
north of its
intersection with Kuhi6
Highway, further
identified as 2828 P Kalihiwai Road, Tax
Map Key 5-
2 -010: 31, CPR Unit 2,
and affecting an area approx. 3.167 acres of a larger parcel
= Steven V
Ruddell /Marlyn W. Ruddell, Trust,
Mr. Dahilig: Thank you, Madam Chair. We are on Item F.2.h., Class IV Zoning Permit Z4V-
2015-27, Use Permit U- 2015 -26 and Special Permit SP- 2015 -7 to allow conversion of an
existing residence into a homestay operation on a parcel located along the makai side of
Kalihiwai Road in Kilauea, situated approximately '/4 -mile south (sic) of its intersection with
KiN6 Highway, further identified as 2828 P Kalihiwai Road, Tax Map Key 5 -2 -010 parcel 31,
CPR Unit 2, and affecting an area approximately 3.167 acres of a larger parcel. Steven Ruddell
and Marlyn Ruddell, Trust is the applicant.
Madam Chair, we do have testimony submitted from the Office of Economic Development from
the Mayor's Kauai Agricultural Advisory Committee in opposition to this matter, as well as
32
supplemental information from Marlyn Ruddell. Madam Chair, I would recommend opening the
Agency Hearing at this time.
Chair Anderson: Is there anyone in the public that would like to give testimony on this agenda
item?
Mr. Chun: Good morning. Just for the record, Jonathan Chun on behalf of the applicant, Ms.
Ruddell. Ms. Ruddell is not present today. She had a family emergency to attend to. Her
mother is very seriously ill and she needed to fly up to her mother in the mainland. Also, her
daughter is ... has some ... I think graduates also, so she was planning on leaving after the hearing,
but because her mother's illness she had to go up. So I just wanted to inform the Commission
she's not here. We have no opposition to having the public testimony being taken, but I just
wanted to inform the Commission that as we go forward that she won't be here today, and we
would request a continuance on her behalf and that is for further action.
Chair Anderson: Okay, thank you.
Mr. Chun: Also, on behalf of the other applicants, I gather OED has submitted testimony or
comments. Just for the record, we have not received any of those comments, written comments.
We're kind of lost for what they might say or what the Commission has before them.
Mr. Dahilig: So we can certainly get a copy to you, Mr. Chun. That was received by our office
at 8:20 this morning, so we can definitely provide you a copy of that. And if I could request,
Madam Chair, if I can take (inaudible) ... if a deferral is going to be requested of the particular
matter, is there a date that Mr. Chun would be amendable to moving the... continuing the Agency
Hearing for?
Mr. Chun: Yeah, I would suggest for Ms. Ruddell probably in August sometime. I mean, we
could do it in July, but my understanding, ..well I'm not going to be available in July and I
believe some of the Staff members from the Department might not be available. And Ms.
Ruddell indicated August would be fine with her.
Mr. Dahilix Madam Chair, unless there's other, ..any other testimony, the Department would
recommend moving the ... I guess, continuing the Agency Hearing to the second meeting in
August. But there is one (1) testifier, I believe.
Chair Anderson: Okay, so is there any further testimony on this item?
Ben Wellborn: Good morning Madam Chair and Commissioners. My name is Ben Wellborn. I
know that this is an application that involves ag zoning and I want to just say that it seems as
though the Department and the County are generally taking a very oppositional stance on ag
zoned land as it relates to homestays. I think that's pretty inconsistent with how the TVR
Ordinance was reviewed and passed. I think that some of the ag land homestays are providing
benefits beyond what are found for the residential homestays and so I would like to ask the
Commissioners to reconsider the Department's recommendations as it relates to ag land.
33
Chair Anderson: Thank you. Any further testimony on this agenda item?
Bill Cowern: Since this is an ag related issue, I just thought I'd finish my testimony. First of all,
going back a little bit, I missed a little bit in terms of.. .
Chair Anderson: If you can please state your name for the record.
Mr. Cowern: I'm sorry, it's Bill Cowern and I'm from Lawa`i. As I stated, there were three (3)
categories of family farms who are residential, intermediate, and commercial; of those,
commercial were the only ones that ever made a profit. Those were categories that had more
than $350,000 a year of sales. On the residential family farms, one (1) out of (3) residential
family farms in the entire Country actually made a profit, and that profit, on average, amounted
to 7% of the family farms' income. So you're really asking something that's grossly
unreasonable here, in terms of deciding whether or not they should have a homestay. I would
ask that the Committee (sic) take these facts into account when making their decisions and I
would further ask a couple of questions. I don't ever expect to get answers since no one seems to
answer any of them, but... When the Planning Department issued permits to over 100 TVRs on
agricultural land, why were the same requirements not included? And why were they not
recommended for denial? Like all of ours. And secondly, and this one just baffles my mind,
how does renting out a bedroom in your existing home have any impact on your ability to grow
agricultural crops on your land, other than a positive one, by providing some additional income?
I just ... I can't just fathom how that's a problem. Thank you.
Chair Anderson: Okay. Is there anyone else that would like to give testimony on this agenda
item?
Rick Shunk: Hello Council (sic). My name is Rick Shunk and I'm not sure if this is the proper
forum for this, but I just wanted to, for the record, state that a number of months ago I came to
the Planning Commission and asked for the information I needed for application for a Special
Use Permit. I have copies of the information I was given. I prepared everything per copy, or per
the information I was given; the thirteen (13) copies, the burnt DVD, everything. And I came in
Friday before the deadline and it was rejected. Evidently, there was a new form that came out
that required more information, so I just wanted to go on the record and say that I had my
application in on time with the information request that I was given and it was denied. So I just
wanted to state that.
Also, in generality, I think I can speak for a lot of people here, I know I can, .. we're on a one (1)
acre ag land and I will say that when we bought our property, it was waist -high weeds, there
were literally... virtually no plants producing anything, and it was by virtue of the fact for the
past seven (7) years that we have had a homestay, super well received, that I have been able to
plant, literally, hundreds of banana plants, many citrus plants. We have a non -GMO, organic
garden and it was because of that situation that we're able to further ag use. And as the previous
testifier stated, that ... I think he said like one (1) out of four (4) families are actually. ..in the
United States are actually able to make a living off agriculture. I think it would behoove the
Council (sic) to consider that if you're really concerned about furthering agriculture that you
understand and accept that vacation rentals help subsidize agriculture and it will practically never
34
go the other way around. Also, consider if the spirit of preserving ag land, ..let's say I had a V2,,
acre in my backyard, ag land and it was all lawn, does that mean I'm not allowed to use it for
recreational facilities? Like playing football, or croquet whatever, that it has to be dedicated ag.
I really think there needs to be a paradigm shift here and understand that vacation rentals,
homestays absolutely do help support agriculture and they further it. Granted, on our property if
I didn't have the homestay, I wouldn't have the agriculture I have now. I have plans for an
aquaponics garden. There's a lot of stuff I want to do and that's been subsidized from our
homestay. Thank you.
Chair Anderson: Okay. Taking any other public testimony specific to this agenda item.
Kim Richard: Ag right?
Chair Anderson: If.. as
Ms. Richard: Ag and homestay. Isn't that what we've been talking about?
Chair Anderson: Yes, but if. I Ahat's ... you can go ahead and go forward with your testimony.
Ms. Richard: My name is Kim Richard.
Chair Anderson: Okay,
Ms. Richard: My mother's Susan Gailey. And my mother, daughter, and I have had horses
since we were sixteen (16). That's our "ag ". My daughter Lacey was riding at three (3). We've
lived on the north shore of Kaua`i...I'm reading my letter ... since 1988. My daughter has a BA
in Equine Science from Colorado University at Fort Collins. She came home, immediately
began to participate in our small business, Just Horsin' Around. She's magic with children and
is certain to educate them about the care of horses and animals in general. I'm astounded that the
Planning Department would recommend a denial of our homestay because it brings in too much
money. We started and continue with our small business because we love sharing our affection
and knowledge of horses and other animals with children. It is impossible to actually make
money with an Equine education and riding business; you need a 150 acres, lots of horses,
several million dollars to even start. We do this because we love it, and many times we do it free
because we love our community and our children here in the community. The income from our
homestay helps us to pay for some of our feed for our horses and many other animals. We never
expected to get rich on Just Horsin' Around. So, I'm wondering how you thought up a rule that
we need to make more money with our ag business than our homestay, which actually makes
us ... which actually helps us to feed our animals, pay our vet bills and taxes, and trash pickup.
As my mother and I have aged, the homestay during the past few years are helping pay for our
utilities and some of our food for ourselves. Some of you want to take away, this away, this
essential income from us and I just don't get it; I don't comprehend it. Thanks for listening.
Chair Anderson: Thank you. Is there anyone else in the public who would like to give
testimony? And this is regarding the Steven V. Ruddell and Marlyn W. Ruddell, Trust permit,
Z -IV- 2015 -27.
35
Okay.
Mr. Dahiliz Seeing none, Madam Chair, the Department would recommend closing the Agency
Hearing at this time.
Chair Anderson: Okay. There was a request..,
Mr. Dahilia. Oh sorry, I'm sorry.
Chair Anderson: Regarding the deferral of the Agency Hearing,
Mr. Dahilia. I'm kind of in automatic mode here. (Laughter in background) The Department
would recommend moving the... continuing the Agency Hearing, per consent of the Applicant, to
the second meeting in August.
Mr. Abrams: So moved.
Chair Anderson: Okay.
Mr. Mahoney: Second.
Chair Anderson: All those in favor? (Unanimous voice vote) Any opposed? (None) Okay,
motion carries 6:0. This Agency Hearing is deferred until August. I Ahe second meeting in
August.
Class IV Zoning Permit Z -IV- 2015 -28, Use Permit U- 2015 -27 and Special Permit SP-
2015-8 to allow conversion of an existing residence into a homestayoperation on a parcel
located along the mauka side of Kahiliholo Road in Phase 2 of the Kahiliwai Ridge Subdivision
in Kilauea, situated at the terminus of Kahiliholo Road, further identified as 6241 Kahiliholo
Road, Tax Map Key 5 -2 -022: 014, CPR Unit 2, and affecting an area approx. 3.479 acres of a
larger parcel = Susan Gailey Trust /Kim E. Richard Trust,
Mr. Dahilig: Thank you, Madam Chair. We are now on Item F.2.i., Class IV Zoning Permit Z.
IV-2015-28, Use Permit U- 2015 -27 and Special Permit SP- 2015 -8 to allow conversion of an
existing residence into a homestay operation on a parcel located along the mauka side of
Kahiliholo Road in Phase 2 of Kahiliwai Ridge Subdivision in Kilauea, situated at the terminus
of Kahiliholo Road, further identified as 6241 Kahiliholo Road, Tax Map Key 5 -2 -022 parcel 14,
CPR Unit 2, and affecting an area approximately 3.479 acres of a larger parcel. The applicant is
the Susan Gailey Trust and Kim E. Richard Trust,
Madam Chair, we do have testimony again from the Mayor's Agricultural Advisory Committee
in opposition to this application and we do have two (2) individuals signed up to testify on this
particular matter. The Department would recommend opening the Agency Hearing at this time.
36
Chair Anderson: Okay, we'll open the Agency Hearing. Who is the first person listed or signed
up?
Mr. Dahili &. Kim Richard, followed by Hal Selover. Kim Richard?
Hal Selover: Yeah, she just spoke.
Mr. Dahilig: Okay.
Mr. Selover: Good morning. My name is Hal Selover and I live at 6051 Kahiliholo Road. I am
here supporting my neighbor, Susan Gailey and her daughter, Kim. I'd like to read some letters
from other supporting neighbors and friends.
This is from Amy Collin from 6239 Kahiliholo Road. I am writing this letter today on behalf of
my neighbors, Susan and Kim. They live next door and we are only separated by a wire fence.
They respectively have a quiet household and my two (2) young girls love going to see their
many animals. My oldest daughter, who is five (5), has gained so much knowledge already of
horsemanship and compassion to animals. My girls have even lovingly nicknamed their goat
"French Fry". Their animals are very well -taken care of and they are also respectful of not just
their land, but that of their neighbors as well. I appreciate and support local and small
businesses. As a parent, I am trying my hardest to instill the core values of hard work, empathy,
and patience. These three (3) values can be nurtured with the awe and responsibility of caring
for an animal. My girls adore and are fascinated with the horses. They want to learn anything
and' everything, and Kim is always willing to take the time to patiently answer each and every
question. Nurturing this childhood wonder will only serve them well in the future as they learn
to think for themselves. But considering other, both human and animal perspectives, this ag
business is an asset to have on the north shore for both children and adults alike. The cottage
does not have any negative impacts on our personal lives and I fully support the license for the
homestay.
This second letter is from Philip Helwick. I am writing on behalf of my neighbors and friends of
Susan Gailey and her daughter, Kim, and granddaughter, Lacey. As a retired Horse Trainer and
Riding Instructor, I cannot emphasize enough the importance of proper training and guidance for
people's interaction with and the appreciation for the art of horsemanship, as well as general
animal husbandry. These women take their responsibilities seriously and provide thoughtful,
professional, and caring instruction in riding care and love for the horses, and other farm
animals. Expensive time, labor, and materials is rarely compensated in monetary returns from
lessons or fees. This ... the income from a small homestay can make the difference for the
survival of such an important small ag business that benefits the whole community, as well as
providing tax revenue for the County. I, therefore, support providing a license for homestay to
keep an important local business viable.
From Bob and Peggy Turchen, it is our understanding that you are hearing an appeal that would
allow Susan Gailey a homestay special use exemption for her property where she lives with her
daughter and operates an ag business, Just Horsin' Around. By way of background, we live
down the road from the property that you're reviewing and we have known Susan and her family
cWA
for twenty -two (22) years, and have been property owners on the Kahiliwai Ridge. Over that
time, we have known them as people of integrity, very respectful of, and very well -liked by their
neighbors.
Mr. Dahilis. Three (3) minutes, Madam Chair,
Mr. Selover: Okay. And over this same timeframe, we have never heard of anyone complaining
about the guests staying on her property. On the other hand, we have the direct contact with
people who have stayed with Susan and who have experienced the delight of close contact with
the horses she keeps part of her business. In 2009, we brought our horse to Kauai from
Connecticut, a transition that we would not have been able to make without the knowledgeable
care and help provided by Susan, her daughter, and Lacey. We boarded Kona, our horse, on
Susan's property for 1 %2 years. Her facilities featured a covered stall, grazing pastures
maintained perfect by ... for Kona's needs.
Chair Anderson: If you can please conclude your remarks.
Mr. Selover: Okay. There is no doubt that there is ... that not allowing this special use exemption
will substantially harm a very unique business that is an asset to the community. And as well,
will cause financial harm to a kupuna trying to sustain herself and support her family. Thank
you.
Chair Anderson: Thank you. Is there anyone else in the public that would like to give testimony
on this agenda item?
Mr. Dahilig: Seeing none, Madam Chair, the Department would recommend closing the agency
hearing at this time.
Chair Anderson: Okay, do I have a motion to close the Agency Hearing?
Mr. Mahoney: Move to close, Madam Chair.
Mr. Katayama: Second.
Chair Anderson: Okay, all those in favor? (Unanimous voice vote) Any opposed? (None)
Motion carries 6:0.
Class IV Zoning Permit Z -IV- 2015 -30, Use Permit U- 2015 -29 and Special Permit SP-
2015-10 to allow conversion of an existing residence into a homestay operation on a parcel
located along the southern side of Kalama Road in Wailua Homesteads, situated approx. 2,000 ft.
west of its intersection with Opaekaa Road, further identified as 6471 Kalama Road, Tax Man
Key 4 -2 -002: 026, CPR Unit 2, and affecting an area approx. 3.68 acres of a larger parcel =
Samuel A. & Eugenia Caliendo.
RES
Mr. Dahilis. Thank you, Madam Chair. We are on Class IV Zoning Permit... Okay, I guess
Madam Chair, this would probably be a good time to take a caption break. We've been going
about an hour forty -five.
Chair Anderson: Okay, so given that, we'll take a caption break. Return in ten (10) minutes.
The Commission recessed this portion of the meeting at 11:01 a.m.
The Commission reconvened this portion of the meeting at 11:15 a.m.
Chair Anderson: Okay, call this meeting back to order.
Mr. Dahilig: Thank you, Madam Chair. We are now on Item F.2.j., Class IV Zoning Permit Z-
IV- 2015 -30, Use Permit U- 2015 -29 and Special Permit SP- 2015 -10 to allow conversion of an
existing residence into a homestay operation on a parcel located along the southern side of
Kalama Road in Wailua Homesteads, situated approximately 2,000 feet west of its intersection
with Opaekaa Road, further identified as 6471 Kalama Road, Tax Map Key 4 -2 -002 parcel 26,
CPR Unit 2, and affecting an area approximately 3.68 acres of a larger parcel. The applicants are
Samuel and Eugenia Caliendo,
Madam Chair, other than the letter from the Mayor's Ag Advisory Committee, we do not have
any other written testimonies submitted for this particular item. The Department would
recommend opening the Agency Hearing at this time for this matter.
Chair Anderson: Is there anyone in the public that would like to give testimony on this agenda
item? Please step forward.
Mr. Dahilijz: Madam Chair, seeing none, it would be the Department's recommendation to close
the Agency Hearing at this time.
Chair Anderson: Do I have a motion from the Commission to close the Agency Hearing?
Mr. Keawe: So moved.
Mr. Abrams: Second,
Chair Anderson: Any discussion? (None) All those in favor say "aye ". (Unanimous voice
vote) Any opposed? (None) Okay, motion carries 6:0.
Class IV Zoning Permit Z4V- 2015 -26, Use Permit U- 2015 -25 and Special Permit SP.
2015m6 to allow conversion of an existing residence into a homestayoperation on a parcel
located along the eastern side of Kua Road in Lawa`i Valley, further identified as 4896 Kua
Road, Tax Map Key 2 -5 -002: 037 and containing total area of 3.089 acres = William L &
Catherine F. Cowern,
Mr. Dahilin: Thank you, Madam Chair. We are now on Item F.21., Class IV Zoning Permit Z-
IV- 2015 -26, Use Permit U- 2015 -25 and Special Permit SP- 2015 -6 to allow conversion of an
Q
existing residence into a homestay operation on a parcel located along the eastern side of Kua
Road in Lawa`i Valley, further identified as 4896 Kua Road, Tax Map Key 2 -5 -002 parcel 37
and containing a total area of 3.089 acres. The applicants are William and Catherine Cowem,
Madam Chair, I do have one (1) letter in opposition from Tina Sakamoto for this particular item,
as well as, again, the letter from the Mayor's Ag Advisory Committee in opposition to this
particular application. Madam Chair, the Department would recommend opening the Agency
Hearing at this time.
Chair Anderson: Is there anyone in the public that would like to give testimony on this agenda
item?
Ms. Sakamoto: My name's Tina Sakamoto. I'm a resident of Lawa`i. The Planning
Commission's finding of facts address compatibility, and in particular, it's safety, peace,
comfort, general welfare of persons residing or working in the neighborhood. Now, I brought
before you my concerns on some of these compatibility issues and it wasn't fear -based, nor fear;
they were valid concerns for the neighborhood of Lawa`i. So again, I urge you to deny this
permit. Thank you.
Chair Anderson: Thank you. Is there anyone else that would like to give testimony on this
agenda item?
Mr. Dahilig: Madam Chair, seeing none, the Department would recommend closing the Agency
Hearing at this time.
Chair Anderson: Do I have a motion to close?
Mr. Mahoney: Move to close, Madam Chair.
Chair Anderson: Second?
Mr. Katavama: Second.
Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any
opposed? Seeing none, motion carries 6:0.
Class IV ZoniniPermit Z -IV- 2015 -29, Use Permit U- 2015 -28 and Special Permit SP-
2015-9 to allow conversion of an existing residence into a homestay operation on a parcel
located alone the mauka side of Koloa Road in Lawa`i, situated approximately 500 feet north of
the Mans Hema Place/Koloa Road intersection, further identified as 3528 B Mans Hema Place
Tax Map Key 2 -5 -005: 080, CPR Unit 1, and affecting an area approx. 1.032 acres of a larger
parcel = John R. & Lorna E. Ho LE Trust.
Mr. Dahilig: Thank you, Madam Chair. We are now on Item F.2.1., Class IV Zoning Permit Z-
IV- 2015 -29, Use Permit U- 2015 -28 and Special Permit SP- 2015 -9 to allow conversion of an
existing residence into a homestay operation on a parcel located along the mauka side of Koloa
M
Road in Lawa`i, situated approximately 500 feet north of the Mana Hema Place/K61oa Road
intersection, further identified as 3528 B Mans Hema Place, Tax Map Key 2 -5 -005 parcel 80,
CPR Unit I. and affecting an area approximately 1.032 acres of a larger parcel. John R. and
Lorna E. Hoff are the applicants for this particular application.
Madam Chair, we do have testimony in opposition to this from Tina Sakamoto, as well as, again,
the letter from the Mayor's Ag Advisory Council, and we do also have supplemental information
from Mr. Chun who's supplementing his application. Madam Chair, the recommendation would
be for the Department to recommend that we open the Agency Hearing at this time.
Chair Anderson: Is there anyone in the public that would like to give testimony on this agenda
item?
Ms. Sakamoto: Tina Sakamoto, resident of Lawa`i. Again, my concern is the commercialization
of our neighborhood in Lawa`i, and I'd like you to seriously consider this. It seems to be evident
that there's many illegal B &B's operating and I hope you bring forth the closure of these. There
are some concerns with this particular permit that were brought forward before the County
Council; the issue of ag land lockouts. So I'd like you to also consider the testimony from the
Kauai County Council regarding this permit and deny the application. Thank you.
Ms. Boilim: Alexis Boilini. Tina's testimony that there's a problem with the compatibility, I
think most of the applicants here today their applications pass with flying colors on the
compatibility issues. So I'm just wondering what she ... what her complaints are on the ag
portion.
Chair Anderson: Okay. Any other public testimony?
Michael Lew: Michael Levy, Lawa`i. In actual fact, it's the tourist that are being harassed by
locals, so for her to be worrying about child molesters from tourists seems pretty crazy. That's
all.
Chair Anderson: Okay. Any further testimony? I do ask that testimony not reference particular
individuals giving opinions on their testimony, rather give your testimony on the particular item
that's on the agenda.
Mr. Dahilig: Madam Chair, seeing no further testimony, the Department would recommend
closing the Agency Hearing at this time.
Chair Anderson: Okay. Do I have a motion to close from the Commission?
Mr. Mahoney: Move to close, Madam Chair.
Mr. Keawe: Second.
Chair Anderson: Okay. All those in favor? (Unanimous voice vote) Any opposed? (None)
Okay, motion carries 6:0.
41
Continued Public Hearing (None)
Mr. Dahili &. Thank you, Madam Chair. We are on Item F.3., Continued Public Hearing. You
have none this morning.
New Public Hearing (None)
Mr. Dahilia. Item F.4., New Public Hearing. You have none this morning.
All remaining public testimony pursuant to HRS 92 (Sunshine Law)
Mr. Dahili &. Madam Chair, we're on Item F.5., any remaining public testimony pursuant to
HRS 92. I believe all items have been brought before. ..brought open for public testimony, but it
would behoove the Commission and our recommendation to ask for any further testimony should
anybody wish to testify on any agenda item.
Chair Anderson: Okay. Is there anyone in the public that would like to give testimony on any
agenda item today? This is your time to give additional... any further testimony on any agenda
item.
Okay, seeing none.
CONSENT CALENDAR
Status Reports (None)
Mr. Dahilia: Thank you, Madam Chair. G., Consent Calendar, you have no status reports.
Director's Reports) for Project(s) Scheduled for Agency Hearing on 7/14/15.
Mr, Dahilig: And
we
do not have a meeting on the ... on 7/14/15, so there are no Director's
Reports scheduled
for
that Agency
Hearing.
EXECUTIVE SESSION (None)
Mr. Dahilijz: There is no Executive Sessions and you've handled all General Business Matters.
COMMUNICATION (For Action) (None)
Mr. Dahilijz: As well as Item J., Communications, you have none for action.
42
COMMITTEE REPORTS (None)
Mr. Dahilig. No Committee Reports.
UNFINISHED BUSINESS (For Action) (None)
Mr. Dahilig. And no Unfinished Business.
NEW BUSINESS (Continued)
Class IV Zoning Permit Z-IV- 2015 -15, Use Permit U- 2015 -14 to allow conversion of an
existing residence into a bed and breakfast operation on a parcel located along the western side
of Kuamoo Road in Wailua Homesteads, situated within the Wailua Terrace Subdivision and
approx. 125 ft. south of the Ohelo Road/Kuamoo Road intersection, further identified as 5663
Ohelo Road, Tax Map Key 4 -2 -009: 011, and containing a total area of 18,739 sq. ft. = Mohala
Ke Ola Management, LLC.
Class IV Zoning Permit Z-IV- 2015 -21, Use Permit U- 2015 -20 and Special Permit SP.
2015m5 to allow conversion of an existing residence into a homesta operation on a parcel
located along the western side of Hailima Road in Lawa`i, situated immediately across its
intersection with Aka Road, further identified as 3307 D Hailima Road, Tax Map Key 2 -6 -001:
091, CPR Unit 2, and containing a total area of 67,236 sq. ft. = Michael Levy & Alexis Boilini
Trust,
Class IV Zoning Permit Z -IV- 2015 -22, Use Permit U- 2015 -21 and Special Management
Area Use Permit SMA(U)- 2015 -8 to allow conversion of an existing residence into a homestav
operation on a parcel located along the makai side of Weke Road in Hanalei Town, situated at its
intersection with He`e Road, further identified as 5404 Weke Road, Tax Map Key 5 -5 -004: 015
and containing a total area of 6,048 sq. ft. = Parnell H. & Michelle I. Kaiser.
Class
IV Zoning
Permit Z -IV- 2015 -27, Use Permit U- 2015 -26
and Special
Permit SP-
2015 -7 to allow
conversion of an existing
residence
into a homestayoperation
on a
parcel
located
along the makai
side of Kalihiwai
Road in Kilauea, situated approx.
1/4 -mile
north of its
intersection with Kuhi6
Highway,
further
identified as 2828 P Kalihiwai Road, Tax
Map Key 5-
2 -010: 031, CPR Unit 2,
and affecting an
area approx. 3.167 acres of a
larger parcel
=Steven V.
Ruddell/Marlyn W. Ruddell, Trust,
Class IV Zoning Permit Z4V- 2015 -28, Use Permit U- 2015 -27 and Special Permit SP-
2015-8 to allow conversion of an existing residence into a homestay operation on a parcel
located along the mauka side of Kahiliholo Road in Phase 2 of the Kalihiwai Ridge Subdivision
in Kilauea, situated at the terminus of Kahiliholo Road, further identified as 6241 Kahiliholo
Road, Tax Map Key 5 -2 -022: 014, CPR Unit 2, and affecting an area approx. 3.479 acres of a
larger parcel = Susan Gailey Trust /Kim E. Richard Trust.
:N
Class IV Zoning Permit Z -IV- 2015 -26, Use Permit U- 2015 -25 and Special Permit SP-
2015-6 to allow conversion of an existing residence into a homestay operation on a parcel
located along the eastern side of Kua Road in Lawa`i Valley, further identified as 4896 Kua
Road, Tax Map Key 2 -5 -002: 037, and containing a total area of 3.089 acres = William L &
Catherine F. Cowern.
Class IV Zoning Permit Z -IV- 2015 -29, Use Permit U- 2015 -28 and Special Permit SP-
2015-9 to allow conversion of an existing residence into a homestay operation on a parcel
located along the mauka side of K61oa Road in Lawa`i, situated approx. 500 ft. north of the
Maria Hema Place/K61oa Road intersection, further identified as 3528 B Mana Hema Place, Tax
Map Key 2 -5 -005: 080, CPR Unit 1, and affecting an area approx. 1.032 acres of a larger parcel
= John R. & Lorna E. Ho . Trust.
Planning Director Dahilig: Given that Madam Chair, we move back to action under Item M for
Class IV Zoning Permit Z4V- 2015 -15 and Use Permit U- 201544. This is the Mohala Ke Ola
Management, LLC application. For the Commission's reference since we are handling a large
volume of information today, please refer back to the June 9th packet; the second of three (3)
PDFs and this would start on PDF page 9 of the second, ..again the second PDF packet from the
June 9th meeting. And it would start on PDF page 9 for your information.
Madam Chair, Deputy Director Hull and Marisa Valenciano have been ... I just want to say been
handling a yeoman's effort trying to get these applications at least brought to the Commission for
hearing. They will be handling all the homestay applications today, so I want to first
acknowledge them for at least that work, but also tee them up to enter into discussions on this
particular application. So without objection Madam Chair, I'll turn it over to Mr. Hull.
Deputy Director Hull: Morning Chair, members of the Commission. At the Chair's discretion, I
can read a condensed version of the report which you have already received on the June 9th
hearing.
Chair Anderson: Yes, you may summarize.
Mr. Hull: The proposal is to convert an existing residence into a homestay operation. The
residential dwelling contains three (3) bedrooms and four (4) bathrooms. As represented, the
Applicant will continue to reside within the dwelling while operating it as a homestay. For
transient accommodation purposes, the homestay operation is proposed to utilize two (2)
bedrooms within the residential dwelling.
Concerning the Department's preliminary evaluation, the proposed request is to be evaluated
pursuant to Section 8 -3 of the Kauai County Code, as amended, relating to standards for the
issuance of a Use Permit. In the case of...number four of that review states, in the case of
homestay operations, the presence of the owner at the site acts as a self-regulating mechanism.
That is to say, activities that could significantly impact surrounding neighbors are often
prohibited by the owners of homestays because such activities are just as, if not more, impactful
on the owners who are residing on -site. Number five states, as verified through the County of
Kauai Real Property Tax Assessment records, the Applicant does not currently have a
homeowner's exemption for the subject dwelling unit. Without the necessary assurance the
subject dwelling unit is the owner's primary residence in which they reside, activities that could
significantly impact surrounding neighbors, such as noise and traffic impacts may not be self -
regulated by an on -site owner. As such, the proposed transient accommodations would therefore
function much more like a transient vacation rental and not so much as a homestay. New
transient vacation rentals are prohibited outside the Visitor Designation Area because of their
associated impacts, and the subject site is located outside of the Visitor Designation Area. The
proposed operation could therefore be detrimental to the health, safety, peace, morals, comfort,
and general welfare of persons residing or working in the surrounding area, and could cause
substantial harmful environmental consequences. That concludes our evaluation.
Chair Anderson: Are there any questions from the Commission to the Planners?
Mr. Abrams: Marisa, or both of you, anyone can answer. So one of the primary ones, because
this is residential, is the issue that there was no owner- occupant residing on the property prior to
that to have a track record shall we say?
Mr. Hull: The petition states that the owner does reside on the site; however, in order to ensure
that the homeowner, ..that they are residing on -site and that this is their primary residence, the
Department has requested to demonstrate a homeowner's exemption, which was ultimately
passed by the County Council recently and signed into law by the Mayor. However, this
application was accepted prior to the adoption of that law, so we have to accept it, but it is still
the Department's position that if you cannot demonstrate that then we are not assured that this is
the owner's primary residence and therefore can act in a self - regulating manner to ensure that the
impacts are not going on in that particular neighborhood.
Mr. Abrams: Was there any other evidence that would prove that they had been an owner -
occupant who failed to file for a homeowner's exemption, but were actually residing on the
property?
Mr. Hull: Not that we felt was sufficient enough to meet the standard.
Mr. Abrams: Okay, thank you.
Chair Anderson: Any other questions for the Planner?
Do we have the applicant here today?
Jonathan Chun: Good morning, Jonathan Chun on behalf of the applicant. I'd like to start off by
asking a couple questions to Kaaina or to the Planner.
Mr. Dahiliz Madam Chair, if we are proceeding with this matter... proceeding in this matter, I'd
just like to say for the record that we are proceeding under the assumption that Mr. Chun is
wanting to not enter into an evidentiary hearing as pursuant to the full Contested Case hearing
rules set forth by the Planning Commission's rules.
45
Mr. Chun: As I said, I'd like to just start off by asking a few questions to the Planner or to
Kaaina.
Chair Anderson: Okay, so just to clarify whether or not, will you be requesting to go into a
Contested Case for this item? For this application?
Mr. Chun: Whether a matter is a Contested Case is not based...is not based upon a request by an
applicant. It's based upon the status by law; under Chapter 91 defines what is a Contested Case
or Agency Hearing. My understanding today is in fact it was put on the agenda as an Agency
Hearing. So as an Agency Hearing, you are going to have to comply with the Agency Hearing.
On your own rules, you have on the Agency Hearing procedure, Chapter 6, presentation of the
report, question by the Commission, and (inaudible) in the rules state the next step after the
questions by the Commission is the question by the Applicant. And I'm just following the rules.
Chair Anderson: I understand, Mr. Chun. It's just for clarity sake because we also are. ..have
quite the agenda that I just want to be able to have an idea of where we're going. If we will
be ... if there's going to be evidence that's going to be submitted by ... for your applicant and we
are going into Contested Case then we'll need to, you know, make the appropriate changes and
go ahead and schedule that, so...
Mr. Chun: All I'm saying is we are in an Agency Hearing under Chapter 911 ..is my belief, but
you need to check with your Attorneys ... but it's my belief, as defined by State law and defined
by your rules, we are in an Agency Hearing; that's not based upon a request. All I will say is we
will not waive my client's rights to an Agency Hearing as given to us by State law and by your
own rules; we don't waive that. But whether it is or not is a determination by your body, by the
Commission. If the Commission feels, based on the advice by its Deputy County Attorney, that
it is an Agency Hearing, then you need to progress as the rules. ..as your own rules state. And
that's all I'm asking. So I will say that we will want.. and all my clients. ..we're not waiving
any rights under the State law, nor in your rules, and we want to assert our rights under your own
rules.
Chair Anderson: Okay, thank you.
Mr. Chun: I can read the rules, if you want, but I gather you have them right there.
If you want, I can say rule ... as to the order of...in an Agency Hearing.
Mr. Dahili &. So when you get to Section 1 -...so we're looking at Chapter 6 right?
Mr. Chun: Correct.
Mr. Dahilig: Okay.
Mr. Chun: 1 -6 -11. Specifically B. (A) Involves request for intervention. Since there was no
request for intervention as indicated by the supplemental report by the Department, we go on to
1 -64 Lb. presentation of evidence. The Department shall first present evidence, which they did.
And they be subject to questioning by all Parties and the Commission.
Mr. Dahilig: Right.
Mr. Chun: So the Commission has asked questions, and we are a party.
1 -6 -2 specifically states, the Planning Department, admitted interveners, and the petitioner shall
in every case be parties to such proceedings. We are a party.
Mr. Dahilig: I guess the concern I have here, Mr. Chun, is that if the Department is going to be
questioned and a request for an evidentiary hearing is then made by your ... by you on behalf of
your clients that any questions that may be brought up on behalf of the Department, . I I mean by
the Department... needs to be handled as if the ... I guess the Department's representatives in this
particular case, (1) are not being questioned under oath and (2) if they are being ... if they are
going to be asked to appear as witnesses down the line as part of a Contested Case hearing that
those questions either be refrained from at that time or they will not be asked as part of the
evidentiary portion. Because the conflict here is that if the questions are going to be pointed as
such to produce a record, rather than clarify what the application is, then I would ask that the
Commission at that point ... if the Department feels so, then we would make the request to enter
into a full Contested Case hearing at that time for this particular matter if the questions relate
more to trying to produce evidence versus clarifying what the report is.
Mr. Chun: Do you want me to respond?
Mr. Dahilia. No, but that would be the Department's position.
Mr. Chun: Okay, yeah. I don't think I need to respond to the Department ... I mean, unless you
want me to, but all I stated was ... like I said, we are in an Agency Hearing as defined by State
law, as defined by your own rules, and as an Agency Hearing as defined by State law and by
your own rules, the next step after presentation of the report or evidence by the Department and
questioning by the Commission, the next step under Rule 1 -6 -1 Lb. is questions by the Petitioner
or the Party.
Chair Anderson: You can proceed with questions to the Planner.
Mr. Chun: Thank you.
So, and I don't know whether Kaaina...and I'm ... this is just preliminary questions ... Kaaina,
would you want to be the one to question or should I ... or you can say when Marisa can answer
that and you can pass it off if you want to, but should I address you first or address Marisa first?
Mr. Hull: In this particular case, you can just address me.
Mr. Chun: Okay. Kaaina, so going down to your initial report, you stated that as far as the
evaluation of a compatibility with the neighborhood, is it correct that as far as you're concerned
47
with this particular application, Mohala, you have found that it was compatible with the general
neighborhood?
Mr. Hull: No, I wouldn't say that.
Mr. Chun: Okay. Let's take a step back. So in general, this is a Use Permit correct?
Mr. Hull: Correct.
Mr. Chun: And under the Use Permit, the criteria for the Use Permit is, and I quote, "the
establishment, maintenance, or operation of the activity or use in the particular case is a
compatible use and is not detriment to the health, safety, peace, morals, comfort, and general
neighborhood welfare of persons residing or working in the neighborhood of the proposed use,
or detrimental or injurious to property and improvements in the neighborhood, or to the general
welfare to the community and will not cause any substantial harmful environmental
consequences of the land of the applicant or on other lands, and will not be inconsistent with the
intent of this Chapter in the General Plan." Let's take that one -by -one. You are aware in the
application that the Applicant has been running a bed and breakfast operation on this particular
property for a number of years.
Mr. Dahili &. Madam Chair, given that question, this is based on asking the Deputy Director's
personal knowledge concerning this application, I would request at this time that the Department
now requests a full evidentiary hearing on this matter as to not have my Deputy Director cross -
examined without oath being given. And at this time, I would make the request before the
Commission orally.
Mr. Chun: I have no objection to Mr. Kaaina ... Mr. Kaaina, Mr. Hull ... being placed under oath;
I have no objection to that.
Mr. Dahilig: However, this is no longer presentation of evidence; this is a cross - examination of
the evidence. And at this time, because of the manner in which these questions are being posed
to Mr. Hull, I would request and ask the Commission to deliberate on my request to move this
matter to a full evidentiary hearing to be handled by a Hearings Officer.
Mr. Chun: We would object to that, Madam Chair. I mean, I can go into detail if you want.
Chair Anderson: Yes, if you can go into further details regarding your...
Mr. Chun: Okay. Let's (inaudible). As the Commission would recall when this, ..when this
report was first presented to the Commission about two (2) weeks ago. If the Commission
recalls, I came on and on the record I indicated to the Commission, and the Department at that
time, in public, that it was my belief that this is a Contested Case; at least for all of the reports
that were recommending denial. So I came on the record, I informed the Department specifically
and the Commission, that it was my position on behalf of my clients that it was a Contested
Case. That's all I need to do. I mean, because all you did was receive the report for the record.
One (1) week ago, one (1) week ago, on Monday, last week Monday, I called the Planning
I
Department up and I asked them specifically, what attorney are you going to have to assist you
because this is a Contested Case. I was told that they didn't have one and for me to contact the
County Attorney's office; I promptly did so. I contacted the County Attorney's office. I
specifically said hey, last week I told the Department and the Commission that this was a
Contested Case. This week I'm saying I want to sit down with you guys and I want to work out
the details of how we're going to handle that because I don't want to have a delay. I don't want
to be in a situation of another one where people are arguing what the procedure was going to be,
and I asked that one (1) week ago. The reply I got from the County Attorney's office was I'll get
back to you, that's a good idea. I didn't hear from them Tuesday, Wednesday, Thursday, and
Friday. Monday afternoon at 4:25 p.m., I get a message on my phone, while I was working on
something else, I couldn't get it, I couldn't ... I had a meeting, from the Department saying hey I
heard you guys want a Contested Case, let me know what you want to do; obviously that's too
late. My clients spent considerable time and money in that one (1) week because we didn't know
what was going on and we couldn't prepare, so we took considerable amount of time and money
getting our case ready to prepare for what the Department was going to do. My clients took
considerable time and money getting people they know to testify. My clients spent considerable
time and money to get a video, so that they can show the Commission what's going on. We
came today prepared for an Agency Hearing as the rules require, as the rules allow, as the
rule... as the law sets forth because any delay is going to hurt and be detrimental to my clients.
And not only that, I would object for further continuance because the Department already now
has read it's evidence in front of the Commission, answered questions from the Commission, and
so now the Department is one -leg up on the applicants because they have the evidence. Now
you're asking, oh yeah I can listen to the evidence from the Department, but I can't listen to your
evidence and I can't ask you questions because I'm going to have a Hearings Officer; I'm going
to have somebody else do that. I think that's highly prejudicial to my clients, highly prejudicial
to the fairness of the procedure, and I would object to that. That's the details of my objection.
Chair Anderson: Thank you.
Mr. Dahili &. Can I respond, Madam Chair?
Chair Anderson: Go ahead.
Mr. Dahilig: You know, we try to work out ... and when you look at the majority of applications
that come before this body, they're handled in a pretty non - adversarial manner that is meant to
be informal in nature. And Mr. Chun is well -aware of this courtesy; he's well aware of the fact
that these are Contested Case hearings by law, but in terms of the procedures that we use, many
times when you look before this body, they are not handled in a formal manner. They're handled
informally. He's well aware of that, he's had many years of practice before this Planning
Commission and he understands that at the end of the day, we're here to try to accommodate
process. Now, it was Mr. Chun that made the assertions at the meeting two (2) weeks ago that he
would like to reserve his right to move forward with a Contested Case hearing. He made those
assertions during the setting of these hearings at the time. So, we are simply reacting to his
desire to say, oh I may want to do this or I may not. So that is really the equity issue that if you
are being asked to rule on something from an equitable standpoint, as Mr. Chun is stating in his
objection to my request, that our Department is left in the situation where who's on first? I may
Ez
request a Contested Case hearing, I may do this, and he used the words "Contested Case
hearing ", but it's very cute to try to use the words "Contested Case hearing" and then say well
this is what it is. No, we were well aware of the Commissioners' desire that anytime you enter
into a formal evidentiary hearing that this is something the Commission is sensitive to and does
not want to have handled on the floor; would like to be handled by a Hearings Officer. You
know, I care not to talk about the sidebars that Mr. Chun and I had before this meeting to try to
work this out because I believe that that would just lead into a he said, she said type of situation
and it's not worth the Commission's time to get into that. But what is fair here for the
Commissioners and why we are requesting this is that as you're seeing from the line of
questioning from Mr. Chun that he is wanting to get into what is essentially a cross- examination
under oath type of surgical questioning of each of my Staff members concerning and trying to
pull evidence into the record. And we are not prepared for that, Madam Chair, we are not
prepared for that. So he's well aware of this and that's why we make our motion ... our request
for a motion because we would, ..from a standpoint of being able to be prepared for these types
of questioning, we need to be prepared with counsel, we need to be prepared with being able to
understand who is on the witness list and who's not on the witness list, and we, from a standpoint
of what is there and what is not essentially, need to sort that out through a full evidentiary
process that should be handled by a Hearings Officer; not on the floor, not on the fly. And again,
this is in response to Mr. Chun's assertions and reservations at the June Wh meeting saying that I
may request a Contested Case hearing. So that's what prompted this situation, Madam Chair.
So again, we would ask that the Commission hear our request for a motion to essentially handle
this matter through a formal evidentiary hearing and refer the matter to a Hearings Officer,
Mr. Chun: Procedure, I'd also like to raise objection. That's not a...that request for a deferral
and the request for a Hearings Officer is not on the agenda, and would also violate the Sunshine
Law,
Chair Anderson: Okay, so in terms of our being able to handle the agenda as posted, there are
the Agency Hearings, we have taken public testimony on the multiple homestay applications.
This is the first one in which it was scheduled to take action; however, given the need to pursue a
formal evidentiary hearing, what I would like to do is to take counsel with ... our Commission
counsel to refer to the rules and in doing so I would request if the Commission would support
going into executive session. I believe we would need two (2) Commissioners to support that, to
go into the same.
Mr. Abrams: I would make that motion to go into executive session to discuss this matter.
Chair Anderson: Okay,
Ms. Mendonca: I second.
Chair Anderson: Alright, all those in favor? (Unanimous voice vote) Okay, thank you. Motion
carries 6:0.
If I could please have the County Attorney read the rules to the executive session.
50
Deputy Attorney Jodi Hi u�yegusa: The Commission may go into executive
session on an agenda item for one of the permitted purposes listed in 92 -5(a) HRS, without
noticing the executive session on the agenda where the executive session was not anticipated in
advance. HRS Section 92 -7(a). The executive session may only be held, however, upon an
affirmative vote of two- thirds of the members present, which must also be the majority of the
members to which the board is entitled. HRS Section 92 -4. The reason for holding the
executive session shall be publicly announced.
Chair Anderson: So if I can have the parties and the public to please exit. We'll break into
executive session.
The Commission moved into executive session at 11:47 a.m.
The Commission reconvened at 2:10 p.m.
Chair Anderson: Call this meeting back to order.
Okay. Where we left off, we were in the Class IV Zoning Permit Z- IV- 201545. The
Department had given the Director's Report and preliminary recommendations. Then the, . Ithere
was opposition from the Applicant with respect to the Department's request to go into a formal
Contested Case hearing. At which point we did ... the Commission went into executive session to
consult with our County Attorney and at this time, I'd like the County Attorney for the
Commission to go ahead and set forth the different options for the Commission. And also we
can hear back from each of the parties with respect to their preferences (inaudible).
Ms. Higuchi -Sa, eegusa: So the ... I guess the purpose of Contested Case proceedings pursuant to
Chapter 91 is to allow for, you know, the legal rights of those affected by an agency's
decision ... to protect those rights by means of an organized and a process where both parties have
a means to present evidence, call witnesses, and to be able to respond to questioning and cross -
examining in an organized fashion and pursuant to HRS 91. So, it is to protect the due process
rights of the parties. I think there's several options at this point, being that there is an
outstanding request by the Department to set it for a Contested Case hearing, and so that is under
the rules, too, for the Commission to refer it to a Hearings Officer, so the Hearings Officer can
communicate with the parties, have a pre - hearing conference to set the scheduling... the
schedule, and kind of handle the evidentiary portion of the proceeding and make a
recommendation to the Commission. The other option is for the Commission to conduct the
Contested Case themselves. That could be either done today, you know, or we set it for a date
that works out for both parties. It doesn't have to be exactly on a Commission day, it could be a
date that could work out for all the parties. Obviously, today there's a number of items on the
agenda, and so while in an ideal world we could start that process today, it's going to be very
onerous to do so. It is within the Chair's discretion to control how proceedings are going to be
handled, so that's something for you to consider. Also, the other option is for there to be a
waiver of the Contested Case and we could proceed with decision making today based on the
application, the public testimony, and. ..that was presented before the Commission today.
(Inaudible) Director's Report, I'm sorry.
Chair Anderson: Okay, if I can have a response from the Department, as well as the Applicant.
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County Attorney Mauna Kea Trask: Aloha. For the record, Mauna Kea Trask, County Attorney
on behalf of the Planning Department. Thank you for this opportunity to address you today,
honorable Commission members. The Planning Department did not have counsel representation
up until this point, which is their right. We appreciate the options being proffered today. I think
my Client's general position is that the Planning Commission has favored over time informal
processes that are more accessible to the public, people are familiar with, irrespective to the fact
that it may not be formal agency procedures.
So if you look at what happened in this case, I would argue that that's what happened. Because
there was no formal request for Contested Case, although it was posted for Agency Hearing, it is
common practice, and everyone's familiar with it, again Mr. Chun is familiar with it, that since
the 70's and prior, if there was no formal request for Contested Case, Agency Hearing
procedures would generally follow informally public hearing procedures. We saw that today.
The order of the public hearing and public hearing procedures under Chapter 5, Staff findings are
presented first, questions of the Staff findings are provided by the Commissioners, public hearing
to the public, etc. If you look at Agency Hearings, what this is agendaed as, first off primarily
under 1- 6 -1(a), which states in all Agency Hearings before the Commission, the Chair or one (1)
of the Commissioners or Hearings Officer duly appointed and designated shall preside at the
hearing; that wasn't done in this case because of previous practice. So therefore, because there is
no formal designated Hearings Officer, there is no one really to control the course of the
hearings, administer oaths, receive evidence, hold appropriate conferences, etc., as provided by
1- 6 -1(b). Under the hearing procedures, that wasn't followed either, under 1 -6 -11. To my
knowledge, I wasn't here, but I don't know if there was any formal entertaining of request for
intervention; I can't make that representation before you. Presentation of evidence, in that case
the Department shall first present evidence and shall be subject to questioning by all Parties. The
Petitioner may then make a presentation and subject to questioning; none of these procedures
were followed. Then public testimony is to be occurred. My understanding is that public
testimony was otherwise addressed in this case, etc. So I would agree, we really are dealing with
the due process issue and due process procedures. Due process protects not only the Department
and the County, but also the applicants, also the public, also yourselves, as far as order decorum
and all those important matters go. In this case, we have spoken with counsel for the various
applicants and/or petitioners, in this case, and we both agree to set these matters for hearing dates
further down the road at a date certain. We do not currently agree as to whether or not the
Commission, or Hearings Officer, or even in fact the Chair or designated Commissioner hear this
matter. My client would like a Hearings Officer; I'm going to maintain that request. So that's
our position today, we would ask to effectively continue these things at a date certain. We would
request that they not be provided for on Planning Commission dates, or on Planning Commission
dates that are light. And we would ... I would reiterate our request for a Hearings Officer to be
appointed. Thank you.
Chair Anderson: Okay. If I can hear from the Applicant.
Mr. Chun: Sure. Good Afternoon. Jonathan Chun. First, I would like to apologize not having
my coat here today. I know it makes a big difference on my appearance, but it was a bit hot
today, so I forgot to put it on again.
52
First of all, since we're talking in general on how we want to proceed for the afternoon, let me
make it clear, as far as the applicants who I represent who have received recommendations for
approval from the Department, and that's Mr. Knopf. ..Mr. and Mrs. Knopf, Mr. and Mrs.
Chong, and Ms. Pignoli, I believe those three (3) applications that are on the agenda today are for
recommendations for approval. Those ones we are not insisting on a Contested Case, okay?
And that the public hearing procedure as to Chapter, I believe 2, would be proper because at that
point in time since there is no adversarial conflicting positions, between the Department and the
other party which is the Applicant, there is no Contested Case by definition under Chapter 91;
that's our understanding. So we're willing to say, as far as those three (3) are concerned,
that's ... we're willing to stipulate to those or to waive any objection as to that.
As far as the other applicants that are here that I represent and that the Department has
recommended approval (sic) in which I believe all of you have their recommended report and
proposed report, it is our position that it is a Chapter 91 hearing, it is an Agency Hearing under
Chapter 6, it is a Contested Case under Chapter 91. The next question is, how to proceed from
there. I would definitely agree... and Mr. Trask and I agree that there is no way, even if we do
have the hearings today that we're going to get through all ten (10), I believe, of the contested
ones. So yes, we definitely agree on that. If we do have one, I agree that we probably should
just say okay we're going to do, at best, one (1), at best; maybe two (2), maybe two (2). So there
is an agreement as to that and for the rest that we don't ... can't take care of, we should set for a
hearing at a later time; and I'm willing to work with the Department as to what the hearing date
is.
Where the dispute really... disagreement lies are two (2) factors, and I'll let the Commission
know what the two (2) factors are. ..the two (2) issues. The two (2) issues are this: one is, is it in
front of a Hearings Officer or in front of the Commission? It is our position, my applicants and
my clients, is that it should be in front of the Commission. And this is the reason, the
Department has already given you, at least for this one, an oral report. They also have given you,
and you have in your agenda and have it in your files already and I'm sure all of you have read it,
their recommended report or their report with recommending denial; it's there, you've read it,
it's in the record. The problem that we have of having it now. ..having a Hearings Officer is now
you're basically ... after reading one side's position and getting to be aware of that side's position,
you're saying to the other side, you can tell somebody else and I'll hear about it later on, second-
hand from somebody else who I want to appoint. We believe that gives a really unfair advantage
to the side that didn't get to present directly to the Commission. It's like a judge telling the
plaintiff, I'll hear your case, but defendant, you can tell somebody else and I'll read about it later
on, and don't...trust me I'll make a good decision. Sometimes I will trust him, but it leaves an
unfair advantage to a party who doesn't get to be face -to -face with the guys that's going to
decide their fate and have you, members of the Commission, be able to face -to -face tell our
sides, I have questions for you. How are you doing this? How are you going to do that? You
don't get to do that, so we're hampered. "We" meaning the applicants are hampered by a
situation where one side gets to be fully accessed to the Commission, the other side has very
limited access, and the other side from the Commission's point of view, you have no opportunity
or very limited opportunity to ask questions you might rationally have. And you're limited by
53
whatever filter that the Hearings Officer wants you to filter through. We believe that's
inherently unfair.
Now the second point, and that has to do with a ... is the continuance. We have no problem
saying a ... because yes, we are not going to be able to finish today, all ten (10) of them; that's a
given, no dispute on that. What our issue is, and I brought this up earlier, is that our clients, all
of them, came today ready and prepared to present their case and their arguments to this
Commission. And the reason why ... because you're talking about their livelihood, all of them, I
believe, in their application represent... they've been operating ten (10), fifteen (15), twenty (20)
years. This is not a new thing on their minds; they've been operating. And all of them in good
faith because... either because they read the paper or I think several of them got ... actually got
letters, but some of them didn't get letters, and in good faith said we'll shutdown; we'll stop,
we're going to do it the right way, what you want us to do, and apply for a permit. Then now,
when we come prepared to tell our story, to tell our position, to disagree with the Department's
recommendation, present evidence in front of the Commission to do that, the Department says
we're not ready to do it yet, and we want a continuance for another day. In the meantime, my
clients whose sole ... some of them are their sole livelihood... can't make a living. And for some
of the ag ones, because they can't make a living, they can't continue their ag. Who's going to
pay the expenses? I believe that's unfair and that's something for the Commission to decide, but
I think that's unfair because in essence, a continuance, a long -term continuance, basically tells
them you're done. There is no way that they can handle that, to equalize that. And to put less
pressure on the Commission is ... I suggest that the Department, not the Commission, but the
Department agree that during this time period, whatever it may be where we can work it out and
I promise I will try to work it out as soon as we can in terms of the day, that they not be
penalized; no cease and desist orders, no fines, no being sent to the prosecutor's office to be
criminally prosecuted. That this act, or any action they take between now and whenever the
Commission decides our actions are part of their compliance plan as they did last time because
this is not ... I'm not suggesting something unusual. It is something that the Commission and the
Department has done in the past. And I'm just asking for fairness that for my clients who are
willing to come today and present their case, but because of obvious reason they can't, that they
be given that same consideration. I tried to get an agreement as to that, but the
Department... they won't agree, so I'm just throwing it to the Commission, that's our position. If
the Commission understands that that's why we're saying these things. In the absence of an
agreement, we will have to insist that we will go through our Agency Hearings today and we will
object to a Hearings Officer and (inaudible). I'm not ... I'm being very clear because ... and I said
this to Mr. Trask and you know, I don't think he'll object to me saying, but I said you know, you
got to remember what we're doing here is we're protecting my clients' rights and what we're
doing ... and is very clear as some of you who know me ... we're building the record, so this is the
record. We're not waiving anything, we're insisting on our rights. If you want us to waive our
rights, those are the conditions that we'll waive certain rights.
Chair Anderson: Thank you. Does the Department want to comment on the objections as noted?
Mr. Trask: Yes. Again for the record, Mauna Kea Trask. Regarding the fairness and the
arguments of fairness, it goes both ways. All the applicants today had an attorney there present
to represent them. Planning Department did not. Planning Department shall be made a party in
54
all these proceedings. Because of a long, generally understood tradition of local- style, I guess.
And Mr. Chun knows it. He was the first Deputy County Attorney. He's aware of these
proceedings. So if it's a fairness issue, we have no objection or we would find it even
appropriate for a motion for reconsideration to reopen the Agency Hearings so as to
provide ... remove any doubt as to Mr. Chun's ability to continue to advocate and lay his record,
and just like he says. And also to provide the Planning Department with their attorney
representation. Obviously, as per the past practice, there has been no formal request for
Contested Case, so Planning Department has not met with any Deputy County Attorneys on
these matters. They have been afforded no representation. The Commission's ... I mean the
Planning Department's report was read, their findings, but that is not ... I would argue that that's
not necessarily evidence at all. You know, that's what they presented, that's what they read
under the public agency hearing informal process, as everyone is familiar with; you yourselves
are familiar with that when there's no formal request for Contested Case. We're not trying to be
unreasonable here. We do agree that due process is important. We agree that ... I mean, the
County of Kauai is comprised of all the people in this community. It's a corporate body politic
and they are ensured rights of due process and we want to protect those; we're fine with that.
As far as Hearings Officer, given the motion for recon to reopen the Agency Hearing, we don't
think that would be a problem at all. Now, we understand that Hearings Officers ... we disagree
that they're inherently unreliable or anything else. They would screen things inappropriately
(sic). You know, you're going to have the record. This Planning Commission has done it
numerous times before. We would maintain that position.
And finally, my understanding was. ..and my client would not agree to allowing for continued
illegal use of property, so we cannot agree to that and I'll just rest it at that. I don't want to
become emotional about it, I don't want to talk any further about it, that's just our position for
the record.
Chair Anderson: Thank you.
Mr. Trask: Finally, just one more thing, and as far as proceeding today with ten (10) hearings,
we would move ... if this motion is denied or if this is not continued today to a date certain, we
would move to continue under agency rule 1 -6 -3, as for given this change of cultural approach to
these matters in front of this Commission, what this County is used to for the past 40+ years, we
think that's sufficient good cause to nonetheless continue it anyway, irrespective to the fact of
who you decide will hear it. That's all, thank you.
Chair Anderson: Okay. So for the Commission, we have an agenda today with, . As pointed out
by the Applicant, various paths and options noting that the Knopf, Chong, and Pignoli
applications ... the Attorney and representative for the applicants has not insisted on proceeding
with Contested Case on these matters.
Mr. Trask: Sorry, Madam Chair, I did forget one (1) thing. On that, the Department would not
object to proceeding with those applications that they recommended approval today, as stated by
Mr. Chun. Thank you.
55
Chair Anderson: Okay. And then ... also noting that those particular applications that the
Applicant waives the right to the full Contested Case and their due process rights.
Mr. Chun: Chong... for Chong, Pignoli, and Knopf.
Chair Anderson: Okay. And so that leaves us with the other applications set forth that there
were recommendations where there is an adversarial interest between the Department and the
Applicant. As stated by our attorney for the Commission, there are options for the Commission.
My opinion in terms of being the Chair and the officer, presiding officer, is that we need to be
able to come up with a schedule that will (1) fit the needs of the applicants, the parties, as well as
the scheduling realities for all of the Commissioners. And so I wanted to see if we have a motion
from the Commission in terms of moving forward with respect to continuing the Agency Hearing
as Contested Case in the adversarial matters, and that would be New Agency Hearing that's
listed as 2.b., 2.c., d., e., or not e., f ..
Ms. Higuchi- SayeQusa: Not f.
Chair Anderson: h., i., and...
Mr. Abrams: h we already continued.
Chair Anderson: Sorry about that, clarification. We've moved things around a few times today.
So to clarify, that it's not the continuation of the Agency Hearing, but it's the setting of the
Contested Case hearing, so that we can afford all the parties their full due process rights. So that
would be an evidentiary hearing and so just to clarify, if I can have Counsel just read those
agenda items. I don't want to misstate it.
Ms. Higuchi- SayeQusa: And that's items 2.b., 2.c., 2.d., 2.i., 2.j., 21., and 2.1.
Mr. Abrams: Madam Chair, h is the one that was continued; that's the denial on ag and that was
only because of the reason that the Applicant wasn't here. So are you going to contest that one
or not? Because all the others that were heading in that direction.
Mr. Chun: Do you want me to answer that one, Madam Chair?
Chair Anderson: Yes, please.
Mr. Chun: For that one, that was Ms. Ruddell's one. Ms. Ruddell's one was continued by
agreement between the Department and Ms. Ruddell to August ... the August hearing... August
9I
Chair Anderson: The second August hearing.
Mr. Chun: Yeah, August ... the second ... was it the first meeting?
56
Chair Anderson: Second,
Mr. Chun: Second meeting in August, yeah. At that point in time, I have not talked to Ms.
Ruddell in terms of what her position is yet, so I don't know what her position would be on the
second meeting in August, so I can't answer that. All I know is that it is continued and we have
no problem with continuing that and continuing the status quo from her application.
Mr. Abrams: So that may end up being a Contested Case, right?
Mr. Chun: It might be. I don't know what her position will be when she gets back. I know at
one point in time before she left, she was discussing with the Department about submitting
additional material for the Department to consider, but I don't know the status of that.
Mr. Trask: And the Department's position would be, given the posture that similar cases have
taken regarding if it's an agency procedure, then it is a Contested Case hearing. And to avoid
this type of event occurring at the second meeting in August, for the record we would request,
the Department would request, it go to formal Agency Contested Case proceedings, so as we can
just prepare.
Chair Anderson: Okay, so as we work through ... and perhaps if the Commission, if we can raise
a point, if you have questions to our attorney, to ask those questions, so that we can formulate an
appropriate motion at this time.
Mr. Abrams: Madam Chair, so how are you proposing we handle i? Or h, excuse me. Would
we be putting it in with all the other ones that...?
Ms. Higuchi- Sayeggsa: I mean, I think we've already continued it when we reached that matter,
but you know, so it's already continued to some date in August, so perhaps.. .
Mr. Abrams: Yeah, but it's not scheduled as a Contested Case, right? Because we never got to
that.
Ms. Hi cgu hi- Sayegusa: It was continued Agency Hearing.
Chair Anderson: But we're interpreting the Agency Hearing as a Contested Case,
Mr. Abrams: Okay, alright, so that would then go in with all the others.
Chair Anderson: Yeah,
Ms. Higuchi- SayeQusa: Yeah, that's fine.
Chair Anderson: And for the Commission to consider as well, there is the objection to deferring
the 2.a. specifically to a Hearings Officer at this time, but it may be appropriate to include the
specification of whether or not the matters will be ... or moved upon will be deferred to. ..or
referred to a Hearings Officer as well. So things to consider.
57
Mr. Keawe: Was that 2.a. you said?
Chair Anderson: Sorry, 2.b., 2.b., yeah.
Mr. Keawe: Alright,
Chair Anderson: Okay, does the Commission have a motion?
Mr. Katayama: Madam Chair, just a question for our Attorney. Are there any time issues on
taking action on any of these items?
Ms. Higuchi- Sayegusa: Well, once it is set for a Contested Case then the Chapter 91 procedures
come into place, and so the time ... the timelines required by the CZO is told. So once it is
referred either to a Hearings Officer or we are setting it for a Contested Case then you know, we
go through the full process of the Contested Case procedures through taking up evidence, which
may or may not take a couple days. And then you have to allow for ... I believe it is ... we take
public ... we can take public testimonies after the evidence is presented. I think its thirty (30)
days after the close of the Contested Case hearing submission of Findings of Fact, Conclusions
of Law by both parties and then setting it for decision making by this body. So there's., it's a
procedure, but it's not. ..the timelines required by the CZO is told.
Mr. Hull: If I also might interject, Commissioner. In the event that it doesn't go to Contested
Case hearing, because the Department tracks all the applications for procedural matters, all of
these applications' last day for action, if they don't go into Contested Case, is the July 28th
Planning Commission meeting.
Mr. Katayama: So for agenda items F.2.e, f., and g., it's the July 28th date? Action item.
Mr. Hull: Excuse me. For every single New Agency Hearing application listed, the action date
per the Comprehensive Zoning Ordinance parameters is July 28th, as far as the scheduled
Planning Commission meeting.
Mr. Katayama: Thank you.
Mr. Chun: Madam Chair, I don't disagree with Mr. Hull, but that's one reason why I mentioned
those things, and if we can make an agreement then we don't need to address the issues of
whether or not there's a time period or not. And if the, ..and I agree with Mr. Hull that that's
what the Class IV Zoning Permit time limitation is July sometime. If the Department is willing
to do that before July, I think my clients would be open to that. We're more than happy to
discuss the scheduling of that to avoid any kind of problems with the July deadline. But there
is ... yeah, under what Mr. Hull said, there is a deadline under Class IV Zoning. And I don't want
to go down that road if we can avoid that.
Chair Anderson: Okay.
RK
Mr. Abrams: I'm going to take it in parts.
Chair Anderson: Okay,
Mr. Abrams: Shall we start with the three (3) that we can dispense with today?
Chair Anderson: I don't think we need a motion on those to proceed. It would be for the ones
that we're going into formal Contested Case hearing, and determining... and perhaps our
Attorney can clarify, but my understanding in terms of the options and where there is an
adversarial position from the Applicant going into Contested Case hearing, that that would be
a... setting it for the Contested Case hearing. Whether or not we have a date now, that's typically
what happens is that the Department Clerks will contact the parties and arrive at a date that
works for the Commission, if the Commission is going to hear it, or the Hearings Officer sets up
a pre - hearing meeting and arrives at the timeframe for the evidentiary hearing.
Mr. Abrams: So, Madam Chair, does that mean once we agree to set it for Contested Case
hearing, the last meeting in July deadline for these Agency Hearings is no longer controlling?
Ms. Higuchi- SUeausa: Yeah.
Mr. Abrams: Okay. I'd like to make a motion that we set 2.c., 2.d., 2.h., 21.1 i., j., k., and 1.
Mr. Hull: If I could interject, the ... for item number 2.j., is not an adversarial interest. The
Department is recommending approval for Samuel A. and Eugenia Caliendo.
Mr. Abrams: Withdraw that. I'll start again. Motion to set for Agency Hearing items 2.c., 2.d,
2.b. I'm going to take later because there is an issue about postponing that now okay.
So 2.c., 2.d., 2.h., 2.i., 2.k., 2.1. Do you want to...? That would be my motion to set it for
Contested Case hearing. As to whether or not it's in front of the Commission or a Hearings
Officer, can we decide that right after...? Because it's got to be one or the other right? I don't
know whether ... I don't know the sentiment of the Commission in regards to handling this type
of volume right now, or part, or some, or what. We do have that choice?
Ms. Higuchi -Sa, e�Qusa: Yeah, I guess we can do that in parts, but I mean...I think there's a
general consensus that we are in Contested Case, so now it's really a matter of Hearings Officer,
Commission.
Mr. Abrams: Yeah. Okay, so to ... well I make that motion to Contested Case and ... okay, I'll
make it easy. ..in front of the Commission.
Chair Anderson: Do we have a second?
Mr. Mahoney: Second.
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Chair Anderson: Okay, discussion? Any discussion from the Commissioners?
Mr. Abrams: Well, I'm not so sure I really want to do all of it. (Laughter in background) But I
don't know. That's a lot of other effort between now and whenever, but I guess that's the way it
goes, right?
Mr. Keawe: So just for my clarification, so that we serve as a body as what a Contested Case
Hearings Officer would do?
Mr. Abrams: Yes.
Mr. Keawe: Including calling witnesses and all that stuff?
Mr. Chun: No, you're not calling witnesses.
Ms. Higachi -Sa, eegusa: So, just to clarify, so I think we've done at least once before, but this
body will act as the quasi judicial body that hears the evidence. The Chair will act as the
Presiding Officer, and would call up, you know, would be the interface in the judge that
interfaces between the Parties and... But basically, you folks are going to be the judges, but that
also comes into play, scheduling. We'd have to make sure that we have quorum for each of
these Contested Case days, which may or may not be challenging for you folks. It might be a
full day of evidence and then coming back again thirty (30) days later, in most scenarios, thirty
(30) days later to set it for decision making. And then you'll deliberate and make a decision
based on the evidence you've heard.
Mr. Keawe: So as far as ... typically, as far as the amount of time to actually hear the case and
make a decision, are you talking about one (1) day or several days or...?
Ms. Higuchi -Sa, eeQUSa: Well, I guess it depends on the parties, but as we've seen at least in one
(1) case prior. ..two (2) cases prior, ..it's multiple days of just pure evidence. Because you know,
both parties are afforded their opportunity to present direct ... to call up witnesses, allow them
direct testimony, so the Department will put on its case and then the Petitioner will be able to
cross - examine each of the witness, and vice versa. Then the Petitioner would be able to come
and call their witnesses, and the Department's attorney will be able to cross - examine, and so it's
a process for each witness and you know, it could take up to a couple of days of just receiving
testimony.
Chair Anderson: Any other comments? I'll...
Mr. Katayama: I guess my ... what I'm trying to resolve is the issue of fairness, in terms of
presentation of facts. Now the Applicant's attorney has stated that he feels that the Commission
hearing the Department's recommendation as biased without their ability to present the facts.
And I'm not sure if the difference between having a Hearings Officer with their appropriate
minutes of each of...because it's verbatim. It's just a matter of, do you sit through... and if there
are any, to me, any questions or issues that arise in the process before a Hearings Officer that
does not preclude the Commission members of broaching those questions to either the
.1
Department or the Applicant. Now, to the extent that when you want to address those, is that
during the process of the presentation of facts or do you want to do it by looking at the minutes
as presented by a Hearings Officer? And I guess ... could we, as a Commission, ask that the
Conclusions of Law from both parties be submitted without the Hearings Officer presenting his
findings? And that way it will rest with this body.
Chair Anderson: Okay, so I've just been put on notice regarding the tape change request, so if
we can hold off on the answer to that question. We'll take a caption break for ten (10) minutes.
The Commission recessed at 2:52 p.m.
The Commission reconvened at 3:09 p.m.
Chair Anderson: Call this meeting back to order. We left off with a question from
Commissioner Katayama. If you can restate your question again.
Mr. Katayama: The question really centers around the ability of the Commission and its
members to revisit any part of the testimony or proceedings that went before a Hearings Officer.
Have we given up any ability to further delve into any portion of the testimony that was
presented to a Hearings Officer?
Ms. Hi ug chi- Sayegusa: And so just to kind of explain the process before a Hearings Officer
versus those handled... Contested Cases handled by the Commission, the Hearings Officer would
in essence be on behalf of the Commission. He would take evidence and you know, compile a
report and submit each ... any Proposed Findings of Fact, Conclusions of Law and reasons, and
recommendations that he has including ... and also the record would contain a petition, the notice
of hearing, motions, rulings, orders, transcripts of each of the hearings, any documentary
evidence, stipulations, findings. So basically the whole record gets transmitted to this body, and
you have the... everything before you to review. Then there'll be opportunities for the Parties to
take exception to whatever is in the record seven (7) days after receiving that packet, the record.
Then the matter will be set for decision making and the Parties will be ... come back to the
Commission and orally argue, like a final oral argument, before the Commission. The
Commission at that point would be able to decide on any exceptions, so if there's any particular
thing within the record that one party or the other disagrees to, that would be sorted out. And the
Commission, at that point, can render a decision; adopt one of the Proposed Findings of Fact. Or
you can reopen the docket and actually take further evidence at that point on any particular, ..if
there's anything in dispute or anything you want more evidence submitted on; you have an
opportunity to reopen it and to revisit the case at that point. So the short to the answer is there
will be an opportunity for this body to interface with the Parties and to take additional evidence
if you folks choose to do so. And you know, I think the procedures, as its set up by the rules, it's
really ... the Hearings Officer will be taking the evidence, but everything gets transmitted back
here and you folks do have oversight over the decision. Also, you can request both parties
subject Proposed Findings of Fact, Conclusions of Law and then base your decision on each
Party's proposed submittal; similar to if you folks were to handle the full Contested Case
yourself as a body.
61
Mr. Keawe: Once it goes to the Hearings Officer and his verbatim record is submitted, we can
only ask questions based on what's on the record. Is that true? Or can we ask other questions
that were not included that we might have?
Ms. Higuchi- SayeQusa: Like I said, I think if there's something that you ... some piece of
evidence that you wish to receive, you could reopen the docket after receiving the record as it
was developed by the Hearings Officer ... or accepted by the Hearings Officer.
I think Mr. Katayama summarized it kind of nicely. What you're really ... what you're losing out
on is the ability to simultaneously question the witnesses as a body, and also obviously hear and
see each witness, you know, through the process.
Chair Anderson: Any other discussion from the Commission?
I'd just like to point out, I know that my. ..personally trying to work out a schedule in which to
hold several Contested Case hearings within a full -time work schedule would be very difficult on
my schedule and it may prolong the process, given that I understand that we're not just
attempting to schedule one (1) individual in the case of ..as it would be with a Hearings Officer,
in which that is ... they've been contracted to that work. I'm sensitive to my fellow
Commissioners, you know, everyone has their particular day jobs and being volunteers and
having that amount of time to set aside away from, ..it may be a possibility for some. I can say,
for me, it would not be possible to set these for hearing within the next six (6) months. All of
them, if they were to take 3 -5 days, looking at the timeframe, that would be likely. So I would
not be supporting that all the matters go before the Planning Commission.
Mr. Abrams: You also had something I need to...?
Chair Anderson: Oh, I checked it and it wasn't the case, so...
Mr. Abrams: Oh, okay.
Well, I guess my discussion after hearing a number of this is you're probably right. It's going to
be almost a difficult task to possibly render some sort of decision making for the applicants in as
quick a timely manner as we can. So the Hearings Officer may very well be the only expeditious
way to go. So I may be changing my mind at this point.
Chair Anderson: Okay, so in terms of options, we could either withdraw the motion or we can
go ahead and move forward on the motion, and see if it is approved or not with the Commission.
It depends if...you made the motion so...
Mr. Abrams: I'd like to withdraw the motion.
Chair Anderson: Okay. I need the withdrawal of the second as well.
Mr. Mahoney: I'll withdraw the second.
%
Chair Anderson: Okay. Do I have another motion?
Mr. Abrams: Motion to refer to a Hearings Officer ... go down through the list again ... number c,
number d, number h, i., k., and 1.
Chair Anderson: Okay,
Mr. Mahoney: I'll second that motion.
Chair Anderson: Okay, and any discussion?
Mr. Mahoney: Madam Chair, in fairness to all and the amount of time that it's going to take, I
think, you know, after hearing the discussion that a Hearings Officer is the best route for the
Commission is in my mind. So that's why I'm going to be voting and that's why I seconded that
amended motion.
Chair Anderson: Okay,
Mr. Abrams: I see the tremendous burden it would be on you as our Chair. Yeah, so in terms of
that, because you have a livelihood to go and we're same thing, so time wise I think it'll be
quicker than that and that's more important to me right now at this point.
Chair Anderson: Okay, so is there any other discussion?
I did want to note, you know, this is a very important matter for the County and looking at all the
interests that in terms of protecting everyone's rights and allowing there to be the Contested Case
going into the formal Contested Case, allowing due process, allowing witnesses to be heard, and
heard under oath, and cross - examination, and all such on a time that would give ... afford each
applicant and each party, the Department, the necessary time to go through those. I think it's an
appropriate path to move forward and in terms of the Commission having the ability to review all
of the transcripts and also if the Commission has any further questions, we can reopen the
evidentiary portion to allow us to ask questions if that's necessary. I think that affords the
Commission the adequate information to be able to render the best decision that it can, so I
support the motion.
Alright, so given this, we'll go ahead and do a roll call vote.
Ms. Higuchi- Sayegusa: Commissioner Abrams?
Mr. Abrams: Aye.
Ms. Higuchi -Sa, eeggsa: Commissioner Mendonca?
Ms. Mendonca: Aye.
Ms. Higuchi- SayeQusa: Commissioner Katayama?
63
Mr. Katayarna: Aye.
Ms. Higuchi -Sa ey ggsa: Commissioner Mahoney?
Mr. Mahoney: Aye.
Ms. Higuchi- SayeQusa: And Commissioner Keawe?
Mr. Keawe: Aye.
Ms. Higuchi- Sayeausa: You have five (5) ayes.
Chair Anderson: And I "aye" as well.
Ms. Higuchi- Sayegusa: I'm sorry, Chair. (Laughter in background) Chair Anderson, I'm sorry.
Six (6) ayes.
Chair Anderson: Okay, and no opposition. Okay, the motion carries 6:0. Thank you.
And so this matter has been referred to a Commission Officer. They'll be in touch with the
Parties in terms of setting up a pre - hearing schedule and the evidentiary hearings, and the
schedule as it will go forward.
Mr. Chun: Madam Chair, I understand that it's the Commission's decision and I understand
what their position is, I just want to reiterate the matter was not on the agenda for a Hearings
Officer, but more importantly, I just want to request if the Commission would consider ... because
I guess the Commission was sensitive to the time, if you are going to do a Hearings Officer, I
would request that the Commission specifically instruct the Hearings Officer to have hearings
within a reasonable time. I believe six (6) months you thought would be unreasonable, and I
would agree with that. I would think since you are paying this Hearings Officer, giving him a
deadline to have the hearings no later than mid -July, within two (2) weeks, would be more than
reasonable given the fact that my clients have put their whole life on hold until the Hearings
Officer decides to do that. And the reason why I mention it, just for the record, is that
we9ve ... we had a Hearings Officer appointed back in February for Ms. Guyer's homestay
application in Wainiha. That was done in February, this is now June 23rd. We have not heard
from the Hearings Officer yet; way past four (4) months, five (5) months. And again, at least in
Ms. Guyer's case, the Planning Director came out and said, during this time period we're not
going to enforce, we're not going to send cease and desist, we're not going to submit to a
prosecutor for that ... for action because we consider that this application and the process to be a
compliance plan. And I requested that same consideration for my clients now, they didn't want
to do that. Okay, understood; however, given the fact that they don't want to do that then I think
is only fair then to hurry this matter along and you are paying somebody to do that. And for a
Hearings Officer to be appointed back in February and have not contacted us on June 23'x,
you're basically telling that client and all other clients in the situation that we don't care.
.-
Mr. Trask: Mauna Kea Trask, for the record, on behalf of the Planning Department. I think we
have to speak with the Hearings Officer to figure out what the schedules are. We have no intent
to delay these matters unnecessarily or be unreasonable with their scheduling. I don't know how
you can ... at this time without knowing anything, I mean talking about schedules and my
understanding is this Hearings Officer is likely to be from off - island, so you're talking about
traveling, everything like that. I think it would be an unreasonable request at this point to request
a hearing in two (2) weeks, without knowing anything further, so just with that.
Chair Anderson: Okay. To address the concern, in terms of the appropriateness of setting a
timeframe, I think again this is going to be a matter of scheduling amongst the Parties, but I
appreciate that you have brought it to the Commission's attention regarding the timeframe that
the Hearings Officer has taken to contact, and so I will be in contact with the Commission Clerk
in terms of the scheduling and to encourage that the initial contact and pre - scheduling happen
within a reasonable time. So I agree with you that that should be done within ... at least the pre -
hearing schedule should be set within a reasonable time and I believe thirty (30) days is
reasonable to...just in terms of initial contact. But in terms of setting a deadline for the
evidentiary hearing that again is going to be a matter of. ..it's going to depend on each particular
case and the number of witnesses and so on, so I would not look to try to set a final deadline for
the evidentiary hearing.
Mr. Chun: Understood. Just raise that as a point of objection though, just for the record, but I
understood ... I understand.
Chair Anderson: Okay. Thank you and that would be my recommendation as the Chair that the
pre - hearing scheduling conferences be set within thirty (30) days of the recommendation from
the Commission to set a...the matter to go before a Hearings Officer.
Alright, so having dispensed of much of the Agency Hearing Calendar, it's my understanding
that the next matter on the agenda is the Class IV Zoning Permit, 2.e.
Mr. Chun: Madam Chair, we still have b. I guess Mr .... Commissioner Abrams was going to
address that at a later time.
Chair Anderson: Thank you for that correction.
Mr. Keawe: Didn't you say you would take up Item b separately?
Mr. Abrams: Yeah, b. would be separate.
Chair Anderson: So for clarification, we're looking back at the transcripts. It was my
understanding that the second motion did include b.
Mr. Hull: No. To interject Chair, it did not include b.
Chair Anderson: Okay, so thank you for the clarification. We're...
M
So it's been clarified that the transcripts... that the second motion did not include Item 2.b., so as
to Item 2.b., that's where we're at at this time. Do we have a motion regarding this matter?
Mr. Abrams: Madam Chair, I kind of want to go over exactly where we were when we took the
sidetrack here in regards to all of this. And that had to do with Jonathan's objections to, ..or I
guess it was our Clerk objecting to Jonathan questioning Staff, right?
Mr. Chun: Right.
Mr. Abrams: As ... and his interpretation of Chapter 6 of our Agency Hearing in regards to his
right to do so. And we ... I don't know whether we decide that or you decide that, or then at that
point the issue at that point was your position that you would prefer this to continue on in some
form, rather than head to a Hearings Officer?
Mr. Chun: If I may, what was happening is I was asking questions of the Department's witness.
Mr. Dahilig objected and he said he needed time to prepare and to call the County Attorney's
office for assistance, I believe. And then the second part of the statement was we would want
to ... if it's a full Contested Case for this one, b., he wanted a continuance to prepare and also
because. ..to follow the rules. That's why I objected to that saying we already started the
presentation of evidence, the Commission already heard the Department's position, already
questioned the Department's witness, and under the rules I get to question the Department's
witnesses too. Once the Department finishes that, then my client gets to say her story and
present her witnesses and her presentation; and we're prepared to do that. And my position was
to stop in the middle of that on the basis that we're not ready for it, is unfair because they already
started taking ... the Commission already heard witnesses. But you know, I'm sure Mr. Trask has
a position on that, too.
Mr. Trask: For the record, Mauna Kea Trask. And in looking at a matter of fairness, I mean, as
you all know, under the Kauai County Code, and we're looking at here Section 8- 3.1(f), Class
IV Zoning Permits 3, within sixty (60) days after filing of a completed application, the Planning
Director shall prepare a report that indicates the reasons supporting the issuance, issuance with
conditions, or denial of the application. Report shall be sent to the Applicant, which Mr. Chun
received, to the Planning Commission, which you received, to any persons who have duly
requested the report, which I'm sure people behind me have received, and shall be made public.
So in this case, the only person who didn't receive that report was myself, the attorney for the
Department. And if we're talking about fairness, seems like everyone had an opportunity for
fairness except the Department. This is not to be interpreted as to lay blame or to cause
anything, but if we're talking about order and process and decorum and rules, I think it is most
fair to all parties that again, consistent with the other issues, we can continue these
proceedings... Mr. Chun can continue to cross, it can be revisited, if it's for any post hearing
procedures, you can even reopen the docket if there's further questions or exemptions filed. So
it's ... I would take the position on behalf of my client, they are entitled to representation, they are
entitled to due process. As the County Attorney, the office is a legal representative for all
Departments, and we request the Department be afforded that legal representation.
Mr. Chun: We object.
..
Chair Anderson: Okay. So we have this remaining item where there is an adversarial nature.
Do I have a motion from the Commission in terms of proceeding on the Contested Case or
referring this to a Hearings Officer as was done on the previous matters?
Ms. Mendonca: I make a motion that we move this case to the Hearings Officer as we have the
others earlier.
Chair Anderson: Okay. Do I have a second?
Mr. Mahoney: Second.
Chair Anderson: Okay, discussion. Discussion from the Commission?
Mr. Abrams: I'm ... I mean, I heard Staff and I realize he's objecting to not being able to
question Staff, but I haven't heard the Applicant. And I don't know whether at that point we can
ask to listen to the Applicant and ask him questions like what we did there, and then stop, but
that would be my preference. As a result, I wouldn't be prepared to suggest to go to a Hearings
Officer quite yet. So I don't know whether that's possible or not.
Chair Anderson: Do you want to answer this or...?
Ms. Higuchi- Sayeggsa: I guess the source of your concern is that it's...there's questioning that
was initiated, but not an opportunity on your part to question the Petitioner. It seems. ..but
this. ..I mean it kind of revealed the adversarial nature of the proceeding and I think that at that
point that's why we started in the discussion of the Contested Case and whether it should go
there. So as we've ... I guess we've talked about with regard to the other cases, I think because it
is adversarial, you know, we ... I think the consensus was that it should really be in a Contested
Case process, subject to HRS Chapter 91, whereas... whereby both parties are afforded that
opportunity to present and present testimony, and respond, and be prepared.
Chair Anderson: And my comment in terms of the, ..what's distinguishing in the matters that
have come before us today. Obviously we're in a position where we want to afford all the
parties their due process, and also give them the advantage to have their case fully heard and
that's why we're all here today. The parties have their application that was part of our packets,
as well as the reports on the applications. In terms of the process that we're in, it really seems to
depend upon, obviously the outcome of ..or the recommendation from the County. Attorney
Chun is very willing to go for the informal process if the County is recommending approval for
his clients, but then was unwilling to really set forth the ... when that formal process started, and I
think that's where it was unclear from the get -go whether or not we were going to be in the
informal process today on these matters or if a formal request for the Contested Case was being
set forth. And that's ... it's my understanding that that's why the Department made that statement
that okay at this point if we are going to be cross - examining, that the ... and that instead of the
Planner giving their report that they are now a witness that they may need to have time to prepare
further; that was the position of the Department. So in terms of moving forward, I think that out
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of caution and protection on all sides that if there is going to be an adversarial nature that we
provide that forum, and that correct forum is the Contested Case. That's my comments.
Mr. Abrams: Call for the question.
Chair Anderson: Yeah, I'd like to make a call for the question.
If you could repeat your motion.
Mr. Abrams: It was her motion.
Chair Anderson: Your motion.
Ms. Mendonca: My motion?
Chair Anderson: Yeah.
Ms. Mendonca: I move that we take this particular case, which is F.2.b., and let it, ..leave it at
the Hearings Officer's recommendation.
Chair Anderson: Okay, so refer the matter to the Hearings Officer. Okay, and we had a second?
Mr. Mahoney: Second.
Chair Anderson: Okay, so discussion? (None) All those in favor? (Voice vote 3 ayes) Any
opposed?
Mr. Abrams: Aye.
Chair Anderson: Okay, noting one (1) opposition and...
Mr. Keawe: Two (2). Aye.
Chair Anderson: Okay. So we have... and I vote in favor, aye, so we have four (4). So the four
(4) is the majority, the motion carries 4:2. Thank you.
Mr. Chun: Madam Chair, I understand the actions of the Commission. I just object for the
record for that that it deprives my client of due process. But more importantly, in order to...I
would suggest and just a suggestion, that not only for this Contested Case, as the Commission
has decided, but for all the other Contested Cases that the Commission members return all of the
reports and communications they received, other than the public ones, to the Department and
destroy any other copies they might have. Because that's the situation, and you know on one
hand the Commission is saying is a Contested Case and you have the right and we're not going
to take any evidence, and in fact the Department might have said that's not evidence, but if that's
not evidence and we're in a Contested Case, they shouldn't even have it.
Mr. Hull: I would also interject then. For the attorney, Mr. Chun, are you also requesting that
they return the application which also serves as a legitimization for the permit?
Mr. Chun: No, the application is like ... if you go to the court, the application is like a complaint;
it starts the proceeding.
Mr. Trask: And for the record, Mauna Kea Trask. I would then postulate that therefore the
Planning Department's support is the answer and then you proceed to evidence at a later point.
Furthermore, under the Kauai County Code as I stated earlier, 8- 3.1.f.3., the law requires this to
be produced, to be given to the Applicant, to be given to yourselves, to be given to anybody else
who requests it, and it's a public document. I don't think you can legally or practically destroy
copies of this public document; it's a public document, so with that, ..that's all.
Mr. Chun: I'm just asking to be consistent. If the Department considers their report not
evidence, and hence I can't question them, then the report is not evidence. If it's not evidence, it
shouldn't be in.
I didn't take that position that was the position the Department took today.
Ms. Hi cgu hi- Sayegusa: I think at this point, it ... there is the application and the Director's
Report, and everything is going to be set for a hearing. At that point, both Petitioner ... the
Petitioner will be able to question and clarify and present evidence at that point. It becomes an
issue in timing and when the body who's going to, you know, analyze and accept more evidence
at what point they received it. In any case, it'll be part of the record, and at the hearing date the
Petitioner will be able to submit testimonies and question based on all of the application and the
Director's Report.
Mr. Chun: I hear you. It's just that the situation is the Commission has referred everything to
the Hearings Officer. The Hearings Officer is entitled to take evidence and documents in support
of the Parties' position. The Commission is supposed to just only be looking at the formal record
that the Hearings Officer has created, and that's what I'm trying to get at. That the Hearings
Officer hasn't created a record, you have a record on your own which you're reading now
without the Hearings Officer; and that should be corrected.
Mr. Trask: And so given that, I mean at this point, the Planning Department would therefore
move to strike all of the testimony taken, any presentation, and then re -begin the taking of
evidence in front of the Hearings Officer. If the parties will stip, I think we can address that
hurdle via that way.
Want to do it again?
Mr. Chun: Yeah, well no, on 1 -6-11 specifically states public testimony. The presiding officer
shall suspend the rules and open the Agency Hearing to the public as required by law. Cross -
examination of public witnesses shall not be allowed by the Petitioner and Intervener. That was
done today. Point D, close public hearing (sic). Upon the admission of all or public evidence,
.•
the presiding officer shall close the public testimony. That was done today. I'm not talking
about the public testimony, I'm talking about a Party's position and evidence and documents.
Mr. Trask: Therefore to clarify my statement, what I meant was, in order ... under 1 -6 -6 of the
Planning Commission rules, waiver of procedure. Any procedure in a Contested Case may be
modified or waived by stipulation of the Parties and informal disposition may be made of any
Contested Case, etc. It's not going to happen today, but in order to address Mr. Chun's concerns
in effort of good faith, the Department would be fine to stipulate at this time on the record to
strike that portion of the testimony provided by Mr. Hull, his report, any questions or answers
elicited by Mr. Chun on behalf of his client, and we can begin the evidentiary portion, not the
public hearing, etc., correct, but begin the evidentiary portion before the Hearings Officer in
order to facilitate and waive the procedure as appropriate.
Mr. Chun: We would stipulate to that.
Chair Anderson: I'm glad the Parties could come to an agreement. Thank you.
Mr. Keawe: Madam Chair, are we done with that one?
Class IV Zoning Permit Z -IV- 2015 -23 and Use Permit U- 2015 -22 to allow conversion of
an existing residence into a homestay operation on a parcel located along the eastern side of
Kipuka Street in the Weliweli Houselots Subdivision in Po`ipu, situated approx. 150 ft. east of
the Muku Place/Kipuka Street intersection, further identified as 1960 Muku Place Tax Map Key
2 -8 -024: 020, and containing a total area of 11,174 sq. ft. = Bret K. & Ellen Knopf Trust.
Ms. Higuchi -Sayeg lsa: Okay, so I believe. .'Chair, yeah we are on Item F.2.e.
Mr. Dahilig: Madam Chair, we are on Item F.2.e., a Class IV Zoning Permit Z -IV- 2015 -23 and
Use Permit U- 2015 -22 to allow conversion of existing residence into a homestay operation on a
parcel located along the eastern side of Kipuka Street in the Weliweli Houselots Subdivision in
Po`ipu, situated approximately 150 feet east of the Muku Place/Kipuka Street intersection,
further identified as 1960 Muku Place, Tax Map Key 2 -8 -024: 020, and containing a total area of
11,174 square feet. Applicant is Bret K. and Ellen Knopf, Trust.
And again, Kaaina and Marisa will be making the presentation on behalf of the Department.
Staff Planner Marisa Valenciano: Good afternoon Madam Chair and members of the
Commission. I'm going to go ahead and summarize my report, if that's okay with you.
Okay. The proposal is to convert an existing residence into a homestay operation. The
residential dwelling contains four (4) bedrooms and four (4) bathrooms. As represented, the
Applicant will continue to reside within the dwelling while operating as a homestay. For
transient accommodation purposes, the homestay operation is proposed to utilize three (3)
bedrooms within the residential dwelling.
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Mr. Hull: If I could interject real quickly here, there is some confusion with the application
actually in this process. In that, in portions of the application it mentioned (4) bedrooms and the
later portions of the application it represented five (5) bedrooms. The Department was initially
under the representation of five (5), and had that in this report, but later upon further review of
the application, there was some confusion about that. So later on, we requested the Applicant to
clarify that representation.
Ms. Valenciano: Okay. Then I'm going to jump ahead into portions of the preliminary
evaluation. So point number four (4), the Applicant has operated a homestay for approximately
thirteen (13) years. The Applicant has ceased operating the homestay. To date, the Department
has not received any complaints concerning the operation of a homestay on the subject property.
The absence of any complaints against the homestay operation by surrounding neighbors living
in or frequenting the surrounding area is demonstrative of the operations' compatibility with the
surrounding area. Neighboring property owners have submitted letters for the record that are in
support of the subject homestay operation. In the case of homestay operations, the presence of
the owner at the site acts as a self - regulating mechanism. That is to say, activities that could
significantly impact surrounding neighbors are often prohibited by the owners of homestays
because such activities are just as, if not more, impactful on the owners who are residing on -site.
The noise and other impacts often associated with TVRs, where no property owner is present, are
often not found at homestay operations because of the owner's presence and self - regulation. The
proposed operation should not be detrimental to the health, safety, peace, morals, comfort, and
general welfare of persons residing or working in the surrounding area, and should not cause any
substantial harmful environmental consequences. The Applicant currently maintains a
homeowner's exemption as verified through the County of Kaua`i's Real Property Tax
Assessment records. The Applicant should maintain a homeowner's exemption for the homestay
site to ensure that the homestay operation is within the same primary residential site where the
owner resides. Further, the Applicant should be required to be on -site and available to guests
whenever the homestay use is occurring. To be mindful of neighboring residential properties
and for the safety of visitors, the Applicant should inform the guests of the following: (a) all
vehicular parking related to this use and property including maintenance vehicles shall be
accommodated on the subject property at all times. On- street parking shall not be permitted at
any time. Point (b), guests shall be informed that elevated noise activities or amplified music
shall not be permitted after 10:00 p.m. These limitations should be incorporated into a
compulsory "Safety for You and Your Neighbors" and "Welcome and Notice" posted within the
dwelling, and within any and all contracts and advertisements for use of the structure from the
date of the approval. Copies of these documents should also be provided to the Department. To
help facilitate emergencies and immediate concerns by neighboring residents or guests, the
Applicant should post an outdoor sign in a visible place within the front of the subject property
for the purpose of providing the current homestay zoning permit number and the 24 -hour contact
information. Point thirteen (13), in order to ensure that the homestay operation continues to meet
the conditions of approval, the Applicant should be required to annually recertify the operation
with the Planning Department. If approved and in accordance with Section 11 A- 2.2(a) of the
Kauai County Code, the Applicant shall submit to the Planning Department Environmental
Impact Assessment, EIA, fees for the project. The EIA fee for the subject proposal is assessed at
$100.00 per the minimum number of parking stalls required by the Comprehensive Zoning
Ordinance. The minimum number of off - street parking stalls serving the proposed homestay
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operation is three (3); therefore, prior to operation, the Applicant shall submit to the Planning
Department an EIA fee of $300.00.
At this point, I'm going to hold off on the recommendations and conclusions until the Applicant
speaks.
Chair Anderson: Is the Applicant here?
Mr. Chun: Good afternoon. Jonathan Chun on behalf of the Applicant, and with me is Ms. Ellen
Knopf.
Ellen Knopf: Aloha Planning Commission. I come in peace. I've been offering vacation rental
on the island since 2000. My husband and I came from Palo Alto, California in '98 with four (4)
children. We purchased Koloa Landing Cottages; we ran that for a number of years. In addition
to, in 2001 we purchased a home in Weliweli Track; five (5) bedroom, four (4) bath home, which
is now a four (4) bedroom, four (4) bath home. We combined two (2) of the smaller bedrooms
into one (1).
Long story short is, I believe in homestays. We...my husband and I just returned from Portland
where three (3) of our adult children live. We stayed in an Airbnb there for three (3) weeks. We
were lucky enough to do that. We planned this for the last couple of years. We were lucky
enough because of paying $80.00 a night to stay in this particular Airbnb rental. Quite frankly,
there's a lot of people that couldn't afford to come to the island unless they could find rentals
such as ours, and a lot of people aren't wanting to be in the resorts or even a TVR. We get a lot
of single women, we get a lot of couples, honeymooners, and our rates are very affordable. I sit
and speak with each of my guests, talk story, tell them about the island. My mom was born and
raised on Oahu and as one (1) of eight (8) children, I spent a lot of time at my grandparents'
home in Makiki on Oahu. My grandfather, I remember one day, he's one (1) of seventeen (17),
my grandfather one day was talking to one of my aunts and she was complaining about
something to do with tourism. This was probably about fifty (50) years ago and my, ..I
remember my grandfather getting a little upset and saying hey, the mainland, they need us; and I
really believe that. I believe I make a difference on this island; like I say, we sit with each of our
guests and just offer the Aloha spirit. I'm proud of it; I love what I do.
My husband had a traumatic brain injury in 2008. We've never taken any kind of
unemployment. We work hard. I don't know what my husband would do without the homestay
that we offer at our property. I have seen people standing out in the gardens with him; saw one
man in his underwear one morning, standing out there talking to my husband. But our guests
love what we do, we're proud of it. I think I mentioned earlier, my great- grandfather opened the
first bar /saloon, lodging accommodations in Waimea back in 1899 and I kind of feel like I'm
great- grandfathered in, but I've been doing this for a number of years. I pay my GET and TAT
every month since 2000. And I don't know what else I need to say. Thank you.
Chair Anderson: Thank you.
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Mr. Chun: Thank you. In answer to the questions of the Department, yes the floorplans show a
five (5) bedroom, but according to Ms. Knopf, the application is correct. They enclosed or they
combined the two (2) smaller bedrooms to make it only a four (4) bedroom at this point in time.
I believe the property was inspected, so the Inspector can confirm whether or not there's four (4)
or five (5) bedrooms, but according to Ms. Knopf, it is now a four (4) bedroom as opposed to a
five (5) bedroom. And she is open to limiting it, only because there are four (4) bedrooms now,
to renting out only no maximum, ..no more than three (3). We can answer any questions that the
Commission or the Staff might have.
Chair Anderson: Okay, are there any questions for the Applicant?
Ms. Mendonca: I have one. Jonathan, she has a homeowner's exemption right now, yeah?
Mr. Chun: Correct.
Ms. Mendonca: Has she always had this from day one?
Mr. Chun: I don't know, but I know she ... on the tax records they have a homeowner's
exemption.
Ms. Knopf: I've actually been classified as vacation rental for the last couple years, and this year
they have me classified as commercial home use. I applied for my TVR on the property
about, ..back in 2010, and I kind of got run through the ... mill, I don't know what to call it, and
then turned down. The permitting process for what I run has been very confusing. I can't begin
to address ... tell you what I've been through except that I've been patient. I've always heard that
slow and steady wins the race, so I'm hoping to be able to continue what I'm doing.
Ms. Mendonca: But you've had the homeowner's exemption all this time?
Ms. Knopf: Yes.
Ms. Mendonca: Okay. No further questions.
Mr. Keawe: I have a question, Madam Chair.
Chair Anderson: Yes.
Mr. Keawe: Just real quick, what are your rates? In compared to ... obviously we know what all
the hotels are charging, especially in that area.
Ms. Knopf: You know, I have a little bit of a sliding scale. Right now, my rentals go for about
$100.00 to $115.00 a night; of course lower if I have something available and someone's coming
in. I'll give you my website later.
Chair Anderson: What's the occupancy per room?
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Ms. Knopf: Both of the rentals have queen -sized beds in them, so one (1) to two (2). And when
the four (4) children were living at home, there were six (6) of us there. I never have more than
six (6) on our property.
Chair Anderson: Any other questions?
Mr. Abrams: Yes. Jonathan, the ... your proposal is to utilize only three (3) bedrooms out of the
four (4)?
Mr. Chun: Correct.
Mr. Abrams: And so which bedroom are you not planning on utilizing?
Mr. Chun: Any one which Ms. Knopf is in. No, I'd have to ask Ms. Knopf which bedroom that
she stays in.
Ms. Knopf: Well, it's called Bret and Ellie's room.
Mr. Abrams: Okay, let's see. Is it on the plan here?
Ms. Knopf: It would be ... Louie, it would be the back or at this point, the front bedroom that has
been combined. We had two (2) small bedrooms on the front of our house. They have now been
combined to one (1) larger bedroom; that's where we're currently residing.
Mr. Chun: It's the one next to the dining room. The two (2) bedrooms that you see to the left of
the dining room were combined. I guess that one is now Ellie's room.
Mr. Abrams: Okay.
Chair Anderson: Any other questions?
Mr. Abrams: Thank you.
Chair Anderson: I wanted to know if the Applicant has any response. I saw ... I believe it was
the comments from the Department of Health regarding... recommending an upgrade to. ..from
cesspool to septic.
Ms. Knopf My understanding is that they didn't recommend it; well, maybe it was a
recommendation. My understanding is the Health Department said what we're doing now is
fine, and at some point it could be considered as a recommendation, but I didn't *I didn't read it
to say that they were looking for us to do that now.
Chair Anderson: Do you have any plans to upgrade to septic system?
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Ms. Knopf I'll tell you, from the cease and desist that's been going on, right now, financially,
we wouldn't be able to do that. But at some point should it prove or if we're told that it's
mandatory, of course I would comply.
Chair Anderson: Okay,
Mr. Chun: If I may, the comments from the Department of Health was that the existing
wastewater system can continue to be utilized provided that wastewater flows do not exceed
1,000 gallons per day, which is its design capacity. The Department of Health strongly
encourages the Applicant to upgrade the existing cesspool to a septic system at this time. The
continued use of the cesspool for these purposes cannot be guaranteed as future legislative may
require an upgrade. However, these comments only apply if the floorplan submitted in Exhibit 1
is accurate. There is discrepancy between Section IV, which state then again the four (4) and
five (5) bedrooms, so I gather since now we have five (5) bedrooms, the ... we are under the
count. For those of. ..Commission members, the Department of Health rules say a maximum of
five (5) bedrooms per septic system, or cesspool, and I think that's why...the reason why they're
concerned because at the application, the plans said five (5) bedrooms now it's four (4)
bedrooms. So I don't believe we... at this point in time that they are concerned with that.
There's no recommendation to do that. Also, I think what the Department was ... the Department
of Health was concerned is that they are looking at future potential changes to the requirements
mandated by the Federal Government to discontinue all cesspools. I think they were just giving
the Applicant a heads up that eventually you're going to have to do a septic system. When that
occurs, I think the Applicant will have to comply no matter what so.
Ms. Knopf: And if I could just add in, we have never ... we owned the house since 2001, we have
never had any issues with our cesspool system.
Chair Anderson: Any other questions for the Applicant?
If we can go ahead and have the Planners read their recommendations.
Mr. Hull: Based on the foregoing findings and evaluation, it is concluded that through proper
mitigative measures and compliance efforts, the proposed development can be considered and it
should not have significant adverse impacts to the environment or the surrounding neighborhood.
The proposal is generally in compliance with the criteria outlined for the granting of a Use
Permit and a Class IV Zoning Permit. The Applicant should institute the "Best Management
Practices" to ensure that the operation of this facility does not generate impacts that may affect
the health, safety, and welfare of those in the surrounding area of the proposal.
So based on the foregoing evaluation and conclusion, it is hereby recommended that the subject
request to convert an existing residence into a homestay under Use Permit U- 2015 -22 and Class
IV Zoning Permit Z4V- 2015 -23 be approved. The Department also has a list of recommended
conditions of approval, which we submitted to the Commission previously on June 9h, and we
stand by those recommended conditions of approval.
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Chair Anderson: Does the Commission have any questions regarding the recommendations from
the Planner?
Mr. Katayama: Madam Chair, question for the Planners or the Department. One of the things
that we are trying to balance or characterize is the. ..is this a residence that is guest- oriented? Or
is this more a resort that is in a residential area? How does the Department view that if three -
quarters of the dwelling is subject to third -party use?
Mr. Hull: (Inaudible) an interesting question. It's hard to say because I mean, the
percentage... the percentage discussion is a little hard to address just because there may be some
applications that come in here with more than five (5) bedrooms, or there may be applications
that come in here with less than, ..one (1) or two (2) bedrooms and whether or not it constitutes
50% or 75% of the dwelling, would not necessarily determine the impact that transients could
have on the surrounding neighborhood. Ultimately, it would be the number of bedrooms
specifically, and that threshold hasn't been specifically set legislatively. The Department
attempted to, previously in legislation and will attempt to do again, to set a standard for which a
certain amount of bedrooms will be indicative of how impactful an operation could have on a
neighborhood. But in looking at this particular application, as Marisa pointed out I mean, the
Department doesn't encourage operating without permits, but the whole determination on
whether or not they should get a Use Permit is to assess whether it's going to be compatible.
And like I said, while we don't encourage operation without permits, the fact that they have been
operating and in this particular instance we have not received a single complaint, to a certain
degree attests to the fact that they are compatible with the surrounding area. We state that in our
report, we also did preface to the Applicant that should individuals come to the hearing and
testify against the application, while stating they didn't officially complain about the operation
previously to the Department, but that they are in fact here to testify that there are particular
impacts that this operation has, then this Commission would also have to assess those statements.
Mr. Katayama: From an impact point of view, if you have four (4) bedrooms that are basically
being utilized that has four (4) cars and generating a different kind of usage, as opposed to a
family that has sort of a normal family structure which may have two (2) cars, I mean, how is
that, again, as you move into a residential impact. ..I think we'll address the issue of the numbers
later, but just as these initial homestay applications are being rendered, is that... I think for
myself that's the challenge is that if one (1) bedroom is being utilized, ..and I'm not saying the
Applicant is doing it poorly ... the question is just from a use impact, is that ... is it more resort.
like or is it more residential- like? And how can you help us sort of make that judgement?
Ms. Knopf: Can I speak again? Is that possible?
Mr. Chun: It's up to the Chairman.
Chair Anderson: If the, . A you want to remain at the table with your counsel, please do so. At
this time, we're asking questions of the Planner and I will give the Applicant an opportunity to
comment on the answers from the Planner.
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Mr. Hull: To go back to Commissioner Katayama's question, ultimately we would look at the
uses as transient, which is why they have to get a Use Permit. If it was determined that it's
residential in nature, then this application wouldn't be before you folks. Ultimately, it's a higher
intensified use of the land and specifically because it's using those rooms for transient purposes.
Mr. Katayama: Thank you.
Chair Anderson: Did you have comments that you wanted to make or clarifications regarding
the question that was ... to the Planner?
Ms. Knopf: Can I speak?
Chair Anderson: Yes, please.
Ms. Knopf: Okay. Just a little clarification. When we purchased this house in 2001, it was
listed as a two (2) bedroom, two (2) bath rental and a three (3) bedroom, two (2) bath residence;
kind of interesting. So in other words, the house was built in a way where there is ... on the left
side of the house as you come up the driveway, its two (2) separate entrances; there's an upstairs
unit and a downstairs unit. When we first hired Jonathan, Jonathan said okay in this house, how
many bedrooms were you going to use? Well, just for the sake of coming before you all, I said
well, you know, three (3) bedrooms, but to be honest with you, we really only need to
continue... we'd really only like to continue to use the two (2) bedrooms.
The main thing I want to say is I went around to all of my neighbors who, you know, we have for
barbeques, as well as our guests, and what they like about our homestay is our neighbors have
met people from all over the world. It's just an amazing, I think, gift to our neighborhood. If
any of our neighbors had an issue with parking, I think they would've come forward. I've got
letters of support from all of them; no one had any complaints. We're very considerate of our
neighbors, which I can't imagine living in a neighborhood and not being considerate of
neighbors because we're all part of our community there. So that's mainly what I want to say.
Parking has not been a problem for us.
Chair Anderson: I have a question. Previously you testified that you'd like to maintain no more
than six (6) people at the property, does that include you and your husband as well?
Ms. Knopf: Yes,
Chair Anderson: Okay,
Ms. Knopf But at the same time, you know, sometimes children, young adults will come home
for a visit; that's more of a transient, but as far as right now, it's just my husband and I living at
the property. It's a big house for just the two (2) of us. We've put a lot of money...we
have, ..the rooms are nice. We've put a lot of tile flooring in, bamboo flooring, we've put a lot
of money in to be able to operate this homestay.
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Chair Anderson: Okay, so the Department has read their recommendations. Does the Applicant
have any comments on the recommendations?
Mr. Chun: No, we have no comment on the recommendation. We would agree with the
recommendations as listed in the preliminary report conditions number one (1) through. ..is it
thirteen (13)? Fourteen (14). One (1) through fourteen (14).
And also, we note, .Just to finish up the statement ... we note the application has, attached to it,
eleven (11) letters of support from the Applicant's immediate neighbors, which is (inaudible)
unusual. Normally we don't have that many letters of support from neighbors.
Ms. Mendonca: I have a question.
Chair Anderson: Yes.
Ms. Mendonca: Jonathan, the Applicant just ... I might have heard wrong, so please clarify this.
Mr. Chun: Sure.
Ms. Mendonca: She mentioned that, you know, she's using, ..two (2) bedrooms are more than
enough or you suggested three (3). And under those circumstances and the concern that
Commissioner Katayama expressed, as far as the volume, perhaps we should use this to say two
(2) bedrooms instead of three (3)?
Mr. Chun: I can ask the Applicant whether or not she would go with two (2) or wants to
maintain three (3).
Ms. Knopf. Well since I'm right here, the Applicant would agree with the two (2) bedrooms.
Thank you, Jonathan.
Mr. Chun: The Applicant would agree to a reduction to two (2).
Ms. Mendonca: And then I have another suggestion, if I may. Because of the cesspool concern,
and I know you may not have had any problems, I would like to suggest that there would be
maybe Item 15 that within twenty -four (24) months of this approval that you have it replaced
with a septic system.
Mr. Chun: When would that be?
Ms. Mendonca: Within twenty -four (24) months after this approval.
Mr. Chun: I would probably not advise or would object on that. That is not a matter of the
Planning Commission; that is a matter from Department of Health. Department of Health has
not deemed it at this point in time to be a violation.
Ms. Mendonca: They did not deem it a violation? I'm sorry, I didn't see that.
Mr. Chun: No. The Department of Health does not deem this a violation. The Department of
Health and their comments indicated that the current capacity is proper. But I think what the
Department of Health was saying is that be prepared for future regulations that might come down
that would stop all septic ... I mean, all cesspools on all residential. And that's true. I think
they've been making rumblings about that for a number of years already. Our position on that is
if the Department of Health regulations come down and require the cessation or the changing of
all cesspools to septic system, the rule is the rule is the rule; we will have to comply.
Mr. Dahilig: I guess, you know, just from a standpoint of what is environmental best practice. I
mean, currently, environmental best practice is to put in septic systems and these cesspools are
antiquated means of, essentially, dealing with wastewater. And so I would like to, you know,
proffer that part of the conversion of use here is to also potentially look at upgrading these
systems mainly because...maybe because of the conversion. Again, we're having a change here
and it should be in the best interest of the County to look at bringing things to an
environmentally ... what is the current environmental standard now. Because, as you know,
cesspools are not being approved anymore by ... in terms of these large capacity cesspools, so we
are, . 'I think from a Departmental standpoint, it would be best practice for us to also look at
whether bringing things into what is the environmental standard currently, as part of these use
conversions, is an appropriate thing.
I guess the question is, is the issue an issue of time or is it an issue of just not wanting to do it?
Mr. Chun: It's a question of time and money.
Ms. Knopf: Can I just say, I've always been of the school of thought if it's not broken, don't fix
it. Now as I mentioned earlier, by all means, if we had issues with our cesspool system, which
operates really nicely, I would be the first one to say we need to deal with this. But to use that as
a stipulation... there is a lot of money that's gone out over the last many years. I'm not getting
into what I've been through with Planning Department trying to legitimize my business, but I
just want you all to know that I run a really nice rental. I offer a really nice destination for folks
and I'd appreciate it if that wasn't necessary on the approval. Thank you.
Mr. Dahilig: I guess, you know, the fact of the matter is ... and we deal with this constantly
across the island and mainly in a lot of areas relating to sensitive areas; residential areas, these
types of things. It is the EPA and the State Department of Health's desire to migrate people over
time from cesspools over to septic systems; I mean, its good health for everybody. I understand
the financial issue, but is it something that can be achieved over time that we migrate because of
this use change to something that is more environmentally in concert with living in harmony and
the environment; maybe not twenty -four (24) months, but maybe something all the lines of
thirty -six (36) months, forty-eight (48) months.
Ms. Knopf My husband would like to respond. This is Bret.
Bret Knopf Okay, Bret Knopf, Muku Place. When we had kids living at that house, we had
girlfriends, we had boyfriends; the guests are barely there. The cesspool use before was way
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over the top; you know how teenagers go through the laundry, they wash the cars. We're so
much more fragile than we were before, and it actually is, as she was stating over and over and
over again, right now, we're going to barely make it through because of this. This was a fun
little ride we've had. Yeah, if we were to sell the place, how are we going to change the
neighborhood? We're not going to benefit the neighborhood by changing this ... by us not doing
this. We're giving massive amounts of benefit right now, and I'd say yeah, maybe four (4)
years, maybe by then we'll be all fine, everything's cruising along. But there's a lot of gray hairs
in this beard that only showed up this year. So...
Mr. Dahili &. Alright. And just to say that this process has also given me gray hair too, so it's
mutual. (Laughter in background) And Jon, let's not make comments on hair.
Mr. Chun: My concern is it is cost; it's a cost item. But also more importantly, I mean and
you're looking at the bigger picture, it is something that the Department, I gather, is searching
with. The problem I would have on this issue is what about all the other bed and breakfasts that
were approved in the past that didn't have this as a concern? What about all the TVRs that were
approved that didn't have this as a concern? I'm not saying because the Department...because
the Department of Health never raised it on all previous. So I would ask the question, what has
changed factually between then and now that would say that there's a big need to add that in? If
you're saying we should look at it, should consider ... I think that's a valid concern that we should
look and consider, but setting a set time period and then using that as the template for maybe any
others without any departmental or agency. ..other agency input, I think is a bit premature at this
point in time. I mean, I can see the Department saying that if the Department of Health
definitely said you should convert at this point in time because it's an increase in use as a
commercialization and la la la. But we don't have that here, and I think adding that on kind of
robs, to a certain extent, the responsibility and authority of another department. That's just my
comment.
Mr. Dahilig: I guess, you know, I would agree to the extent that we rely on ... as a Clearinghouse,
we rely on expert agencies to actually provide us feedback, etc. on these things. But I think
overarching that what our responsibility from a departmental standpoint is to recommend to the
Commission is things that also. ..keeping balance the health, safety, and welfare of the
community. And the policy of the Environmental Protection Agency going back to 2005 has
been, you know, cesspools are outdated; they're not good for our drinking water, they're not
good for our environment, and they over time need to be replaced. Now I understand the
financial cost that's involved, but I think what's being raised here is kind of the broader
community responsibility issues relating to health, safety, and welfare, and if this is being asked
of from a permission standpoint, is this the juncture where we say we would like to see, from a
good neighbor standpoint, that you migrate over to what EPA calls as the current environmental
practice standard right now. I think that's what it is, so it's ... I mean, would there be an objection
if the Director's Report were to be amended to require conversion within a forty -eight (48)
month timeline from approval, given the statement of your applicant?
Mr. Chun: I would have to check with my applicant, obviously, on that, but you know, I hear
what you're saying, but again, the question and the procedure is whether or not this particular
application at this particular location will cause environmental harm. And I understand the
.1
EPA's position because of the drinking water issues, and cesspools, and not only that, it's
migration to the ocean and things like that, so I understand that. And I can understand if that
were in this particular ... because of the particular application and the particular place that there is
a danger of that happening with this particular cesspool. If it was located over a known aquifer
where drinking water is being taken or located as some places close to the shoreline where we
have evidence that there is migration or there are problems of bacteria in the ocean that could be
caused from leakages from cesspools. I understand that and I think in that particular case, yes
that those concerns can be addressed because it may cause environmental harm. But to apply
that to a situation where you have no facts like that at all, that I can see, you know, in this
particular case, I don't know whether it would be justified. Now I would have to check with my
client, but like I said, I'm not arguing that in terms of future ones, if you do see that as a
problem, or potential problem, raise it. But where there is no evidence or facts to show it is a
problem, or potential problem, I wonder ... but I'll check with the client. If we could take a short
recess, so I can check with my client on that.
Chair Anderson: Okay. Yes. Given that you would like to confer with your client, we'll take a
ten (10) minute recess.
The Commission recessed this portion of the meeting at 4:22 p.m.
The Commission reconvened this portion of the meeting at 4:38 p.m.
Chair Anderson: Call this meeting back to order.
And just to advise, you know, the time during the day has gone by quickly. We're approaching
the 5 o'clock hour. We will continue in the hearing until 6:30 p.m. and then we will break for
the day. Rather than continue the hearing, any matters that have not been addressed will be
posted for the next hearing in July, July 28th.
Mr. Chun: Understood, thank you. I didn't know the time went by so fast.
To complete the thought, when we last took a break, we were discussing the potential for
converting to a septic system. My clients don't object to the fact that the septic system
eventually will, as a matter of course, will probably be ordered by the EPA and Department of
Health. The question really is timing, and I think my clients would want to impress upon the
Commission some important factors: (1) we're talking about Po`ipu and Koloa, specifically
Po`ipu I guess. The Po`ipu area and this neighborhood is rock. So if you're going to install a
septic system in rock, it's a different situation than installing it in soil and dirt. There's
additional costs involved in the potential for disruptions of the other additional surrounding
areas. The other thing is the cost of digging into rock to install a septic system is not your typical
septic $10,000420,000 cost. It is ... and my clients informed me that their neighbor has put one
in because he did an ADU, it cost him $35,000 to do that and that was a couple of years ago, so
we're not talking about a small investment. In addition to that, they did. ..you know, I mean my
clients have been looking into it because it's not something that they were ignoring. They were,
in good -faith, were talking about it a while ago. But with the contractor they were talking about
said if you do put one in there, their old banyan tree, which is their trademark in front of their
house, will be ... have to be removed because there is no other room to put the seepage pit and/or
the tank. So you're talking about a lot of different impacts; one the cost, one the visual impact
on a tree which has been maintained there for a very long period of time. That being said, my
clients are open to doing that, but believe an extended period of time of ten (10) years or a...or
sooner if the Department of Health and/or EPA comes out with the rules mandating it, of course
we will comply. But doing it in a shorter period of time, given the cost and the disruption to the
property and the neighborhood, I think it's a, ..without any further facts to say the necessity of it,
I think my clients would not, .'could not agree to that.
Chair Anderson: And just for the record, you're referring to a longer period of time. Can you be
specific?
Mr. Chun: We said ten (10) years; ten (10) years probably. And just to let you know, the
rationale ... you know, we are aware, and I don't disagree with the Director in terms of that's
where the EPA is coming from and the Department of Health, both of them. They have made
(inaudible). In fact, they've also said they want to adopt rules saying that if there's a change or
sale of the house, you'll have to convert to septic system. We know it's coming, and our
position and my clients' position, if it comes it comes. We will have to abide it, but if you're
asking us to voluntarily do that, giving the cost and the impact to the neighborhood and the other
surrounding properties, we think a ten (10) year period would give. .'would be more than
sufficient.
Mr. Dahilig: Madam Chair, I think ... and the cesspool issue is a really broad ... broader policy
issue that a lot of us are wrestling with, but I think what is sound science, especially
environmental health science, is that cesspools are not healthy for the public anymore. That's
why they are no longer allowed and going back ten (10) years, ten (10) years this has been the
new EPA directive to keep everybody healthy and safe. And it appears very ... at least from the
comments of the Department of Health, these are by law grandfathered in, but from a
discretionary policy element because we are in a discretionary permit, is it sound policy to say,
you know, let's take advantage of mitigating these health concerns when an intensification of use
is being asked for. It may be within the parameters of what the Department of Health is saying,
but from a broader health, safety, and welfare standpoint, we like to encourage uses that will
comport with the good neighbor elements of a ... that we all want to hold ourselves to. So you
know given that, Madam Chair, and I don't make this lightly, I'd actually like to amend my
Director's Report to include a condition, and the Applicant can raise objections for this, that the
Applicant within sixty (60) months of approval, shall replace their cesspool with a septic system,
unless a shorter conversion timeline is required by law. And I'd like to add that as an additional
recommended condition to my report, orally, as part of my presentation to the Planning
Commission,
Mr. Hull: For clarification for the Director's statement, was it sixteen (16) or sixty (60)?
Mr. Dahilig: 6 -0, 6 -0, so it would be sixty (60) months from approval.
Mr. Chun: Just for the record, we would object to that.
Ei
Chair Anderson: Your objection is noted. Just for clarification as well, there was discussion
previously regarding changing the use of...the homestay use to two (2) bedrooms. Has the
Department incorporated that into their final recommendations?
Mr. Chun: I would suggest that if you're going to be ordering a sixty (60) month time period
that you at least give them the opportunity to get another $100 per month rent, so I would request
to maybe keep the three (3) bedrooms. My client said the two (2) bedrooms because we were
not aware that the Commission was considering ordering them to spend $35,000 or more within
sixty (60) months. So if that's the situation, we would request to ... we will withdraw our position
of going down to two (2) bedrooms, and keep it as the requested three (3) bedrooms.
Mr. Dahilia: While maintaining your objection, so you would...
Mr. Chun: Maintaining my objection, yes.
Mr. Dahilia: So if we were to then drop it to two (2), you would also raise an objection to that as
well?
Mr. Chun: Correct.
Chair Anderson: Okay. Are there any questions regarding the recommendations?
Does the Commission have a motion to proffer?
Ms. Mendonca: I have a question. Are we back to three (3) bedrooms or two (2) bedrooms?
Mr. Dahilia: We are, ..the recommendation is two (2) with a septic and both of those conditions
are being proffered to the Commission that if they are approved by the Commission, it would be
with the noted objections of the Applicant.
Ms. Mendonca: Okay, and the septic was based on how soon after?
Mr. Dahilia: Sixty (60) months.
Ms. Mendonca: Sixty (60) months?
Mr. Dahilia: 6 -0 months, five (5) years.
Ms. Mendonca: Are there also conditions that should their financial status show that they are
unable to do that, would we give them some consideration?
Mr. Dahilia: The Applicant can at any time, when meeting these deadlines, can always come
before the Planning Commission and make a case as to why the timeline should be extended.
Ms. Knopf Oh, that sounds wonderful. Great.
ON
Chair Anderson: Okay, do I have a.. .
Mr. Katayama: I have a question. The Board of Health, in their comments, in their second
sentence, is that correct? Strongly encourages the Applicant to upgrade the existing cesspool to a
septic system at this time, or is it at the time that wastewater flows exceed 1,000 gallons per day?
What is the intent of their comment?
Mr. Dahilis. I think we interpret that as meaning, essentially, its good policy at this time to
actually make the change.
Mr. Katayama: And in the second to the last sentence, the "however" sentence.
Mr. Dahilig: However, these comments only apply if the floorplan submitted in Exhibit 1 is
accurate. And they stated a discrepancy.
Mr. Katayama: That's between the five (5) and the four (4).
Mr. Dahilia. That's between the five (5) and the four (4). And so, the clarification is they went
down to a four (4), and then ... so I think that's where we still maintain the legitimacy of the
comments at this time because it's prefaced upon the four (4).
Mr. KatUama: Well rather than a sixty (60) month conversion, what happens if we put a 1,000
gallons per day conversion? So if they are at a lower generation rate, would we still require them
to convert to a septic system?
Mr. Hull: It would be unclear on how we would exactly monitor that.
Mr. KatUama: By their water bill.
Mr. Abrams: What if they water their yard plenty?
Mr. Katayama: Well they can argue that, but I mean that would be a good measure of
generation. I mean, a lot of the sewer fees are based on that. They don't care how much
water... exactly.
Chair Anderson: I'd like to just clarify, if we could move forward in discussion on a motion,
then we can discuss either altering the recommendations...
Mr. Katayama: Well I think this is leading up to that motion to get a clarity on understanding the
position of the Department. You know, I understand the conversion of cesspools. I guess the
issue is the timeline and what is the right horizon for that.
Mr. Dahili &. I think it's a ... not to use a pun, but I think it's kind of a fluid discussion. And I
think the reason why is if you look at the first two (2) sentences again, it's ascertaining the fact
that the usage does not exceed the 1,000. So currently there's not 1,000. But not withstanding
that, they're still saying, but still you should ... the way we read it...but still you should ... we
• ,
encourage the upgrade of the system. So if the condition were to say if you exceed a 1,000, I
think automatically that that throws the usage into another category that Department of Health
would probably say, if that was the usage already, they would be thrown into having to convert
right away. I think what we're basing our recommendation on is, is more so because of the
intensification of use and the discretionary request in front of the... notwithstanding the
comments from the audience here, that if we actually look at what has been the sound
environmental policy over time, which is to actually say we should migrate from cesspools to
septic systems, that is what we're reading in the comments and I think that's what we, from a
departmental standpoint, want to incorporate as sound environmental policy here for health,
safety, and welfare reasons.
Mr. Katayama: But to the extent that the Applicant is reducing the number of rooms to 50%
occupancy, wouldn't that reduce the impact... intensive use?
Mr. Dahilig: I guess, and I think that's... that's where these thresholds are ... if you reduce the
amount of usage from three (3) to two (2), as we're stating, I guess, per Commissioner
Mendonca's suggestion, that we're getting to a situation where we're determining whether three
(3) bedrooms or two (2) bedrooms...a third less of the usage in this manner is actually going to
mitigate the health, safety, and welfare elements that we're concerned about here. I think
that's ... Will it mitigate it some? Yes, it will mitigate it some; I concede that. But whether the
continued disposal of wastewater in this fashion is sound policy, I think that's kind of a larger
contextual issue that I'm...I think our recommendation goes down.
Mr. Katavaama: But it's a broader reaching audience than just the applicant.
Mr. Dahilig: It's one of these, ..think global act local kind of situations, . sit is.
Mr. Katayama: So in adopting the Department's recommendation, I guess the conundrum is,
you know, we recognize the use. If we curtail or it's less impactful, do we still require them to
convert to a better system?
Mr. Dahilix That's ... I think that's the call that's before the Commission at this point. I
think ... and given our assessment throughout this discussion, the Department believes that it is
sound policy to try to nudge compliance with what is sound environmental practices that have
been on the books for ten (10) years.
Mr. Katayama: However, we are lessening community impact, and do we give them credit for
that?
Mr. Dahilim: And I think that's where... given our recommendation that that can either be
weighed or disagreed with through some type of action.
Mr. Keawe: I have a couple comments. You know, it's difficult I think ... you know, we're all,
especially the Department, under a lot of stress with regard to trying to get these applications out.
But I think from a perception standpoint, especially from the applicants, they're coming here
with information obviously that their attorney representative has and you see that we're
recommending approval, and then we start adding all this stuff at the end. You know, just from
the standpoint of how that system works, if we could try to get all of that stuff done with the
recommendation initially, rather than have someone come up, they've got their hopes up, yay we
got preliminary approval, great, and then we start adding all this stuff on them. And rightly so,
yes, we need to look at the environment and converting and everything else, but I think we
should probably try to at least, if we're going to make a recommendation, include all of it in
there, as much as possible.
Chair Anderson: Do I have a motion from the Commission?
Ms. Mendonca: Real quick. So we're talking sixty (60) months, right, that they need to do their
cesspool, two (2) bedrooms, and is there going to be language in this recommendation to secure
them that in that five (5) years, which is sixty (60) months, their financial status cannot handle
this, but their cesspool works, that they can continue at least? I'm just trying to see the fairness
in this like Wayne was trying to ... because it's true, they're running on two (2) bedrooms now.
And that to me, they are willing to do the septic tank and if the cost runs in that amount, $35,000,
you take that in five (5) years, that's a lot of money that they need to put aside for a new septic
tank.
Chair Anderson: I think the discussion that's taking place ... if we can hone in with a motion and
if that needs to be. ..you know, there can be a motion proffered whether to accept the
amendments, to not accept amendments. At least then we can have the discussion on how, if
amendments are going to be accepted as set forth orally, or if there are other changes the
Commission would like to entertain. But I think the proper procedure would be to have a
motion, we can move on that with a second, and then go on with the discussion on what, ..on the
motion that's on the floor.
Ms. Mendonca: I'll have a hard time wording this motion; that's the problem I'm having. I
would move to accept the recommendations by the Planner, with a change from the three (3) to
the two (2) bedroom, with the concerns since I brought up the septic tank. If it's sixty (60)
months ... if my motion being sixty (60) months with a consideration based on their financial
status that we would allow them more time, or something in that language that would make it
easier for them in five (5) years to get ready for a $35,000 expense. I'm just having a hard time
putting this in the proper language.
Chair Anderson: I believe the Clerk's drafting language to effectuate your comments.
Ms. Mendonca: While he's doing that, I would like to say to the Applicant, I can understand
fully how difficult it may be with a $35,000, or possibly even more, in five (5) years. And we
hope we can get this language proper to suit everybody's concern and yet allow you the time, if
you can't do that in five (5) years, that there's a grace period, if not longer, until such time that
you can afford it; unless the Department of Health says you must do it now.
Mr. Dahilig: So what if we were to say, the Applicant, with the sixty (60) months of approval,
shall replace their cesspool with a septic system, unless a shorter conversion timeline is required
by law. Should the Applicant be unable to do the conversion due to financial constraints, the
Applicant may request an extension at the discretion of the Department.
Ms. Mendonca: Yeah. Is that alright?
Mr. Chun: I need to kind of discuss this with my clients.
Chair Anderson: Okay,
Mr. Chun: I hear ... I mean, I think it's a good effort. I think it's something we should consider,
but I need time to talk with my client on that.
Chair Anderson: Okay. We'll take a five (5) minute recess.
The Commission recessed this portion of the meeting at 5:01 p.m.
The Commission reconvened this portion of the meeting at 5:07 p.m.
Chair Anderson: Call this meeting back to order.
Mr. Chun: Thank you, Madam Chair. Before the break ... we took a break in order for me to
consult with my client to see what their position would be on the proposal that was in front of the
Commission. My clients appreciated that and the efforts being made, and we wish to participate
in those efforts; I think we're working in the right direction.
The financial difficulty is a big problem and I think, ..but I think as worded would be putting a
little bit more discretion and just kicking the can down the road. We believe that the proposal by
the Commission earlier, in terms of using something that at least you can document and make it
sound that about 1,000 gallons, I think that would be easier. That way it's not discretionary on
either parties' place; either we exceed the capacity or we don't. And it's not to anybody's
discretion and it's not subject to interpretation. So we think that way of working out would
probably be a better way to define the issue and the problem as it is, as opposed to leaving it up
to some kind of decision later on at five (5) years. I think everybody understands the problem,
it's going to cost a lot of time to get it ... and money to get it done; and that is cost, but then how
do you determine whether you have the financial ability? I don't think anybody wants to get into
an argument five (5) years down the road whether you have the financial ability or not, and I'm
trying to avoid that. I try to avoid that kind of situation, so I think the earlier suggestion of using
1,000 gallons, it's solid; I mean, at least it's either ... it's there or it's not. And if it's there, then
you got to change it, and if it's not, then we're okay; unless the Department of Health comes
back and says do it now. To me, that would avoid having a lot of problems and potential dispute
down the road, but I appreciate the effort; I think my clients appreciate the effort. On that, I
think we're all trying to search for middle ground. I think we all recognize there is an issue that
would be good to address, but how do we address it to everybody's satisfaction, I think, is what
we're trying to search for, so we're trying to do it. My client would like to really mention, again,
highlight the fact that putting in the septic system is not going to impact only their property, it's
going to impact their neighbors. That banyan tree out there is a pretty old banyan tree and it
provides shade for the entire... almost the entire ... well I wouldn't say entire neighborhood, but at
least the neighbor next ... to the left and right of you; and that's a benefit to those neighbors. If a
septic system has to be done, that banyan tree will be gone because that's the only place that they
can put it in at this point in time. But they just want to emphasize that, you know, we're not only
talking about ourselves, we're talking about impact ... weIre impacting the neighbors also. I think
the direction we're going is a good direction. I think we're willing to sit down. I think an
objective standard, I think, would be better off for everybody ... to serve all of us that way, rather
than leave it at a subjective standard.
Chair Anderson: Okay. So hence far there's been some wordsmithing in terms of additional
conditions and we've heard back from the objections from the Applicant. Again, we, ..in order
to move forward on this, we'll need a motion from the Commission. So I ask the Commission,
how would you like to move?
Mr. Katayama: May I ask what the Department's recommendations are at this point?
Mr. Dahili &. The Department's recommendations are the conditions as printed, along with the
reduction in bedrooms per, I guess, the discussion that was previously not objected to, but then
was objected to as a consequence of an additional ... second condition, orally, to have a sixty (60)
month approval for, ..sixty (60) month timeline from approval to replace the cesspool, and we
would incorporate the suggestion by Commissioner Mendonca to also allow for extensions based
off of financial constraints.
Mr. Katayama: So that is ... what we're acting on?
Mr. Dahilig: Yeah, the Department's amended recommendations.
Mr. Katayama: Would the Department object to basing the conversion date from sixty (60)
months to 1,000 gallons per day? Based on their water consumption.
Mr. Dahilig: I think the Department would take... at this point, take no position on that. I think
we have, . 'we have enforcement concerns about it, but it's definitely enforceable.
Mr. Katayama: By submission of their water bill.
Mr. Dahilig: Right, but we'd have to work that out subsequent to that, but we take no position
should a motion be proposed to include that in lieu of the recommended condition.
Mr. Keawe: So was that either /or?
Mr. Dahilig: Since you were saying, it's up to you guys. (Laughter in background)
Ms. Mendonca: I'd like to make a comment. I'm reading this DOH, Department of Health, and
I ... it says here that they strongly encourage the Applicant to upgrade the existing cesspool to
septic system at this time. We offered ... I mean, my motion stated sixty (60) months and if they
financially were not able to do so, that we would consider an extension on time, correct? What if
..
during that period, the sixty (60) months, the Department of Health says you do it now? They
got to do it right?
Mr. Dahilie. That's in the condition.
Ms. Mendonca: Right?
Mr. Dahilijz: Yeah.
Ms. Mendonca: So based on Wayne's question for 1,000 gallons per day, I'm beginning to see
that that should not be a problem if in fact they exceed it and the Department of Health steps in,
they would have to do it before the sixty (60) days ... or sixty (60) months, excuse me. Because
from what I'm reading, they're saying "strongly encourage" and I'm assuming that they may
foresee some changes that may be coming in the near future. I don't know. So in my motion
where I stated that that sixty (60) months, if the rest of the Commissioners have no objections, I
would go along with the 1,000 ... if the Department has no objections.
Mr. Keawe: So are you saying that you would reword your motion?
Ms. Mendonca: Yeah because.. .
Mr. Keawe: To do it based on 1,000 gallons, as opposed to...
Ms. Mendonca: Yes, because they're objecting to agreeing to the sixty (60) months. Wayne
questioned what would it be with the Department using the 1,000 gallons. My argument is the
Department of Health is saying we're strongly encouraging this, which possibly ... if they exceed
the 1,000 for any length or period of time, we're saying you got to change it. Or in the sixty (60)
months, the Department of Health may come by and say you got to do it now. So either /or,
whether it's now, later, or tomorrow, they are still going to be responsible because I just asked
the question, if in fact they agree to the sixty (60) months and in that five (5) years the
Department of Health says you need to change this, they got to do it. So, we're still going in
around the circles, but the 1,000 gallons, as Wayne suggested, might, ..might be the best route.
Chair Anderson: We need a motion...please.
Mr. Keawe: So are you going to amend the motion?
Chair Anderson: A motion, a motion. So far, it's been comments and wordsmithing about
conditions.
Ms. Mendonca: Yeah, I didn't make a ... I didn't know how to put the words together. I didn't
make a motion.
Chair Anderson: And the Clerk cannot make a motion.
Mr. Keawe: Didn't Mike have some language that... (Laughter in background)
Mr. Katayama: Don't we have the Department's recommendation?
Chair Anderson: We have the Department's recommendations, so we can move on that. Or you
can...
Mr. Kataama: That's what we need to move on?
Chair Anderson: Yeah,
Mr. Katayama: So I make a motion to adopt the Department's recommendation as presented
with the two (2) additions.
Chair Anderson: Do I have a second?
Mr. Mahoney: Second.
Chair Anderson: Okay, discussion?
Mr. Katayama: In the matter relating with the cesspool conversion to septic, I would like to
recommend that we adopt a flow ... water flow criteria as the trigger point for conversion, as
recommended by Department of Health of 1,000 gallons per day.
Mr. Abrams: Is that an amendment to the motion?
Mr. Katayama: It has to be an amendment because the Department is putting together a sixty
(60) month conversion.
Chair Anderson: We can either act on your motion, or you can withdraw the motion and restate
it if you want to amend that condition.
Mr. Katayama: Well, the Department takes no position on it. I'm willing to withdraw my
motion if we can address the septic conversion issue.
Mr. Dahilig: So as Councilmember Kagawa likes to say it, I'm looking into my crystal ball here,
and so let's go ahead and amend the Director's Report to say, Applicant, should they exceed
1,000 gallons of water usage, shall replace their cesspool with a septic system unless a shorter
timeline is required by law.
Mr. Kata,vama: Councilman Kagawa is very wise in his words. (Laughter in background)
Mr. Dahilig: Is ... I guess, just based on that, given the two (2) amendments and oral conditions,
again, I would ask the Chair whether it is appropriate to approach the Applicant and determine
whether or not they object to that or not.
Chair Anderson: Okay. Does the Applicant have objection to that condition?
91
Mr. Chun: It was read pretty quickly, but I thought it was read that should the Applicant exceed
1,000 gallons per day, wastewater flow, then the Applicant shall convert to a septic system.
Mr. Dahilia: Unless a shorter time...
Mr. Chun: Unless a shorter time is ordered by the Department of Health. Yes.
Mr, Dahilia: Or required by law.
Mr. Chun: Or required by law.
As to that, and we would accept that, that we would agree to the condition worded in that way.
And also, we would agree to the three (3),..from three (3) bedrooms to two (2) bedrooms.
Mr. Hull: To clarify with the Director, was it 1,000 gallons of wastewater flow or 1,000 gallons
of water flow?
Mr. Dahilijz: Water.
Chair Anderson: Okay, so.. .
Mr. Chun: That would be fine.
Chair Anderson: Just for clarity and for procedural matters, Commissioner Katayama, do you
withdraw your previous motion?
Mr. Kata,vama: I withdraw my previous motion.
Chair Anderson: Okay. And withdraw the second?
Mr. Mahoney: I withdraw my second of the previous motion.
Chair Anderson: Okay, and if we can have another motion.
Mr. Katayama: I move that we accept the Department's recommendation as stated.
Chair Anderson: Most recently. Okay, do I have a second?
Mr. Mahoney: I'll second that.
Chair Anderson: Okay. Any discussion?
Mr. Abrams: I don't think I can submit... support that motion. My personal feeling is, is that the
Health Department should be the one who's making the call. If in fact the wastewater system
goes over 1,000 gallons, you're going to have an overflow in the yard and they're going to be
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coming down; not to mention the neighbors. And so I...we don't know when and I think that if
it comes by law, it'll come through the Department of Health and it really shouldn't be the
Planning Department doing that. I totally understand it. As for the intensification of use for a
bed and breakfast, with what it was compared to which was a residential dwelling that had five
(5) bedrooms in there full of kids and everybody else, that use to me was substantially more than
what is going to be happening on this end; particularly with it not being 100% full. So all of
those lead me to be less worried about the wastewater system at this point right now, and so I
wouldn't support this with this 1,000 gallons of water. I think it really should be ... if the Health
Department was going to go ahead and say that you have to convert, they're going to tell you,
you have to convert, so at that point I would leave it at that. So in any case, that's my position.
Chair Anderson: Is there any other discussion?
Okay, we'll call the matter. Let's go ahead and have a roll call vote.
Mr. Dahilig: Madam Chair, the motion on the floor is to adopt the Director's amended... orally
amended recommendations concerning Class IV Zoning Permit Z -IV- 2015 -23 and Use Permit
U- 2015 -22.
Commissioner Abrams?
Mr. Abrams: No.
Mr. Dahilig: Commissioner Mahoney?
Mr. Mahoney: Aye.
Mr. Dahilig: Commissioner Mendonca?
Ms. Mendonca: Aye,
Mr. Dahili &. Commissioner Katayama?
Mr. Katayama: Aye.
Mr. Dahilijz: Commissioner Keawe?
Mr. Keawe: Aye.
Mr. Dahilig: Chair Anderson?
Chair Anderson: Nay,
Mr. Dahilig: 4:2, Madam Chair.
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Chair Anderson: Okay, and so the application has been approved as amended...with the
amended recommendations. Thank you.
Mr. Chun: Thank you, Madam Chair and members of the Commission.
Ms. Knopf Thank you very much. I appreciate it.
Class IV Zoning Permit Z -IV- 2015 -24 and Use Permit U- 2015 -23 to allow conversion of
an existing residence into a homestay operation on a parcel located along the eastern side of
Lili`uokalani Street in Kilauea, situated at its intersection with Kolo Road, further identified as
2535 Lili`uokalani Street, Tax Map Key 5 -2 -011: 038, and containing a total area of 1.956 acres
= Nicki Lorayn Pignoli Trust,
Mr. Dahili -g: Madam Chair, the next application is Class IV Zoning Permit Z -IV- 2015 -24 and
Use Permit U- 2015 -23. Again this is at Tax Map Key 5 -2 -011: 038, a total area of 1.956 acres.
The applicant is Nicki Pignoli Trust.
Again, let's turn it over to Kaaina and Marisa for the report.
Mr. Hull: Aloha Chair. At the Chair's discretion, the Staff is willing to read a summarized
version onto the record.
Mr. Dahilig: And just for the Commissioners, this is on the second of three (3) PDFs, again Page
358 starting on the PDF.
Mr. Hull: The proposal is to convert an existing residence into a homestay operation. The
residential dwelling contains four (4) bedrooms and four (4) bathrooms. The parcel also has an
ADU, or additional dwelling unit, which is attached to the lower level to the primary residential
dwelling and is currently being rented on a long -term basis. As represented, the Applicant will
continue to reside within the primary residential dwelling while operating as a homestay. For
transient accommodation purposes, the homestay operation is proposed to utilize three (3)
bedrooms within the primary residential dwelling.
Ultimately, similar to the previous application, the Applicant has a homeowner's exemption for
the site, which ensures that the homeowner is using this site for their primary residence and will
act as a self - regulating mechanism on those potential impacts to the surrounding neighborhood.
And currently, the Department has not received a complaint from the Applicant, ..or concerning
this property for its operational uses, and the Department has taken that as demonstrative of the
fact that it is compatible with the surrounding area. Ultimately, the Department is recommending
approval for these permits and the recommended conditions of approval stand as is.
Chair Anderson: Can I hear from the Applicant?
Mr. Chun: Good evening. Jonathan Chun on behalf of the Applicant, and with me is the
Applicant, Ms. Pignoli. Also, I think we wanted the Commission and the Department to ... we
emphasize to the Department we did receive a letter of support from the Kilauea Neighborhood
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Association and to make sure that's in the record. Also, I think we sent a communication to the
Department indicating that the. ..on the floorplans, the study playroom/alternate bed and
breakfast area, which is an existing loft, is not part of the application, correct? So if there was
any confusion from the Department or the Commission, that that area, which I believe was an
ADU at one point in time or was ... yeah, the ADU was downstairs, but the upstairs loft is not.
And the ADU, which is the ground floor, is also taken up, correct?
Ms. Pignoli: The ADU is...
Mr. Chun: Yeah, but you're not...
Ms. Pignoli: No, we're not (inaudible).
Mr. Chun: Yeah. Also, I think the letters indicate the downstairs ADU, ground floor, is not ... or
should not be considered as not part of the application. So the Applicant only would be
proposing to you is the existing main level floor, which is 1, 2, 3 bedrooms.
Ms. Pignoli: No, two (2).
Mr. Chun: Two (2) bedrooms only. Okay, yeah, but there's three (3) bedrooms total, so there's
only two (2) bedrooms that they're requesting.
Chair Anderson: Okay,
Mr. Chun: And also, it is being served by a septic system currently.
Mr. Hull: The Department would have to establish and make sure that Jonathan is clearing that
up for the record because the application states there's four (4) bedrooms on -site, with a request
for three (3) bedrooms for transient purposes.
Mr. Chun: Yeah. I believe... didn't the letter clarify that? We took out the ADU and we
indicated that the upstairs loft, which we labeled a bedroom, is actually a loft which should not
be considered. But if that's not ... I thought I said that, but if that's not what the case is, then
we'll say it on the record today.
Mr. Hull: So with that then the Department would have to adjust its recommendation that it
be ... Condition No. 2 would read "For transient accommodation purposes, the subject operation
shall be limited to two (2) bedrooms within the primary residential dwelling."
Mr. Chun: Correct. No problems on that.
Chair Anderson: And just for clarity, what again is the total number of bedrooms?
Mr. Chun: In the application, the application will only include ... I thought we said it, but will
only include the main floor of the dwelling. The bottom floor of the dwelling is an ADU; that is
being rented out long -term, so we're not asking for permission to utilize that at all. The main
UJA
floor contains three (3) bedrooms; one (1) of the bedrooms is occupied by the Applicant, so we'll
only be using two (2) bedrooms in the main floor of the house.
Chair Anderson: Okay,
Mr. Chun: And if you want, we can identify the ... what bedrooms. It would be Bedroom 1 and
Bedroom 3, as noted on the floorplans.
Chair Anderson: Which, ..the Exhibit?
Mr, Chun: Exhibit... Exhibit I, and it will be the second page of Exhibit I, which shows the main
floor.
Chair Anderson: Does the Applicant have any other comments on the recommendations as set
forth by the Planner?
Ms. Pignoli: Good afternoon Commissioners and Commission members. I'm Nicki Pignoli for
the record. I bought this home in 2000, moved here with two (2) grandchildren that I was raising
on my own. And when I bought the house, there was a room that was being used as a B &B; that
was Room No. 1. Never had a big closet, was never ready to be raised ... used as a main
bedroom, and my grandchildren have since grown up, moved offn island, and it's now me and a
small dog living in this house. I sit right next to Kilauea Stream, so it's a beautiful location. I
have no neighbors at all on three (3) sides of the property, and the closest neighbor on the fourth
side is over 300 feet away, so it's very isolated even though it's in Kilauea Town per se. I've
enjoyed operating the B &B. It's given me the opportunity to share my love of this island, and
my knowledge of the island, and some of its customs, and some of its wildlife with visitors from
all over the world. I think, like Ellie, I make a difference in a lot of peoples' lives who get to
come here maybe once in a lifetime that don't have the opportunity to really know what it's like
to live in a place that's as wonderful as this. So I'd like to be able to continue. Oh. I have been
paying my GET and TAT taxes throughout this entire time.
Chair Anderson: Does the Commission have any questions for the Applicant?
Mr. KatUama: In looking at Exhibit I again, where is the additional ADU?
Ms. Pignoli: The additional ADU ... this house is built on the side of hill. Should I answer it?
Mr. Chun: You can, but...
Ms. Pi noli: It's built on the side of a hill, downslope, and the ADU is below the main level of
the house.
Mr. Chun: It would be Page 3 of Exhibit I.
Mr. KatUama: So it's detached from the floorplan that's labeled Bedroom 1 proposed bed and
breakfast, Bedroom 2, and Bedroom 3? And there is a loft.
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Mr. Chun: Basically, it's a basement. The ADU is a basement area, or you know, below the
main floor. Access is through an external staircase, yeah, external staircase, so it was
constructed and permitted as an ADU. That ADU is being used as a long -term rental.
Mr. Katayama: And that's ADU ground floor?
Mr. Chun: Yes, that's on Page 3 of Exhibit I. And that ... on the letter dated June 2nd or June 3rd,
we specifically asked the Commission... or the Department to exclude that from the application.
Mr. Katayama: And what is the existing loft floorplan?
Mr. Chun: Where is it? It's on page.. .
Mr. Katayama: No, what is that use...intended use?
Mr. Pignoli: That's actually space where my grandchildren stay when they come home to visit.
And the plans that were submitted to you were architectural drawings that were submitted for a
staircase construction before I purchased the house, so the alternative B &B issue was not of my
writing; that existed in the plans before. We just submitted plans that we had rather than have
plans redrawn.
So I'm only proposing to use Room 1 and Room 3, and I only use Room 3 if the parents in Room
1 have small children and they need extra accommodations.
Chair Anderson: Are there any further questions?
Okay, seeing none. If we can have the Department please read its proposed conclusions and
recommendations.
Mr. Hull: As previously stated, we have come to the conclusion that the application for a
homestay at this particular site would be compatible with the surrounding neighborhood and
environment. And we're recommending that Use Permit U- 2015 -23 and Class IV Zoning Permit
Z -IV- 2015 -24 be approved with the conditions. The recommended conditions of approval stand
as transmitted with the exception of Condition No. 2, which we'll be amending to state "For
transient accommodation purposes, the subject homestay operation shall be limited to two (2)
bedrooms within the primary residential dwelling ".
Chair Anderson: Okay,
Mr. Hull: This particular site has a septic system that DOH approved ... has no objections to.
Chair Anderson: Okay. Does the Applicant agree with the conditions as set forth by the
Department?
Mr. Chun: Yes, we would agree to the conditions as set forth by the Department.
Chair Anderson: Okay. And with the Commission, do I have a motion?
Mr. Abrams: Move to approve Use Permit U- 2015 -23, Class IV Zoning Permit Z -IV- 2015 -24 as
amended.
Mr. Chun: Can I make one comment? Kaaina, would the Condition No. 7 be changed from 300
to 200? Because of the reduction in number of bedrooms.
Mr. Hull: Sorry, that requirement would also have to change because it's the Environmental
Impact Assessment fee as established via parking, which would be established via bedrooms. So
it would be $200, correct.
Mr. Chun: I just wanted that clarification, thank you.
Chair Anderson: Thank you.
Mr. Abrams: As amended for the EIA fee.
Chair Anderson: Okay, do I have a second?
Mr. Keawe: Second,
Chair Anderson: Okay, any discussion? Okay, I just would like to make a comment. One of the
concerns, and this has come up on the previous application, is that the use be ancillary to the
main purpose of it being the primary residence. And just taking note that the reduction of
number of bedrooms used definitely shows that, in terms of my mind as a Commissioner, that
it's not the primary use ... is not hotel, but it's still a residence that has a use as a B &B as well, so
just wanted to note that on the record.
Is there any other discussion? (None) Okay, so all those in favor? (Unanimous voice vote)
Any opposed? (None) Okay, motion carries 6:0. Thank you.
Ms. Pignoli: Thank you very much.
Mr. Chun: Thank you very much, Madam Chair and Commission members.
Class IV Zoning Permit Z -IV- 2015 -25 and Use Permit U- 2015 -24 to allow conversion of
an existing residence into a homestay operation on a parcel located along the southern side of
Aka Road in Lawa`i, situated approx. 450 ft. south of the Kiani Road/Aka Road intersection
further identified as 3265 Huaka Road, Tax Map Key 2 -6 -013: 046, and containing a total area of
8,751 sq. ft. = Darryl L. Chong /Julie Beth K. Simeona Chong
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Mr. DahiliK. We're at Class IV Zoning Permit Z -IV- 2015 -25 and Use Permit U- 2015 -24 to
allow conversion of an existing residence to a homestay. Again, it's Tax Map Key 2 -6 -013: 046.
Applicants are Darryl Chong and Julie Simeona Chong.
I'll turn this over to Kaaina for his report.
Mr. Hull: Good evening again, Madam Chair, members of the Commission. I'll read a...at the
Chair's discretion, I can summarize the report.
Chair Anderson: Yes, please, summarize.
Mr. Hull: The proposal is to convert an existing residence into a homestay operation. The
residential dwelling contains three (3) bedrooms and three (3) bathrooms. As represented, the
Applicant will continue to reside within the dwelling while operating as a homestay. For
transient accommodation purposes, the homestay operation is proposed to utilize one (1)
bedroom within the residential dwelling.
Similar to the other applications, the Department holds that a homeowner's exemption has been
established for this particular site, in which the owner will act in a self-regulating manner of the
operations on -site and should ensure compatibility. Furthermore, the Applicant ... the operation
has been ongoing previously, and the Department has not received any complaints and that can
be used demonstrative of the fact that they're ... that they are in fact compatible with the
surrounding neighborhood. So ultimately, the Department is recommending, preliminarily,
approval for this particular application and the recommended conditions of approval stand as is.
Chair Anderson: Are there any questions for the Planner?
Mr. Hull: Also, to clarify, originally the Department of Health submitted a...comments that
recommended denial because this particular site did not have, or does not have an approved
wastewater system. Since that time, the Department of Health submitted a secondary, or
amending comments that state that the Applicant has satisfactorily addressed the Wastewater
Branch's concern and in which, and you folks have these comments, it states "we have
objections should this application be approved ". I spoke with the Wastewater Division Head and
he said that that was a typo. It should state "we have no objections should this application be
approved ". So ultimately, Department of Health has, ..does not have any objection.
Mr. Chun: Also, just. ..Kaaina, we have an amended letter, May 26, 2015, which yeah, basically
corrected the typo. If you want that, I could give that to you also. They corrected the typo, yes.
Chair Anderson: Okay. Does the Commission have any questions for the Planner?
Then I'd like to ask the Applicant if you have any comments or clarifications you'd like to make
at this time.
Mr. Chun: No, we would agree with the recommendation of the Department as read. I know
everybody's asking, well what about the septic system. I mean, if the Department so chooses,
they could address that issue again, but my understanding is from the Department of Health side,
their wording was even less than the previous one; it just says they have no objections, that the
Applicant has satisfactorily addressed the Wastewater Branch's concern. So, they did not even
put any kind of language, in terms of 1,000 gallons design capacity or so. And I gather from
talking with my client that one reason, ..it was a very deep cesspool you have there?
Dan ly Chong Thirty -one (3 1) feet.
Mr. Chun: Thirty-one (3 1) feet cesspool, so yeah it's pretty deep. So that might have been one
reason why the Department of Health doesn't have any more concerns once the Applicant went
in and indicated to the Department of Health where their current cesspool is located.
That's all the comments we have. Do the Chong's have any comments? If you want.
Mr. Chong: I just want to say thank you Commissioners and Madam Chair. Just to let you folks
know that Julie and I raised three (3) kids in this house; they've all since moved out. And
basically, we took time to do a project as a married couple and we decided to do this homestay.
It has been very ... very good for our marriage, in that sense of having been married twenty (20)
years. But the thing that I wanted to also say is that when we do have guests stay with us, it is
only one (1) person or a couple at any one time and there is only that one (1) master suite that we
utilize as the rental. That's all, thank you.
Chair Anderson: Does the Commission have any questions for the Applicant?
Okay, then we can go ahead with the Planner's recommendations.
Mr. Hull: As previously stated, the Department has concluded the proposed application will be
compatible with the surrounding neighborhood and environment. And ultimately recommending
that Use Permit U- 2015 -24 and Class IV Zoning Permit Z4V- 2015 -25 be approved, and we
stand by the original recommended conditions of approval submitted to the Commission on June
9th. Thank you.
Chair Anderson: Okay. And the Applicant. ..do you have any comments or do you agree with
the conditions as set forth by the Department?
Mr. Chun: The Applicant would agree with the conditions as set forth in the June 9a' report.
Chair Anderson: Do I have a motion from the Commission?
Mr. Katayama: Move to approve Department's recommendation.
Ms. Mendonca: Second,
Mr. Keawe: Second,
Chair Anderson: We have a second by Commissioner Mendonca. Okay, any discussion?
••
I don't see any discussion. So for the record, I would just state my concerns because
we ... looking at these homestay applications and the triggers that are required at this time by
DOH may not have been met to require conversion to septic, but I think that the long -term issues
that have been discussed on previous applications apply anytime there is a conversion of a use
and more intensive density on a property that that is ... would be appropriate time to require the
stricter environmental regulations and I think it's just a duty of the Department to look at those
long -term issues. It's not something that's going to be solved tomorrow, but would like to have
it solved in the near future so that our children can safely swim in the rivers, and the ocean, and
so on. And, you know, for the fact that most waterways here in Kauai do not meet the safe
water conditions and are actually dangerous, so just wanted to, you know, highlight that concern;
that it's not going to the individuals and trying to put burdens on them, but recognizing that this
is a long -term issue that's a requirement of Commission's such as us to address and look at very
closely.
So with that, is there any further discussion? Okay, so we'll go ahead and all those in favor?
(Voice vote 5 ayes) Any opposed? Okay, I'll note my objection and we'll go forward, okay.
Given... seeing that there are five (5) in favor, one (1) opposed, the motion carries 5:1.
Mr. Chun: Thank you Madam Chair and members of the Commission.
Mr. Chong: Thank you.
Class IV Zoning Permit Z -IV- 2015 -30, Use Permit U- 2015 -29 and Special Permit SP-
201540 to allow conversion of an existing residence into a homestay operation on a parcel
located along the southern side of Kalama Road in Wailua Homesteads, situated approx. 2,000 ft.
west of its intersection with Opaekaa Road, further identified as 6471 Kalama Road, Tax Mgp
Key 4 -2 -002: 026, CPR Unit 2, and affecting an area approx. 3.68 acres of a larger parcel =
Samuel A. & Eugenia Caliendo,
Mr. Dahilig: Thank you, Madam Chair. We are now on Class IV Zoning Permit Z -IV- 2015 -30,
Use Permit U- 2015 -29 and Special Permit SP- 2015 -10 at Tax Map Key 4 -2 -002: 026, CPR Unit
2. The applicants are Samuel A. and Eugenia Caliendo.
I'll go ahead and I'll turn this over to Kaaina for the report on this matter.
Mr. Hull: Again, at the discretion of the Chair, the Department can read a summarized version
onto the record.
The proposal is to convert an existing residential guest cottage into a homestay operation. As
represented, the Applicant will continue to reside on -site while operating it as a homestay. For
transient accommodation purposes, the homestay operation is proposed to utilize solely just the
guest cottage.
As previous... similar to other applications that this body has recently approved, there is a
homeowner's exemption for the site which ensures that the owner is using the primary residential
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structure as their primary residence and will act in a self - regulating manner on the operations, as
well as the Department has not received any complaints against this particular operation.
Considering the Use Permit of this application, the Department finds it will be compatible with
the surrounding neighborhood.
In addition to the Use Permit, the Applicant is also requesting approval of a Special Permit and
that's because the Applicant... the proposed operation is on State Land Use ... within the State
Land Use Agricultural District. Ultimately, the Special Permit is utilized to ensure that the
proposed operation was not outright permitted under HRS 205 on agricultural lands that is not
contrary to the objectives of HRS 205, which is the promotion, protection of agricultural lands
for agricultural production. Ultimately, the Department has found they have submitted
documentation that demonstrates that their farm operation makes more in sales than the
homestay operation. And in so doing, the Department has determined that the farm operation
on -site is the primary function of the property and that the homestay operation is accessory to
that farm and indeed still serves, or functions, in a way that is compatible with the objectives
established under Hawaii Revised Statutes Section 205 and we're recommending approval of
that Special Permit,
Mr. Dahilia: I'm sorry, just for the Commission's reference, it's the third PDF, Page 308; in
case you want to reference.
Mr. Hull: And so that's ultimately the Department's conclusion and we stand by our
recommended conditions of approval.
Chair Anderson: Does the Commission have any questions for the Planner?
Okay, are there any questions? I see we have the Applicant here, if you have any comments on
the Director's Report,
Eugenia Caliendo: Well, to all of us, it's been a long day, so thank you for sort of getting us in.
We're not used to really speaking in public, so forgive us if we ramble a bit. But you know,
when you look at what the intent...
Oh. I'm so sorry, it's Gina Caliendo from Wailua.
Chair Anderson: Thank you.
Ms. Caliendo: Thank you. When you look at what the intent of the Statute, and the
requirements, and the regulations are, you know, clearly the intent is to permit homestay as an
accessory function to a verifiable farm operation. And I appreciate the language that said that we
were able to substantiate that because we certainly have been doing it. We've had an agricultural
business since 2001, homeowner's exemption since we built our home there in 2004, and starting
to do a homestay in 2007. And really what we have found over the years and over the time, and
currently we have ceased operation for quite some time, but what we found is that in the world
itself, there's a recognized trend toward agricultural tourism and toward sort of way of life
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vacations. If we are not the perfect place to be supporting way of life vacations, I really can't
think of another place that is more appropriate for that.
The guests that we welcome are like - minded, so they come to a farm and they are early to bed,
early to rise; just like we are. We love that there's a 10 o'clock curfew; we actually have a 9
o'clock curfew where we require that people sort of close it up for the day. And I think that
having daily interaction with people from all over the world, and we have welcomed guests from
all of the world, with, you know, an owner - occupied resident manager, which is a fancy way of
saying my husband, who interacts with them daily, really helps to raise awareness of issues like
farming here and sustainability, and what the means for an island and what that means for all of
us, whether we are originally from here or whether we have chosen to love this place and be here
ourselves. So that is really the only comments... those are the only comments I have. Thank
you.
Chair Anderson: Thank you. Okay, does the Commission have any questions for the
Applicants?
Mr. Keawe: I got a couple...just real quick, Madam Chair,
Chair Anderson: Yes, please.
Mr. Keawe: Okay. Are you still raising or growing the nursery? Palms and things?
Ms. Caliendo: Yeah, you know, when the economy was booming for all of us, we had a very,
very large operation in terms of nursery proper. But like every other business and every other
sort of response to the economy, we have sort of retooled a little bit and we still have nursery,
but what we've moved into is a lot of contract growing, and a lot of starts and seedling
productions because the speculative retail market is non - existent these days for homeowners.
We also have a large goat producing facility, so we've been doing that. And the plan, quite
honestly if we are lucky enough to be approved today, would be to continue and to grow that
agricultural operation because this will allow us the ability to continue to sustain that. So a long
answer to say yes.
Mr. Keawe: I'm familiar with that. I live in that area.
Chair Anderson: Okay, any other questions?
Mr. Kata,vama: Madam Chair. Is there a floorplan that's part of the application?
Ms. Caliendo: For the building? Yes. It is in here, and you have to excuse me, it's going to take
me...
Mr. Katayama: Do you know what exhibit that is?
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Ms. Caliendo: Yes, I will have it for you in just a moment. So our request is to use our existing
guest house. And ... you know, I have to apologize, I believe that we have a plot plan in here,
which is Exhibit H, and I don't think there is an actual floorplan.
Mr. Katayama: Okay. I got the plot plan.
Ms. Caliendo: Okay.
Mr. Katayama: So could you describe the guest house, please?
Ms. Caliendo: Certainly,
Sam Caliendo: Hi, I'm Sam Caliendo. The guest house is 500 square feet with a 160 square foot
lanai, not covered; there is no cabinets in the guest cottage, there's no stove. We rent it vacation
wise that people should come and use our restaurants on the island. One (1) bedroom, two (2)
occupants at max.
Mr. Katayama: In your Schedule F...
Ms. Caliendo: Yes.
Mr. Katayama: Line 8...
Ms. Caliendo: Okay, schedule F...
Mr. Katayama: What is the source of the other income?
Ms. Caliendo: So our Schedule F...our tax return. And I'm sorry, what line are we looking at?
Mr. Katayama: Eight (8). Part 1, line 81
Ms. Caliendo: So which year?
Mr. Katayama: Any year. '13, '12, pick one, '11
Ms. Caliendo: 2001 it was zero (0), so let me go to the year you are looking at.
Mr. Katavama: I'm just looking at '13 0
Ms. Caliendo: Gosh, I wish I would've had my Accountant here to answer that question for you.
So I do believe, and if I could go to my GE, I do believe that that would be the sum of everything
that runs through the business, including the accommodations, and any other services that the
business provides that is not hotel ... excuse me, retail or wholesale nursery products per se.
Mr. Katayama: So the proceeds from your homestay is in that line?
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Ms. Caliendo: I believe so, yes. And if you look. .'I think perhaps a better place to look would
be at the actual GE filings that we submitted as well, as part of the addendum. And that would
be contained in the Planning Director's Report, it was added as an exhibit at the end. And that's
just the actual breakdown between what was wholesale and retail, and if there were any other
activities that were recorded as income.
Mr. Katayama: Do you know what exhibit that is?
Mr. Dahilig: It should be starting with ... yeah, start with
Mr. Katayama: Is that B.?
Mr. Dahilig: Yeah, B., Page 383 of the PDF.
Chair Anderson: Does the Commissioner have any further questions on this item?
Commissioner Katayama, do you have any other questions?
Mr. Katayama: Just probably a comment. Do you do your own tax return?
The Caliendo's: No.
Mr. Katayama: And this is professionally done?
The Caliendo's: Yes,
Mr. Caliendo: It's a corporation. It's done under an S Corporation.
Mr. Katayama: Thank you.
Chair Anderson: Any other questions from the Commission?
Okay, I had a question for the Applicants. As we've seen on previous applications, is your
wastewater system ... is that one (1) cesspool or do you have two (2) cesspools?
Mr. Caliendo: There are two (2) twenty -five (25) foot cylinders, five (5) feet in diameter, and
they're ... right on ... I take care of them every month; I treat them.
Chair Anderson: And that's.. one (1) is for the guesthouse use or...?
Mr. Caliendo: No, they flow ... one flows into the other.
Chair Anderson: Okay. Okay, and are ... the recommendations from the Department of Health
was similar to previous recommendations that they strongly recommend updating to a septic
system. Do you have any plans to update your system?
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Ms. Caliendo: We don't have any plans to update, no. But we certainly would. .'hear what you
have to say about it.
Chair Anderson: Okay. There's been conditions that have been discussed today regarding a
timeframe to update. You know, there's different applications, different situations, but just to
ask you, would you be opposed to say a sixty (60) month timeframe to update your cesspool to a
septic?
Ms. Caliendo: I think as we look at it, and certainly we have heard all the comments, and we're
thinking about it along the way. When you look at the fact that we are asking for a one (1)
bedroom accommodation for two (2) additional people on a five (5) acre parcel, and we are a
family of two (2) so there are no other people in the household using it at all, that perhaps a
longer timeframe. I mean, it is a farming operation, so you know, finances are certainly what
they are, but given that, I don't think we would be opposed to doing it, but perhaps with a longer
timeframe. So we would suggest something like, maybe, ninety -six (96) months? Something
along those lines.
Chair Anderson: Just in terms of. ..weIve been discussing the requirements and just to make it
clear that if you were to have built your ADU in 2005, that it would have been a requirement to
have a septic system, so that was ten (10) years ago that that change was made.
Ms. Caliendo: Yes,
Chair Anderson: Okay. Are there any other questions to the Applicants?
Okay, we'll go ahead and read your conclusions and recommendations for approval.
Mr. Hull: As previously stated, the Department is ... has concluded that the application meets the
parameters of the Use Permit, Class IV Zoning Permit, and Special Permit, and we are ultimately
recommending that Special Permit SP- 2015 -10, Use Permit U- 2015 -29, and Class IV Zoning
Permit Z -IV- 2015 -30 be approved and the Department stands by its presented ... or recommended
conditions of approval at this time.
Chair Anderson: Okay. And does the Applicant agree with the conditions as set forth by the
Department?
Ms. Caliendo: We do. The only thing we would like to ask for consideration on, for everyone
pretty much, is Item No. 3 that talks about the subject property's farm exceeding the sales
generated all the time. And we would ask the Commission to consider perhaps a longer period
of review as you look at ours and all the other agricultural permits that are going to come before
you, only because climate and market fluctuations. You know, farming is a sort of where they
say you put a seed in the ground and you say a prayer, but there's really a lot of truth to that.
And so, as someone who is influenced by this, but as someone who is also a resident here, I think
there may need to be a little bit more consideration of whether a simple comparison of Column A
to Column B is the correct approach, or if rather, maybe looking at a period of five (5) years, or
looking at a longer timeframe would be something that would be considered.
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Mr. Dahilig: If I could just address that, Madam Chair. I think if you look at the condition, the
condition actually is devoid of the word "shall ".
Ms. Caliendo: Devoid of the word...?
Mr. Dahilig: Devoid of the word "shall ". And I think if...at the end of the day, this becomes an
enforcement mechanism for the Department moving forward. And so, like anything, I think it
leaves it up to the interpretation of the Department down the line to look at ... you can make a
case whether or not enforcement should be warranted or not warranted should this condition be
called into question by whoever's enforcing down the line. So I think if you read it without the
word "shall ", it's meant to be actually more flexible from an enforcement standpoint, but the
spirit is actually there to try to encourage that to be the standard.
Ms. Caliendo: Okay, thank you.
Mr. Hull: I'll just clarify, also, too that there's another condition of approval being
recommended; that there be annual recertification at which time we, ..the recommendation is that
documentation from Federal, as well as State taxes, be presented that demonstrate that the sales
do exceed.
Ms. Caliendo: Yes, so that's an annual.
Mr. Hull: Yeah. The Department is sympathetic to those concerns and I think you guys have
definitely demonstrated that you are a bona fide farm above and beyond the HRS minimum
definition. However, in calling out and establishing that bona fide farm operations are going on
on -site in conjunction or should I say, as a primary function of this site, there's been so much
rampant abuse above and beyond, and that's not to lay any criticism with you folks because you
folks have definitely demonstrated that through your sales, but there's... anything beyond sales,
the Department is quite frankly seeing a lot of abuse and would be hesitant about entertaining
anything beyond that Column A versus Column B approach. But we are sympathetic to those
concerns from you folks, but the Department would still stand by their recommendation that it be
held.
Chair Anderson: Okay. I have a question for the Planner in terms of addressing that, and that
issue has been brought up in testimony previously, and the nature of businesses I understand it
can go up and down. Rather than the language that the subject property's farm and sales of
products from the subject property's farm exceed those sales generated from the homestay
operation, that the sales will be ... if this is an annual renewal, that the sales will be looked at as
one way of analyzing whether the homestay is ancillary to the farm. Instead of it being the sole
way of making that ... having that discretionary line of whether or not it's a farm or not based on
the amount of money it makes in a particular year.
I think that ... that issue may have been clarified with the issue of the use of "may" versus "shall ",
as previously pointed out by the Director.
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Mr. Hull: Did you need me to respond?
Chair Anderson: If you had something ... if you wanted to clarify further.
Mr. Hull: No.
Chair Anderson: Okay, any other questions?
Mr. Katayama: Madam Chair, I think I have a... sort of a... comment on the approach. You
know, we've addressed homestays, basically in residential areas. I think that's the methodology
used to identify the impact and to look at, you know, whether it's appropriate or not, I think is
correct. Now as we get into ag land, and rightly so, they ... this applicant is a Sub S Corporation.
They should not have a homeowner's exemption on that, .. or I don't think they have. Do you
have a homeowner's exemption?
Ms. Caliendo: On our home? Yes.
Mr. Caliendo: We own the home; the corporation doesn't. We just run the business, the nursery.
Mr. Katayama: So the ADU that's reported in F, is that part of the homeowner's exemption?
Mr. Caliendo: We don't have...
Ms. Caliendo: Well the guest house. He's...
Mr. Katayama: The guest house.
Ms. Caliendo: Well the exemption is part of the property and the guest house, I mean, is as
defined by the County, it's an extension of your home, so I don't quite know the answer.
Mr. Hull: To clarify, the way the guest cottage essentially functions is ... and I kind of stated this
to some confusion on the Council ...it essentially functions as an excess, or exterior bedroom, to
the primary residence. So when the Real Property Division assigns a homeowner's exemption,
it's inclusive of the primary residence, as well as the guest cottage.
Mr. Katayama: Say that again.
Mr. Hull: The guest cottage functions as an accessory, albeit an exterior bedroom, to the primary
residential dwelling. And as such while it's excess, it is exterior, it functions as a part of that
dwelling. So the real property assignment of a homeowner's exemption goes to the primary
dwelling and its accessory guest cottage.
Mr. Katayama: I mean, this is sort of a technical term, but if they're allowed to depreciate that
property, is that still subject to homeowner's exemption?
Ms. Caliendo: Well we don't depreciate the ... no because, ..may I answer that?
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Mr. Caliendo: Sure.
Ms. Caliendo: Is that okay?
Mr. Katayama: I think it's more of a philosophical question, I mean, it's a procedural question.
Mr. Hull: I'm not sure about that. We would have to check with Real Property, Commissioner.
Mr. Katayama: And how do you ensure that homestays are compatible use with existing
agricultural operations?
Mr. Hull: The existing on -site or the existing...?
Mr. Katayarna: On -site.
Mr. Hull: Well, we've also... essentially because we found them ancillary to as opposed to the
primary function of the property; that's essentially the Department's assessment.
Mr. Katayama: And how do you define ancillary?
Mr. Hull: It's making less than the actual farm itself.
Mr. Dahili &. I think we run into this philosophical discussion constantly regarding what is
"farming "? And it's something we struggle with because of the lack of clear definitions from
State law, but what is clear from the State law is that they do talk about accessory uses to
farming. So when we are interpreting and evaluating these Special Permits, we, philosophically,
want to try to understand why, if you're asking for a Special Permit, you are wanting to go
outside of what is permissible on the property, as to try to tie people as close as much as possible
to what is the policy of the State, which is to encourage farming. So when we look at the
amount ... the metrics that are out there to determine bona fide farming, we're not given many
elements of statutory guidance when it comes to that. We have ... and the closest thing from a
County standpoint that we have policy wise is what you saw before you today concerning the
$35,000 threshold with farmworker housing. And so, we take that ... that perceived metric of
using the revenues that are derived and say okay what then, from a State policy standpoint, are
you doing that is accessory? That's the best we can piece together given the guidance that is out
there. So we take a look at their Schedule F's, which is a practice that we do for farmworker
housing, and we say okay, where are you getting your income here? Or how does this compare
to your homestay operation? And try to see whether or not the emphasis on using the property
for its intended use is really pushed towards the agricultural side or if it's pushed towards the
homestay side. Is this the metric that people agree with? A lot of people don't agree with it.
And I want to be very clear about that, but given the policy guidance from the Council, this is the
closest thing that we can use from a numerical standpoint to try to provide a fair and balanced
evaluation for each of the ... each of these applications that are out there. So, you know, could
you cut the pie another way? Could you say well how many fruit trees do you have on the
property? That is another approach that was used when we were approving the ag TVRs. How
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many home ... how many papaya trees do you have? How many ... and so we did an inventory,
but there was also public concern about us, and whether or not that is evidence of the veracity of
a true farming operation. So it's something we struggle with. I think if we look at the metric we
are using in this particular case, which we know under penalty of perjury, these people disclosed
to the IRS and to the State that we can ascertain that the emphasis really is more on the farming
side versus on the homestay side. And so that's why we've given our recommended approval for
at least the Special Permit portion.
Mr. Hull: If I could also add to the Director's comments, concerning the review and using the
number of trees say, with the TVR ag applications, since that time, the Hawaii State Legislature
amended HRS 205 concerning say overnight accommodations and having it tied to a bona fide
farm and defining bona fide farm as hinging on a revenue stream. They aren't ... they don't say
the specific standard or amount for the revenue stream, but that there be actual sales involved,
and so that is part and parcel why the Department has shifted their assessment of Special Permits
and overnight accommodations. And saying that absent ... you know, a number being set by the
State Legislature, we have to come up with a number that demonstrates that the farm is the
primary function of the property, and that the homestay operation is not. In our assessment of it,
it's that the sales exceed. ..of the farm exceed the homestay operation. But at the end of the day,
that's a recommended line and philosophically what this body is going to be facing, with all the
agricultural applications is, where do you draw that line? This is where the Department is
recommending to draw the line. But like Mike said, there's no specific standards set. You can
point at the farmworker housing, you can point to the definition of bona fide, but ... of a bona fide
farm, but there's no specific line, so ultimately this is our recommendation and we do stand by it.
But whether or not you folks decide to adjust that line to be more lenient, or to adjust that line to
be more conservative, that is your prerogative and it's going to be a question that is going to
happen on a lot of these applications because there are a fair amount of agricultural homestay
applications that will be coming before you folks.
Mr. Dahilig: And so it really is a struggle to try to provide the Commission, when we provide
these recommendations, a real rational basis for what reasonably could have been
interpreted...be interpreted as trying to evaluate whether or not something really is, as your
saying Commissioner, not the primary function of the operation out there. And again, people can
have their disagreements, but this is as close as we can get from an evidentiary standpoint and a
rational basis standpoint to say okay this is what we can use to determine that this is as close to
an accessory use as possible.
Mr. Abrams: Madam Chair. The $35,000 for the farmworker, was that the Council setting that
amount? Or where did that number come from?
Mr. Hull: The Council set that amount, and actually as was established previously with another
Council ... Maui County had previously adopted farmworker housing standards and hinged it
upon the $35,000 threshold. So essentially, our County Council adopted it with a few different
measures as well though.
Mr. Abrams: Okay, thank you.
109
Chair Anderson: Okay, so just to clarify, the Applicant, . 'You Ire in agreement with the
conditions as set forth by the Department?
Ms. Caliendo: Yes.
Chair Anderson: Does the Commission have a motion?
Mr. Abrams: Move to approve Class IV Zoning Permit Z4V- 2015 -30, Use Permit U- 2015 -29,
and Special Permit SP- 2015 -10.
Chair Anderson: Okay, is there a second?
Mr. Keawe: Second.
Chair Anderson: Okay. Any discussion?
If there's�no other comments from the Commissioners, I'll just state for the record again, my
ongoing concern with approving Use Permits for increased density on property and on properties
that have not upgraded their systems to septic. So that's an ongoing objection that I have.
Mr. Katayama: May I make a comment also? If we look at the applicants' submission of their
income stream from farm and room rental, and if that is a criteria that we're using to describe
ancillary use on agricultural land, I think that dilutes the agricultural activity. Now, I think we
need to develop a criteria that addresses ancillary use upon agricultural land, and we've done
that, you know, in looking at photovoltaic expansion and some of these others. But in terms of
homestay, I think...if you look at this trend, it's biased towards more homestay, and if that
continues then it would probably diminish the attractiveness of farming operations because
there's less risk. So again, you know, I think the Department has stated it quite well in that this
is an ancillary use to the farming operation. But if you look at the revenue stream from 2007 or
2001, is that the conclusion that we get? And I think the use of the term "homestay" for
agricultural or lease in any kind of LLC or Sub S, we need to change and just look at it as
another revenue stream for agricultural use. I think homestay is really a part and parcel of
residential conversion as opposed to again, ancillary use in an ongoing business concern. And
you know, I appreciate the Applicant's position and their presentation of their situation, but I
have a challenge with it from a Commission approach as opposed to the Applicant. I think they
did a great application, but as a policy moving forward on granting ancillary use on agricultural
land, I think I have an issue with that.
Chair Anderson: Is there further discussion?
Ms. Mendonca: Yeah. I have to agree with what Wayne
same token using what the Planner stated about what is tr
question again, which comes first? Do we make a policy
do we set a different criteria for how much of the income
$36,000 (sic) as a random figure? Again, it's confusing.
because of the fact that it is agriculture, and you all know
110
is putting in front of us, but on the
Le cutoff point? Here comes the
regarding homestay on agriculture? Or
should be ancillary instead of using
We can deny this recommendation
how I feel about agriculture, but at this
point, what other avenues do we have to set a criteria to what your concerns were or are in line
with what the Planner's recommendation as a ballpark figure using to determine what's ancillary
over farming. So where do we go?
Chair Anderson: I'd just like to note, looking at the time, that we're approaching the 6:30 hour.
Mr. Dahilia: Yeah. By collective bargaining rules, I have to stop at 6:30. So you know, that
requires a forty -five (45) minute break and then we can reconvene.
Chair Anderson: Okay. So the question... there's been some questions posed, comments for
discussion. We have just a few minutes, so if there is any further response, I would say that we
would have to continue this matter. If not, then we can take a vote in the next few minutes, so it
depends.
Mr. Hull: I'll also point out, too, some of Commissioner Katayama's concerns and I definitely
think there is concern about overnight accommodations on agricultural lands, which is why the
Department is recommending this ... the Department has never recommended for Special Permits
such a high threshold, quite frankly, on other applications. But the Department receives that
overnight accommodations are particularly concerning for agricultural lands because of the
potential impetus to remove those lands from agriculture production. We found that this is the
best way we can slice this pie, at the same time considering other standards, is also establishing
them via a legislative route, and the Department is bringing back the Comprehensive Zoning, ..or
Comprehensive Homestay Bill to this body in which specific standards will be deliberated for
homestay operations in or outside of agricultural districts. Thank you.
Chair
Anderson:
We have
a motion on the floor
and
a second
and discussion. If there's
no
further discussion, then we
can go ahead and call
the
question.
So I would like to take a
roll call.
Mr. Dahilix The motion on the floor is to approve Class IV Zoning Permit Z -IV- 2015 -30, Use
Permit U- 2015 -29 and Special Permit SP- 2015 -101
Commissioner Abrams?
Mr. Abrams: Aye.
Mr. Dahilia: Vice Chair Mahoney?
Mr. Mahoney: Aye.
Mr. Dahilig: Commissioner Mendonca?
Ms. Mendonca: Aye.
Mr. Dahilia: Commissioner Katayama?
Mr. Katavama: No.
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Mr. Dahili &. Commissioner Keawe?
Mr. Keawe: Aye.
Mr. Dahilia: Chair Anderson?
Chair Anderson: No.
Mr. Dahilig. 4 -2, Madam Chair.
Chair Anderson: Okay. So with the 4 -2, the application is approved with the conditions as set
forth.
Mr. Caliendo: Thank you.
Chair Anderson: Thank you.
ANNOUNCEMENTS
Topics for Future Meetings
The following scheduled Planning Commission meeting will be held at 9:00 a.m., or
shortly thereafter at the L-ihu`e Civic Center, Mo`ikeha Building, Meeting Room 2A -2B, 4444
Rice Street, Llhu`e, Kauai, Hawaii 96766 on Tuesday, July 28, 2015.
Mr. Dahili &. With that Madam Chair, we have actually cleared the calendar. We do have...we
have distributed the topics for the future meetings and that the next scheduled Planning
Commission meeting will actually be in a month, Tuesday, July 28, 2015.
And with that Madam Chair, I'd actually like to wish our best wishes, on behalf of the
Department, to Deputy Director Hull as he is about to get hitched in the next few weeks, so I'd
like to convey our congratulations to him.
Chair Anderson: Congratulations, and with that, we will adjourn the meeting.
ADJOURNMENT
Chair Anderson adjourned the meeting at 6:25 p.m.
Respectfully submitted by:
112
r.
O Approved as circulated (add date of meeting approval)
Approved as amended. See minutes of
113
meeting.
arcie Ag an,
Commission Support Clerk