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HomeMy WebLinkAboutpc811215minutesKAUAI PLANNING COMMISSION REGULAR MEETING August 11, 2015 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Anderson at 9:10 a.m., at the L1hu`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, Leslie Takasaki, Dale Cua, Jody Galinato, 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 9:10 a. in, ROLL CALL Planning Director Dahilig; Madam Chair, you have six (6) members present and a quorum. Chair Anderson: Thank you. APPROVAL OF THE AGENDA Mr. Dahilig: Madam Chair, your next item for business is Item C, Approval of the Agenda. The Department would recommend taking the agenda items as is, which would mean the first action items would be General Business Matters this morning, after the Consent Calendar, Chair Anderson: Do I have a motion to approve the agenda? Mr. Mahoney: Move to approve. 11 Ms. Mendonca: Second. Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 6:0. MINUTES of the meeting(s) of the Planning Commission Mr. Dahili &. Thank you, Madam Chair. We are now on Item D, Minutes of the Meeting of the Planning Commission. We have no minutes this morning for approval. RECEIPT OF ITEMS FOR THE RECORD Mr. DahiliQ. We are now on Item E, Receipt of Items for the Record. Madam Chair, we passed out a number of written testimonies attached to the paper agenda for you this morning. Would you like me to read this out for the record? Chair Anderson: Please, Mr. Dahilig, Okay. Madan Chair, we have a letter of support from Captain Bruce Hay from PMRF; this is an email that was circulated. I believe this is in relation to the Murray homestay. For General Business Matters, under Item I.1., there is a testimony on 08/10/15 from Bermette Misalucha, the Executive Director of Hawaii Crop Improvement Association, in support of the request for reconsideration. Testimony on 08/10/15 from Councilmember Gary Hooser in opposition of the reconsideration request. We also have testimony under F.2.a. on the Giuseppi Gereke -King application. Testimony from Bette Uyeda in opposition, Ernest E. Coyaso in opposition, Malia Alberin in opposition, Mitch and Sharon Milan in support, and Nathan and Robert Smith in support. As well as a number of other written submittals that have come in that are attached to the written agenda that was circulated to the Commission this morning. Chair Anderson: Do I have a motion to receive the items for the record? Ms. Mendonca: So moved. Mr. Mahoney: Second. Chair Anderson: Any discussion? (None) All those in favor? ( Unanimous voice vote) Any opposed? (None) Okay, motion carries 6:01 HEARINGS AND PUBLIC COMMENT Continued Agency Hearing (NONE) 2 Mr. Dahilig: Thank you, Madam Chair. We are now on Item F, Hearings and Public Comment. Under Item F.1., we have no Continued Agency Hearings for this morning. New Agency Hearing Class IV Zoning Permit Z- IV- 2015 -37 Use Permit U- 2015 -36 and Special Permit SP- 2015-14 to allow conversion of an existing_ residence into a homestay operation on a parcel located along the eastern side of Menehune Road in Waimea Valley, further identified as 5390 Menehune Road and Tax May Key 1 -5- 002:047, and containing a total area of 37,407 so. ft. _ Giuseppi Gereke -King, Mr. Dahilig: Item F.2., New Agency Hearing. Class IV Zoning Permit Z- IV- 2015 -37, Use Permit U- 2015 -36, and Special Permit SP- 2015 -14. This is to allow conversion of an existing residence into a homestay operation on a parcel located along the eastern side of Menehune Road in Waimea Valley, further identified as 5390 Menehune Road at Tax Map Key 1 -5 -002 parcel 47, and containing a total area of 37,407 square feet. The applicant is Giuseppi Gereke -King. Madam Chair, the Department would recommend opening the Agency Hearing at this time as we have two (2) individuals signed up to testify. Ernest Coyaso followed by Giuseppi King. Ernest Coyaso. Ernest Cow Good morning. My name is Ernest Coyaso. I own land in Waimea Valley, and I am very strongly against the proposal. It worries me a little bit. What research I got off the internet is a little bit scary. I understand the person has good intentions. I just feel that it's in the wrong location. I was planning to retire there in the future onto that property. My father had bought that property; he has passed away. Chair Anderson: If you can pause your testimony, there seems to be a technical issue. Just one moment. We'll go ahead and take a five (5) minute break until we can resolve this matter. The Commission recessed this portion of the meeting at 9:16 a.m. The Commission reconvened this portion of the meeting at 9:20 a.m. Chair Anderson: I'll call this meeting back to order. We'll start your three (3) minute testimony over, so you can begin again. Thank you. Mr. Coyaso: Good morning. My name is Ernest Coyaso. I'm here in protest of the said request for commercial license. I'm not sure what's applied for or what the person wants to do with the property; I can only go off of what I've researched on the internet. I do believe they have good intentions, but like I said before, my father bought this property. It's a nice, secluded piece of property up in Waimea Valley. I was hoping to retire there. I do have concerns about strangers coming in and out. I can understand wanting to treat Veterans; I am a Veteran myself. My K father and many uncles are all Veterans, and I understand they need help, but I would like to think that there would be a better place to do it than in a residential area. Having strangers going in and out of that area is a little concerning for me. I not only emailed you, but to show how opposed I am to it, I flew here from Oahu to catch this meeting, to let you guys la-low how strongly I oppose this, and ask that you not grant this; to leave the land as residential, so that should I retire and be able to come back, I can live in quiet. That's about all I have to say. Are there any questions for me? Chair Anderson: No questions. Thank you. Mr. Coyaso: Thank you. Mr. Dahilia: Giuseppi King followed by Bette Uyeda. Giuseppi King; I am Giuseppi King. I am the applicant. I understand the concerns of Ernesto (sic) and. Bette, although they are not on- island, so they don't have any farniliarity with my operation that's been in operation for eight (8) years with no complaints. I'm not sure where he's relating my personal job in with my vacation rental, which has nothing to do with the VA and my project with the United States Veterans Administration; completely unrelated to my vacation rental, to my land, to everything all together. There has been no complaints about me, and their property is so far remote from my property. In order to even get -to the property, they have to hike all the way to the back of my property; swim across the river; if it's low enough, hike over another dune in the middle of the river; swim across the other part of the river; and then up the bank that's 20 feet tall in order to get to their property; to even be seen. The concern that they should have, if they're concerned about living here, is the open use of drugs and prostitution that's right across the bridge where they have to trespass in order to get to their own property. None of that has anything to do with my property. My guests are fully vetted. I have...what do they call that? They're vetted. I krrow...people have already given. 6 what's the word I'm looking for? I'm at a loss for words. They're not strangers is what I'm trying to say; they're not strangers. They come with. ..totally at a loss... other people's recommendation and other people's experience with these people. If anybody at any time calls and asks me with any kind of complaint, as far as "do I need to.pay a cleaning fee ?" or do they need to sign a document, I immediately discard those and don't even apply those to my vacation rental. I'm very, very particular about the guests that I bring into my home. This is nay home that I live alone in. I'm not just bringing anybody into my home. My alternative is bringing in six (6) security containers or shipping containers instead of doing bed and breakfast. I live in flood land. There's no possible way of farming my land for any legitimate, profitable farming; although I've managed to do so in a very unique way. I mentioned flood lands; I'm not talking an inch of water, two (2) inches of water, I'm talking 6 feet of water that comes by and has destroyed my farm on more than one (1) occasion. I've lost hundreds of thousands of dollars, or tens of thousands of dollars I should say, in flood damage, so to expect that my flood 0 plain can be adequately farined for enough profit is an unreasonable expectation. Although I am... Mr. Dahilig: Three (3) minutes, Madam Chair. Chair Anderson: Okay. So Ms. Gereke (sic), this is the public testimony portion, so each person has three (3) minutes. You'll have another time when we take action to describe your particular application. Ms. Kiniz: Oh, okay. So I'm just saying that I appreciate their testimony and. I understand that their fears of what potentially could be, but it hasn't happened. Chair Anderson: Okay, thank you. Ms. King: Thank you. Chair Anderson: Is there anyone else in the public that would like to give testimony at this time on this agenda item? Mr. Dahilia: I have Bette Uyeda. Bette Uyeda: Hi, my name is Bette Uyeda. My ex- husband and I bought that property. He was a Vietnam Vet, Purple Heart, and Air Medal. At that time, they didn't have the description for PTSD. He could become very violent, so that's the reason why we had divorced. I went to Oahu and he stayed behind on Kauai. In the divorce, he threatened to burn down the geodesic dome house that we were building, so he said he wanted to sell it to his mom for the children. That's what we did; we sold it to his mom and dad, and now the children have inherited it because their grandparents have passed. That property is very pretty, very remote, very secluded. I commend Ms. King for trying to help the Veterans, but I think it's more than a layperson's job. I'm concerned. I did the research on the web and she has a floatation tank which has two (2) floatation tanks; 1,200 pounds of Epson salt in each tank. As she said, Waimea River is a flood zone. When she bought the property, she knew it was in a flood zone. We built our house 8 feet off the ground because on my son's property now, it floods 4 feet high, so we built the geodesic dome 8 feet high. Across the river I guess its 6 feet high. It was a fact before she bought it that it was in a flood zone. it's zoned for agriculture, so maybe she just has to time her crops between floods or whatever. My concern is that when it does flood, what happens to that Epson salt? Is it going to go into Waimea River? What's the impact on the environment? This is residential and agricultural land, and I'm pro agriculture and residential. I'd like to keep Waimea Valley peaceful and quiet and family oriented. E Mr. Dahilig, Three (3) minutes, Madam Chair, Ms. Uyeda: I have a copy of her website page, if I could pass it out. It was $0.59 a page to copy it, so I have one (1) color and one (1) black and white; if 1 could pass it on to you. Chair Anderson: Thank you. You can provide it to... Ms. Uyeda: And it states on there about the Epson salt. I don't know what the backup plan is in case there is a flood. What happens to that salt? Chair Anderson: Okay, thank you. Ms. Uyeda: Thank you. Mr. Dahilig: Madam Chair, that's all I have signed up to testify on this agenda item. Chair Anderson: Is there anyone else in the public that would like to give testimony on this agenda item? Mr. Dahilia: Madam Chair, given the testimony, the Department would recommend. closing the Agency Hearing at this time. Mr. Keawe: I move to close the hearing. Mr. Mahoney: Second. Chair Anderson: Discussion? (None) All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 6:01 Class IV Zoning Permit Z -IV- 2015 -39, Use Permit U- 2015 -38 to allow conversion of an existing residence into a homestay operation on a parcel located along the mauka side of Nohea Street within the Kakela Makai Subdivision in Kaiaheo situated approx. 450 ft. west of its intersection with Kakela Makai Drive and further identified as 1196 Nohea Street Tax Map Key 2 -3- 023:119, and containing a total area of 10,017 sq. ft. = David & Melinda Murray. Mr. Dahiligj Thank you, Madam Chair. We are now on Item F.2.b. This is Class IV Zoning Permit Z- IV- 2015 -39 and Use Permit U- 2015 -38 to allow conversion of an existing residence into a homestay operation on a parcel located along the mauka side of Nohea Street within the Kakela Makai Subdivision in Kalaheo, situated approximately 450 feet west of its intersection with Kakela Makai Drive and further identified as 1196 Nohea Street, Tax Map Key 2 -3 -023 parcel 119, and containing a total area of 10,017 square feet. The applicant is David and Melinda Murray. Madam Chair, l do have two (2) individuals signed up to testily on this Agency Hearing, The Department would recommend opening the Agency Hearing at this time. on Chair Anderson: Is there anyone in the public that would like to give testimony on this agenda item? Mr. Dahiligm Melinda Murray followed by Arlene Baker. Melinda Murray. Melinda Murray: Good moaning. I am Melinda Murray and my husband is David Murray. We are the applicants for the'homestay located at 1196 Nohea Street. This is our first and only home. Most of my heart and life resides here on Kauai at over 30 years. My husband and I have three (3) children; all born in the same little room at KVMH. Thus, I know the difficulty of malting ends meet and having two (2) jobs to do so. This homestay is our second. job. I also know and have seen the changes throughout the years on this island; some of those changes are good and some of those are bad. We vow that if our homestay application is approved and there are any concerns or any problems, we will do what it tapes to resolve them satisfactorily. Thank you for considering our application. Chair Anderson: Thank you. Mr. Dahili : Arlene Baker. Arlene Baker: This is going to be short and sweet. I'm Arlene Balzer. I own the property next to the Murray's. I know that they are a quiet, happy family that lives next door. I approve of this homestay application. Sorry, I wrote things down. So yes, I do support it. I don't have much more to say, okay? Thank you. Chair Anderson: Thank you. Mr. Dahili& Madam Chair, those are the only individuals I have signed up to testify on this agenda item. Chair Anderson: Is there anyone else in the public that would like to give testimony at this time on this agenda item? Seeing none. Mr. Dahilivzr: Madam Chair, seeing none, the Department would reconunend closing the Agency Hearing at this time. Mr. Mahoney: Move to close, Madam Chair. Mr. Abrams: 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 -40 and Use Permit U- 2015 -39 to allow conversion of an existinf4 residence into a homestay operation on a parcel located along the mauka side of I Papalina Road within the Kai Ikena Subdivision in Kalaheo, situated approx. 9000 feet north of the Kai Ikena Street /Pa alina Road intersection and further identified as 4330 Kai Ikena Street Tax Map Key 2 -3- 020:092 and containing a total area of 8,011 sq. ft. = MaMarrette Johannes APPLICATION WITHDRAWN BY APPLICANT. Mr. Dahili &: Thank you, Madam Chair. Item F.2.c. This is Class IV Zoning Permit Z-IV -2015- 40 and Use Permit U- 2015 -39. This application has actually been withdrawn by the Applicant. There is a communication for you, Madam Chair. It would be appropriate to receive this for the record to memorialize that withdrawal of the application. Chair Anderson: Do I have a motion to receive the withdrawal of the application? Mr. Abrams: Move to receive. Mr. Keawe: Second. Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 6:01 Special Management Area Use Permit SMA(U)- 2015 -9 to construct an additional dwelling unit (ADU) on a parcel located along the mauka side of Kfihio Hi hg wU in Wainiha situated approx. 300 ft. mauka of the Ananalu Road/Kuhi6 Highway intersection further identified as 4541 Ananalu Road, Tax Map Key 5- 8- 006:065 and containing a total land area of 1.156 acres= Chuck Linebaugh. POSTPONED. Mr. Dahilig: Thank you, Madam Chair. Item F.2.d. This is Special Management Area Use Pen-nit SMA(U)- 2015 -9. This matter has been postponed due to the Applicant not being ready to proceed on this particular item. So this is just on here for 92 purposes. Continued Public Hearing (NONE) Mr. Dahilig: We do not have any Continued Public Hearing at this time. New Public Hearing (NONE) Mr. Dahilig: Neither any New Public Hearing for this morning. I do have two (2) other individuals signed up to testify for Item 1.3. This is the William Robertson and Lucinda McDonald matter. I believe these two (2) are the applicants, so they can elect to either testify at this moment .or at the general business matter. But that's all I have signed up to testify this morning. Chair Anderson: So we're proceeding with the agenda in order. If applicants would like, at this time, this is the public testimony portion, so you will have three (3) minutes as the general public has to give testimony. You also can have your time and will have the opportunity to speak on N your particular petition or application at the time the action is taken on your matter. So if there's any other public testimony for any agenda item, I would call for that now. Mr. Dahilig: Seeing none, Madam Chair. CONSENT CALENDAR Status Reports 2015 Annual Status Report (7/10/15) from Milton Arakawa Wilson Okamoto Corporation, for Special Management Area Use Permit SMA U - 2005 -8 Project Development Use Permit PDU- 2005-26, U- 2005 -25 and Class IV Zoning Z -IV- 2005 -30 Tax Map Keys 3 -5- 001:027 Por. ), 168,169,171 (Por.), 175 and 176 Lihu`e Kauai = Kaua `i Lagoons .LLC, & MON Golf (Kaua `i) LLC. Mr. Dahill& If we can proceed on to Item G, Consent Calendar. We do have one (1) Status Report. This is a status report relating to the Kauai Lagoons development. Director's Report(s) for Project (s) Scheduled for Agency Hearing on.8 /25/15 Class IV Zoning Permit Z- IV- 2015 -41, Use Pen-nit U- 2015 -40 and. Variance Permit V- 2015 -6 to allow installation and height variance for a 53 feet high stealth telecommunications structure and associated equipment on a parcel located in Lihu`e situated at the Tip Top Motel /Cafe and Baket site further identified as 3173 Akahi Street. Tax MqP Ke 3- 6- 006:073 and affecting a parcel. approx. 45,000 sq. ft. in size = Verizon Wireless Special Management Area Use Permit SMA(U)-2015 -10 Class TV Zoning..Permit Z -IV- 2015-42, Use Permit U- 2015 -41 to allow conversion of an existing guest house into a bed and breakfast operation on a parcel located along the makai side of `Aliomanu Road in Anahola situated approx. % mile makai of its intersection with K ihi6 HighwU further identified as 4760 `Aliomanu Road, Tax Map Key 4 -8- 013:007 and containing a total area of 11,481 sq.. _ft = Karen Hillstrom. Class IV Zonin g Permit Z -IV- 2015 -43 Use Permit U- 2015 -42 and Special Permit SP- 2015-15 to allow conversion of an existing guest house into a bed and breakfast op. ration oil a parcel located along the mauka side of Kamalu Road within the Sleeping Giant Half Acres Subdivision in Wailua Homesteads, situated at the terminus of Uilani Place further identified as 5900 Uilani Place, Tax Map Key 4- 4- 005:069, and containing a total area of 20.370 so. ft. Steven R. Bauman /Tracv .L. Bauman Trusts. Class IV Zoning Permit Z- IV- 2015 -44 and Use Permit U- 2015 -43 to allow conversion of an existing residence into a bed and breakfast operation on a parcel located along the makai side of Kolo Road in Kilauea, situated approx. 500 ft. north of the Kolo Road /I Iookui Road intersection further identified as 4380 Hookui Road Tax M4P Ke 5- 2- 011:030 and containin a total area of 0.35 acres = Beryl Franklin McClerren Jr. /,John Joseph Hunt Jr 9 Class IV Zoning Permit Z -IV- 2015 -45 and Use Permit U- 2015 -44 to allow construction of a new administration building on a arcel located along the mauka side of Ahukini Road in Lihu`e, situated at the Lihu`e Heliport facility and approx. '/a mile east of the Kapule Highway /Ahukini Road intersection, further identified as Tax Mai Key 3 -5- 001:148 and affecting a portion of a larger parcel containing 3.67 acres = Mand Helicopters Kauai Inc. Class IV Zoning Permit Z -IV- 2015 -46, Use Permit U- 2015 -45 and Special Permit SP- 2015-16 to allow conversion of an existing residence into a bed and breakfast operation on a parcel located along the western side of Oma`o Road within the Puu Pinao Subdivision in identified as 4175 Oma`o Road, Tax Map Key 2- 7- 008:043, and containing a total area of 15,906 sq. fl:. = Sharon R. Boulay Trust. Mr. DahiliQ�: As well as items set for hearing under Item G.2. There are six (6) zoning permits for various items to set for hearing on August 25, 2015 at the next meeting. The Department would recommend approving the Consent Calendar at this time. Mr. Abrams: Move to approve the Consent Calendar. Ms. Mendonca: Second. Chair Anderson: Any discussion? (None) All those in favor? (Unanimous voice vote) Any opposed? (.None) Motion carries 6:01 EXECUTIVE SESSION (NONE) Mr. Dahilig: Thank you, Madam Chair. We are now on Item H, Executive Sessions. We have none set for this morning. GENERAL BUSINESS MATTERS Request that the Commission act to reconsider Condition No. 12 as set forth in letter dated July 29, 2015 from Lorna Nishimitsu, Esq., for Class IV Zoning Permit Z -rV- 2015 -13 Use Permit U- 2015 -12, Special Permit SP- 2015 -3, Tax Map Key(4) 1 -2 -002: 008 = Shredco LLC Mr. Dahili�,Y: Item I, General Business Matters. Item 1.1., request the Commission act to reconsider Condition No. 12 as set forth in letter dated July 29, 2015 from Loma Nishimitsu, Esq., for Class IV Zoning Permit Z -IV- 2015 -13, Use Permit U- 2015 -12, and Special Permit SP- 2015-3 at Tax Map Key (4) 1 -2 -002 parcel 8. The applicant was Shredco. This was an application that was approved by the Commission at the last meeting. Madam Chair, the Department has circulated to the Commission the request from the Applicant's agent concerning this matter, as well as a memorandum from this Department. At this juncture, I 10 would recommend that the Commission seek counsel from the County Attorney's office as to the options regarding proceeding with a reconsideration request, so that the Commission is aware of the options that the Commission has. Chair Anderson: Counsel, if you can set forth the reconsideration rules. Deputy County Attorney Jodi Higuchi -Sam tg isa: Under the Commission rules of practice and procedure 1 -2 -19, when a motion has been made and carried in the affirmative or negative, only a member who voted in the prevailing side may move, at the same meeting, or the very next meeting, to reconsider it, and such motion shall take precedence over all. other questions. So again, under the rules, if there is an interest to make the motion, only those voting in the affirmative of the prevailing motion may move. In addition, under Robert's Rules, there is a standard as to a valid motion to reconsider, and the purpose of reconsidering a vote is to permit correction of hasty, ill- advised, or erroneous action, or to take into account added information or a changed situation that has developed since the taking of the motion. So really, it should be for one (1) of these purposes that I just stated. Mr. Abrams: Can you say that again? Ms. Hi uchi- Sayegusa: Okay, I can repeat. So the purpose of the reconsidering of a vote is to permit correction of hasty, ill- advised, or erroneous action, or to take into account added information or a changed situation that has developed since the taking of the vote. I think at the last meeting, you folks moved forward with the condition in question that was Condition No. 12. Since then, we've received correspondence from the Applicant raising some concerns with regard to that condition. I think for the purposes of clarity in the record, because at the previous meeting, the Applicant had no objections to all of the conditions that was the basis for proceeding and moving forward and approving that. I would suggest that it's something the Commission should consider that the Applicant is now submitting concerns. So for the clarity of the record, it might be something to hear out, but of course this is within your purview. And again, it's up to one (1) of the members who voted in the affirmative on the prevailing side of the motion to make such motion. Chair Anderson: If you have questions for Counsel. Mr. Abrams: Okay, so do we need to make that motion first? Before we hear input. Ms. Hi ucg hi- Sayegusa: The correct motion would be a motion to reconsider based on the from the Applicant, Condition No. 12, correspondence Chair Anderson: So if there is any member of the Commission that would like to make that motion here. Otherwise, we have received it and.. .1 believe we can receive the correspondence without acting on the motion. So it depends on if there is a Commissioner that was in attendance 11 and voted for the motion, if you would like to reconsider it, now would be the time to make that motion. Ms. Mendonca: I would make a motion. Chair Anderson: Okay, and is there a second? Mr. Abrams: Second, Chair Anderson: Okay. All those in favor? (5 ayes and I nay) We'll go ahead and do a roll call. I didn't hear everyone. We have a motion to reconsider, we had a second, and we'll go ahead and go back and do a roll call on the vote. Mr. Dahiliy: Madam Chair, the roll call vote is on Item 1.1., request the Commission act to reconsider Condition No. 12 as set forth in letter dated July 29, 2015 from Lorna Nishimitsu, Esq. An "aye" vote is to support the reconsideration. Vice Chair Mahoney? Mr. Mahoney: Aye, Mr. Dahilig: Commissioner Katayana? Mr. Katayama: Aye, Mr. Dahilig: Commissioner Keawe? Mr. Keawe: Aye, Mr. Dahilig: Commissioner Abrams? Mr. Abrams: Aye. Mr. Dahilig: Commissioner Mendonca? Ms. Mendonca: Aye. Mr. Dahilig: Chair Anderson? Chair Anderson.: Nay, Mr. Dahilig: 5:1, Madam Chair. 12 Chair Anderson: Okay, so we'll proceed with the reconsideration. Our counsel has set forth the rationale. We'll go ahead and call forth the Applicant. Lorna Nishimitsu: Good Morning. For the record, Lorna Nishimitsu and accompanied by Danford Kaeo who is the member of Shredco, LLC, which received authorization to proceed with his materials recycling operation with the condition, which Counsel pointed out properly had not been objected to, but after sitting and thinking about the consequences and the logistics that would be involved in trying to adhere to this condition, a decision was made to ask this Commission to reconsider that particular. condition. Our letter of August 5"' addressed to you said that there are other companies that process green waste at other County facilities, which currently has no limitations on separation of materials that might be derived from seed corn companies, because that seems to be the target of that condition; that language is specific in Condition No. 12, the seed corn companies. Or other companies that may produce product from genetically modified organisms and any compost or mulch that is produced by these operations, they have no similar restrictions on prohibiting the public from having access to those compost or green waste materials. The second item is that all waste disposal, including the green waste processing and disposal, are strictly regulated by the State Department of Health. The Applicant is currently processing green waste materials from seed corn companies and there is no prohibition on Shredco from disposing of the resulting compost to the public, if Shredco elected to do so. Its operations strictly adhere to the rules and statutes as they relate to green waste materials and there is no legitimate basis existing under law for prohibiting it from making the materials available to any person who is Willing to accept those materials. The prohibition places additional burdens on the Applicant for record - keeping. The greatest fear is that if there were to be a complaint that Shredco was snaking these seed corn company materials available to members of the public, or that it had commingled the material with what I would call ordinary green waste from all other sources. Its record - keeping procedures and its operations would have to be formulated such that the County, if it elected to proceed on a violation, would have the records about how you could be assured that the materials were not commingled, not made available to the general public, etc. The Applicant is before you for authorization to use a twelve (12) acre parcel for materials, recycling, and processing. Twelve (12) acres sounds like a lot of land, but when you start getting into the actual operation of hauling green waste from the County sites, or hauling green waste from the seed corn companies, hauling bulky materials, hauling construction debris onto twelve (12) acres, breaking it down for the materials that are going to be composted, it's extremely difficult to keep everything confined to the twelve (12) acre site and not overlapping with each other. That was a real concern after he considered how am I going to implement such a condition? Is it right to engage in free and fair commerce by restricting its operations as conditioned when there is no Federal or State prohibition on growing or producing GMO materials or organisms, and where the seed corn companies use of pesticide or herbicide are similarly in compliance with Federal and State regulations, is unreasonably constrained. He has no way of determining, for example because if pesticides and herbicides are the target, then properly Department of Health 13 should be regulating any green waste that goes to any of the County facilities or anywhere. I-Ie cannot determine when he takes green waste from the County facilities, whether they are hotel green waste or anybody's green waste, who has had those applications. He has no way of determining whether those materials contain any genetically modified organisms. And yet now the condition appears to be targeted at seed corn companies' green waste refuse. He's going to be unable to dispose of some of this green waste, which is contrary to the County's zero waste policy where it wants everything reused or broken down in size, so that we can extend the life of our landfill. Finally, I think, and perhaps this horse has been beaten to death, the United States Federal District Court for the District of Hawai` i determined that the County's attempt through Ordinance 960 to regulate pesticide and herbicide application was preempted by State law and was invalid. Well, it's not apparent whether Condition No. 12 was imposed because of objections to GMOs or because of objections to pesticides or herbicides. We respectfully state that requiring differential treatment of green waste from seed corn companies and green waste from other sources in the absence of Federal or State authority is beyond the scope or authority of this Commission. Circling back to Robert's Rules, I think that the action in imposing that was erroneous; and therefore, is certainly worthy of you folks to reconsider and remove as a condition on Shredco's operations. Thank you. Chair Anderson: Does the Commission have any questions for the Applicant? Mr. Abrams: Lorna or Danford, I'm looking at the conditions. So the only particular condition that applies to the Health Department's supervision of the product that Danford puts out is contained in Condition No. 6? Ms. Nishimitsu: That's correct. He also has to get a pen -nit from the Department of Health. After he got this permit, he was cleared to go to the Department of Health for the necessary pen-nits to designate that site as a site where he could process waste material. Mr. Abrams: So that means it would be under farther review and whatever review they would decide to do during the ongoing process. Ms. Nishimitsu: That is my understanding, and Danford can correct me if I'm misunderstanding the steps he has to take after this planning process. Mr. Abrams: Okay, thank you. Chair Anderson: Any other questions? I have a few questions. I understand from the motion that you felt that the original consent was acceptable, because we did go forward with the condition based on the Applicant agreeing to that condition. If you can describe, if there is further information, part of the original, and what I believe in my recollection from the original hearing, was (1) the Applicant had said that they do keep those materials separated, and so we were looking for clarification on whether or not those are provided to the public. So I'm just looking for that information, if it's something that is their 14 standard of use, that those materials are separated, and that you're opposing the condition because of potential record-keeping. If you can just clarify. Ms. Nishimitsu: At this time, Shredco has a sublicense for a parcel or an area designated for Shredco's use on the ADC's lands, which is where the seed corn companies' materials are currently being processed because he has no other site. Up to this point, given the volume of material that he has been able to receive, he has been able to confine it to the site and reuse it on that site or throughout ADC lands. There is a possibility that the volume of materials might exceed the licensed area's ability to accept, which means the processing will have to be on this twelve (12) acre parcel that is the subject of this land use application before you, and then the record - keeping gets burdensome, okay. He might have to move the seed corn companies' green waste to his twelve (I2) acre parcel that he owns, try to figure out how to keep the records, and instruct the employees to keep the materials separate. It's not clear what this condition was intended to accomplish when the materials, themselves, are not prohibited as a matter of law from existing. It's almost akin to saying that if I give a grocery store permits to build and operate, one (1) of the conditions is you cannot sell GMO products or you can only sell organic products. It could take it to that extreme and that's why it took both of us a while to realize what the ramifications were to his operations and once he starts going, how it's going to impair his ability to do what he wants to do. What he really wants to do is get the County jobs to help the community and get all of this green waste, all of the bulky materials, all of the construction debris processed as the County is looking to have it processed. Chair Anderson: Just to clarify, again, that there is a subsequent Department of Health permit that you'll process. Are you aware if the Department of Health tests compost to determine whether it's suitable to be used for food purposes; for people to grow food? Mr. Kaeo: Yes. The EPA requires that. If we're going to be using any type of manures that gets commingled with the carbon, which is basically the green waste, then you fall under EPA regulations to monitor those nitrates. So it's only for manure, and right now we are not introducing that due to the fact of the complexity of monitoring. Chair Anderson: Just wanted to ask if you are aware of any restrictions that these particular companies have on their product, on their green waste? I believe the status quo is that it is being done on the ADC leased lands at this time. Are you aware of any restrictions that would prevent disposal of that green waste on other lands outside of the leased lands'? Mr. Kaeo: No, we don't know of any other restrictions from the Department of Health. Chair Anderson: So these would be either government restrictions or private restrictions; restrictions from the ADC in terms of their lease agreement with the companies, if you are aware. Ms. Nishimitsu: We are not aware. Chair Anderson: Okay. More questions? 15 Mr. Abrams: I'm curious then, since you are receiving this green waste from someone who is already monitored, are you aware or did you ask them whether or not they had clearance relative to whatever government entity would be overseeing their operation to allow green waste to come to you? Or check on that? Mr. Kaeo: No. Usually the green waste that we get, like I said, from the County is accepted by the County's operators themselves, so that source would probably be liability on the County. As far as us, we ask the customers where it's from, but other than that, there's no red flags for us. Mr. Abrams: Okay. So when Syngenta brings in their green waste to you, at that point I suppose if they had a problem with whatever permits they received to run their operation of doing that, then that would have been a problem for them and they wouldn't have done it. I don't know. Mr. Kaeo: Correct, correct. Mr. Abrams: Would that be something that might be looked into when your permit is being processed as to this type of green waste that is coming into you and where it's corning from, in regards to some aspect of how they look, at green waste and how it's processed? Mr. Kaeo: Our understanding with our contract with the corn company is we don't monitor their operations. The green waste that we accept, and I've talked to Management about that, is totally acceptable, according to the DOH rules that they have to follow. The things that may be in question, we don't even handle; it gets buried, they handle it. We've been working with them and we have no problems with the transparency. We have brought that question up in the past where some of my employees have had questions and concerns, and we have gone through the whole process with the corn companies to prove that there is no health risk for what we are handling. Mr. Abrams: Okay, thank you. Chair Anderson: Are there any other questions from the Commission? My final question, and this is just relative because it was brought up in the motion for reconsideration. that there are other companies that are handling this green waste. I'm curious as to what companies are those. Is that through the County or how is that information there? Mr. Kaeo: The question was there are two (2) other private companies that handle the processing of green waste material around the island, and they don't have any stipulations on them mandating them to segregate and not process or sell that product. One (1) of the reasons why we filed for reconsideration is if anything were to happen to the leased land on the ADC property that allows us, currently, to keep it separated, now it becomes more of a management nightmare for us to try to manage this on the twelve (12) acres in which this application is for. Chair Anderson: Are you aware that those two (2) other companies are do they have contracts with the seed companies? 16 Mr. Kaeo: I have no idea how they run their business; that's their business. Chair Anderson: Okay. Alright, any other questions? Mr. Dahili &. Madam Chair, if I can just, for the record, state for the Commission, so we are understanding the action that was taken. What was taken was a reconsideration of a vote to approve Class IV Zoning Permit Z- IV- 2015 -13, Use Permit U- 2015 -12, and Special Pell-nit SP- 2015-3 with the eleven (I 1) conditions as orally recommended by the Director that includes the time changes, and then with an amended motion to include the 12"' condition related to the green waste. That is the motion that is on the floor that was moved by Commissioner Keawe and seconded by Commissioner Abrams, so that is the open motion that is on the floor right now; just for the Commissioners information. So when you do a reconsideration it rolls back the final roll call, so that's the current motion that is on the floor right now. It's as if no roll tail was taken at the last meeting, so that's the effect of the reconsideration, it is opening up that last motion for discussion. Just so everybody understands, that what is on the floor right now is the eleven (11) conditions with the amended condition as approved by the Commission 4:1, and that main motion was moved by Commissioner Keawe and seconded by Commissioner Abrams, Chair Anderson: Okay, so we have a motion, we have a second. Discussion? Ms. Mendonca: Discussion? Chair Anderson: Yes, Ms. Mendonca: Can we have a discussion right now? Chair Anderson: Yes. Ms. Mendonca: Thank you. Loma, at the last meeting I got the feeling that your client was more than willing to separate, as best he could, with consideration. Based on your report you are saying that, in simplicity, the other two (2) companies have no restrictions and your concern is that we are putting this particular restriction on your client, which may be a management's nightmare down the road; you're looking in the terms of what may come up from it. Is that correct? Ms. Nishimitsu: That is one (1) of the concerns. I think the other concern is, is it an equitable treatment of our client's application to process green waste and other materials? And thirdly, whether the Commission has the authority to impose a condition that would rightfully be imposed by, according to the United States District Court for the District of Hawai4i , one that State Department of Health actually has the authority to regulate. So it's a multiple of concerns. I think in my letter to you requesting the reconsideration, I acknowledged that part of it was my fault. I did state for the record when asked if there were any objections, that GMO organisms are not prohibited by law to my knowledge. Secondly, that the seed corn companies use of 17 pesticides and herbicides is not prohibited by law. I stated that without specifically saying that I objected because it's ultimately the client's call. When Mr. Kaeo said he didn't object, I believe it was a statement made for a variety of reasons. First, he thought he could manage it. Secondly, since May when we first came before you for the public hearing, he had been waiting for two (2) months trying to work out an agreement with ADC for use of the Mile Marker 28 farrn road. And his project was put on hold for that two (2) month period before we could come before you, so part of it was the frustration with the process that you know, in a layman's eyes, everything takes so long. I might be speaking out of turn by trying to read his mind, but there was a compounding factor about why he said "I don't object ". In hindsight, when he contacted me later, he did have major concerns about that condition and its implementation. Ms. Mendonca: Thank you. I think, for our discussion for the Commission, I would have to say, based on her making the statement that she acted at the moment, I think we should also consider the fact that there are two (2) other companies, as stated, that have no restrictions. And putting it on Shredco who has been here, going through this, willing to work with us, pretty much being a local -run company, I would like the Commissioners to give it a little bit more of a serious thought that we may have acted without giving him a fair judgement or equality in consideration that he has been here answering all the questions. If this is a concern, I can appreciate the feeling of why are the other two (2) not having these stipulations? Where he has gone through hoops trying to satisfy all of our concerns, so that's my discussion. Chair Anderson: Further discussion? Mr. KatUama: I think one (1) other issue that we need to consider is that these conditions run with the land; it does not run with Shredco. Other permits that Shredco would apply for related to the operations, I think is totally separate than the land use. Again, i think what we need to do is consider the nexus of Condition No. 12 relative to a land use view; not just an operation of Shredco. I think as we move forward in reviewing these applications, that is one (1) of the underpinnings that we always need to keep in mind is, what conditions are we imposing on the land? It's not the operation. In this case, it's a Use Permit that we are saying what are the conditions that we will allow on this twelve (12) acre parcel? Again, for a lot of the information . that's brought forward, I think that should also be a consideration for the reconsideration of that condition. Thank you. Chair Anderson: Other comments, discussion? Mr. Abrams: I understand that, and I do, too. I just was, at that point, looking at it from the two (2) issues that I heard from Angela, which was pesticides and GMO. And at that point, whether or not that should be put in the domain, and that really sort of got into whether or not we really had the wherewithal, or the knowledge, to make a decision like that. I had previously thought that the Health Department would be considering all of those things in the permit, and not understanding the GMO aspect of it that there certainly is plenty of review on that thing. I thought once you had agreed to that then we just sort of tabled all of that discussion that may have come up had we still been there because it seemed to me it might've gone on for a while and that may be part of your motivation to just simply, if you can live with it, you can live with it. Now I've come to realize that maybe that isn't there. I am satisfied after reading the Hawaii Crop Improvement Association's letter in regards to that and the condition that is there. At least I feel comfortable with the fact that you can go ahead and. that decision will be made if, in fact, it is a concern to those Departments. With that, I would go ahead and continue to support the reconsideration of that motion and remove it from the list of conditions there, and just go with the first eleven (11). Chair Anderson: My continents, and originally when I brought up that condition, is precisely because there is a lot of information that we don't have before us. I do believe that it is our duty to protect the public trust, to protect our ground water, and to make sure that the public is aware of the possible pesticides or contamination in property they receive. So there was a concern for me when I heard that there were these materials that were being produced and then provided to the public for free, and that people might be motivated to get it because of their economic situation; therefore, it may have implications on their property. The fact that information is unclear, it's an unknown, there are questions. I understand that GMO is not ...jList because something is a genetically modified organism that's not really my specialty and I don't have a blanket opposition to the GMO in itself, but it's the fact that these companies are performing research and that they may be outside of the scope of certain requirements for things that are produced for food, and that ultimately, these research materials may end up on the farms of people here on Kauai, may end up in the Farmer's Markets. The public just has a right to know what's going on. If these materials are basically, I think the word was, commingled, there would be no way to trace where these particular toxins came from. There would be no way in the future to say, oh this chemical that was used for this genetic research on this farm, if you were to look at the soil 20 years from now and this compost is being spread around the island, there's no way to trace who is responsible for that cleanup. Those are the concerns that I bring to it. Yes, as a Planning Commissioner, a volunteer, I can say, I don't have that jurisdiction, but I believe that the DOH ( 1) has a responsibility to look at the green waste, not just the commingling of manure. I think that it's very important with the changes in agriculture and the uses of pesticides, it may not be used in the conventional way, so those are my concerns that I bring. It's not that I want to single out Shredco in any way. I believe that you are approaching this in a very pono manlier and I appreciate your honesty and your sincereness. I just want to make sure that when we make decisions that we do it, not out of pressure that it's been done or there are other people doing it, so we continue to push along. If restrictions aren't there that need to be there, we need to shine a light on it and there needs to be attention brought to it. That's the reason I brought up that matter. Yes, it was a last minute condition to put on there, but it was an attempt to try to protect until we had more information. That's my two cents on the matter, With that, is there any other discussion? Ms. Hi 7uchi- Sayegusa: Okay, just to clarify. I'm sorry. Mr. Keawe: No, no, so if we wanted to change that condition or eliminate the condition, what's the process to do that? 19 Ms. Higuchi- Sayegusa: I think, at this point, we would need to amend the prior motion to remove Condition No. 12. Alternatively, either Commissioner Abrams or Commissioner Keawe can withdraw your previous motion from last time with regard to amending and entertaining Condition No. 12, Mr. Keawe: I move to withdraw the previous condition. Mr. Abrams: I agree to withdraw my second. Mr. Dahilig: Given that Madam Chair, we need a new motion on the floor to act on the application at this point. Mr. Abrams: And/or another amendment? Mr. Dahilig: No, because you guys were the main motion withdrawals. Ms. Higuchi- Sayegusa: So you've withdrawn the amendment that added Condition No. 12, and so now we have to act on the main permit (sic). Mr. Abrams: We have to act on the main motion? Ms. Hi uehi- Sayegusa: Yes. Mr. Abrams: Do we do amendments before the main motion? If we do, I just want to make sure I'm clear. Mr. Dahilig: Given the ruling of the Attorney, she's interpreting the withdrawal as a withdrawal of the amendment to the motion. The recommendation that was moved on initially was the oral recommendation from the Department that includes the eleven (11) conditions, as well as the time change. So that now stands as, I interpret, the motion on the floor. Chair Anderson: Just to make clear, can you state the motion one (1) more time? Mr. Dahilia: So the motion on the floor is to approve Class IV Zoning Permit Z- IV- 2015 -13, Use Permit U- 2015 -12, and Special Permit SP- 2015 -3 as orally recommended by the Department. Chair Anderson: Okay, any further discussion? Let's go and do a roll call vote. Mr. Dahilig: Again, Madam Chair, the motion on the floor is to approve Class IV Zoning Permit Z -IV- 2015 -13, Use Permit U- 2015 -12, and Special Permit SP- 2015 -3 as orally recommended by the Department. Vice Chair Mahoney? ►9N Mr. Mahoney: Aye, Mr. DahiliK. Commissioner Katayama? Mr. Kataaina: Aye, Mr. Dahilig Commissioner Keawe? Mr. Keawe: Aye. Mr. Dahiligj Commissioner Abrams? Mr. Abrams: Aye. Mr. Dahili &. Commissioner Mendonca? Ms. Mendonca: Aye, Mr. Dahilig Chair Anderson? Chair Anderson: Nay, Mr. Dahili &. 5:1, Madam Chair. Chair Anderson: Thank you. Ms. Nishimitsu: Thank you for your time. Moa Lemu, LLC's Petition for Intervention by Daniel G. Hempey and Gregory H. Meyers, Attorneys for Moa Lemu, LLC, relating �lphin House Estates, LLC's Petition for a Declaratory Order Concerning the 1e Operation of a Transient Vacation Rental Without a Non - Conforming Use Certificate. Mr. Dahilig Thank you, Madam Chair. We are now on Item 1.2. petition for intervention by Daniel G. Hempey and Gregory H. Me Lemu, LLC, relating to Dolphin House Estates, LLC's petition for concerning the operation of a Transient Vacation Rental without a Certificate. This is Moa Lemu, LLC's yens, Attorneys for Moa a Declaratory Order Non - Conforming Use Madam Chair, I believe this has been circulated to the Commission. This is also in response to Dolphin House Estates, LLC's request for a Declaratory Order. As you may recall, the Commission ordered a return on the matter, as to provide an opportunity for intervention at this meeting. This has been received by the Department and is actionable. Given that Moa Lemu, LLC is the actual landowner that Dolphin I-louse Estates, LLC's asking for declaratory action against, the Department sees that there is a unique interest in the proceeding and would 21 recommend that the Commission approve the petition for intervention in this matter and refer the matter to a Hearings Officer for its recommendation to the Commission for action. I believe representatives for both the Applicant, as well as the Petitioner for the Declaratory Order are present. Chair Anderson: If we can have the requested Intervener, as well as the Applicant step forward. Gregory Meyers: Good Morning Commissioners. Gregory Meyers on behalf of the Intervener, Moa Lemu, LLC. Mateo Cabbalero: Mateo Cabbalero on behalf of Petitioner, Dolphin House Estates, LLC, Mr. Dahilig: Madam Chair, again just appearance for the record on behalf of the Department, the Department would state its non - objection to the Intervener's request. Chair Anderson: Does the Commission have any questions for the requesting intervener or the Applicant at this time? Does the Petitioner have any objections to the proposed intervention? Mr. Cabbalero: No objections. Chair Anderson: Okay. So if there are no questions, I believe we have a motion to receive the request for intervention. Mr. Dahilig The recommended action, on behalf of the Department, would be that the Commission approve the petition for intervention and schedule the matter for a hearing before a Iearings Officer to provide a recommended Conclusions of Law, Findings of Fact, and Decision and Order to the Commission for its actions once the Contested Case Hearing has been concluded. Chair Anderson: Do I have a motion? Mr. Keawe: So moved. Chair Anderson: Second? Mr. Katayama: Second, Chair Anderson: Okay. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 6:0. Thank you. Mr. Dahili &: Just for the Parties' information, the matter will be rolled over to the Iearings Officer. You should hear from the Hearings Officer within thirty (30) days concerning scheduling for the Contested Case Hearing. PAPA Time Extension request regarding Class IV Zoning Permit Z -IV- 2011 -12 Use Permit U- 2011-12 and Special Permit SP- 2011 -7 for operation of commercial tours and gilt shop at the botanical gardens Tax Map Ivey 5- 3- 008:012 Princeville Kauai = William E Rober°_lson & Lucinda McDonald Trust. Mr. Dahilip: Madam Chair, we are now on Item I.3. This is a time extension request regarding Class IV Zoning Permit Z -IV- 2011 -12, Use Permit U- 2011 -12, and Special Permit SP- 2011 -7 for operation of commercial tours and gift shop at the botanical gardens. Tax Map Key 5 -3 -008 parcel 12. This is in Princeville. The applicants are William E. Robertson and Lucinda McDonald Trust. Madam Chair, just for your information, the applicants have also signed up for testimony on this particular item, but they also are parties for this matter. Dale is our Planner and can present the recormnendation on behalf of the Department. Chair Anderson: Okay, so we'll hear from the Planner first, then I'll call the Applicant. Staff Planner Dale Cua: Good morning, Madam Chair and members of the Commission. At this time, I'll go ahead and read the report. I'll give you a little bit of background on the permits in itself. Mr. Cua read the Director's Report for the record (on file with the Planning Department). And that is the Department's recommendation and report. Chair Anderson: Thank you. If I can have the Applicant please approach. William Robertson: Good morning, Commissioners. My name is William Robertson. I am one (1) of the owners of Princeville Botanical Gardens along with my wife, Lucinda Robertson. We've been operating the Botanical Gardens for four (4) years and we've had no complaints. A lot of happy people have come through our garden. We abide by the rules of our Use Permit very strictly and have never had any complaints by any of our neighbors. When we first applied, I think four (4) years ago, there were some concerns with our neighbors. At this point, we are on extremely good terms with all of our neighbors. What we're asldng for is, basically everything being the same, we are not asking for any extensions of a number of tours or anything like that, but what we're asking, rather than coming back every two (2) years, maybe we can go a little bit longer; maybe four (4) to six (6) years. It is a temporary permit, so if anything was done out of place or against our Use Permit, the pennit could be pulled immediately. We are just requesting if we can go for a few more years before we go before the Board (sic) like this. Lucinda Robertson: I'm Lucinda Robertson and I just wanted to thank you for listening to my husband. And just to report that all is going well. It's just a joy to seethe people when they go 23 through the garden and you can tell by those Trip Advisor reviews that it makes people happy, so that's what motivates us to continue with it. So, thank you. Chair Anderson: Are you agreeable to the recommendations set forth in the Director's Report regarding the amendment to No. 10? Ms. Robertson: He's recommending just two (2) years still. Mr. Robertson: Yes, he's recommending two (2) years. We are actually asking if we can get like four (4) to six (6) years extension on the two (2) years, so we don't have to come back every two (2) years. Ms. Robertson: I think the reason for continuing just with the two (2) years was the initial response to a couple of the neighbors. Like we said, there's no complaints and they're happy. So we don't have to use your time in two (2) years, we just thought maybe we could go a little bit longer. Mr. Robertson: It actually says in No. 10, additional extensions may be granted for longer periods of time by the Planning Commission provided adverse impacts are not generated that affect the public health, safety, and welfare, as well as the surrounding environment, and conditions of approval are complied with; which we feel this is the case. Chair Anderson: Okay. Any questions for the Applicant? Mr. Keawe: Madam Chair, I have something. Chair Anderson: Yes, Mr. Keawe: Dale, what was your rationale for going two (2) years, instead of four (4)? Did they ask you for a longer term? Mr. Cua: Yes. I think, as noted in the Director's Report, the initial request from the Applicant was for a period often (10) years. The Department's position was just to assure or reassure that there are no impacts to the neighborhood. We wanted to make sure that we could revisit the permit application every other year, so two (2) years, just to make sure everything is okay. Mr. Keawe: And then at what point would you feel that ... they've done it for four (4) years now, is that correct? Mr. Cua: Right. At this point, it would be at the Commission's liberty to make that discretionary call, as far as if you folks want to grant a longer period of time. Mr. Keawe: Okay. Where do you get most of your guests from? The people that come through your garden. 24 Ms. Robertson: They come to the airport and they see flyers. It's a lot of visitors and then sometimes we've had schools come through, local schools. But I would say it's probably mostly visitors to the island. Mr. Keawe: Mostly visitors. And that's based on your marketing pieces that you have out there? Or how do they find out about you? Mr. Robertson: We work with a lot of the hotels, like the Marriott and the Westin Hotel. Basically, if you go on the internet, people who come to Kauai might say, well we are going to the Garden Island, let's visit some gardens, so they find us on the internet; a lot is done like that. Word of mouth, Trip Advisor; we handed out some of the responses from Trip Advisor. Probably the majority of our ... if people want to find out about our garden, they'll go to someplace like Trip Advisor and read the reports. Mr. Keawe: Okay. And your current fee structure for your tour, are there levels? Or it's just all one (1) price? Ms. Robertson: It's just one (1) tour, and then we give a Kama`aina discount. Mr. Keawe: Okay. What's the current rate now? Mr. Robertson: $55, and children, I think, are either $15 or $17 over 12 -17. Under an age, maybe 7 or 8, they do not pay anything. Mr. Keawe: Right. And the tour lasts how long? Ms. Robertson: Three (3) hours. Mr. Keawe: Three (3) hours. Chair Anderson: Any other questions for the Applicants? Mr. KatUarna: I have a question for the Planner. Chair Anderson: Okay, Mr. Katayama: Dale, as these permits come before the Commission, are there any capacity issues? Assuming that as the gardens do well, it's signifying more attendees, more tours. So things like parking capacity, street capacity, have we looked at that and is that an issue? Mr. Cua: Those specific concerns were addressed at the time the application... Mr. Katayama: Well as we move forward and as the operations grow, does the gardens have the... What level of capacity are they at currently? I think that should sort of determine the frequency of revisiting the permit. I mean if they are like 50% and we can do that every five (5) years or ten (10) years, I'll be okay. But1ow are those capacity issues being reviewed? 25 Mr. Cua: At this point, I would say that based on the project site, there is ample space to accommodate more visitors. At the same time, when we evaluated the project, there was a restriction to the number of tours that can occur per week. I think it was just a balance as far as being able to accommodate the Applicant's request and at the same time, being able to be sensitive to the neighborhood and mitigate the concerns that was presented to the Commission at the time the application was being presented. Mr. Dahilig: Just to add to that, and just for the Commissioners' reference, it's on Page 340 of 373 of the PDF, so you can see the actual tour condition. As you know, our Department enforces conditions based off of complaints. At this juncture, we haven't received any complaints concerning the Applicant's activities, given the standards of operation as provided. However, it is a sensitive area and as far as we would like, is to be able to continue monitoring of the area on a closer periodic basis, notwithstanding the fact that there hasn't been any complaints. I thiiAz your question, Commissioner Katayama, is relevant though. We do our basis based off of complaint history, but we haven't actually asked affirmatively for attendance records or those types of things to verify the question that you have posed. Mr. Katayama: Well, I think we're trying to strike a balance between helping the Applicant, as well as maintaining the Commission's fiduciary responsibility to the comnxunity, so I'm trying to get a sense of that. Mr. Dahilig: On that note, the Department would not be opposed to a deferral of the matter if the Applicants are able to provide information to the Commission concerning the actual attendance records, and whether or not it has reached the capacity or not. Mr. Robertson: I can make a few comments. I think I did the math before, and if we are allowed eight (8) tours a week, twenty (20) people per tour, and you do it on a monthly basis, that's over 600 tourists coming through a month. We're getting anywhere from 250 to under 400 a month. In fact, this last month was pretty low. I'd love it if we can just get about 400, which is about less than two- thirds of what we've been approved for. So we are not getting anywhere close to our maximum that we've been allowed, which is fine. Our tour says four (4) days we can do; sometimes we do four (4) days, most of the time we do three (3) days. We're not in this to make a lot of money or to pack the place. Chair Anderson: Any other questions for the Planner or the Applicant? Mr. Abrams: Yes. Applicant. I'm reading the evaluation there where the rationale was that at the very first hearing, there was some opposition to the application and they weren't sure how the impacts would be, and that is why you put the timeframe on. And they wanted to preserve that opportunity to revisit it. I'm not sure whether you are familiar with those people who would be, I guess, neighbors. If I had heard that those were things that they are now satisfied with, then I might be inclined to go a little bit more than the two (2) years, but at this point right now, I haven't heard it. I know there are no problems from what we can tell in terms of complaints, but to some of those neighbors, perhaps verification of that would be a good thing to do; at least for 26 Planning in terms of a longer period of time. That's kind of what I am looking at in regards to that rationale that Dale and the Department have put on, in regards to keeping it at two (2) years. Ms. Robertson: Can I ask a question? Chair Anderson: Yes. Ms. Robertson: So you would like a written statement from those neighbors that were opposed at the beginning? Is that what you're asking? Mr. Abrams: It said in the beginning that there was opposition, and the two (2) year condition renewal; now that you've gone through one (1), this is the second one. So at that point, they are still of the opinion that they want to keep it at two (2) years because they are not sure. I realize things change or happen, but part of that, and that may be a decision we make in regards to going longer or not, but their rationale was the fact that to revisit in two (2) years, if something came up because it was overlooked or we didn't hear anything about it, is easier to deal with than wait for four (4) years or six (6) years or ten (10) years at that point, because other than that, that's part of that process we'd have to go through if something else turned out that you were exceeding some of those things. I just wanted to see whether or not you were familiar with those opposition letters in regards to that, and whether or not you've had a chance to get their feedback. Ms. Robertson: Well, I mean, it's a nice community and everybody walks every day. We talk to them every day. They have not complained to us directly, and they give us fish when they go fishing. So it seems like everything is fine. Mr. Abrams: It appears to be, yes. Mr. Robertson: We've asked people if there's anything we can do, and several of the people said, oh we don't even know what you're doing; it's like non - existence to us. It's like the impact was not what we thought it was going to be. You know, we always comp their friends when they come into town. Mr. Abrams: No, I understand all of that. I'm just simply saying I'm looking at this rationale. if that wasn't there, then I may be thinking of a longer period of time. But I'm looking at how the Department works and how they like to handle things, and my perception is that at one point in time when they were satisfied with everything, and they're still not quite at that point to recommend two (2) years, then they may recommend something longer. 1 generally don't want to argue with our Department in regards to something that they may have a policy that they handle, but maybe the Commission wants to do something different; I don't know. Chair Anderson: Any other questions to the Planner or the Applicant? So do we have a motion? 27 Mr. Keawe: I move that we take the Department's recommendation of a two (2) year extension for this Applicant. Mr. Mahoney: Second. Chair Anderson: Okay. Discussion? Mr. Mahoney: Madam Chair, I think that's fair enough and it's not like it's a punitive measure; this is part of the temporary permit. Everything's going fine and I'm sure it's going to continue that way. I think that maybe at the next juncture when they reapply, maybe it could be extended, but I'm willing to go with the Department at this juncture. Chair Anderson: Okay. Any ftirther discussion? Just to clarify, the motion is to approve the Director's Report. I'd like to just have the Planner go ahead and read the final recommendations. Mr. Cua: So, Condition No. 10 would be amended to read as follows: "The use of the subject property to conduct botanical garden tours shall be temporary and can be conducted for an additional two (2) years until July 23, 2017. Additional extensions maybe granted for longer periods of time by the Planning Commission provided adverse impacts are not generated that affect the public health, safety, and welfare, as well as the surrounding environment, and conditions of approval are complied with." Chair Anderson: So we had a motion and a second. All those in favor? (Unanimous voice vote) Any opposed? Seeing none, the motion carries 6:0. Thank you. Mr. Robertson: Thank you. Chair Anderson: Okay, we're going to take a caption break at this time and we'll return in fifteen (15) minutes. Thank you. The Conunission recessed this portion of the meeting at 10:43 a.m. The Commission reconvened this portion of the meeting at 11:01 a.m. Chair Anderson: Call this meeting back to order. Request for Extension of Time on Conditions 16 and 17 of the Planning Commission's conditions of approval dated March 10, 2015 related to Class IV Zoning Permit Z -IV- 2015 -8, Project Development Use Permit PDU- 2015 -7, Variance Permit V- 2015 -1 and Special Management Area Use Permit SMA(U)- 2015 -6, Tax Map Keys 4- 1- 003:004 (por.), 005, 007, 011, and 017 and 4- 1- 005:014 and 017, Coco Palms Hui, LLC, by Ron Agor, Architect (7/7/15). Mr. Dahilig: Madam Chair, we are on Item 1.4., request for an extension of time on Conditions 16 and 17 of the Planning Commission's conditions of approval dated March 10, 2015 related to Class IV Zoning Permit Z -N- 2015 -8, Project Development Use Permit PDU - 2015 -7, Variance f► Permit V- 2015 -1, and Special Management Area Use Permit SMA(U)- 2015 -6. This is for Tax Map Keys 44-003 parcel 4, 5, 7, 11, and 17, and 4 -1 -005 parcel 14 and 17. The applicant is Coco Palms Hui, and Ron Agor is the Architect in this matter. Madam Chair, you do have our Department recommendation concerning this as Item I.4.a., Page 351 of the PDF. The Department does not have any objections to the extension of time; however, we would like clarification concerning conditions related to the mitigation measures concerning the cultural impact mitigation actions, and you will see those as changes related to Conditions No. 1 and 2, as well as mitigation measures relating to traffic on Item No. 10. Again, we are requesting clarification of the language and setting dates certain to September 30, 2015 for those. So that is the Department's recommendation at this time, Madarn Chair, Chair Anderson: It's been brought to my attention that there may be members of the public that would like to testify on this agenda item. So at this time, I'm going to give the public that opportunity. Please step forward. Jennifer Lim: Thank you, Madam Chair and members of the Commission. My name is Jennifer Lim. I'm an attorney and I represent PR2, LLC, which is an LLC under Prudential American Insurance; that's our client at Carlsinith Ball. Prudential is actually the landowner, and Coco Palms Hui, the applicant who is before you today, was under contract to sell the property to Coco Palms Hui. We wanted to give very simple, brief statements to say that we support the Applicant's request for the time extension. We very much appreciate the preliminary feedback from the Director and we hope that the Commission will grant this request. That's it. I'm available for any questions, but we just wanted to put our comments on the record. Chair Anderson: Okay, thank you. Ms. Lim: Thank you. Mr. Dahilia: Madam Chair, we provided our recommendation to the Commission. If the Applicant would like to have a response to the Director's recommendation on this matter, we are available to answer any questions. Chair Anderson: So if the Applicant can step forward. Ron Agor: Good morning, Commissioners. My name is Ron Agor for the record, and I have with me, Tyler Greene, the Applicant. What prompted the request for extension on Items 16 and 17 was our performance on conforming to Item 3, Condition No. 3, which is the SHPD's requirement. I am happy to report that all respective Departments have completed their review and have approved that, and have forwarded their letters to Mary Jane, our Archaeologist, who will be preparing a letter to the Planning Director confirming compliance of Item No. 31 What we are trying to accomplish right now is pulling the demolition permits. I believe we have twenty (20) demolition permits we're looking at. Once we get the letter from SHPD, I believe fifteen (15) of those demolition permits will be available, and we worked it out with Building W such that we will be applying for new permits for five (5) of the buildings, and then we'll be on our way. In the meantime, I'll have Tyler Greene say what he wants. Tyler Greene: We just appreciate the Planning Director putting the time in this to kind of clarify the conditions. We are fine with the Planning Director's suggestions and are in agreement with what was put together. Chair Anderson: Does the Com nission have any questions for the Planning Director or for the Applicant? Mr. Mahoney: I have a question. Do you foresee any other delays that are coming up? This project here, as we all know, a lot of faith was put into it. A lot of people, reluctantly some that gave the green light, and this was like the last hoorah for Coco Palms. A lot of people are rooting for it, so do you foresee any other delays or problems? Mr. Agor: In terms of the permitting, not really. I mean, we are cautious of the fact that we are applying for five (5) new demolition permits. I am trying to get clarification from the Health Department right now. Part of the requirements is to ... when you apply for demo permit and you're going to demo after you get the permit, you have to get a pest control guy out there to get rid of all the rats, yeah? I'm trying to get time periods from pest control guys, and they are saying that structures that large, properties that large, might take thetas as long as thirty (30) days to get rid of the rodents. That's the only thing I can see on the permitting side. Mr. Mahoney: Okay, thank. you. Chair Anderson: Other questions? Mr. Keawe: So you don't envision any other delays with regard to the actual permit process itself? Because you have the SHPD stuff coining. Mr. Amor: Yes. Mr. Keawe: And that was key? According to what you said, that was very key to what you needed to do. Mr. Agor: Yes. Mr. Keawe: Now, how many demo permits do you have to pull in total? Mr. Agor: Twenty (20). Mr. Keawe: Twenty (20)? Mr. Agor: Yes, Mr. Keawe: Individual ones? Mr. Agor: Individuals. Mr. Keawe: Alright, so you pulled the first five (5), and then what happens after that? Mr. Agar: No. There are fifteen (15) of them that could be available to be pulled after we get SHPD's letter to the Plaining Director and the Planning Director says okay, release the permits. Mr. Keawe: Okay, Mr. Aaor: At the same time, we're applying for five (5) new pen-nits; a total of twenty (20) buildings. Mr. Keawe: Right. Five (5) will be new and fifteen (15) will be based on what was already submitted.. Mr. Agor: Yes. Mr. Keawe: Okay. And then from there the process is? Mr. Agor: We get the demo pennit, it gets funded, escrow gets closed, and demolition begins. Mr. Keawe: Okay. And the anticipation, how long on the demolition? The time limit? Mr. Agor: I can't. Mr. Greene: We hope to be through the demolition in four (4) to six (6) months. Mr. Keawe: Four (4) to six (6) months? Mr. Greene: Yes. There was an issue with capacity here at the landfill on Kauai, so we will have to ship that rubbish off to Oahu, which is part of the factor of the timing of that. Mr. Keawe: Right, okay. Once that's done then you're into construction? Mr. Greene: Then we roll into the construction, yes. So the hope is that we'll be processing the building permits right after we start the demolition. Mr. Keawe: Okay. Chair Anderson: Any other questions? Mr. Abrams: Yes. I'm interested in making sure we are all clear on first, building permit and Commission approval, okay? I take it that there was some misunderstanding on your part, I guess, from that definition. Now we are looking at dates specific. Mr. Agar: We are accepting the Planning Director's recoinmendation. 31 Mr. Abrams: Okay, so ... never mind. I'll just sort of leave it at that point. Mr. Agor: Yeah, I don't want to go there. Mr. Abrams: Yeah, okay. At that point, I would be really concerned if those two (2) conditions go past this deadline that are the subject of your request to extend. So, that's the deadline that 16 and 17 call for, the contributions for the cultural and bus stop information. Mr. Agar: Yes. We are accepting it, crossing our fingers that we are going to get cooperation in getting the demolition permit as soon as we can. If it drags out to this time period, we're not going to have funds to pay. Mr. Abrams: Alright, thank you. Chair Anderson: Any other questions? Mr. Dahilia: I guess our conclusion, Madam Chair, again, is we believe the Applicant's request for the time extension, largely in part due to work with SHPD to mitigate cultural impacts as required by law, is reasonable and we are more than happy to concur with their recommendation for that extension of time to October 151h, as well as the amendments to Conditions No. 1 and 2 and 10 to clarify the other deadlines for mitigation related to cultural impacts and traffic impacts. Chair Anderson: Do I have a motion? Mr. Mahoney: Madam Chair, move to approve. Mr. Katayama: Second. Chair Anderson: Okay, discussion? To clarify, the motion is to approve the extension request with the recommendations from the Director of Planning's amendments to the conditions as set forth by the Director. Mr. Mahoney: Correct, Madam Chair. Thank you. Chair Anderson: Okay. Any other discussion? (None) All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 6:0. Thank you. Mr. Dahili& Thank you,. Madam Chair. Amendment to Class IV Zoninm Permit Z 4V- 2001 -16. Use Pen-nit U- 2001 -12 and Special Permit SP- 2001 -7 involving modifications to a cellular telecommunications facility, Tax Map Key 5 -2- 004:049, Kilauea, Kauai = Verizon Wireless, Mr. Dahi� Madam Chair, Item 1.5. This is an amendment to Class IV Zoning Pen-nit Z -IV- 2001-16, Use Permit U- 2001 -12, and Special Permit SP- 2001 -7 at TMK 5- 2- 004:049. 32 Madam Chair, we've been trying to get in contact with the Applicant to give the notice of the scheduling for this item this morning. We are aware that he is not in attendance. We will try again. He has not returned our phone calls, so he may be out of state or out of the country. We request to defer Item I.5. to the September 8`1' meeting to allow further notice to the Applicant on this matter. Chair Anderson: Okay. Do I have a motion? Mr. Abrams: Move to defer amendment to Class IV Zoning Permit Z- IV- 2001 -16, Use Permit U- 2001 -12, and Special Permit SP- 2001 -7, Verizon Wireless, to September 81, Mr. Mahoney: Second, Chair Anderson: Okay, any discussion? (None) All those in favor? (Unanimous voice vote) Okay, motion passes 6:01 COMMUNICATION (For Action) (NONE) Mr. Dahilig: Thank you, Madam Chair. We are on Item J, Communication for Action. There is none this morning. COMMITTEE REPORTS (NONE) Mr. Dahjh& As well as Committee Reports. There are none this morning. UNFINISHED BUSINESS (For Action) Mr. Dahilia: Unfinished Business, we have nothing for action. NEW BUSINESS Class IV Zoning Permit Z -IV- 2015 -37, Use Permit U- 2015 -36 and Special Permit SP- 201544 to allow conversion of an existing residence into a homestay operation on a parcel Iocated along the eastern side of Menehune Road in Waimea Valley, further identified as 5390 Menehune Road and Tax Map Key 1- 5- 002:047, and containing a total area of 37,407 sq. ft. Giuseppi Gereke -King Mr. Dahili& And under New Business, we do have two (2) applications for action this morning, Madam Chair. Hearing has been closed and action is available on Class IV Zoning Permit Z -IV- 2015-37, Use Permit U- 2015 -36, and Special Permit SP- 2015 -14 at TMK: 1 -5 -002 parcel 47. Applicant is Giuseppi Gereke -King. 33 Marisa Valenciano is our Planner on this matter and will be presenting the reconnnendation on behalf of the Department. Chair Anderson: Okay. If we can hear from the Planner now. Staff Planner Marisa Valenciano: Good.morning, Madam Chair and members of the Commission. I'm going to try to summarize my report. Ms. Valenciano read the Actions Required, Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director's Report for the record (on file with the Planning Department). This concludes my presentation of my report, conclusion. Thank you. and I'll hold off until the recommendation and Chair Anderson: Thank you for the thorough evaluation. If I could have the Applicant please step forward. Your name for the record. Ms. King: Giuseppi King. Chair Anderson: Have you had the opportunity to review the Director's Report? Ms. King: I have and I don't understand. When I look at the documentation that I provided to document my farm income and production, my calculations come up to a little over 74% of my income from faun activity and farm related products; whereas, 26% of my income is from homestay. Of that 26 %, 45 is taxed off the top to the County and the State, so I'm confused. If 17ve met all of the existing requirements, why am I being denied if 74% of my income from farming is substantially more than 25% (sic) from homestay? So that's a concern for me. I am farming. I'm trying very hard to farin. I designed my house when I was 7 years old, and I built it with my own hands, so I take a lot of pride in my property. I have an irrigation ditch that runs from the top of my property to the back of my property. It's well over 600 feet long that I hand dug by myself; it took me several months to do. Certainly after that, I installed an irrigation system, PVC irrigation system, in my backyard to irrigate what the ditch doesn't irrigate. Keeping in mind that my property is less than an acre long; it's rectangular in shape. The beginning of my property is tut- farmable because the Menehune Ditch has a little leak that's all rock in front of my property; it's all rock and boulders, so you can't excavate that and plow that or else the Menehune Ditch will leak, as it was when I purchased the property and had to have that repaired. Then there's my house, then there's my septic system with a leach field, and then there's the river, so really I have a couple of hundred square feet of actual farmland to farm. Shortly after I built my house, created my ditch, put in the spray -on ground cover, and my irrigation system, less than two (2) months later we have a flood that washes everything away; fills up the ditches, washes all of my gardening away, washes all my plants that haven't been planted, all of it kEAI is washed away. And then of course it rained for three (3) more months after that, which then required months of drying out and months of cleaning. I had to start all over again with my irrigation ditch, by hand, after months, of having back hoe work because my land was no longer flat. There were 3 4 feet tall dunes throughout my property, which had to be rectified. Then I started all over again. This is an ongoing process in trying to farm in ag land in a flood zone. It's not just a flood zone, it's a flood basin because I'm 9.99 feet below sea level. Because I'm so far back in the Valley, we are surrounded by these big, beautiful poly's. We have a wind issue; I'm like a vortex. I have this big, it's getting bigger, it was big at one point, banana patch. I sell those bananas to Nana's Bananas, so she can make her dried bananas. December 2012 we had a bad storm, and one (1) big wind whipped through the valley and snapped every single one of my trees; just about at the bottom. KIUC had to come and cut them all off the wires because they were hanging on the wires. They are just now starting to grow back and I think this year I had three (3) bunches of bananas; not very profitable. What I've learned to do is grow seedlings and grow starters and sell things that are in pots, with the exception of my agave, my canna lily, and my tea. I grow them specifically for the seeds, which I use in my product production; which I make soaps and lotions. They are very, I want to say high -end, very precisely made for limited production. Some things I can mass produce, some things I can only produce so much seed, but those products that I produce from the seeds add value to my products and add a price tag to my products because they are seasonal. I will give you one (1) example, without giving away too much proprietary information, tea. Tea produces seeds. They produce berries with little tiny seeds inside of them. It's those seeds that I use in this gelatinous cream that I make for cuticles, like that minute manicure, but I have the seeds in there, so they are like an exfoliant, and they're grown on Kauai, so they warrant a price tag. They are seasonal, but this year had somebody investigated my property or inspected my property they would see that I had a great harvest this year. It's only every couple of years that I get that many seeds from tea. This year I have a box, this big, and all the seeds are drying. It might not look like much, but it only takes a few seeds for half an ounce j ar of lotion, so that amount of seeds takes hours to pick through and separate from the shell. That's just one (1) example of many of my products that I use from my seeds and from my land. I also grow luffa. I also grow things that I sell in pots like agave; this year was a beautiful year for agave. I make these really cool little bowling balls with an agave sticking out. I have help with the artistic part because I'm not artistic. With that said, I have been operating my bed and breakfast for many years without any complaints. I appreciate the respondents that have shown up today to argue the point of having a bed and breakfast. Even though they are absentee landowners, they still have a right to voice an opinion. I appreciate their opinion. I also would like to take into consideration the opinion of the neighbors who.are actually on -site and would be impacted by my operations, and they are supporting my operations; they are in view of me, they are in relation to me. The people that are in opposition to me are invisible to me. It takes a lot of work if any of my tenants were really going to make an effort to get to their property. It's virtually non - accessible. I appreciate their fears, but they are hypothetical fears. Should something happen, then we should look at it at that point. The word that I was trying to remind myself this morning was "references ". The people that come into my house all have references. Airbnb provides references. You can't j oin Airbnb to advertise M your property or to rent a property without some sort of vetting process. So you give them all of your information, and then they have to confirm that information before you are even allowed on the website as a host or as a guest. Once you are on the website, if there's any problem with that guest, you are allowed to leave feedback on that website. So when people are inquiring to my bed and breakfast, I can look at what other people have said about them; whether it's good, they're clean, they're not. I can turn down people without problem. This is my home, I built it with my own hands. I live there by myself I take it very seriously. I'm kind of introverted and I spend a lot of time at my house. When I get a guest that makes a comment like "do I have to pay a cleaning fee ?" or "can you reduce this fee ?" immediately I delete because that's the first sign that they are going to give me an argument or a stink, and I just don't need it; I don't need it. The homestay is a great supplement to my farm. I want to stress that this is only temporary; it's not an end means, it's a means to an end for me as I build my other businesses because I do like my privacy. At one point, I'd really like to be able to afford, and I mean afford not financially, but time wise, to write a book. And that little vacation rental, that I vacation rent to live near myself sometimes, would be the perfect place for me to have my man cave to actually write a book. But that could be two (2) or three (3) years down the road because I'm just trying to swap careers. Right now, I'm in the financing business, which is not fun, but it is how I generate my income. Anyway, I request that my application denial be reconsidered for approval under the circumstances that I have fulfilled all of your requirements, 1 do earn more money off my fann. Look at my fingernails and tell me I'm not fanning. Aside from fanning, things that I do with my land that you can't get paid for is that I host horses; I have one (1) there now. My neighbors up the street don't always have enough money to feed their horses. I'm hosting their horses right now on my property. I can't get paid for that. They might give me a box of tomatoes or some papayas in exchange for that. The fishermen that come once a year to fish for O `opu. I have the ozrly access available to the river. I have no problem with the certain individuals that come. They set up their little camp at the back of my property and they fish for O`opu. These guys are very serious when they're fishing. They have, what looks to me to be, expensive gear and they take a lot of time fishing for O `opu. I don't ask them for any money. Now what I feel is that I have to tell them, I can't afford that aloha because I can't show it on my tax returns in order for me to supplement my income, in order for me to keep my business going. I have to tell my neighbor down the street that I can't host his horse anymore because I can't afford that aloha. I have eleven (I 1) chickens showing up, maybe today, and I had this vision about where am I going to put these chickens so I can have this exit plan in my flood preparation. Now, I have an area at the top of my property where I can put my chickens. I have this dream that one day I'm going to go over to my next door neighbor and leave him a basket of eggs with a thank you on it for no other reason other than just to give him eggs. I think they would really appreciate that. Now I'm thinking I can't afford to give my eggs away; I have to sell them because I can't afford the aloha. It's really disappointing in the spirit of what I'm trying to do and the spirit that I feel that this island, in general, is supposed to offer. I think that sums it up. Chair Anderson: Okay, thank you. Does the Commission have questions for the Applicant? Mr. Abrams: I do. Jo, you had talked about Department uses to evaluate bed and breakfasts. I see it firsthand and then I can see some other n you explaining and Planning explaining, but I'm in order to come up with that decision. the revenue and the criteria that the Planning I need some help in going through that process, ambers that are there, so maybe it's a process of not sure exactly how that criteria got evaluated Mr. Dahili& Madam Chair, for the Commissioners' information, this is the July 281 packet starting on Page 414, Exhibit B of the report; just for your information. Ms. Valenciano: Commissioner Abrams, so from the Department's side, based on what we received from the Applicant and part of the Applicant's application, the Department determined that there wasn't adequate information provided for the Department to feel comfortable enough to determine that the homestay was ancillary to the farm operation. Mr. Abrams: Yes. So I'm looking at the N -1 Schedule that has these numbers here. I also see, I guess, the GET, which is part of the way you evaluate. And then I look at the Federal return, which shows a different set of numbers; although the Feds go a little bit differently from what the State has it listed down, but still it's a business. Are you looking at gross revenue? Is that what you were looking at? Or net revenue? Ms. Valenciano: I can just share, for example, on the Schedule F, we were looking at fann income compared to the rental income. From that, also taking into consideration just the overall documentation that was provided. And based off of that, it resulted in the Department's determination that we didn't feel comfortable enough to make that determination that the homestay was accessory to the farm operation. Mr. Dahili& I think one (1) thing we also want to throw into consideration is that there is a Schedule F, there is a Schedule E, but there is also a Schedule C. I think if you look at what has been presented and when you look at what all of it as consolidated under the Schedule 1040 looks like, it's hard for us to ascertain that a true agricultural operation is being conducted. Now I know that there is revenue that's being proposed, about $10,000 from fanning, and that the Applicant does state that some of that is being used as part of a value -added process with soaps, lotions, and lip balm. But when you look at the way the Schedule C reads, in addition to what has been presented as a profit and loss on that side, it's very difficult for us to, with confidence, say that we look at the Schedule C as being reflective of a true ag value -added process, or else those items would'have been included as part of the Schedule F. So that's where our concern is, is that the tax documentation may be presented to possibly verify the Applicant's assertion that there is some value - added elements as part of the fanning, but when you look at it as an aggregate, as in terms of the first page of Fonn 1040, we are, in the totality of circumstances, concerned about whether or not ag is the emphasis; ag is the emphasis activity on the property. So that's why in our evaluation cannot, with confidence, say that we believe the homestay is, in fact, ancillary because what you are seeing is a loss if you actually add the farm plus the value -added elements, presuming that the Applicant's assertion that there is value -added activities going on, on the property. Both the Schedule C, as well as the Schedule F added together still result in a loss. It results in a loss. We have concerns about that and whether or not there is, again, true ag being conducted in the spirit of ag. On top of that, whether or not there is a true value -added process that is going on. I 37 think when you look, even at the materials that are being purchased as part of the profit and loss statement, you look at it at almost $10,000, as compared to $17,000 in gross receipts revenue, is just material cost alone. And these are materials that are not grown on the property. These are materials that are not coming as a consequence of being homegrown or being produced on the property, or else you would not see that line being such a high number. Again, this is just evidence in terms of the way we are interpreting it, whether or not, again, with confidence, we can say that there is a spirit of true agriculture being conducted on the property. She is representing before the IRS that there is agriculture, but you know, again, we want to see fiom a policy standpoint that the emphasis of the property is agriculture, and not things that are not agriculture. So that's the root of our evaluation and I'm sure the Applicant disagrees with that interpretation, but that's our evaluation and why we've recommended what we recommended. Ms. 1 ins: Can I ask a question? Chair Anderson: We'll have questions from the Commission, so are there any other questions from the Commission? Mr. Abrams: I get product, that you're growing farm stuff, and then what you are telling me is that marketing of those products that bring in revenue, which are...I'im looking at the State Schedule N -11 and look at Page 404, where it asks them if you filed a Federal Schedule C, which she says yes, and their gross receipts are $17,350. And then they ask her about Schedule E, which is regarding any rental activity, which it says yes $10,061. At which I take a look at the GE reports and that does substantiate that. Then the Schedule F, which is the same outside of open market, and lotion- soap4ip balm; seed -leaf- plant, and lotion - soap -lip balm; and she has $11,000. I'm not sure where either any one of those numbers taken in singular do exceed the rental income. If you're looking at intent or I need to sort of understand where that led you to believe where these numbers are because these are what they file and I always thought that it was those numbers, whether it was gross or net or sold up or whatever is fanned. I haven't ever seen any discussion relative to that in our decision - making process and I would certainly like to know how that works, and maybe Wayne can also add in, in regards to that because he has been very thorough with the revenue, etc. I would be curious to get some more feedback on that. Mr. Dal . Facially, if you were to look at gross receipts and you look at it just from a farm Schedule F to Schedule E comparison, on that note, yes, we would say okay, we agree with the Applicant's perspective that okay that exceeds that, but we're looking beyond just that comparison. Given some of the previous discussions we've had with the Commission, there is a desire for us to really drill down and understand that totality of the activity on the property. Looking at beyond just the gross receipts as a bright line, we start looking at the economic activity on the property as whether or not it does, in effect, give the iinpression that there is an intent to predominantly use ag. There is a third use, apparently, given what is proposed. We are very supportive of value - added types of situations. It's something that we encourage through our recommendations many times on Special Permits to allow value -added types of activities. State law, in fact, allows it to occur without Special Pen-nit. We're not trying to say that value -added activities are not agriculture, but when we start looking at the numbers in terms of where the value -added activities are occurring, how that interfaces with the Schedule F in terms of the amount of actual ag activity being represented as occurring, we start looking at, okay, is it a situation where the ag is ancillary even to the business activity or is it totally integrated into what is a value -added process? It is one thing to talk about creating, let's say, rum or liquid from products that are derived directly on the property. What we see here is a situation where you have things that are grown on the property thrown into products that, you know, based on just the data, again, I can get disagreement, but thrown into products that are predominantly purchased and then resold. I think, from a standpoint of looking at that as a system, whether the ag activity is integrated into the commercial activity and that furthers the actual perpetuation of that policy desire to create more and more ag opportunities on the island, I think we have concerns about whether or not what is being represented is truly agriculture. I think that's why you see the evaluation being that we don't think that it is, as compared to the rental income that comes in, even though facially it may be that the gross receipts, just on the Schedule ClSchedule E comparison alone, would be meeting a so- called "bright line standard ". I hope that helps articulate a little bit more of our understanding of what we're reading between the lines here. Mr. Abrams: okay. So, then I'm looking at Schedule F, which is the ones that would be ... because it shows $11,339. It shows expenses of $6,309 with a net farm profit, which may have made you feel that that was maybe a determining factor, which means that these other numbers that are in there (custom hire, mortgage, those type of thing) may not be faun related. Is that what you're saying even though it is a write -off? Mr. Dahilig: I think we're looking at it more as, here's what's in Schedule F, and part of it is because the Applicant had represented in the application that she is doing value -added products. I think that's why we tie the Schedule F and the Schedule C together because of that representation. In as much as I'm looking at this as a silo, what, in effect, we're looking at is a net profit of $5,030, but then a loss of $8,000 on the value -added side. So in effect, you're looking at an operation that is not soluble given the representation that this is one (1) system. The soaps are derived from products on the property. So that's why Schedule F and Schedule C are, in effect, kind of read together, as compared to Schedule E. If you look at it from a standpoint of the bottom line versus the gross receipts, it becomes kind of a policy question whether or not we would interpret farm loss as being more or less than the supplemental income from the rental. Ms. King: I'm always going to have a farm loss. I'm always going to be rebuilding. I'm in a flood basin. Chair Anderson: There's been discussion on the analysis from the financial information you supplied. If you want to clarify something; I hear your comments about the farm loss, and this has been testimony in other matters. But what we have before us is just one (1) year's tax returns, so if there is other information you would like to provide now in response to the Department's analysis, please clarify. Ms. King: I don't have ... I didn't bring anything else to you. I mean, I guess I could've brought receipts for this hired labor to clean up the trees that fell down in my backyard and squished my plants. I mean, that's what happens when trees fall down. I mean, sort of bringing in the backhoe operator to testify that he really did come and clean up my backyard, and take away those trees. I'm just at a loss of what else I can provide. 39 Chair Anderson: There has been some assumptions regarding the materials that are used. Can you describe your value - added? I know you gave the example about the tea seeds. Can you describe the value -added activity and how that relates to the fann? Ms. King: Well, they are all grown and harvested off my property. Tea is just one (1) example without giving away too much proprietary. I've been working on this soap company for a number of years now. I had partners, and everything at that point was run through my S Corporation because I had partners. We actually built the building, and we opened up business. Then we were illegally evicted from our building, spent three (3) years in court, and I'm still waiting to hear if I'm going to get the building back or reimbursed for that building. I don't really actually ever hear of anything like that. George Costa was a very big part in playing with me in trying to get this off the ground and get this project moving forward. When we lost the building, because the owners changed their mind, that's what they told the Police Officer, send them over there to my house and tell her that we changed our mind about renting her the building. This is after I've already invested substantial amount of time and money into the building. At that point, my investors, after a couple of years in court, decided that they were pulling out. There was this time I had to wait after they pulled out, so that our contracts expired and I can, basically, own my company name all by myself once again. So here I am, picking the pieces up again, and trying to start this company on my own with one (1) partner and individual salespeople that sell my product on a test market. Because I'm doing this all on my own, I'm doing a test market, rather than trying to invest another $100,000 and rent a building with no legitimate legal recourse in case something like that happens again. I mean, once bitten, twice shy right? Chair Anderson: I just want to steer you back to the question. We're looking here to just clarify. This is our analysis as we have to determine whether or not the homestay is ancillary; is a small part of the operations of the farm. We are trying to determine whether or not what the farm operations are, and if you're doing value- added, how is that related to the farm operations. You've given one (1) example with the tea, and it doesn't have to be proprietary; you don't have to describe the exact plan, your ingredients, and breakdown the process, but just for our information so we can evaluate whether that falls within farming or if that's a separate commercial activity. Let's say you're selling lotions. If you're just purchasing lotions wholesale and selling them, that's different than a certain percentage of the material being actually from the land. So that's what we're trying to determine, Ms. King: If I knew somebody on the island that was making coconut oil and avocado oil, I would be buying it from them. Those are the products that I do import. Beeswax is one thing I'd like to get off - island, but right now it's more convenient for me to buy it. I don't use that much of it. The beeswax is in my lotions. Also in my lotions is fresh aloe vera, and that's something bought in a bottle. So I have lots of aloe vera, and I just had another truckload dropped off last night, as a matter of fact. I am scraping the aloe vera into my lotions. I go to the tamarind trees ... now this is where I'm getting really proprietary. Chair Anderson: So you don't have to do that. Just in terms of percentage, like let's say if you make a lotion, what types of plants that you're using on your property that are going into those. M Ms. King: I'm using the tea plants, I'm using my aloe vera plants, Pm using my luffa, I'm using the canna lily, I'm using the sand, I'm using the kukui nut shells, I'm using the tamarind; I'm sure there's more, but I'm under pressure. So I'm using all these to incorporate into my products so that my, 1.0h, my taro, of course. That was the hardest part, is to learn to figure out how to both saponify and emulsify the taro root into a lotion or a soap. I have never seen that product on the market, and that's the *basis of my product, is Waimea taro based products. There is a way to get that without the itchiness into the product. Being proprietary, I won't go into that, but there is a way to take my taro base and use that. I forgot that's the most important part. I'm trying to grow taro; I'm failing miserably, but I've got lots of taro friends across Makaweli that have been very grateful at helping me and giving me product to help get my products started, and to figure out how to get this into my product without causing injuries and itching. Chair Anderson: Thank you. Ms. King: I will add that there is a point that I'm quickly coming to that there isn't enough of my product to take it to the level that we're heading into, which is large retail accounts. Large retail accounts are going to require a lot more product than I can produce on my land. At that point, those small products that I can, these products that I can, are very exclusive and they will be sold in the store front. Right now, we're just doing markets, and doing test markets. I've got some products in Israel, I've got some products in Las Vegas, I've got some products in Indiana because I have distributors. I'm figuring out which products work and sell the best and generate the most income before I invest in a bunch of money to do it on a large scale. Chair Anderson: Okay, thank you. Are there any other questions to the Applicant or to the Department? Do we have a motion? Or if I can have the Department read off the conclusion. We've been discussing the denial, but if you can read the final conclusion before we go ahead with the Commission's recommendations. Ms. Valenciano: Okay, Ms. Valenciano read the Preliminary Conclusion and Preliminary Recommendation sections of the Director's Report for the record (on file with the Planning Department). This concludes my recommendation and conclusion. Mr. Dal l And Madam Chair, given that recommendation and what has transpired, the Department stands at that recommendation. Chair Anderson: Okay. If there are no further questions for the Department or the Applicant, we'll need a motion to move forward. Mr. Mahoney: Madam Chair, I recommend denial of Class IV Zoning Pen-nit Z -IV- 2015 -37, Use Permit U- 2015 -36, and Special Permit SP- 2015 -14. 41 Chair Anderson: Is there a second? Ms. Mendonca: Second. Chair Anderson: Okay. Discussion? Mr. Dahilig: Madam Chair, if I could just clarify the motion that the Vice Chair made, that motion also includes adopting Exhibit C? Mr. Mahoney: Yes. Chair Anderson: Okay. Any discussion? Mr. Mahoney: I don't think it meets the criteria needed, and that's why I brought up the motion. Chair Anderson: Okay. Any further discussion? Ms. Mendonca: I can appreciate anybody working very hard in farming. I think we all agree that we would like to encourage fanning in agriculture areas. But, based on what we have to work with in front of us, and I agree, we have no other recourse but to see that the Planner had to make that decision because it seems that way, that the homestay income shows to be more than what you would expect from the fanning. Chair Anderson: Other comments? Mr. Abrams: Yes. I'm speaking against the motion. I'm torn. I understand to a certain extent, but I'm looking at a parcel that is Open/Ag and is not even an acre. There seems to be demonstrated, certainly, an intent to do the fanning and has put together a program in order to make a living. I look at the tax returns, which were the criteria that has been used in regards to determining whether or not this is accessory to your fanning activity. While you have value -added product to that, even if you took the two (2) alone and didn't take Schedule C, which is the value - added, you still show revenue from the fanning more than the rental revenue. However, if you are going to start looking at nets on the farming, then you need to take a look at nets on the rental side. Even with that, it still shows more fanning revenue than that. So we have a criteria that .I'm still struggling with in regards to trying to determine whether this is an accessory use to the rental activity. That's really hard. I don't know whether or not we should be working on, and I know when we come up with the homestay rules and regulations that perhaps we're going to have this discussion in regards to it. I don't want to second-guess the returns; the numbers are there. When we look at residential, we simply are looking in regards to whether or not there is an owner- occupant there. We even have an owner - occupant on farm, which is fanning. Assuming this wasn't ag, it would definitely qualify for a homestay operation; while I understand very clearly, maybe that business decision that is being made. This is troubling because it is part of her activity and I don't know whether, or not I would feel comfortable in taking that away right now. I might be more interested if we carne up with a renewal 42 that some of this would come back and perhaps the Department would look at it a little bit closer and they could apply it evenly amongst everything else that they're evaluating. But right now, I don't see that, so I would be more inclined to be opposed to the motion and look for something that would allow her to do her homestay operation. Chair Anderson: Are there any other comments? Ms. Mendonca: Yeah, may I (inaudible) for a minute? I can appreciate the fact that it's a small acre, it's in agriculture, and she's trying to build up the agriculture part of it. I certainly feel she's done a lot of work, and I'm not denying that. What is of concern to me, is the fact that this is what she initially had planned to do, which is agriculture. And we spoke in other meetings the need to maintain agriculture and homestay is a supplement. Now it seems like she needs the homestay to do her farming or her agriculture. I'm not denying that she financially may need this, as she expressed earlier, but the question I would have is, where do we draw the line? This is farming, the people around her, the flooding; Waimea Valley for years has been known to flood, so there are certain types of products that can only be grown in Waimea Valley because-,-of the flooding. I can express with great concern how difficult it is to farm in that area, but others have succeeded as best they can. I'm with Commissioner Abrams when he said that it's difficult for us to make that decision because our guidelines are very vague right now using, like he said, if it was a residential, there would be another approach to it. But the question is, are we going to let fanning become secondary with homestay being the source of income to do the farming? That's now my question. That's how I'm looking at it. Mr. Katayama: When I review these applications, I think for me, the central issue is, at the end of the day, does the farming activity become viable and sustainable? If the answer is there are environmental issues, there are size issues, or just resource issues, then I think we have a question of zoning as more of a problem. As we go through our community plans, as we go through our general plan updates, I think that's where we need to address the issue. At this point, with the tools that we have and the criteria that we have, I think the key is, are these activities ancillary to farming? As opposed to the key support to maintain a farm. Or is this just an activity to fulfill the zoning requirements or the statute as it currently operates? If landowners purchase property with whatever zoning it is configured, I think it's their obligation to understand that and make it work. Now, the line is not as bright, and we've struggled with a definition of farming, and at the end of the day, with the activities as described by the Applicant, there should have been other Use Pen-nits involved, just as for manufacturing or anything else. Mr. Keawe left the meeting at 12:08 p.m. Mr. Katayama: And the homestay would've been just one (1) more application or use to the activity for that zoned land. I don't know if that's been applied for or approved. We had testimony by other people in pointing out things like the other activities on the property. Again, at this point 43 in time, the farming activity as Commissioner Mendonca has stated, my view is ancillary to really supporting other kinds of activities. I will support the Department's position on that. Thank you. Chair Anderson: I have a few comments. I would like to wait; we just had one (1) Commissioner step out, so before we call the vote, I'll wait for the Coimmissioner to return. I tend to agree with Commissioner Abrams, as well as Commissioner Katayama, that there are long standing zoning issues on vast (inaudible) of property that have been zoned ag, which, given the current subdivision of property, there are properties that may not be 100% appropriate for ag, and that is a larger issue that we have to deal with, What's before us with the Applicant, I commend the Applicant for her creativity. I know it's difficult to have a viable farm. We've been given testimony in the past, and so it's something that is a labor of love. I see the value -added products and the presentation in terms of the types of farming that she has been able to do on the property, as just a testament of that creativity in incorporating her artistic values. I think the effort for the farming is genuine. There are significant amounts of properties throughout the island where people are on ag and are not having a commercial business and selling farm and ag products, so I really recognize that there is that activity going on. Mr. Keawe returned to the meeting at 12:11 p.m. Chair Anderson: The difficulty we are weighing is to look at whether that activity is ancillary. We've used tax returns as a proxy and I think it's not perfect; it helps paint the picture. Here, we have one (1) year tax returns, and from that, we also have the Applicant's testimony. I think in the future, looking at it, we can (1) it's not necessary that a year is going to paint the whole picture; that you may have ups, you may have downs, and that the homestay actually helps to support farms, so that people can maintain some sort of equilibrium during the hard times. I would be supportive; I believe there is enough in the record to show that the homestay is, in fact, ancillary to the farming activities. Are there any other comments? Mr. Abrams: Yes. Mainly, I understand, Commissioner Katayama, what you are saying. I am looking at this from the standpoint of ag in general, where now we have moved in the direction of defining our important ag hands. That process that was the most important to be done, and I believe that has been completed. Those lands are the ones that are the most important. The lands that are not important ag lands, and I guess there will be a little more determination on it, is going to probably end up being some of these ag lands that are smaller, or are on not as good soil, or on steep embankments or hillsides. To go ahead and say that someone is going to have to farm that as a source of their income without having the ability to try and do something different, notwithstanding the fact that we are heading in the direction that we're only doing ... excuse me I can't remember, was it ten (10) permits per year? Mr. Dahilig: From now on. Mr. Abrams: Yes. It's not that much, so I get it. I also recognize that some of the most important ag land that we've had in this state didn't make money either, but yet it was there to stay in that. I ,. don't think applying that rationale to smaller parcels make sense to me at this point right now. I would rather see someone who is doing fanning that comes this close to be able to go ahead and continue doing that, and review it in a year. But I understand that process. This is just the mindset that I come from in opposing this motion. Chair Anderson: Any other comments? Mr. Katayama: Just one (1) comment. I think the discussion is very healthy, and I think we should do it. In my mind, moving forward, I think the distinction that we need to make is between intensive ag use and non - intensive ag use; that's one (1) definition. For properties that view themselves as non4ritensive ag use, but still want ag activity, we could address that separately. However, for the properties where there is very limited commercial agricultural activity or potential, I think we should treat that differently from agriculture. And that, historically, has been the issue with land use here on the island of Kauai in that the land use and designation have lagged in terms of support. As homestays become more intensive use by people, you need to have the support of infrastructure by the community. From a Planning perspective and having agency properly support that, we need to be a little more precise in how we designate that. Now, if we say that this area, Waimea Valley, is not suitable or is only for non - intensive ag, so be it, but if we are going to allow more higher residency or higher people traffic, we need to understand that as well. Again, based on what we have today as tools, that's a criteria we need to sort of use; is this property going to grow in ag and use the homestay or these other revenue sources as a platform? Or is ag going to stay where it is and these other non -ag activities going to grow instead? I think that's the challenge. And again, we should not put the Department in a regulatory situation where they have to sort of monitor this, but we should put the Department more in terns of planning or use where we allow these to happen and allow it to flourish. Now the question before the Commission is, if we approve the homestay, do we allow, .*if they could rent it for 365 days a year, is that okay? I think that is a type of...would that help the farming activity? Or does that revenue become so overwhelming that farming becomes immaterial to the activity? And then we have a zoning issue or a classification issue. So again, what we have is what we have, and we need to snake that decision. That's for each one of us to sort of view the future land use of this area. Chair Anderson: If we could have Commissioner Keawe, Mr. Keawe: I think my concern is just that, and again, talking about Waimea Valley. It's a small; very old community. I can see, just based on her testimony, she is a farmer. I kind of get that. Some of the numbers, obviously we can debate the numbers back and forth. In getting back to Commissioner Katayama, on the broader spectrum, how do we allow people like her to be able to do what he was talking about, maybe less intense a 91 'culture in certain areas? I know that community's very old, but I don't know if there are any other under the radar vacation rentals or homestays operating in Waimea Valley. And I don't know the potential of, if we approve this, do we have more down the road to look forward to? But again, what forum do we use to kind of come up with some guidelines for people that might be right on the edge? And the homestay is kind of helping the farming part of it. Chair Anderson: Go ahead. 45 Mr. Abrams: Alright. Taking some of those ideas, I see where your logic is in that if we actually took this homestay and multiplied it out like a vacation rental, and saw the potential revenue; we don't know what they're going to charge. And if we took it out 365 days, took a look at the revenue, and came to the conclusion that it exceeded the farm activity, then that's the point you're getting across, where we change from what we are using right now in order to go ahead and justify through a Special Pen-nit and a Use Permit, the ability to have an overnight accommodation on agricultural land. I guess the criteria for a homestay person right now is going to be that if that happens, then next year when they bring in their renewal, which they are all coming in to do that, they are going to be denied. It sort of puts a rent cap on top of it, which is troubling in itself, but I understand that. Does that apply relative to the situation where gosh, that person could have rented out a room on a long -term basis and took that revenue, and in effect, would not change the perception that is there; although renting out a room, whether it's homestay or not, basically the only difference there is you are dealing with a non - resident as opposed to a resident. Those things sort of flow back and forth with my thoughts in regards to how we characterize this activity on ag land, which is really, at this point right now, up the air because most of all of the arguments we believe one way or the other, we kind of end up thinking with other reasons how it brings to you thinking that gosh, that may be one (1) of the reasons why you shouldn't do it. So we are looking at having to go ahead and come up with this, we're applying something to ag land, we are also advancing what our Counsel has decided as a policy relative to vacation. rentals and homestay with the typical uses that go with that and the supervision that goes there to take care of some of these issues that the cormnunity is concerned about. Now we come up with the ag portion right now, which at this point, the only criteria is to meet this Use Pennit, which has now set an income level threshold in order to be able to do that. I'm thinking that the annual renewal and the review of it is going to help bring to the top those people who are trying to do what we think. But I am concerned because, technically, all of the small parcels that we are talking about that are ag that would seem to meet the criteria of homestay activity are going to be the ones that can't make it because they are not going to be able to raise their. fanning income activity in order to raise the rents, and that's not going to help, so I don't know; I'm stuck there. Mr. Katayama, I think what might be helpful is that if there is an ag plan to support this, to show the potential, and again, to give you a sense of scope of the activity. That may help the Department in terrns of striking a balance. Is there an ag plan for this activity? Mr. D&EZ: At least from my review of the documentation, all that was described was a brief mention of the actual ag activity itself; not a comprehensive fann plan that we typically see as part of fanning operations. Mr. Keawe: So Commissioner Katayama, what would be considered an ag plan? Just for the applicants' information, so that they know what an ag plan is and the kind of components that would make tip one. Mr. Katayama: A description of the land use, and how it will be employed in agriculture. And if they would then overlay the ancillary activity to support that; I think it will help. It doesn't have to be elaborate. But if you have a plot and you would identify which portions would be ag, how you view the production to ultimately transform into your ag revenue or value -added product: Whether you do it on -site or not, I think that's not important, but again, at the end of the day, how ER the ag activity becomes primary and your ability to develop it to its potential, and you can weigh that against the ancillary activities that the permit is seeking. Mr. Keawe: Okay. Chair Anderson: Okay. Is there any further discussion? Ms. Mendonca: I have a question. It's been bothering me; if I may just put it on the table, and the rest of the Commissioners can help me understand it. If I recall, the conceni. for homestay and B &B was getting out of hand because of the fact that there were so many illegals; that's one (1) side of the picture. The center part of the picture is the fact that there is also these different community plans coming up for the future; for urban, development, more resort areas /rooms. What is troubling me right now is that we're looking at a lot of these applications that are coming in now in lands that are zoned Agriculture /Residential, and they are out of the TVR areas. Are we not supposed to be monitoring this so we keep it to the minimal? We talk about urban areas so that the locals have homes to rent down the road, but we're talking now on the side of the fence where we have homestays where they are visitors; not rooms for local people to rent. I'im a little bit confused in which direction are we headed? Are we to control the number of homestays and B &Bs? Or are we going to say okay, this person has done an "x" number and need the income for the agriculture where they could easily, like Commissioner Katayama said, rent it out to a local for the whole year and avoid all of this that we're going through. Is it the monetary value for having a tourist come in and stay? Is that the volume of the dollar sign as opposed to a local renting it? That's my question that is going through my head right now, and I'm finding it very difficult to really see which way are we headed? Are we to control B &Bs, control homestays? Or are we to find some kind of direction to meet the end for these people who do need help? The locals do need help. The people who live in residences are saying we don't want visitors, so we're trying to find a happy medium. It gets very tough because we look one (1) direction and then we have another. Maybe we do need some kind of help here in making decisions. But I think basing on what Commissioner Mahoney's motion and following what the Planning Department has done in teens of going through all of this, i still stand by my second. Chair Anderson: Thank you for this discussion and I believe this is going to continue on in other forms and other applications before us. Right now, we do have a motion, we've had a quite lively discussion. I'm wondering, were those rhetorical questions? Ms. Mendonca: Yes. (Laughter in background) Chair Anderson: Okay. So let's go ahead and we'll do a roll call vote. Mr. Keawe: You want to repeat the motion again? Mr. Dahjjj Sure, Madam Chair, the motion on the floor is to deny Class IV Zoning Permit Z- IV- 2015 -37, Use Pen-nit U- 2015 -36, and Special Permit SP- 2015 -14, anal to adopt Exhibit C as memorializing the denial on behalf of the Commission's motion. Vice Chair Mahoney? 47 Mr. Mahoney: Aye, Mr. Dghih& Commissioner Katayama? Mr. Katayatna: Aye. Mr. Dahilig: Commissioner Keawe? Mr. Keawe: Aye. Mr. Dahilig: Commissioner Abrams? Mr. Abrams: No. Mr. Dabilig: Commissioner Mendonca? Ms. Mendonca: Aye, Mr. Dahilig: Chair Anderson? Chair Anderson: No, Mr. Dahilig: 4:2, Madam Chair, Chair Anderson: Okay, so the recommendations of the Department have moved forward and the application is denied. Ms. King: Sorry. Mr. Coyaso: May I say something? (Inaudible) Mr. DahiU It's up to you. Chair Anderson: Yes, you can take the floor, go ahead, Mr. Coyaso: After listening to you guys debate, I am an absentee landowner, but I was raised here in Kauai; grew up in Waimea, lived through Iwa, carne back with the Army Guard and helped restore after Iniki. You all bring up good points, but living on Oahu, I can tell you, you guys need to keep in mind that these homestays in these Residential /Agricultural areas are also going to create traffic. As I recall, that road is pretty small up there. 1, myself, did not get to talk to Ms. King's neighbors. My relatives that are here, that have retired here, I did talk to them. One (1) of them appeared because they didn't think I would be able to make it to make my statement that I oppose it so he was going to try and oppose it if I could not snake it. I would just like you to keep in mind, you guys did bring up good ideas, but you have to keep in mind the infrastructure of these urban areas. If you look at Oahu, you can't throw a rock without hitting a car, and I would hate to see Kauai end up like that. This is where I grew up. My community was so tight that when .• we were forced to leave, my class carried my name in the yearbook all the way to graduation; that's how tight the community was. It kind of breaks my heart to hear people talk about getting rid of agriculture land because it's too hard to farm on it. There's a lot of people out there that do farm on it. When I retire, I may farm on it. You know, tough times don't last, tough people do. Look at Kauai, how many tunes we have been hit by a hurricane, and the people are still here. Chair Anderson: Thank you. Mr. Coyaso: I would like you to consider, the next time somebody comes up here fora homestay, the traffic. If that was next to your home, would you want a stranger going in and out at all times of the night? Because you can't control that. Keep in mind the residents that have lived in these neighborhoods. This river that she talks about that you'd have to swim across, I grew up playing in that thing. I used to run across the river to the Dusenberry's that lived over there. I used to swim in Castle Farm at the very top of Waimea Valley where there is no road anymore. Those are the things that I cherish, and one day I hope to come back and find what was left. I hope I don't see traffic like being stuck in traffic for four (4) hours on Oahu because the surf is big; or having to deal with somebody selling something, and people coming and going then I have no idea. Like she said, it is a flood zone, so I am not able to fence in my property. You have to keep that in mind, she can walk across that river and get to it because of the flood, because everything gets wiped away. We've had to rebuild, I don't know how many times while living here, and I just pray you guys keep that in mind when you make a decision. The Land and Natural Resources try and do their best, they do the research, just listen to everything before you make a decision. Chair Anderson: Thank you for your additional comments and for flying over to Kauai to give testimony today. We're going to move ahead with the next agenda item. Mr. Coyaso: Thank you. Class IV Zoning Pen-nit Z -IV- 2015 -39, Use Permit U- 2015 -38 to allow conversion of an existing residence into a homestay operation on a parcel located along the inauka side of Nohea Street within the Kakela Makai Subdivision in Kalaheo situated approx. 450 ft. west of its intersection with Kakela Makai Drive and further identified as 1196 Nohea Street Tax Map Key 2 -3- 023:114 and containing a total area of 10,0 17 s . ft. = David & Melinda Murray, Mr. Dahilig: Madam Chair, the next item on the agenda is F.2.b., Class IV Zoning Permit Z -IV- 2015-39 and Use Permit U- 2015 -38 to allow conversion of an existing residence into a homestay operation on a parcel located along the mauka side of Nohea Street within the Kakela Makai Subdivision in Kalaheo. Again, this is at Tax Map Key 2- 3- 023:119, and containing a total area of 10,017 square feet. Jody is our Planner who will present the evaluation and recommendation on behalf of the Department, and can probably give a summary of that report. Staff Planner Jody Galinato: Good afternoon, Madam Chair and members of the Commission. I'lI be as brief as possible, so if you have questions on something or need more clarification, let me know. ,. Ms. Galinato read a summary of the Project Description and Use, Legal Requirements, Additional Findings, and Preliminary Evaluation sections of the Director's Report for the record (on file with the Planning Department). I'll hold for the preliminary conclusion and recommendation. Chair Anderson: Thank you. Is the Applicant here? If you can please approach the mic. And state your name for the record please. Melinda Munay: My name is Melinda Murray and this is my husband, David Murray. Thank you, again, for all the time you spend on this. It's been an educational experience for myself. Chair Anderson: Have you had the opportunity to review the Director's Report? And do you have any questions or comments? Or are you in agreeance with the conditions as set forth? Melinda Murray: Yes. I did have one (1) comment I did want to make.in regards to the, ..I'm drawing a blank, it's very nerve- racking with everybody looking at you ... the complaint. It was by our Homeowner's Association that we did not have a permit; thus, we sought a pen-nit. My neighborhood Homeowner's Association is fully aware of my application and have already met together regarding this application with no intent to oblige against it as we hove forward with the application. Just wanted to make that note. Chair Anderson: Thank you. Did you have anything else you wanted to add? Ms. Murray: No. Jody did a wonderful job; thank you Jody. Chair Anderson: Does the Commission have any questions for the Plainer or for the Applicant? Mr. Keawe: When did you originally get into this business? Ms. Murray: I believe it was around 2012. Mr. Keawe: And why did you do it? Ms. Murray: As a way to supplement our income because we have three (3) children, we both have jobs, and we have a very big mortgage. Mr. Keawe: Okay. So should you be approved, you have enough space for everybody, including the guests'that'll be coming in? Ms. Murray: Yes, we do. We have a four (4) bedroom home. We have a four (4) bathroom home. Yes. Mr. Keawe: Okay. W Ms. Murray: We have photos if you need them. Chair Anderson: Any other questions? Okay, so if I eould.have Jody, if you could just read the recommendation; no need to read the conditions as we've reviewed them. Ms. Galinato: Okay. Ms. Galinato read the Preliminary Recommendation section of the Director's Report for the record. Chair Anderson: Okay, thank you. Do I have a motion? Mr. Abrams: Move to approve Staff's recommendation for Class IV Zoning Permit Z- IVm2015- 39 and Use Permit U- 2015 -38, David and Melinda Murray. Mr. Keawe: Second. Chair Anderson: All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 7:0. It's been approved. Thank you. Ms. Murray: Mahalo. Thank you so much. Mr. D&IjL Madam Chair that concludes the action items for today's agenda. ANNOUNCEMENTS Topics for Future Meetings The following scheduled Planning Commission meeting will be held at 9:00 a.m. or shortly thereafter at the Lihu`e Civic Center, Mo`ikeha Building Meeting Room 2A -213 4444 Rice Street, Lshu`e, Kauai, Hawaii 96766 on Tuesday August 25, 2015 Mr. Dahilia: We have circulated the batting order for the next few meetings. And again, the last page is all the pending Contested Case Hearings for the Commission's infornation. The next following scheduled meeting will be in this room on Tuesday, August 25, 2015, Chair Anderson: Okay. With that, this meeting is adjourned. ADJOURNMENT Chair Anderson adjourned the meeting at 12:44 p.m. 51 Respectfully submitted by; P 10 arcie Agaran, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of meeting. 52