HomeMy WebLinkAboutPlanning 062816 MinutesKAUAI PLANNING COMMISSION
REGULAR MEETING
June 28, 2016
The regular meeting of the Planning Commission of the County of Kauai was called to order by
Chair Mahoney at 9:12 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room
2A -213. The following Commissioners were present:
Chair Sean Mahoney
Vice Chair Louis Abrams
Mr. Wayne Katayama
Mr. Roy Ho
Mr. Kimo Keawe
Ms. Glenda Nogami Streufert
The following staff members were present: Planning Department — Michael Dahilig, Kaaina
Hull, Leslie Takasaki, Jody Galinato; Deputy County Attorney Jodi Higuchi Sayegusa, Office of
Boards and Commissions — Administrator Jay Furfaro (entered at 9:16 a.m.), Commission Support
Clerk Darcie Agaran
Discussion of the meeting, in effect, ensued:
CALL TO ORDER
Chair Mahoney called the meeting to order at 9:12 a.m.
ROLL CALL
Planning Director Michael Dahilig_ Commissioner Streufert?
Ms. Nogami Streufert: Here.
Mr. Dahilig: Commissioner Katayama?
Mr. Katayama: Here.
Mr. Dahilig: Commissioner Ho?
Mr. Ho: Here.
Mr. Dahilig: Vice Chair Abrams?
Mr. Abrams: Here.
Mr. Dahilig: Commissioner Keawe?
Mr. Keawe: Here.
Mr. Dahilig: Chair Mahoney?
Chair Mahoney: Here.
Mr. Dahilig: Mr. Chair, you have six (6) members present.
APPROVAL OF AGENDA
Mr. Dahilig: Mr. Chair, we are at the Approval of the Agenda. The Department would
recommend taking the matters in order; understanding the first action items will be on Items I.1
and I.2. And then to move Item I.3., which is the boating matter, to the 1 o'clock time we have
affinned for the Contested Case Hearing. And if we could also, immediately after Items 1.1 and
I.2., move the Coco Palms status right afterwards that would normally follow the Parks and
Recreation, but because that's the 1 o'clock matter, that would preclude that.
Chair Mahoney: Okay.
Mr. Dahilig: Okay.
Chair Mahoney: Chair will entertain a motion to...
Ms. Nogami Streufert: I move to amend the agenda as so stated.
Mr. Ho: Second.
Chair Mahoney: It's been moved and seconded. Any discussion? Hearing none. All in favor?
(Unanimous voice vote) Motion carried 6:0.
MINUTES of the meeting(s) of the Planning Commission (NONE)
Mr. Dahilig: Mr. Chair, we do not have any minutes for approval this morning.
RECEIPT OF ITEMS FOR THE RECORD
Mr. Dahilig: We do have a supplement that has been circulated regarding Outfitters Kauai, and
if that could be received for the record.
Chair Mahoney: Chair will entertain a motion to receive.
Mr. Abrams: So moved.
Mr. Keawe: Second.
Chair Mahoney: It's been moved and seconded. Any discussion? Hearing none. All in favor?
(Unanimous voice vote) Motion carried 6:0.
HEARINGS AND PUBLIC COMMENT
Continued Agency Hearing (NONE)
Mr. Dahilig: Thank you, Mr. Chair. We are now on Item F.1. This is Continued Agency
Hearing. We have none.
New Agency Hearing
Class IV Zoning Permit Z -IV- 2016 -15, Use Permit U- 2016 -12 and Special Permit SP-
2016-5 to allow construction of a new visitor center, zip lining facilities and associated
improvements relating to the commercial tour operations conducted on land located .25
miles east of the Kipu Road and Aakukui Road intersection in Kipu, further identified as
Tax Map Key 3 -1- 002:001 (Portion), and affecting a portion of a larger parcel approx.
2,842 acres in size = Outfitters Kaua `i. Ltd.
Mr. Dahilig: We are on Item F.2.a. This is New Agency Hearing, Class IV Zoning Permit Z -IV-
2016-15, Use Permit U- 2016 -12, and Special Permit SP- 2016 -5. This is to allow for
construction of a visitor center, zip lining facilities, and associated improvements relating to the
commercial tour operations conducted on land located .25 mile east of the Kipu Road and
Aakukui Road intersection in Kipu, further identified as Tax Map Key 3 -1 -002 Parcel 001, a
portion of that, and affecting a portion of a larger parcel approximately 2,842 acres in size. The
applicant is Outfitters Kauai, Ltd. There was a Director's Report received on 06,1416 16 for this
matter, and there's also a Supplement No. 1 Report. Given these submitted reports, Mr. Chair,
we would recommend that the Commission open the agency hearing at this time.
Chair Mahoney: Is there any ... oh, the applicant.
Mr. Dahilig: Mr. Chair, we do not have anybody signed up to testify on this particular agency
hearing.
Chair Mahoney: Okay.
Mr. Dahilig: The Department would recommend making a final call for any testimony for this
agency hearing and then close the hearing if there's no further testimony.
Chair Mahoney: Is there any member of the public that wants to testify on this agenda item?
Seeing none. Chair will entertain a motion to close the hearing.
Mr. Keawe: Move to close the hearing.
Ms. Nogami Streufert: Second.
Chair Mahoney: Moved and seconded. Any discussion? Hearing none. All in favor?
(Unanimous voice vote) Motion carried 6:0.
Class IV Zoning Permit Z -IV- 2016 -14 and Use Permit U- 2016 -11 to allow conversion of
an existing residence into a bed and breakfast operation on a parcel located along the
western side of Ahele Street within the Wailua Homesteads Subdivision (First Series) in
Wailua, approx. 450 ft. makai of the Opaekaa Road/Pulana Street intersection and further
identified as 6430 Ahele Street, Tax Map Key 4 -2- 006:058, and containing a total area of
10,085 sq. ft. = Yasutake Family Revocable Trust 2004.
Mr. Dahilig: Thank you, Mr. Chair. We are now on Item F.2.b. This is Class IV Zoning Permit
Z -IV- 2016 -14 and Use Permit U- 2016 -11. This is to allow the conversion of an existing
residence into a bed and breakfast operation on a parcel located along the western side of Ahele
Street within the Wailua Homesteads Subdivision, the First Series, in Wailua, approximately 450
feet rmakai of the Opaekaa Road /Pulana Street intersection and further identified as 6430 Ahele
Street, Tax Map Key 4 -2 -006 Parcel 058, and containing a total area of 10,085 square feet. The
applicant is the Yasutake Family Revocable Trust 2004. This is a Director's Report received on
this particular matter, Mr. Chair. The Department would recommend opening the agency
hearing at this time.
Chair Mahoney: Is there any member of the public that wants to testify on this agenda item at
this time? Seeing none.
Mr. Dahilig: Given the lack of testimony on the final call, Mr. Chair, the Department would
recommend closing the agency hearing at this time.
Chair Mahoney: Chair will entertain a motion.
Ms. Nogami Streufert: I move to close the hearing.
Mr. Keawe: Second.
Chair Mahoney: It's been moved and seconded. Any discussion? Hearing none. All in favor?
(Unanimous voice vote) Hearing closed. Motion carries 6:0. Thank you.
Special Permit SP- 2016 -4 to operate a transient vacation rental in Kilauea, located on
Kauapea Road, approx. 1,300 ft. from the Kauapea Road and Kilauea Road intersection,
identified as Tax Map Key 5 -2- 004:064, and affecting a portion of 7.418 acres = Lee
Unkrich and Laura Century Family Trust.
Mr. Dahilig: Thank you, Mr. Chair. Before calling Item F.2.c., the Department has received,
and we have circulated to the Commission, a copy of request for intervention that has not been
4
officially filed with our Department and has not received a fee pursuant to the Rules of Practice
and Procedure of this Commission.
Administrator Furfaro entered the meeting at 9:16 a.m.
Mr. Dahilig: Given this and the interplay between the Rules of Practice and ... Rules of
Planning... Rules of Procedure... what is it?
Deputy County Attorney Jodi Higuchi Sayegusa: Practice and Procedure of the Planning
Commission.
Mr. Dahilig: Practice and Procedure. (Laughter) Sorry. (Laughter in background) That it
becomes problematic to discuss an intervention request that has not been noticed pursuant to
Hawaii Revised Statute Section 92. So if you notice on your agenda under F.2.c., there is no
intervention notice that has been posted pursuant to Hawaii Revised Statute Chapter 92. The
difficulty is if we discuss the merits of an intervention petition without proper notice pursuant to
the Sunshine Law, we could be potentially placing the Commission in a position to violate the
law. So my recommendation, given the information that has been provided that we anticipate an
intervention request coming in, that the Commission discuss that with proper notice. Given that,
my recommendation to the Commission is that it defer item F.2.c., which is the hearing on this
matter, but it receive public testimony; not open the hearing, but receive public testimony on this
matter and make any calls for anybody that wishes to make testimony on that. And before, I
guess, we proceed with opening the hearing, that would be my recommendation, and we may
want to hear from the County Attorney on this particular matter.
Ms. Higuchi Sayegusa: Right. So the Commission is in receipt of the petition. I think it is an
issue that we need to vet prior to even analyzing or discussing the merits of the permit, the
pending permit application, before the Commission. And, again, as the Planning Director did
point out, it wasn't received in a matter that would allow us to also list this on the agenda, which
will provide sufficient notice under Chapter 92, the Sunshine Law. So based on that, at this
point, the recommendation would be to defer the matter, and we will be allowed to list the
petition and be able to discuss the merits of that petition at a future meeting; possibly in two (2)
weeks. The parties, at that point, can raise objections or ... and the Petitioner may be allowed at
that point also to respond to, you know, the merits for or against the petition at that point. So
again, we haven't even had a chance to put it on the agenda to satisfy Chapter 92, which I think
we need to do at this point.
Mr. Dahilig: Mr. Chair, given that this is a matter of procedure before we open the hearing, I
think it'd only ... from a fairness standpoint, allow the applicant to address the recommendation
of the Director in this circumstance because, again, this was a petition that was not timely, did
not have a fee, but at the same time, from a Sunshine Law practice standpoint, having a
discussion on this matter could be problematic as violative of the Sunshine Law. So, I would
like to, if it is okay, Mr. Chair, allow the applicant to provide comment on my recommendation
to the Commission concerning this matter.
Chair Mahoney: Okay. We'll allow the comment. Could you state your naive for the record,
please?
Dan Hempey: Good morning. I'm Dan Hempey. I'm the attorney for the applicant.
Ms. Nogami Streufert: Could you speak up a little bit, please? I'm sorry. I can't hear you.
Mr. Hempey Sure. I'm Dan Hempey. I'm the attorney for the applicant. So I understand
what's happening, and I would note that the hearing today on the petition, our petition, is
properly noticed; that's noticed it's on for today. And what you've got is a potential intervenor
who didn't intervene on time. In fact, to my knowledge, they still haven't paid the filing fee;
maybe they have this morning. And the rules clearly talk about the 7 -day requirement for an
intervention to be heard. The rules also do allow exceptions for good cause, but there's no good
cause in their petition to intervene. Barring that, I know there's another rule ... I think it's 1 -3 -2
that would allow this body to extend time on the basis of excusable neglect if you find that the
proposed intervenors had excusable neglect because my understanding is they are off - island,
they are both real estate developers from other states that don't live here, so maybe it was
excusable that they didn't see the public notice in the Kauai paper.
So I don't want to foul what you're doing about not discussing the merits. If you do vote as a
preliminary matter before we commence the hearing to put this out a while so that we can just
have a hearing on the intervention itself and that only, which is what I think what you're
proposing, if you choose to do that, I would just ask that you work with me on scheduling. Two
(2) weeks won't work for me. It's my vacation. So again, I don't want to (inaudible) foul what
the Director is saying that he wants to have this as a preliminary discussion without argument on
the merits. I mean, I just ... I don't think it's a secret that they haven't intervened timely. The
question is are you going to set it for a hearing on the intervention? Or are we going to go
forward as scheduled today, which we are prepared to do. If you do deny intervention today and
have a hearing, whoever doesn't prevail can go to the court. They still have their due process
rights to go to court. There's a case Mahuiki versus the Planning Commission that says that, so I
know this is irreversible no matter which way you go. So with that said, I understand the
Director's rationale for the request. I understand it. On the other hand, we're here today and
there has been no intervention, so that's what I have to say.
Chair Mahoney: Okay, thank you. Having heard that...
Ms. Higuchi Sayegusa: Again, the options at this point are to entertain whether or not to defer
the matter. In particular, the petition for intervention at that point. The Commission can
consider whether or not to entertain that petition; the merits of it, you know, whether it's timely.
And even if it's untimely, if it's found untimely, whether there is good cause to allow for the
intervention, or, again, to extend the deadline. That's one option. The other option is to proceed
today with the pen-nit application, the consideration of the permit application. If you folks have
other questions, we could take a vote and we could talk about things in detail in executive
session, but ... that is also an option for you. But it seems that the parties are at least somewhat
amenable to the possibility of the deferral on that petition.
Mr. Keawe:_ Just to clarify. So the ... if we defer, we're still going to allow public testimony. Is
that right?
Ms. Higuchi Sayegusa: So any matter on the agenda can be ... is available for public testimony,
but we're not going to be opening the agency hearing at this point.
Mr. Keawe: Right, right.
Ms. Higuchi Save sa: Yes.
Chair Mahoney: Okay, Commissioners, are there any thoughts? Comments? Motions to
address?
Mr. Dahilig: And just to further elaborate on what the Attorney has mentioned, if the
Commission decides to proceed with opening the hearing and moving forward with the
application, the Department is prepared to move forward with... should the Commission want to
take action on it, so we are prepared, also, in that regard.
Mr. Katayama: Mr. Chair, just for clarity, what is the Department's position? And what's the
rationale for that position?
Mr. Dahilig: The ... if I can?
Chair Mahoney: Yes, go ahead.
Mr. Dahili . The rationale is that there is a very liberal standard for intervention and that has
been established by the courts; however, there is an interplay with procedure and whether you
have timely exercised your independent right to intervene as a special party to a contested case
hearing. The problem in this situation is we are aware of the intent to intervene because it's been
circulated. However, by procedure, the petition that has been filed is not timely and still has not
provided the necessary fee. That being said, typically, when an intervention petition is
entertained by this Commission, it is properly noticed pursuant to the Sunshine Law and that
discussion, which has the bearing of either severing or affirming rights of a party, should be
properly noticed pursuant to the law. So my concern in this position is that if the Commission
were to move forward with a discussion on the merits of an improperly filed petition, that it
could be in violation of the Sunshine Law because it was not noticed on the agenda. So my
recommendation is based off of that, that if the Commission wishes to discuss the merits of the
petition, it should defer this until it can be properly noticed; however, if it chooses to move
forward with the application without entertaining the petition, I believe that is a choice, also, the
Commission can make. But again, it's with keeping in mind that the Supreme Court has
established, as precedent, a very liberal standard when it comes to the rights of somebody to
intervene in a situation like this.
Ms. Nogami Streufert: So as a measure of going forward, we could hear public testimony now
without opening... without going any further; however, that would put us a little bit ahead at this
point. Is that correct?
Mr. Dahilig: Yes. And that's just the conflict of law situation with the Sunshine Law that once
something has been noticed, the public has a right to at least speak on the item, and from a
public's right standpoint, that should be honored.
Mr. Katayama: So moving forward, how would you cure the intervention status given its flaws?
Mr. Dahilig: That is, I think, something you may want to take into an executive session
discussion with the Attorney should you wish to have a response to that because I believe that
having that discussion on the floor could unfairly enrich one side or the other.
Ms. Nogami Streufert: Got it. Okay.
Chair Mahoney: Okay. So members of the Commission, does anybody have a motion that they
would like to introduce on this? And hearing the pros and cons of it and the potential of being in
violation of the Sunshine, everything... and taking into consideration on your motion...
Ms. Nogami Streufert: But hearing the public testimony now is not in violation of the Sunshine
Law.
Chair Mahoney: Correct.
Ms. Nogami Streufert: Correct. Okay. Got it. Are we waiting for a motion? I move that we
open public testimony.
Chair Mahoney: Well, should the motion ... it would be to defer or...
Ms. Nogaini Streufert: And to defer.
Chair Mahoney: Well, we could ask the County Attorney to help clarify the motion.
Ms. Higuchi Sayeg isa: Just to clarify, I mean, it is a matter that's already on the agenda and so
any public member can come forward, and if they have signed up on the sign -in sheet to testify,
they may be able to do so, but that's sort of separate than what needs to be considered on the
action of going forward by this Commission; i.e. whether to defer, whether you folks want to
discuss things further today during exec session, or whether you want to ... we can schedule an
exec session coinciding with the deferral, or we can proceed with the consideration of the permit.
Ms. Nogami Streufert: I move to defer.
Chair Mahoney: To defer and...
Mr. Dahilig: Just for public notice standpoint, Commissioner, if I could suggest a fine date for
your motion. Would August 23rd be amenable?
Ms. Nogami Streufert: That would be fine with me, but would that be workable?
Mr. Hempen: Indulge me for a moment. You said August 24?
Mr. Dahilig: 23rd
Ms. Nogami Streufert: 23ra
Mr. Hempen: I'm scheduled to be in a jury trial that week that really looks like it's going to go
and I'm quite booked before that. Could we go maybe into the ... I don't know. Is your next
meeting on September 7?
Mr. Dahilig: No, it would be ... we don't. It would be September 13`n, but we may not have that
scheduled due to the Hawaii Congress of Planning Officials Conference. It's the following
week, so we typically try to avoid the week before the conference for setting, but if we need to
have the meeting, we can have it on that day.
Mr. Hempen: On the 14`n.
Mr. Dahilig: On the 13`n, September 13`x'. We could also try for August 91n as well.
Mr. Hempen: Let me look at August 9"'. I'm sitting as the per diem judge on the 13`n. August
91n I'm in another jury trial; a big one. What's after ... what else?
Mr. Dahilig: September 271n
Mr. Hempen: Okay. Appreciate you working with me on the date. September 27`n is good.
And that would be just for ... we would... If I understood the motion, it's only to defer ... well, it
would be to defer both, but that day we would only be setting the hearing on intervention, as
opposed to both. Because if they're allowed to intervene, it's going to get kicked to a hearing
officer and we would have all the witnesses here (inaudible).
Mr. Dahilig: What we would post it as, assuming they cure the ... that whatever is submitted is
conforming to the rules would be posted on the 27`n, along with the hearing, in terms of.. and
then if the hearing is closed, then the Commission can take action on the 27`n if they choose not
to act on the intervention status. So the intervention would be handled before the hearing is
opened.
Mr. Hempen: And they'd both be set for the same day?
Mr. Dahilig: And they would be both set for the same day.
Mr. Hempen: Okay. And that's September...
Mr. Dahilig: September 27`n. If that's amenable to the Commission and they make a motion.
Mr. Hempen: If they ... you guys vote for the...
Mr. Keawe: So Glenda made the motion...
Ms. Nogami Streufert: To defer to September...
Ms. Higuchi Sayegusa: I just want to ... just to clarify, did...
Mr. Keawe: A motion to defer, right?
Ms. Higuchi Sayegusa: usa: I think prior to that you had another motion, so maybe... (Laughter)
Sorry to confuse anything, but there was a previous motion that you made, so maybe ... to retract
that.
Ms. Nogami Streufert: I will retract the first and ... I will retract both of them and start over.
Ms. Higuchi Sayegusa: Okay, thank you.
Chair Mahoney: Sounds better.
Ms. Higuchi Sayegusa: And so again, if...the motion, now that we discovered a date, would be
the motion to defer the Special Permit and also to ... and the consideration of the petition for
intervention to September 27`x'.
Mr. Dahilig: If there was one filed.
Ms. Higuchi Sayegusa: If there was one filed.
Ms. Nogami Streufert: So moved.
Mr. Katayama: Second.
Chair Mahoney: Okay. It's been moved and seconded. Any discussion? Hearing none. All in
favor? (Unanimous voice vote) Motion carried 6:0.
Mr. Dahilig: Thank you, Mr. Chair, and pursuant to the Sunshine Law, we do have three (3)
individuals that have signed up to testify on this matter outside of opening the hearing, and if we
could call them to comply with the Sunshine Law. Mateo Caballero, followed by Fred Nassiri,
followed by Felicia Cowden.
Mr. Hempen: For the record, the first two (2) names are one of the proposed intervenors and
their lawyer, so...
Chair Mahoney: Okay.
Mateo Caballero: I'm happy ... I'm one of the intervenors. I'm happy to affinn my testimony on
the matter until the 27`x', September 27`x'.
10
Mr. Dahilig: Mr. Caballero, are you also speaking on behalf of Mr. Nassiri? Or does he wish to
testify as well?
Mr. Caballero: I represent Mr. Nassiri.
Mr. Dahilig: Okay. So both of you wish to...
Mr. Caballero: Yes.
Mr. Dahilig: Okay.
Chair Mahoney: Thank you.
Mr. Dahilig: Felicia Cowden.
Felicia Cowden: Felicia Cowden for the record. I feel very strongly on this particular topic and
I want to remind the Planning Commission it is your prerogative to not allow this Special Permit
even though it has been recommended. I feel this issue exceeds the institutional memory of the
Planning Department. I've been following this for more than 20 years, and this property is a
repeat offender. And this request rewards speculative real estate, you know, at the expense of
the community. When I look at this being on Ordinance 904 where it's trying to go look at farms
that couldn't quite make it and so they were able to do a vacation rental to be able to hold onto
the farm, this is the antithesis of what is really that example. I'm looking on the next couple
cases on the Consent Calendar. These people have lived here for decades and helped the
community; unlike this. This property was purchased for $6.2 million. That's not a poor person
trying to do this and it has always been in vacation rental. They make about ... it's like $1,500 a
night, so that's, like, probably $40,000 a month if they're able to do it.
Now, here's the thing with this property, Benji Garfinkel bought this. At that time, that whole
bluff was mostly open. He bought the place where there's the parking lot and the main walkway
down to the beach where people fish. That valley used to be filled with food. This was like
going to the refrigerator. He bought this property. He was guided to move the very front end of
the public access over about 20 feet. I'm staying on it. But this is really important. So they
moved this over long enough to then block the new place; to preempt the public access to the
trail. I got in the middle of trying to mediate angry, young men from killing, vandalizing. The
level of anger over what happened was so bad. And then so once this access was blocked, this
property was subdivided and sold into three (3) luxury homes for, really, a high amount of
money.
And this guy, Lee Unkrich, he is the third purchaser, so if he can't get along with his neighbors
because he wants to do this many like ... when I came in here six (6) months ago, he had just
drilled the holes to show that he had been farming. He hadn't been farming. You know, he had
just—those trees are like maybe 2 feet tall now. And so when he is manipulating this rule that's
meant to protect people holding onto their farms—it was $12.9 million he had it listed for. Now
that he's been having to stop selling it ... or stop renting it, it's down to like $8.9 million or
something thereabouts. He's listing it still $2.7 million above what he purchased, so...
Mr. Dahilig: Three (3) minutes, Mr. Chair.
Chair Mahoney: Could you wrap up your testimony, please?
Ms. Cowden: Okay. I sent you something and I hope that you look at it. That 5 -point standard,
he does not meet three (3) of the five (5) points of the standard, and this land is suitable for
agriculture. The only thing it's not suitable because of is the cost of the land.
Chair Mahoney: Okay.
Ms. Cowden: If the land was cheap, you can grow the plants and it's evident. Right across the
street there's a very, very viable farm that uses good fanning practices. So, please, do not give it
to them, especially if you think about cancelling on these other people that are just saving their
homes. This is a big deal. This is the second time I came down. Now it sounds like I got to
come down another time.
Chair Mahoney: Okay. Could you wrap it up, please? (Inaudible).
Ms. Cowden: I did. Please, please, please deny this pen-nit. It sets a terrible precedent for
exploiting the intention of this rule. Thank you. Sorry to be upset.
Chair Mahoney: Okay, thank you.
Mr. Dahilig: Mr. Chair, that's all I have signed up for public testimony. Under Sunshine Law, if
anybody else would like to testify, it would probably be appropriate to snake a final call.
Chair Mahoney: Is there any other member of the public that would like to testify on this agenda
item? Seeing none.
Continued Public Hearing (NONE)
Mr. Dahilig: Thank you, Mr. Chair. We are on Item F.3. This is Continued Public Hearing.
There is none noticed for today.
New Public Hearin
Adoption of administrative rules interpreting provision of Chapter 8, Kauai County
Code, as amended, pertaining to the enforcement of structures relating to o Chapter 8,
Article 27 (Shoreline Setback Detennination) = County of Kaua `i, Planning Department.
Mr. Dahilig: We are on Item F.4. This is New Public Hearing. This is adoption of
administrative rules interpreting provision of Chapter 8, Kauai County Code, as amended,
pertaining to the enforcement of structures relating to Chapter 8, Article 27, which relates to
Shoreline Setback Detennination. The applicant is our department and there's a Director's
Report regarding this matter, Mr. Chair. The Department would recommend opening the public
12
hearing at this time with the understanding that the Department will probably be asking for a
deferral of this item at their presentation today.
Chair Mahoney: Is there anybody that would like to testify on this agenda item present today?
Seeing none.
Mr. Dahilig: Mr. Chair, in light of the request for deferral that will be impending, the
Department would recommend keeping the public hearing open on this matter and moving to the
next agenda item.
Chair Mahoney: Okay. Agreed.
All remaining public testimony pursuant to HRS 92 (Sunshine Law)
Mr. Dahilig: Okay. We are on Item F.5. This is all remaining public testimony pursuant to
HRS 92, the Sunshine Law, on any of your other items listed on today's agenda. Mr. Chair, we
do have Anna Cronshaw listed as a testifier on Item I.1. and I believe she's an applicant, so we'll
move into that matter, Mr. Chair.
CONSENT CALENDAR
Status Reports (NONE)
Director's Report(s) for Project(s) Scheduled for Agency Hearing on 7 12 16.
Special Management Area Use Permit SMA(U)- 2016 -5, Class IV Zoning Permit Z -IV-
2016-16, Use Permit U- 2016 -13 to allow conversion of an existing residence into a bed
and breakfast operation on a parcel located along the mauka side of Weke Road in
Hanalei Town, situated at its intersection with Pilikoa Street and further identified as
5111 Weke Road, Tax Map Key 5- 5- 010:032, and containing a total area of 7,568 sq. ft.
= Faith S. Ben -Dor.
Class IV Zoning Permit Z -IV- 2016 -17, Use Permit U- 2016 -14 and Special Permit SP-
2016-6 to allow conversion of an existing residence into a bed and breakfast operation on
a parcel located along the northern side of Koolau Road in Moloa`a, further identified as
6761 Koolau Road, Tax Map Key 4 -9- 011:038, and containing a total area of 1.650 acres
= Steven & Eddi Henrv.
Mr. Dahili . Okay. We are on Item G. This is Consent Calendar. We have no status reports.
We do have two (2) Director's Reports set for July 12, 2016 for scheduling agency hearing and
receipt of the reports by the Commission. This is Special Management Area Use Permit
SMA(U)- 2016 -5, Class IV Zoning Permit Z -IV- 2016 -16, and Use Permit U- 2016 -13 for TMK:
5 -5 -010 Parcel 032. The applicant is Faith Ben -Dor. And Class IV Zoning Permit Z- IV -2016-
17, Use Permit U- 2016 -14, and Special Permit SP- 2016 -6, TMK: 4 -9- 011:038, and the
13
applicants are Steven and Eddi Henry. Those are all the matters for the Consent Calendar this
morning, Mr. Chair.
Chair Mahoney: Thank you.
EXECUTIVE SESSION
Mr. Dahilig: Okay, thank you, Mr. Chair. We are on Item H, Executive Session. We have none
posted for today.
GENERAL BUSINESS MATTERS
Hearing Officer's Report and Recommendation of Contested Case Hearing (including
proposed Decision and Order, Findings of Facts and Conclusions of Law); Certificate of
Service relating to CC- 2015 -6, TVRNCU #1356, Tax Map Key (4) 1 -3- 001:083 = Ian
Cronshaw and Anna Cronshaw and CC- 2015 -7, TVRNCU #1357, Tax Map Key (4) 1 -3-
001:094 = Ian Cronshaw and Anna Cronshaw.
Mr. Dahilig: Item I.1. This is Hearing Officer's report and recommendation of Contested Case
Hearing (including proposed Decision and Order, Findings of Facts, and Conclusions of Law);
Certificate of Service relating to CC- 2015 -6, TVRNCU #1356 at TMK: (4) 1 -3 -001 Parcel 083,
Ian Cronshaw and Anna Cronshaw, and CC- 2015 -7, TVRNCU #1357 at TMK: (4) 1 -3 -001
Parcel 094, and the same applicants in this matter. This matter was deferred from 05/24/16. And
I believe that this information has been circulated to the Commission for its action.
Given that I'm a part of this matter, Mr. Chair, I'm going to step back from the mic.
Chair Mahoney: Okay.
Ms. Higuchi Sayegusa: So, again, just to kind of summarize what's happened so far, this matter
was transmitted by the Commission to the Hearings Officer to conduct the evidentiary portion of
the Contested Case. He also issued a report and recommendation based on the evidence that he
received, and transmitted it back to the Commission. Now it's before you folks for your
decision - snaking on whether or not to adopt the proposed report and recommendation. There
hasn't been any exceptions filed and no request to snake any oral arguments at this point, so I
suggest that the Commission... you know, the options at this point now is whether or not to adopt
the report, or whether or not you need to reverse or modify the report and recommendation. If
there's any specific evidence that you want to flush out a little bit snore, you can send that back
to the Hearings Officer for production of further evidence on any specific matter.
Chair Mahoney: Okay. Well, at this time, you know, you should not be at the podium at this
time, okay?
Unidentified Speaker: Oh, okay.
14
Chair Mahoney: Thank you. Okay. Any members of the Commission, for the County Attorney,
had a chance to look at the decision, any comments or concerns on what our options are?
Mr. Keawe: So, Jodi, our options are to either accept the HO's Decision and Order, modify it, or
come up with some other solution?
Ms. Higuchi Sayegusa: Correct. I mean, at this point, you can ... again, you can adopt the
recommendation as -is, you can modify it in any particular way, reverse it. You can also ... if
there's anything missing or anything that you want further clarification on, you could send it
back to the Hearings Officer with specific instruction.
Mr. Katavama: The Petitioner has not filed anything or commented on the...
Ms. Higuchi Sayegusa: So that all was conducted at the Hearings Officer level. So the Hearings
Officer went through the whole formalized Contested Case Hearing. They were allowed the
opportunity to submit Proposed Findings of Fact, Conclusions of Law, Decision and Order, and
then from there, the Hearings Officer issued his own report and recommendation based on that
and the evidence. His recommendation, as well as the entire record, has been transmitted to you
folks.
Chair Mahoney: Any comments from the Commissioners?
Ms. Higuchi Sayegusa: Were there any questions on the report itself? Or ... yeah. If you folks
needed more time to analyze or anything like that, we could also...
Mr. Keawe: I think it was fairly thorough, as far as what was presented and the arguments that
were presented.
Ms. Higuchi Sayegusa: Right.
Mr. Keawe: And you know, I ... I mean, it's pretty evident, based on evidence that was provided,
that the Hearings Officer took into account, you know, all of the testimony on both sides.
Chair Mahoney: Any other comment or consensus?
Mr. Katayama: Mr. Chair, just as sort of a matter of process, I think I would be interested in
hearing the Petitioner's comments as to the weight given between testimonies in adopting the
Finding of Facts and Conclusion of Law, if they have it.
Ms. Higuchi Sayegusa: Certainly the Chair, as the presiding officer, can decide at this point to
entertain comments or field questions directly to the parties. Just a little bit hesitant to ... just
advise you folks on doing so. Again, we went through the whole Contested Case process.
We've kind of been through this in another case that we have before the Commission today, but
again, that's sort of why we go through the formalized process of the Contested Case, so that,
you know, certain things are vetted in an organized and ... through the Hearings Officer.
15
Mr. Katayama: Well, generally speaking, wouldn't there be a Petitioner's Findings of Facts and
Conclusion of Law also submitted?
Ms. Higuchi Sayegusa: Again, my understanding is that the whole record was transmitted, so it
might have been one of those other links that—within the links that Leslie transmitted to you
folks. It's a large volume of material, but because I understand that you folks do want ... are
interested in reviewing all of the record that was transmitted to you folks.
Chair Mahoney: At this point, you know, one comment from the Chair would be, you know, that
we did go through the Contested Case Hearing, and then not to reopen something for evidentiary
points that have already been ... that's why we went to a Contested Case. And each party had
their chance to be vetted, and then the decision was made by the Hearings Officer. Now it's up
to us to decide whether we agree with the Hearings Officer or we want to modify or accept the
conclusions by the Hearings Officer. And some of the points that Jodi, the Assistant [sic]
County Attorney, laid out before us without bringing up, you know, members of opposing parties
to decide how they feel about what's already been decided; otherwise, we wouldn't have had a
Contested Case Hearing. We would have vetted it in front of the Commission, but we chose not
to do that. So now we have to make a decision based on the information in front of us. And
Commissioner Keawe opened up the discussion on acceptance of his point of view on the
Hearing Officer's conclusions, and I think we could go in that direction if there's other members
of the Commission that concur or have other points relative to our options. We could go in that
direction. Any comments, Commissioner Ho, on...?
Mr. Ho: No. I've read what I've read. I'm satisfied.
Chair Mahoney: Okay, well...
Mr. Ho: Can we get a motion?
Chair Mahoney: We can. Why don't we take a caption break for 15 minutes, please?
The Commission recessed this portion of the meeting at 9:52 a.m.
The Commission reconvened this portion of the meeting at 10:17 a.m.
Chair Mahoney: Call the meeting back to order. Okay.
Ms. Higuchi Sayegusa: I apologize. Just to clarify, we paused because ... to give us a chance to
look through the record that was submitted to the Commission. Apparently, the proposed
Findings of Fact, Conclusions of Law submitted by both parties aren't necessarily included
as ... in the record. They are actually submitted to the Hearings Officer in his consideration of
drafting his report and recommendation. We can do so in the future, going forward, but we are
able to obtain what was submitted by both parties and can transmit it to each of you. I also have
a hard copy that ... from both parties and that can be distributed also.
16
Chair Mahoney: Okay, so we could continue with where we left off. Commissioner Keawe
expressed that he had—was willing to accept the Hearings Officer's report as stated. We'll go
around ... maybe we'll start at the end. Does everybody... any consensus with that? Or...
Ms. Higuchi Sayegusa: At this point, we don't have any motion on the floor. We could also...
Chair Mahoney: This is like a discussion before a motion is entered. We can either adopt,
modify, or reverse. And to kick the discussion off, do you have any comment? We could move
down.
Ms. Nogami Streufert: If I could, my understanding of reading the documents is that Hale Lehua
was approved in 2010, but there was no renewal in 2011 and 2012. They were told to cease and
desist in 2013 and they were still operating in 2016. Is that correct?
Chair Mahoney: Yes, that portion was correct in the record. Commissioner Ho.
Mr. Ho: I believe the process was presented to us and we went through the process. Reading the
documents, I'm satisfied with it.
Chair Mahoney: Okay. Commissioner Abrams.
Mr. Abrams: I've reviewed the evidence and the report of the Hearings Officer, and agree with
his conclusion and recommendation, so I'll be supporting the motion assuming it comes from
Mr. Keawe.
Chair Mahoney: Commissioner Katayama.
Mr. Kataama: In reviewing the ... both the submissions of their interpretations of the Proposed
Findings of Fact, Conclusions of Law, I'm satisfied that I can make a decision.
Chair Mahoney: Okay. My comment is having read the Hearing Officer's report, I'm in
concurrence with the conclusion that the Hearings Officer came up with. And having gone
through our discussion I think it would be in order for a motion on the floor.
Mr. Keawe: I move to accept the Decision and Order of the Hearings Officer as outlined in his
May 11, 2016 document.
Mr. Ho: Second.
Chair Mahoney: It's been seconded. And this is relating... incorporate it into the
motion... relating to CC- 2015 -6, TVRNCU #1356, Tax Map Key (4) 1 -3- 001:083, Ian Cronshaw
and Anna Crowshaw; and CC- 2015 -7, TVRNCU #1357, Tax Map Key (4) 1 -3- 001:094, Ian
Cronshaw and Anna Cronshaw. So it's been moved and seconded. Any discussion? We'll have
a roll call vote.
17
Mr. Katayama: Can we have sort of a ... again, the Decision and Order that we're adopting, there
are three (3) parts to it.
Chair Mahoney: Okay.
Mr. Katayama: Or four (4) parts to it. And we're in agreement with all four (4) parts of the
D &O?
Ms. Higuchi Sayegusa: The motion that's currently on the floor is to accept the report and
recommendation as a whole.
Mr. Katayama: And there's no discussion on the four (4) elements of the D &O?
Chair Mahoney: I don't think at this point, unless somebody wants to remove their motion, but I
think the concurrence right now is acceptance of the entire report.
Ms. Higuchi Sayegusa: Okay. I'm going to go forward with the roll call vote. Commissioner
Streufert?
Ms. Nogami Streufert: Yes.
Ms. Higuchi Sayegusa: Commissioner Katayama?
Mr. Katayama: Aye.
Ms. Higuchi Sayegusa: Commissioner Ho?
Mr. Ho: Aye.
Ms. Higuchi Sayegusa: Commissioner Abrams?
Mr. Abrams: Aye.
Ms. Higuchi Sayegusa: Commissioner Keawe?
Mr. Keawe: Aye.
Ms. Higuchi Sayegusa: Chair Mahoney?
Chair Mahoney: Aye.
Ms. Higuchi Sayegusa: Unanimous.
Chair Mahoney: Motion carried 6:0.
18
Hearing Officer's Report and Recommendation of Contested Case Hearing (including
proposed Decision and Order, Findings of Facts and Conclusions of Law); Certificate of
Service relating to CC- 2014 -5, TVRNCU #14263 -P, Tax Map Key (4) 5 -2- 004:098 =
Rene O. Campos.
Mr. Dahili . Mr. Chair, we are on Item 1.2. This is the Hearings Officer's report and
recommendation of the Contested Case Hearing (including proposed Decision and Order,
Findings of Facts, and Conclusions of Law); Certificate of Service relating to CC- 2014 -5,
TVRNCU #14263 -P, Tax Map Key (4) 5 -2 -004 Parcel 098. The applicant was ... the petitioner
was Rene O. Campos. There are two (2) documents also noticed as Items 2.a. and 2.b., Mr.
Chair. As I am a party to this matter on behalf of the Department, I will be stepping away from
the mic on this one.
Chair Mahoney: Okay. Thank you.
Ms. Higuchi Sayegusa: I'll kind of update us all again on this matter. Again, the Hearings
Officer did issue a report and recommendation, and has transmitted the report and
recommendation, as well as the entire record, to the Commission for its consideration. We've
had a lot of discussion on the matter two (2) meetings ago and including last meeting, and during
executive session. So at this point, again, as the matter before, the Commission has the option on
approving the Hearings Officer's report and recommendation, reversing, or modifying the report
as the Commission sees fit.
Chair Mahoney: Okay. We can start off with ... has everybody read the reports? The Hearings
Officer's report? The briefs by the two (2) parties? We could start off ..maybe a discussion on a
consensus or ... of acceptance, or once again our options would be adopt, modify, or reverse. So
let that sink in for a bit, and then we can start verbalizing a process.
So we can start with Commissioner Keawe. Maybe we'll do round robin around the
Commissioners if there's a comment or (inaudible).
Mr. Keawe: Yeah, I think ... again, looking at all of the documents from both sides, from the
applicant and from the other side, I think it's fairly evident that the evidence presented was
clearly in favor of the Planning Department and its decisions with regard to the permit.
Chair Mahoney: Commissioner Katayama.
Mr. Katayama: I think the challenge is striking a balance. You know, there's a use ... a request
for two (2) ... you need two (2) permits to continue this, and we are sort of acting on the second
permit. And I guess at the State -level that's been approved, and now at the County -level we
have been asked to adjudicate whether that is ... should not be approved, and to me, that's sort of
the challenge. If you read Mr. Chun's brief on that D &O, to me, it's still not crystal clear, and
where the Department is on terms of interpretation of the ordinance in play. So I would just like
to hear a little more about that, and I apologize for that because it's ... I haven't been able to
formulate a clear position on that.
19
Chair Mahoney: Okay. Commissioner Abrams.
Mr. Abrams: After a lot of reading and a lot of listening, I am of the opinion that I could snake a
decision today in regards to the Director's Report.
Chair Mahoney: Commmissioner Ho.
Mr. Ho: I've read it a few times. I haven't seen anything to change my mind. I'm ready to
move forward with this.
Chair Mahoney: Okay, thank you. Commissioner Streufert.
Ms. Nogaimi Streufert: I think the documents are pretty voluminous, and they go over a lot of
arguments and counterarguments. I think I'm ready.
Chair Mahoney: Okay. And Chair says that after reviewing... and one of the things I think that,
you know, when it goes before the Hearings Officer, the Hearings Officer vets all of the evidence
that's heard and I think the due process was handled. I'm willing to make a ... I'm ready to make
a decision, so ... yeah.
Mr. Katayama: Mr. Chair, can somebody articulate the difference in the level of permit
approvals from the State and the County, and the basis for denial at the County - level? I've read
the hearing ... HO's position, I've read the Petitioner's representative's position on that, and I've
also read the Department's representative's position.
Ms. Higuchi Sayegusa: I'm sorry. Your question is the difference in standard between and State
and County?
Mr. Katayama: That's correct. Because apparently, at the State -level it's been approved, the one
that's been approved, and I guess we've been asked to act on the other part of it. And that's
where the Contested Case is arising.
Ms. Higuchi Sayegusa: Okay. I'm trying to understand this here. I don't want to say anything
(laughter) outside of the ... whatever the evidence that's been submitted.
Mr. Katayama: No, yeah, I think that part is consistent.
Ms. Iliguchi Sayegusa: Yes.
Mr. Katayama: It's the argument portion that is presented; both by the Department's attorney, as
well as the applicant.
Ms. Higuchi Sayegusa: I'm just ... I'm really hesitant to, I guess, ire to interject any analysis of
the law myself, but you have the option of...you could pose the question to each of the
representatives of the parties.
20
Chair Mahoney: But once again, you know, we start getting into an evidentiary portion of
something that's already transpired, and that ... the whole purpose of Contested Case Hearings
going before a Hearings Officer is for him to make the decision. If we were going to make the
decision, we would have had it before the Commission. And all the testimony that, you know,
that was presented was weighed by the, you know, we put ... as a Commission, we put our faith in
the Hearings Officer coming out with a decision. And now, at this juncture, to second guess
what was, you know, what transpired, if we agree with the Hearings Officer, I don't think it's
appropriate at this time to start taking more evidence from either party on what they think
happened or not.
Mr. Katayama: That's not what I'm asking. I'm asking for this body to see if they can, at least
for me, articulate (inaudible) testing level as the State Special Use Permit has been approved by
statute.
Chair Mahoney: That I cannot answer.
Mr. Katayama: Again, that's...
Chair Mahoney: Yeah. And—but I, you know...
Mr. Katayama: And the Hearings Officer has made a good argument.
Chair Mahoney: Yeah, and I think that during the hearing, that these points were weighed and
given due notice and evaluation at the time of the hearing. And if...I think, at this point, our
options are to adopt, modify, or reverse, and so far we have a consensus of snaking a decision
without, you know, a motion on the floor. I'm not sure if I can answer your question or if we can
at this stage, but...
Lorna Nishimitsu: Chair Mahoney, would I be given leave to speak?
Chair Mahoney: No.
Ms. Nishimitsu: So we are not going to be allowed to make closing arguments with respect to a
recommendation being made by your Hearings Officer to this Commission? Because it's this
Commission that makes the decision, and one of the decisions could be to defer for further fact
finding or evidence taken by the Hearings Officer.
Chair Mahoney: I think that part we know about, but the last time I kind of opened the floor and
it turned into an evidence ... and I don't think that's appropriate. But I'll ask the Assistant [sic]
County Attorney for her opinion.
Ms. Higuchi Sayegusa: And again, we've had ample opportunity to ... we went through the entire
Contested Case process at the last juncture when the record was transmitted. Mr. Chun was
allowed to extensively testify, and then subsequently, the parties came to an agreement to submit
further briefs, so I think we've had ample opportunity to vet a lot of the issues at this point. So
now we are just at a point where we really need to make a decision. I apologize for not wanting
21
to really get into myself analyzing any of the record. I think, again, we've had ample
opportunity, and a lot of arguments raised by both parties, and a lot of the materials that were all
transmitted to this body, so.
Ms. Nishimitsu: I'll just briefly state for the record that we object to not being allowed to make
closing arguments. The issue about whether or not we filed or did not file exceptions, exceptions
are not required under your rules. All that is required is that if exceptions are filed, they are filed
within seven (7) days of the Hearing Officer's proposed decision because it's not a final
decision. So with that, I'll just stop. Thank you.
Chair Mahoney: Thank you.
Mr. Katayama: Okay, let me help because I seem to be starting it. It seems to me that the denial
at the County -level is because the structure did not have the proper pen-nits from Public Works,
according to the Hearings Officer, so therefore, it's an illegal use. Is that sort of the central
point?
Ms. Higuchi Sayegusa: It is a little bit of the ... part of the evidentiary portion, but I mean, I think
what ... it was not properly pennitted to verify the non - confonning use status.
Mr. Katavama: Right. So therefore, we're denying. It did not have the proper County pennits.
Ms. Higuchi Sayegusa: Yes.
Mr. Katavama: And there is no remedy for that?
Ms. Higuchi Sayegusa: I think that's part of what was ... again, that was part of the issue of this
Contested Case in general, but you know, based on the Hearings Officer's report and
recommendation, that's ... he has recommended the denial, or not ... I'm sorry ... the non-
acceptance of the Non - conforming Use Certificate.
Mr. Katavama: So the Commission is saying that there's no way to un -ring the bell at this point.
Ms. Higuchi Sayegusa: That's what the report has recommended.
Mr. Kataama_ Okay, thank you.
Chair Mahoney: Okay, so we've had some discussion. I think at this point, if there is ... the
Chair would entertain a motion if Commissioners see fit to...
Ms. Nogami Streufert: This, again, is one of those that has four (4) parts to that decision. I
guess we could either vote on this as a whole, or vote on it as separate parts. I'm looking at Page
24, the Decision and Order. The first recommendation is that the Planning Commission deny the
Petitioner's appeal. Second, that it affirm the Planning Director's decision to revoke Petitioner's
TVRNCU #4263 -P only on grounds that there was no conversion permit to convert the guest
house with a kitchen to a legal single - family dwelling unit as mandated by Ordinance No. 904,
22
nor were the interior kitchen improvements authorized by a permit. C, is to fine the Petitioner
$25,000 for operating a transient vacation rental outside of the Visitor Destination Area from
December 23, 2011 to at least November 23, 2015. And D, direct the Planning Department to
determine whether additional remedies pursuant to Sections 8- 3.5(a) and /or 8 -17.6 should be
pursued against Petitioner if the use of the subject property as a transient vacation rental is not
terminated within thirty (30) days of the Planning Commission's approval of this report and
recommendation, assuming such action is taken. So there are four (4) parts to it. So the question
is whether the Commission wants to have a motion that is comprehensive, or whether we want to
separate it in parts.
Chair Mahoney: Well, a motion ... I mean, our options were to adopt, modify ... we could adopt
the decision as a whole, modify, or reverse it. And having read the Hearings Officer's report,
you know, any of the other members want to ... I think we kind of went around, you know, what
the consensus might be here, how we would want to go about it; to adopt it as a whole, or to... I
would be in support of that.
Ms. Higuchi Sayegusa: And again, it's not only just the Decision and Order, which
Commissioner Streufert read from, but it's also the Findings of Fact and Conclusions of Law that
needs to also be acted upon by the body, by the Commission.
Mr. Ho: If you chop it up into the four (4) sections and one (1) of it gets disapproved or
modified, does that nullify all of it?
Ms. Higuchi Sayegusa: So again, what you folks could do is, you know, adopt the Findings of
Fact, Conclusions of Law, and if there's any particular decision within the Decision and Order,
the proposed Decision and Order, you can modify that portion. So again, you can modify any
particular portion of the report as a whole. The Decision and Order, as Commissioner Streufert
read, did contain, you know, a decision on denying the appeal, affirming the decision to revoke
the TVR Non - Conforming Use Permit, there was also the fine and the amount of the fine, and
allowing the Planning Department the authority to determine any additional remedy that may be
needed. So, I mean, there's several parts to the Decision and Order itself that you could also
modify in particular, but that is an option for you also. But, I mean...
Mr. Ho: Wouldn't it be up to Mr. Chun to take it to a court if he disagrees?
Ms. Higuchi hi Sayegusa: He does have that option once the Commission issues a particular
decision and action. It could be appealed, as with any item that the Commission decides on.
Mr. Ho: In that respect, I would say that I would certainly take it as a whole.
Chair Mahoney: Commissioner Keawe.
Mr. Keawe: I think I've already expressed my opinion.
Chair Mahoney: Yeah. So there's... Commissioner Katayama.
23
Mr. Katayama: Well, I think the central parts of the argument is both the permitting portion of B
and C. I mean, that's sort of the basis for rejection of the appeal. D is a ... sort of a follow -up, so
unless we're nervous about anything, I think it would be wise to adopt the entire D &O.
Chair Mahoney: Okay. Commissioner Abrams.
Mr. Abrams: I was initially concerned in regards to the fact that the argument that the
respondent had in regards to a kitchen in a, what was in effect a guest cottage size, was a
dwelling and allowed them to go ahead and proceed with obtaining a TVR Non - Conforming
Pen-nit. And the process that they went through to do that where it showed up on the Building
Permit side was of concern to me because Building Permits are generally curable and Planning
Department has done that. But in the process of going through how the County would go ahead
and issue a compliance letter and a cease and desist letter, I believe the Planning Department
moved in a proper way, even though there was a disagreement with that. And that I do believe
the respondent basically had that actually happen before in the Building Permit when it was
constructed by the previous owner of the property and acted in a good enough faith in order to
argue that it isn't his responsibility, it's the Planning Department's. And some time down the
road I think that we will want to discuss how that gets resolved between planning use and
building construction when you use a construction tern to define what a transient use is or how
you are conducting it. But all in all, I think that the Hearings Officer's conclusion to uphold the
County's right to deny the TVR Pen-nit was correct and that they, you know, on the other points,
would prevail. That's a pretty stiff fine, $25,000, and I know it has been going on for a period of
time, but it was a period of time that our Council had decided to stop and allow a wholesale
application of properties that may have been operating... that were operating as a transient
vacation rental when there was no clear definition prior to 2008. So I don't have a problem
approving the Hearings Officer's recommendation. I do have a problem with one (1) part of it,
which would be the fine, and as to whether or not I would insist that that be out as a condition of
mine, I aim sort of deferring, at this point, to the rest of the group here. If they feel that that's
strong enough or adequate enough, then I would probably agree to it.
Chair Mahoney: Okay.
Mr. Keawe: I just had a comment. I believe the Planning Department had recommended a
$10,000 fine, and the Hearings Officer was the one who increased it to $25,000.
Mr. Abrams: Yes, yes.
Mr. Keawe: Just based on the evidence and the time lag and the number of years that were
involved.
Mr. Abrams: Right.
Chair Mahoney: Is there any consensus on the fine? Well, is ... the Chair will entertain any
motions.
24
Ms. Nogami Streufert: I move that we accept the Hearing Officer's report and recommendation
on Contested Case Hearing, including proposed Decision and Order, Findings of Fact, and
Conclusions of Law; Certificate of Service relating to CC- 2014 -5, TVRNCU #14263 -P, Tax
Map Key (4) 5 -2- 004:098, Rene O. Campos in total.
Mr. Ho: Second.
Chair Mahoney: It's been moved and seconded. Any further discussion? Hearing none. We'll
have a roll call vote, please.
Ms. Higuchi hi Sayegusa: Okay. Commissioner Streufert?
Ms. Nogami Streufert: Aye.
Ms. Higuchi Sayegusa: Commissioner Katayama?
Mr. Katayama: Aye.
Ms. Higuchi Sayegusa: Commissioner Ho?
Mr. Ho: Aye.
Ms. Higuchi Sayegusa: Commissioner Abrams?
Mr. Abrams: Aye.
Ms. Higuchi Sayegusa: Commissioner Keawe?
Mr. Keawe: Aye.
Ms. Higuchi Sayegusa: Chair Mahoney?
Chair Mahoney: Aye.
Ms. Higuchi Sayegusa: Unanimous.
Chair Mahoney: Okay. Motion's been approved 6:0. Thank you.
Mr. Dahilig: Thank you, Mr. Chair. Item 1.3. We are moving that to the 1 o'clock hour.
COMMUNICATION (For Action)
Mr. Dahilig: Item J. There are no Communications for action by this Commission.
25
COMMITTEE REPORTS
Subdivision
Mr. Dahilig: Item K. Committee Reports. The Subdivision Committee, I believe, has met and
transmitted a report.
Chair Mahoney: Can we hear from the Chair of the Subdivision Committee, please?
Mr. Abrams: Alright. Chair, the Subdivision Committee met this morning and had four (4)
items in front of it. Tentative subdivision action was granted to FTH Hawaii Properties, No. S-
2016-21; and Welk Resorts, No. S- 2016 -22. Final subdivision map approval was granted to
applicant... Subdivision Application No. S- 2013 -23, and an extension was granted to Application
No. S- 2015 -11. All on 3:0 votes.
Chair Mahoney: Okay. Chair will entertain a motion to accept the report.
Mr. Katayama: Move to accept subdivision report as it stands.
Mr. Ho: Second.
Chair Mahoney: Moved and seconded. Any discussion? Hearing none. All in favor?
(Unanimous voice vote) Opposed? (None) Motion carried 6:0. Thank you.
UNFINISHED BUSINESS (For Action)
Planning Director Michael A. Dahilig's Petition to Modify or Revoke Applicant Coco
Palms Hui, LLC's Pen-nits and Issue and Order to Show Cause and Set Hearing;
Memorandum in Support of Petition, Declaration of Michael A. Dahilig; Notice of
Meeting, Certificate of Service for Class IV Zoning Pen-nit Z -IV- 2015 -8, Project
Development Use Pen-nit PDU- 2015 -7, Variance Permit V- 2015 -1 and Special
Management Area Use Pen-nit SMA(U)- 2015 -6 = Coco Patens Hui, LLC.
Mr. Dahilig: Thank you, Mr. Chair. We are on Item L.1. This is the Director's petition to
modify or revoke Applicant Coco Patens Hui, LLC's permits and issue an Order to Show Cause
and Set Hearing; Memorandum in Support of Petition; Declaration of the Director; Notice of
Meeting; Certificate of Service for Class IV Zoning Pen-nit 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. The applicant is Coco Patens Hui, and there was a number of (inaudible) that
were transmitted initially as part of the matter.
Mr. Chair, given the status of the petition to modify or revoke that has been granted by the
Commission to move forward with setting a hearing, we are still in negotiations with the
applicant with respect to settling the Contested Case Hearing before proceeding. I know it
is ... because knowledge now, given the media attention recently, that buildings are coming down
26
on the site, so they are moving forward with demolition activities. And so, you know, we, at this
juncture, are still in negotiations with some of the conditions relating to trying to present a
settlement to the Planning Commission to adopt and modify the permit conditions. I will say
that many of the sticking points really relate to issues of timing and as well as guarantees
concerning ensuring that demolition activities are being followed through with. The applicant's
representative, Mr. Greene, is here and available for any questions, but I believe, you know, at
this juncture that we are satisfied that we are moving forward with some type of settlement, but
we still need more time to settle those items out. I would request a deferral of the item to the
second meeting in August if there's no questions for Mr. Greene.
Chair Mahoney: Okay. Chair will entertain a motion. Would the Commissioners care to have
Mr. Greene?
Ms. Nogami Streufert: Can I ask a question first? What is the status?
Mr. Dahili . In terms of the discussions? So we've traded drafts back and forth of amended
permit conditions we would be comfortable with. We do not have a meeting of the minds yet in
terms of what we would recommend to the Planning Commission for modification of the
permits. So given that, we—there are dates that have already lapsed as a consequence of some
of the delays that prompted the petition being granted for the revocation or modification. Those
already need to be amended and so we are renegotiating what those language ... what that
language should say before we present it to the Planning Commission. And as I mentioned
earlier, some of those items relate to further guarantees, further timing. I believe one large point
of discussion is agreeing whether or not to move forward with a phasing timetable versus
something that is one large project in general, and that requires some pertinent discussion and
some time because the architectural ... I guess architectural input is required in crafting what the
phasing diagram would look like, so that's still on the table. We do not have a, again, a meeting
of the minds at this point, but at least from a departmental standpoint, we, in good faith, believe
that the applicant has in good faith also in negotiating some of these amended conditions, but we
just aren't able to ... we were not able to get to an agreement before this particular meeting.
Chair Mahoney: Okay. Commissioner Ho.
Mr. Ho: Mr. Dahilig, you're negotiating the conditions of the permit, so while you're doing that,
the permit is in effect?
Mr. Dahilig: Yes. And these are, again, proposed conditions. We would still need Planning
Commission approval to amend the conditions.
Mr. Ho: Is there a timetable for the discussion on demolition completion?
Mr. Dahilig: Yes. Tentatively we are looking at the end of the year for completion, but again,
that's still fluid because there's a number of other things that are incumbent on how that
language is crafted. So that's what at least the Department has proposed and the applicant has
countered with some additional language.
27
Chair Mahoney: Okay. Chair will entertain a motion.
Mr. Keawe: What's the date, Mike?
Mr. Dahilig: Oh okay. It would be the second meeting in August. I can get that for you
specifically. That would be August 30`n
Mr. Keawe: 30cn.
Mr. Dahilig: Yes, August 30`n. My apologies, 23`d. I'm sorry. That's a five (5) week.
(Laughter)
Mr. Keawe: 5 -week month.
Mr. Dahilig: August 23`d. My apologies.
Mr. Keawe: 23`d7
Mr. Dahilig: Yes.
Chair Mahoney: Okay. Is there a motion on the floor for deferral? Or...
Mr. Abrams: Move to defer this matter 'til the August 23`d meeting.
Mr. Ho: Second.
Chair Mahoney: It's been moved and seconded. Any discussion? Hearing none. All in favor?
(Unanimous voice vote) Opposed? (None) The motion carries 6:0.
Mr. Dahilig: Mr. Chair, my apologies, if we could take §92 testimony. I believe this person was
added and carne in late.
Chair Mahoney: Okay. I'm sorry. We can... Did you want to snake a...?
Ms. Higuchi Sayegusa: You deferred it, but Chair, you may recognize the ... suspend the rules
and recognize the testifier.
Chair Mahoney: I'm sorry. State your naive for the record, please.
Beverly Muraoka: Thank you. My name is Beverly Muraoka for the record. I ain the neighbor
to Coco Patens and I ain here because while I'm not sure of all the other discussion that's taking
place, I came forward at the time Coco Patens did submit their plans to improve the place. I've
come back because of two (2) concerns. Number one, I did see, this morning, some demolition
work going on, but my tenants who occupy my property there, identified as Tax Map Key (4) 1-
3 -041, has complained two (2) things ... about two (2) things. They don't have a dust breaker and
while they are demolishing the buildings, I think it ... because of the amount of years, they are
28
suffering from dust and I guess the ... maybe termites or ... and then the other issue is rodents.
Twenty -four (24) years, from '92 -2016, I'm certain it was a nice hale for this `iole. So now that
they have no place to go, they are coming onto 310 Apana Road. I'd like to go on record that if
Coco Palms Hui needs to take care of that, I'd like it to be reflected in the minutes or the
proceedings that they be responsible for taking care of that pest control, and especially to have
the dust breakers put up at least ... because that can be a health hazard. Thank you.
Chair Mahoney: Thank you for your testimony. Is there anyone else signed up?
Mr. Dahilig: No.
Chair Mahoney: Would anyone else like to testify on this agenda item? State your name for the
record, please.
Matt Bemabe: Matt Bernabe for the record. I also live in Houselots and I've testified on the
rodents myself. I also see that there's no net up, and the thing that worries me about that is we
know that there's asbestos in that building. So if they're lapsing on a simple thing like that, how
can we trust them on something that's crucial as the asbestos removal? So I see here it says
modify or revoke, is there a way that I can see what the plans to modify or revoke the permit will
be? Is there a public viewing of this? I'm just curious. I would like to see ... you know, I'm all
for Coco Palms, but I'm also all for, you know, enforcing ... if they don't meet deadlines, let's
make examples, you know? Don't just pass them on as well. So I would be curious if I could
get with you, Mike, or somebody later, or if it's online or something. I would like to see it
myself. Thank you.
Chair Mahoney: Thank you for your testimony.
Mr. Dahilig: Would the Chair like me to address that?
Chair Mahoney: Yes. Could you?
Mr. Dahilig: Just as a general comment, I did conduct a site visit yesterday to the site and as far
as I can tell, they are employing, you know, vector control and whatever required DOH control
measures that are required under regulations. So although demolition activities may be
happening, in certain cases dust screens are required because of adjacencies. In some cases
when they are well into the site, it may not necessarily be required, and so there are different
levels of screening that may or may not be required, as well as, you know, vector control and as
far as I can tell, the contractor has been employing whatever has been required under DOH
regulations. The other item is with respect to the asbestos. The demolition activities have
been ... are being conducted on buildings that have already undergone asbestos remediation, so
the asbestos has been contained and removed, and the ... I guess, canisterized, if that's a word,
and sent to the landfill appropriately. So those protocols are being monitored also by the
Department of Health concurrently right now and the Solid Waste Division, so we are
monitoring it as well. With respect to any future modifications, those would be proposed as a
transmittal to the Planning Commission and made for public ... for Commission reveal, as well as
made available to the public at a juncture that we are able to come up with a settlement and
•5
provide that for Commission review and entertainment. So at this juncture, there are no
proposals with respect to modification on the floor before the Commission that is public record
because those are all still discussions that we're undergoing to try to settle the Contested Case.
Chair Mahoney: Okay.
Mr. Katavama: Mr. Chair, the concerns that are brouglit up by Ms. Muraoka, would it be
appropriate to ask the Department of Health to do a site visit as well?
Mr. Dahilig: I believe they are already monitoring the site, but it is definitely a communication
we can, on behalf of the Commission, send to the Department of Health to ensure that there is
monitoring being conducted.
Mr. Katayama: And if they could respond.
Mr. Dahilig: Yes, we can do that for the Commission.
Mr. Katavama: Thank you.
Chair Mahoney: Okay. Anything else on this matter? Okay.
NEW BUSINESS
Class IV Zoning Pen-nit Z -IV- 2016 -15, Use Permit U- 2016 -12 and Special Permit SP-
2016-5 to allow construction of a new visitor center, zip lining facilities and associated
improvements relating to the commercial tour operations conducted on land located .25
miles east of the Kipu Road and Aakukui Road intersection in Kipu, further identified as
Tax Map Key 3 -1- 002:001 (Portion), and affecting a portion of a larger parcel approx.
2,842 acres in size Outfitters Kaua `i, Ltd.
Mr. Dahilig: Thank you, Mr. Chair. We are back to ... we are now on Item M.1. This is our
items for action. The first item is the hearing that was closed on Item F.2.a. This is Class IV
Zoning Permit Z -IV- 2016 -15, Use Permit U- 2016 -12, and Special Pen-nit SP- 2016 -5. Again, at
Tax Map Key 3 -1- 002:001 and the applicant is Outfitters Kauai, Ltd. Jody Galinato is our
planner assigned for this particular matter and I would ask that she be able to present on behalf of
the Department.
Staff Planner Jody Galinato: Good morning, Mr. Chair and members of the Commission. I'll try
to summarize this a little bit because it's kind of long.
Ms. Galinato read the Project Description and Use, Additional Findings, and Preliminary
Evaluation sections of the Director's Report for the record (on file with the Planning
Department).
Mr. Keawe left the meeting at 11:05 a.m.
30
Mr. Keawe returned to the meeting at 11:08 a.m.
Ms. Galinato: And I'll hold off for my preliminary conclusion.
Chair Mahoney: Thank you. Is there a representative ... any questions for the Planner? Is there a
representative for the applicant? Could you state your name for the record, please?
Clyde Kodani: Good morning, Commissioners. For the record, my name is Clyde Kodani of
Kodani & Associates Engineers. We are the consultants for the project. With me today is ... on
my extreme right, Mr. Rick Haviland of Outfitters Kauai, and next to me is Bill Eddy, Vice
President for Kodani & Associates. We'll begin with Mr. Eddy. He would like to say a few
words regarding the application, followed by Mr. Haviland who will give a short presentation of
the project. And following that, Mr. Eddy and Mr. Haviland will be available for questioning
from the Commissioners should that unlikely event occur.
Chair Mahoney: Thank you for your optimism. (Laughter in background)
Bill Eddy: Good morning, Commissioners. My name is Bill Eddy. I'm with Kodani &
Associates Engineers. We prepared the project application and the project description, which I
believe is before you this morning on your computers there. I'm available to answer any
questions you may have. We also handed out a paper map for your convenience; sometimes it's
easier to work with paper. So Rick will be giving a brief description of the project and the
Outfitters Company. They have quite a bit of experience working at Kipu Ranch, and this
project is an extension of their current operations, so I'll hand it over to Rick.
Rick Haviland: Thank you, Bill and Clyde. Aloha, Commissioners. I'd like to start out by
thanking the Planning Department Staff that we've worked with on preparing this application.
It's been a 10 -month process and it's been a great process. Everyone from Mike and Kaaina and
Jody, Marisa, Dale, even Leslie working behind the scenes, keeping it all going. Thanks for all
the help and guidance and support. Also, I would like to thank Clyde and Bill and the team at
Kodani & Associates for putting together what I'm really proud of as a really complete, strong
application. Thanks you guys.
I'll give you a very short company history. Outfitters Kauai, we opened our doors in 1988 at a
retail location in Po`ipu offering kayak and bike tours and rentals. Adventure tourism was new
then, and we were fortunate to be (inaudible) first. We saw an opportunity to provide visitors
with safe, supervised, environmentally conscious, non - polluting adventures on our beautiful,
amazing island. We've always tried our best to fit in and be appropriate. We do all we can to be
generous contributors to every worthy cause we can with our time, our money, and all of our
resources we have available. In 1998, we got started with our operations in Kipu. A few years
later we opened the island's first zipline there. Our programs in Kipu expose visitors to
wholesome family experiences that they take home with them and help to make for really rich,
complete vacation experience that casts a positive light on our island. As these 28 years have
gone by since we got our business started, tourism and people's tastes in interest have changed
and evolved, and at Outfitters, we have to change and evolve, too. And that is what brings us
here today.
31
Jody gave a complete presentation. Bill and Clyde and their team have put together a solid
application that I know you've all had an opportunity to review. So at this time, I'd like to thank
you, Commissioners, and let you know that we're here to answer any questions you may have.
Chair Mahoney: Okay, thank you for your testimony. Does any of the Commissioners have any
questions for the applicant?
Mr. Keawe: I've got a few. It looks like your ... is this ... I understand it's a multi -year plan over
the course of maybe 5 or more years. It looks like you're doubling your operation from nine (9)
existing ziplines. Is that what I read?
Chair Mahoney left the meeting at 11:22 a.m.
Mr. Haviland: Yes, sir. We will go from nine (9) to eighteen (18) over time, and the idea is to
create variety in the experience. And what we've learned, having been in business for so long, is
that people come back to us again and again, and we like to be able to give our return customers
new experiences. We also feel that it will be beneficial to be able to spread the activity out over
different parts of the ranch.
Mr. Keawe: One of the things I just found just fascinating was how do you string up a zipline
that's 6,500 feet long?
Mr. Haviland: Well, yeah, that is an interesting question and that will be an interesting exercise,
but in that case, that line will have intermediate stations where people will transfer from one side
of the pole to another without ever going to the ground. The idea of that line is to serve as
a ... almost a transportation facility because Kipu Ranch is a giant place. Our visitor welcome
center will be at the entry, but our activities are deeper in the ranch at different areas. Presently,
we use farm wagon pulled by a tractor and 15- passenger vans to move around on the ranch.
Chair Mahoney returned to the meeting at 11:24 a.m.
Mr. Haviland: And our vision is that by putting up a transportation zipline, we can ... not snake
so much use of motor vehicles and that it'll be a more fun and greener way to move people
around on the ranch.
Mr. Keawe: So you're actually moving people with the ziplines to different activities within the
ranch?
Mr. Haviland: Yes.
Mr. Keawe: Okay. Interesting. Getting back to my question, how do you do it? I mean,
obviously, you're going to have lines that are longer than 1,500 feet, right?
Mr. Haviland: Well, yeah. So the easy ones are accessible and putting the cable up is an easy
matter. The more difficult ones that go over deep valleys, we've done it different ways. We've
actually used a spud launcher to string a line and pull the cable in. Yeah. (Laughter) But we've
32
used a helicopter and sometimes it's a matter of throw line ... throw the line through a tree, pull
the rope through, then use the rope to pull a cable.
Mr. Keawe: And then, you know, the impact. I think ... you know, it's a pristine area. Those of
us that have been up to Kipu Ranch and (inaudible) Kipu Kai. The impact now that you have on
your current visitor load, or customer load, you're potentially going to double that. So how
many people, just on—from your own metrics from past experience, how many people on a daily
basis will be on the ranch at any one time?
Mr. Haviland: Well, we ... although we are proposing to double the amount of ziplines, we don't
expect to double the amount of passengers. And actually, over these past years, there has been
quite a bit of competition in our adventure tourism area that has come on. We were some of the
first, now there are many, and our passenger counts have actually dropped over the years. We
would love to recover some of that business that has gone away. Our passenger counts vary
pretty dramatically seasonally. We're the busiest when school is out of session and families can
travel; that's our market. I would say on a really busy, really good day we would maybe be
fortunate to serve 150 passengers.
Mr. Keawe: Is that total for the whole day?
Mr. Haviland: Yes, yes. And on a slow day, we might only serve 30140 passengers.
Mr. Keawe: Well, I guess, you know, based on 2,200 acres, those people could get lost.
Mr. Haviland: (Laughter) Well, they're all supervised. We have guides. Everyone is attended
by a guide. No one is unescorted.
Mr. Keawe: Okay.
Mr. Haviland: But yeah, yeah, there's a lot of trails and a lot of territory.
Mr. Keawe: Right. Thank you.
Chair Mahoney: Any other questions for the applicant?
Ms. Nogami Streufert: Yes. In an earlier application... I'm sorry I don't have that in front of me
right now ... I believe that the nine (9) ziplines were proposed, and 7, 8, and 9, which I think were
at the higher elevations, were not approved, and I haven't seen that in this particular application,
but I do see that it's still there. I assumed, because of the elevation, it was because of the
potential site lines and ... but I don't know that for a fact. But I recall that 7, 8, and 9 were not
allowed. Are they ... have you ... is that still included in the plan? Or how is that working out?
Mr. Haviland: Well, actually, the three (3) ziplines that were not allowed were on the rim of
Kipu Valley... excuse me, of HuWia Valley, and the reason that they were not allowed was
never really stated. I would only be speculating and I don't really care to engage in that.
33
Ms. Nogarni Streufert: Is that still part of the plan, though, right now?
Mr. Haviland: These proposed new ziplines are all in different locations than the three (3) that
were disallowed.
Ms. Nogarni Streufert: And the ones that are higher up, I can't ... the highest... you've got two (2)
relatively high in the elevation on Hd'upu Ridge, going up there. Are those going to be visible
from the street or anywhere else?
Mr. Haviland: Actually, ma'am, they're not so high. If you look at the mountain range, the
location will be right at the edge of the pasture where the grassy area ends and the forest starts.
And no, we think that we've done—we've put a lot of thought into our site selection and
placement in this application, and we feel pretty confident that the ziplines will be invisible to
the public; won't even be able to be seen.
Ms. Nogami Streufert: By the way, I may have to recuse myself because I have gone on
your ... on the zipline and I really enjoyed it for the volume that you already had.
Mr. Haviland: Oh that's very good. (Laughter in background)
Ms. Nogami Streufert: It was well - situated, so you couldn't see it from the road, but I was just
concerned about the top two (2) that you have closer to the Hd'upu Ridge but it's quite...
Mr. Haviland: Yeah, well, thanks for that. That's great to hear.
Ms. Nogami Streufert: That's not an advertisement. (Laughter in background) Can't do that.
Mr. Haviland: Yeah, we really care about the appearances, we care about the neighbors, and
we've tried to be really thoughtful in our site selection, and I think we feel pretty good that
we've done a good job on that.
Ms. Nogarni Streufert: Thank you.
Mr. Haviland: Thank you.
Chair Mahoney: Commissioner Ho.
Mr. Ho: Does any part of your property restrict use and access to I luWia Stream?
Mr. Haviland: No, no. The landowner does not encourage trespassing, but our activities and
what we do have no impact or effect on access to I IuWia.
Chair Mahoney: Any other questions?
Mr. Abrams: Yes. Rick, can you tell us a little bit about the visitor welcome center and the
commercial aspect of that?
34
Mr. Haviland: Yes. Thank you. Well, there's some reasons why we wanted to do that, put a
visitor welcome center at Kipu Ranch. We've been hearing from our customers that they would
like to be able to check -in where the activity is. They don't want to ... a lot of them don't want to
get on a bus in Po`ipu and ride 20 -25 minutes to get to the activity, and, you know, in business
you need to listen to your customers and you need to try and do what they want you to do. We
think that will be appreciated by our clientele. And in the course of researching this idea, we
learned that ... well, it's well -known that Kipu was home to a sugar plantation and that immigrant
workers and immigrant families came to live and work there from the late 1800s well into the
mid- 1900s, and there was a camp there. And we learned that there was a general store located
right in the area where we're proposing to put our visitor welcome center. In our meetings with
the Planning Department, it was suggested that maybe we might want to consider trying to model
the building after the Hamano Store that was located there, and that really resonated for us. We
thought that was a great idea and we did some research. We found pictures and we think it
would be a great fit, so that's our intention. And in the course of talking to old- timers and people
that actually were born and raised in the camp there that still live on the island and have become
friends with us, we learned that there's a lot of nostalgia for that time, and that those were happy
days. And we've learned that there's a lot of historic resources that we can mine for information
about those days. So what we're hoping to do is not only model the visitor welcome center after
the Hamano Store, but also to set up displays in our reception area that will inform our customers
about those days and make the past come alive to them as they experience their adventures with
us. We've always tried to be informative about island culture, natural history, and folklore and
such on our guided tours. We think that having a visitor welcome center close to our activity
location will help us to do an even better job of honoring the plantation era residents and
lifestyle.
Mr. Abrams: That's impressive. Thank you.
Mr. Haviland: Thank you.
Chair Mahoney: Any further questions? Commissioner Katayama.
Mr. Katayama: Thank you. In your license agreement with William Hyde Rice, what is the area
that's under that license agreement?
Mr. Haviland: The entire parcel is listed, and then there are specific areas that are outlined in the
agreement as areas for us to bring our passengers and do our improvements. And all the
locations that we're proposing to go into are included in the agreement.
Mr. Katayama: So the 2,800 plus acres are all part of your license agreement?
Mr. Haviland: Well, yes and no. It's subject to the approval of the landowner, and we work
together with them to figure out ways that we can do our activities, generate income for us and
for them, and be compatible and be a good fit with the primary existing agricultural use. And
then, if necessary, we modify the agreement so that the areas that we need to be in are included
in the agreement. So I'm struggling a little bit with a straight answer to your question. I would
say no, the entire 2,800 acres is not included in the license agreement, but the activity areas are.
35
Mr. Kata a� So in the application, what is the area that is subject to this permit?
Ms. Galinato: I could probably answer that. In Exhibit No. 8, they show 14.04 acres.
Mr. Keawe: flow many?
Ms. Galinato: 14.04.
Mr. Keawe: And that's the total? 14.4?
Ms. Galinato: Yes, existing and proposed.
Mr. Katavama: (Inaudible).
Ms. Galinato: I'm sorry?
Mr. Katavama: What exhibit is that?
Ms. Galinato: Exhibit No. 8 near the very end.
Mr. Kata aura: So the 14.04?
Ms. Galinato: Yes.
Mr. Kata, ama: Is there a corresponding map for that? I know when there's several
figures ... I'm trying to find that.
Mr. Eddy: Commissioner, if you ... please look for Figure No. 9.
Mr. Katavama: Thank you.
Mr. Eddy: Figure No. 9 shows our proposed uses and also shows the existing pennitted uses
that ... for Outfitters.
Mr. Katavama: So the lines that are in blue, is that ... does that total to the 14 acres?
Mr. Eddy: It does. We incorporated all of the features for the items including ziplines; the
cables themselves, we attached a width to the cables; the landing pads and the take -off pads;
the ... what we call the shade structures; and composting toilets. We assigned a square footage to
each of those and we looked to the Planning Staff for some advice on how to do this.
So if we look at Exhibit No. 8, which is the spreadsheet, you can kind of see how the calculations
were.
Mr. Keawe: So some of them you have like 5 -foot width that's, you know, 3,000 feet long,
right? To calculate this.
36
Mr. Eddy: Correct. Yes, that would be one (1) zipline and you'll see the quantity is two (2), and
that's because we're proposing tandem ziplines where there's two (2) cables so you can take a
run side -by -side with your friend.
Mr. Katayama: Okay, good. Thank you.
Chair Mahoney: Any other questions for the applicant? Okay. At this time, is there any
member of the public that would like to testify? We'll have the ... if the applicants can come
back if you—please. Thank you. Could you state your name for the record, please?
Mr. Bernabe: Matt Bernabe for the record. I first would like to say I like Outfitters. I
would ... my ideal job would be a tour guide for one of your quad tours. (Laughter in
background) I'm serious. That's like ... if I could die happy, that's my job. But with that said,
before we approve this expansion of their industry, it begs the question, what are they actually
growing at this ranch? I mean, I know the area. They have valuable ag land. Are we giving
these guys a tax break at $50 an acre for the rest of this fallow land? If Central Oahu, which I
learned right here, produces more tonnage and makes more money than the rest of the State's ag
industry, why couldn't we do ... mimic that and put a processing center there? And encourage
industry to actually engage in agriculture where it can. Now I understand ziplines are not on the
prime land and they are off on the adjacent hillsides; they need the height and the angles for their
operation, and even to a degree, their quads can operate quite fine. But I think the argument has
to be expanded on, okay, landowner, property owner, we're allowing this to offset your taxes
that we're giving you a break on? Let's sit at the table, get a processing unit so we can actually
process, package, and export some ag again, and become the Garden Island instead of trying to
mimic it through the scenic tour. I am not dogging this industry. I would take a job today. I
mean, I'm really ... I'm a quad rider /motorbike rider and I love to talk. But, let's have a serious
County discussion of where we're going. Constantly, for the last six (6) months to a year and a
half, we have been talking about how we are getting shortchanged in the tourist industry via the
way the TAT is distributed and how collective bargaining has not been capped or stipend like the
funding has, so we are going into the red, if not already there, as a County. We need to get
serious, Planning Department. Are we going to create new revenue through new enterprise and
become the Garden Island again? The market's out there. We just have to figure it out, put the
plan together. Thank you very much.
Chair Mahoney: Thank you for your testimony. Okay, any other member of the public would
like to testify on this agenda item? Seeing none. Could we have the applicant return? And
we're at the conclusion from the Planner.
Ms. Galinato: Yes.
Ms. Galinato read the Preliminary Conclusion and Preliminary Recommendation sections
of the Director's Report for the record (on file with the Planning Department).
Chair Mahoney: Okay. Could the applicant return to the microphone, please? The
representative. Do you understand the conditions?
37
Mr. Haviland: Yes, we do.
Chair Mahoney: And are willing to comply?
Mr. Haviland: We are agreeable to those conditions.
Chair Mahoney: Okay. Was that the conclusion, Jody?
Ms. Galinato: Yes.
Chair Mahoney: Thank you. Okay, thank you. Alright, members of the Commission, Chair will
entertain a motion.
Mr. Keawe: I move to approve Class IV Zoning Permit Z -IV- 2016 -15, Use Permit U- 2016 -12,
and Special Permit SP- 2016 -5 to allow construction of a new visitor center, zip lining facilities,
and associated improvements related to the commercial tour operations conducted on land
located at the end of Kipu Road.
Mr. Abrams: Second.
Chair Mahoney: It's been moved and seconded. Any further discussion? Hearing none. All in
favor? (Unanimous voice vote) Opposed? (None) Motion carried 6:0. Thank you.
IV Zoning Permit Z -IV- 2016 -14 and Use Pen-nit U- 2016 -11 to allow conversion of
an existing residence into a bed and breakfast operation on a parcel located along the
western side of Ahele Street within the Wailua Homesteads Subdivision (First Series) in
Wailua, approx. 450 ft. makai of the Opaekaa Road /Pulana Street intersection and further
identified as 6430 Ahele Street, Tax Map Key 4 -2- 006:058, and containing a total area of
10,085 sq. ft. = Yasutake Family Revocable Trust 2004.
Mr. Dahilig: Mr. Chair, we are now on Item F.2.b. for action. I'm going to turn this over to the
Deputy Director for this matter.
Deputy Director Kaaina Hull: Good morning, Chair and members of the Commission. I'll read
a brief condensed version of the Director's Report onto the record.
Mr. Hull read the Project Description and Use, Preliminary Evaluation, sections of the
Director's Report for the record (on file with the Planning Department).
Mr. Katayama left the meeting at 11:46 a.m.
Mr. Hull: I can hold off on the conclusion and recommendation 'til after.
Chair Mahoney: Okay, thank you. Could we hear from the applicant? Could you state your
name for the record, please?
38
Les Yasutake: Good morning. My name is Les Yasutake, owner of...the applicant. So prior to
2008, there was no set language or defining use of what a homestay was. But then in 2008, some
language was crafted and in November 23, 2008, I did submit an application for my homestay.
Well, before I go any further, I'd like to be very clear about a homestay versus a B &B, okay?
Mr. Katayama returned to the meeting at 11:48 a.m.
Mr. Yasutake: We have never, and I don't anticipate ever, serving breakfast. I think the whole
reason for that is I do not have a certified kitchen to serve the public. So with that said, in 2008,
November 23`d, I submitted my application for a homestay; or back then it was termed a B &B.
A homestay was something... still a mystery. I had an onsite inspection with the Planning
Inspectors and they found that, wait a minute, this is not a TVR. And I said no, it's not. So I
think some of the information... I'm not saying the information was incorrect. It was incomplete
at that time that was given to me that perhaps this is not what the Planning Department is looking
for. They were looking for TVRs. And so therefore, the recommendation was for me to cancel
my application, which I did, and I submitted a letter cancelling my application on March 13,
2009. Times goes on, but today, I feel like, with the ... it is back on the plate. It's an issue. And
I just want to do the right thing, and I want to be part of the Kauai County General Plan and be
compliant with the County of Kauai CZO, so that's the reason I'm here today.
Chair Mahoney: Any questions for the applicant?
Ms. Nogami Streufert: Just for clarification, there were two (2) exhibits ... two (2) drawings that
were submitted. One of them has a bathroom in the house that is where the playroom used to be,
but in one of them. it still says playroom and in another one it says a bathroom.
Mr. Yasutake: Well, adjacent to the playroom, there is a bathroom, and it's divided by a pocket
door. I think you would see that in Exhibit G.
Ms. Nogami Streufert: Okay. There was one that didn't have it in there and I was just
wondering how that worked because there's only one other bathroom. Otherwise, would you
have to get to it through the master bedroom? (Inaudible)
Mr. Yasutake: Well, there's my master bathroom that's...
Ms. Nogami Streufert: That's fine. I just wanted a clarification of that. Thank you.
Mr. Yasutake: Oh, okay. Okay.
Chair Mahoney: Commissioner Ho.
Mr. Ho: Les, is your property fenced?
Mr. Yasutake: Yes, it is; three (3) sides. In the front, finished street grade to top of fence is 4
feet. Left and right side is finished grade to top of fence 6 feet.
39
Mr. Ho: Is that a chain -link fence? Or wooden?
Mr. Yasutake: No, no. It's cedar fencing.
Mr. Ho: So it affords some privacy for you and the neighbors?
Mr. Yasutake: Yeah, yeah. It's ... I think it's pretty standard practice for properties to have some
kind of a dividing line whether it's a hedge, and I do have natural hedge in place, also; quite a bit
of it, also.
Mr. Ho: Thank you.
Chair Mahoney: Any other questions from any of the Commissioners?
Mr. Yasutake: May I say something? If we look at Exhibit G, the plot plan, or even Exhibit H,
it shows that the existing fourth bedroom has three (3) entrances existing already. I was
just ... and the wording caught me, "shall" and "will ", or "should ", "should" and "will ". So
"should"... with the wording "should ", I'm wondering if there is any room for consideration to
allow the doorways to remain as such, and there is a throughway through from my garage to the
backyard, and that is used quite a bit. We use that for laundry purposes to get to the clothesline
in the rear of the property, there's ... you know, just general activity, everyday movement. That
breezeway is an important part of being efficient, so I'm asking for consideration, on this part, to
allow this breezeway to remain in place just for the sake of efficiency.
Mr. Hull: If I can somewhat speak to that, I think what the applicant is getting at is that in the
Director's Report, we haven't ... it's in the ... excuse me ... it's in the recommendation that prior to
operation, he install an interior access between that fourth bedroom and the actual primary house,
and what the applicant is asking for is consideration to not have that condition and that he be able
to utilize that separate entryway, as opposed to connect the house interior with all bedrooms.
The Department still stands by its recommendation, but just for clarification, that's what the
applicant is getting at is that he's requesting that that condition not be part of the conditions of
approval, if approved.
Chair Mahoney: Thank you. So just for the history factor in this, it was operated as a bed and
breakfast before? Or what?
Mr. Yasutake: Yeah, well, that's the tenninology, I guess, is acceptable and is used.
Chair Mahoney: A homestay? No?
Mr. Yasutake: But the ... that fourth bedroom was always there, those three (3) entryways were
always there, and I just capitalized on refurbishing the room and upgrading the room, but the
room is small. It's 197 square feet, and there is no chance, whatsoever, or desire to have it into a
TVR. There's no cooking facilities, fixed cooking facilities like a stove or a full kitchen,
anything like that, so the gross area is 197 square feet. When we incorporate the 3 -foot
countertop, closet, and a bed, the room, in practical sense, is just a small bedroom; that's it.
40
Chair Mahoney: Commissioner Keawe.
Mr. Keawe: I had a question. Kaaina, if the requirement is to provide access into the main
house, where would he actually do that? Maybe I'll ask Mr. Yasutake. Where would you ... if
you had to comply with that, where would you put it? I'm looking at your floorplan now.
Mr. Yasutake: Okay. So in Exhibit H, there is the proposed hallway created connecting
Bedroom No. 4 door into the playroom.
Mr. Ho: You would remove the closet there?
Mr. Yasutake: Excuse me.
Mr. Ho: You would remove the closet that's there and walk through it?
Mr. Yasutake: Correct. And it's a little bit humbug in the respect that my solar heating setup is
partially in the way and I will need to move my solar hot water heating setup.
Mr. Keawe: But it is a requirement, right?
Mr. Hull: Technically, no. It's not a specific requirement. The Department is recommending
that it be attached via that interior access.
Mr. Keawe: Okay.
Mr. Hull: But he was permitted, previously, to have that separate bedroom there.
Mr. Keawe: Oh, okay. Alright, alright, alright.
Mr. Hull: So under...should this application come today... sorry... should these house plans have
come today, it would not have been allowed to have that fourth bedroom without the interior
access, but he was previously permitted under the old rules to have that bedroom. The
Department's recommending that interior access be provided via a hallway. Essentially, it would
require him to wall off that one section so that he's connecting that bedroom to the house, but it's
not a hard and fast requirement, so it's at the discretion of this Commission on whether or not it
wants to impose that condition that the Department's recommending.
Mr. Yasutake: The language crafted is suggesting that there is a possibility that the space could
be a TVR. So, again, I'm just clarifying that it's ... it cannot meet the space for a TVR or the
accommodations for a TVR, so that is ... and TVR is just, to me, completely out of the picture.
Ms. Nogami Streufert: Is it true that there are two (2) issues here, rather than just one (1)? And
one of them is to close off the breezeway, and the other one is to have an entry into the house?
Because you could still have the breezeway and still have an entry into the house. Is that
correct?
41
Mr. Hull: Well, the saine issue ... in essence, it's not just an entry into the house. It's an interior
access through the house.
Ms. Nogami Streufert: I see.
Mr. Hull: So right now they are separated. They're not two (2) separate structures, but they are
two (2) separate areas that have no interior access where they're connected via an interior
hallway. And so the Department is saying that so that it functions fully as one (1) single - family
dwelling and one (1) homestay operation, that that interior access be provided prior to operation.
Ms. Nogami Streufert: So if you had an interior... let's look at it separately then. The
breezeway, you could put a door in it and then open it up.
Mr. Yasutake: The breezeway... there is a door in Exhibit H. There is proposed pocket door to
seal off the breezeway.
Mr. Keawe left the meeting at 12:00 p.m.
Mr. Yasutake: You see, the problem I will have with the breezeway and /or the hallway is debris.
Debris moving ... because once that hallway is created, and if I do have the option of putting a
pocket door, also, there's still debris that will move about within this newly created hallway
connecting Bedroom No. 4 to the playroom.
Mr. Ho: Les, is this Bedroom No. 4 and the main house ... is that a roofline that's connected?
Mr. Yasutake: Yes, it is. It's under one (1) roofline.
Mr. Ho: Wouldn't that be...
Chair Mahoney: What's your question, Commissioner Ho?
Mr. Ho: Kaaina, for a moment, if that homestay and the main house is connected by one (1)
roofline, doesn't that meet the requirement of being connected?
Mr. Hull: And that's what I'm saying is that under the interpretation of a single - family dwelling
today, there has to be interior accesses throughout the entire structure between the bedrooms and
the kitchen and the bathroom facilities. If you have a single roof, yet two (2) separate structures,
separate or apart from each other that are only connected by the roof, it's our interpretation that it
would function, somewhat, as a separate unit, and we would recommend that the Commission
take action to ensure that it functions as a single unit. But I want to be clear that that's our
interpretation. It's not a hard and fast requirement that was in place, particularly when the
applicant first applied for the single - family dwelling.
Mr. Yasutake: So just to add a little clarification, I purchased the property in 1977. The home
obviously was already there and the fourth bedroom was already there, and that was kind of...my
wife and I had a choice of buying that property or this property, and what attracted us, back then,
42
was this fourth bedroom that was there. So there was a lot of discussion as to, okay, when was
this home built? Well, the home was ... it is still ... the original footprint is a Hicks home built in
1972 with this fourth bedroom that, I guess, whoever ... the former owner had a reason to have
someone in there.
Mr. Keawe returned to the meeting at 12:03 p.m.
Mr. Yasutake: So when I did purchase it, it functioned as ... yes, there was a set stove, there was
a set sink. Someone was living there. It was either another family member or it was a rental.
That's up to speculation, but I do know that when we purchased it, it was set up as such. But
over the years, you know, we've used it for family and friends and such. So I guess the defining
timeline is 1972; the year 1972. After 1972, to my semi - professional knowledge, a lot of things
happened, as far as code -wise.
Chair Mahoney: Any other questions?
Ms. Nogami Streufert: To go from the main house to this forth bedroom requires steps. Is that
what I'm also seeing?
Mr. Yasutake: No, not at the moment. It's a level transition.
Ms. Nogami Streufert: Okay.
Chair Mahoney: Any further questions? So the Department's recommending access into the
main house?
Mr. Hull: I think that's the only area of contention between that because we are recommending
approval, but the applicant objects to Condition No. 3, which would require that interior hallway.
It's really at the discretion of this Commission whether it feels it's prudent to require that
hallway, or if you don't feel it's necessary to get a compatible operation up and running.
Mr. Yasutake: I presented this for ... subject for serious discussion, but if it denies my proposed
application for a homestay, then yes, I will do as what the recommendation is. The second part
of it though is if I can have some leniency in still maintaining that breezeway for ... just for our
efficient everyday use.
Mr. Ho: Question. Would that be two (2) motions, then? One (1) to forgive the entryway in the
breezeway, and the other one for approval?
Mr. Hull: Well, the ... one way you could do it is if there would be a motion to amend the
recommended conditions of approval in which Condition No. 3 would be deleted, essentially.
Mr. Ho: That's the way the motion would be proposed?
Mr. Katayama: Mr. Chair?
43
Chair Mahoney: Yes.
Mr. Katayama: I'll tell you where I'm at right now. It's a real conundrum. What snakes sense,
unfortunately, will set precedence. I think that's where the issue is right now for this body is
what the proposed use makes absolute sense; however, what it does open itself to is the old 2 by
4 attachment where you build a whole structure and that becomes part of the original footprint. I
think that's where the Department is guarding against, and I appreciate that position. I don't
know what a good compromise would be that would be ... preserves the Department's position, as
well as snake sense for the applicant. And right now, I'm open to any suggestions that can be put
forward. I mean, I think that's what we're coining down to at the end of the day because I'm
very sympathetic to both parties and the implications. I don't know how to strike that balance
right now, so I need help.
Mr. Ho: Well, Wayne, would it be that when he had it in operation, his timeline, would that help
explain?
Mr. Katayama: Well. no, it goes back to the principle of what rule applies when it applies? And
generally speaking, it's the time of application. I mean, if you have a building that's 100 years
old, you don't go to the 100 -year standard, what was back then, you go to what you're currently
applying for. And that's, you know, that's what we generally use. I mean, if...cesspools are a
great example. You might have a permit to use a cesspool, but if you modify that use, this body
could require you to ... or Department of Health could require you to update it to a septic system,
or whatever the present law is at the time of application.
Chair Mahoney: Okay.
Mr. Katayama: I think, if I'm not mistaken, that's the issue before us right now.
Mr. Hull: That's the nail on the (inaudible).
Mr. Katayama: I'm sorry to put it, you know, that's sort of (inaudible) and you know, it's not as
polished as it should be, but I'm really wrestling to see what kind of verbiage would preserve
both interests. I don't know.
Mr. Keawe: So, Kaaina, if we would allow him to keep it as it is, that could be used as a
precedent for future applicants to come in and go oh, how come you gave him that?
Mr. Hull: Not really. In the sense that if any single- family dwelling comes in with a separate
structure that is depicted as a bedroom and there is no interior access, they couldn't point at his
particular application, say you did it for this applicant. We could state that that occurred in 1974
when the Zoning Permit was approved and there was an interpretation of a single - family
dwelling at that time. And then for homestays, the only time we could say maybe it might set a
precedence is if for an actual homestay operation that comes before you folks where they have a
separate bedroom unit that was permitted previously to the change in interpretation, that this
could potentially set that precedence, and you have roughly three (3) applications to go before
that window is closed.
44
Mr. Katayama: But in the case ... in the Oma`o application, was it the decision of this body to
provide that interior access?
Mr. Hull: I believe ... I can't ... I don't recall which one it was, but I believe there was a previous
application that this body required the interior access, correct.
Mr. Abrams: That was the Lawa`i one.
Mr. Hull: And I'll also ... if memory serves me correctly and I can recheck the file if it's the
request of this Commission, but at the same time, I don't believe that that was permitted as a
bedroom previously, so it was already an existing violation. They just didn't have the specific
permits, if I recall correctly, for that separate unit to be utilized for bedroom uses.
Chair Mahoney: Okay. So ... let's kind of... (Laughter in background) (Inaudible)
Mr. Keawe: So now what? (Laughter)
Chair Mahoney: (Inaudible) all around. The applicant, you know, stated that, you know, his
preference, and we learned that. He also stated that he would be willing to comply with the
Department's request, also. So, and was there like a Use Permit before when this was in
operation? Or...?
Mr. Hull: There was ... there were permits pulled for ... Zoning Permits and Use Permits pulled
for bed and breakfasts throughout the years. There was some confusion, admittedly, during the
TVR process. I can't speak specifically to what Mr. Yasutake went through, but there ... if there
was an attempt to apply for a TVRNCU, which is an over - the - counter permit for a TVR that
could demonstrate it had been paying the TAT and GET previously, indeed that those individuals
on that taskforce would've told Mr. Yasutake you don't actually qualify for this program, but I
can't speak specifically to the conversation he may have had.
Chair Mahoney: Alright. Well, let's get back to the sticking points here. You know, I don't
think that the condition that the Department is asking is unreasonable, and I would be willing to
go with that, and we can go from there. Commissioner...
Mr. Keawe: Well, I guess, maybe ... Jodi, is there any language that would make it ... I mean, like
Wayne said, some kind of compromise with regard to that? Or is it just that cut and dry? Either
you put the door or you don't.
Ms. Higuchi Sayegusa: You can ... I guess you can condition it if...leave it up to the applicant. I
mean, to me, though, it's either one, required or not, you know? (Laughter) You can soften that
condition to, you know, request that the applicant do so, say, for any extreme economic
hardships.
Mr. Keawe: It's already worded as a recommendation.
Ms. Higuchi Sayegusa: Right.
45
Mr. Katayama: Well it's a condition, right?
Chair Mahoney: It is a condition.
Mr. Katayama: So the applicant needs to comply; otherwise, he is in violation of the condition.
Mr. Keawe: Right.
Ms. Higuchi Save sa: I mean, again, you can talk about softening it by, you know, leaving it to
the applicant, should it be feasible for him to do so, or give him a timeframe for him to comply;
to not immediately require it, but within a certain timeframe. I mean, those are kind of the
options.
Ms. Nogami Streufert: Just a question. I'm looking at the diagram here. How do you access
your washer and dryer? Since it's outside, and there's no entry to it from anywhere.
Mr. Yasutake: There's a kitchen door.
Ms. Nogami Streufert: There's a kitchen door?
Mr. Yasutake: Yes. From the kitchen, there's a door going into the garage, and the washer and
dryer is right there to the left of the door. As you exit the door, it's to the left.
Mr. Keawe: So as you come out the kitchen door, you turn left, you go down the stairs, right?
And the washer /dryer is right in front of you.
Mr. Yasutake: There's three (3) steps to snake the transition from wood floor to slab.
Ms. Higuchi Sayegusa: If there's a specific concern, you know, obviously, I think the concern is
that TVR factor, or any prospective application of a condition like that. I mean ... or non -
application of that condition, but you know, if there's specific concern that you have, that could
be also incorporated in a condition, you know, instead of the ... (laughter) take it out or not of the
structural issues.
Ms. Nogaini Streufert: I was just looking at another alternative. Possible alternative was what I
was looking for. (Laughter in background)
Chair Mahoney: Alright, well...
Mr. Kata. aura: May I make a suggestion? What would be the implications if we just deleted, in
its entirety, Condition No. 3? Remain silent on that issue.
Mr. Ho: Condition No. 3 is the door?
Mr. Keawe: Yes.
46
Chair Mahoney: We're not exactly being silent on it. It's ... you either have it removed or...
Ms. Higuchi Sayegusa: Or be allowed to leave it in.
Chair Mahoney: Or one way or the other. So is there a suggestion for...?
Mr. Katayama: Well, I just ... at this point, we're looking for options, aren't we?
Chair Mahoney: Yeah.
Ms. Nogami Streufert: I'm looking.
Chair Mahoney: Well, could we read the condition?
Mr. Hull: Condition No. 3 of the recommended conditions of approval reads as follows: "Prior
to operation of the homestay site, the applicant shall install an interior entry from the proposed
homestay bedroom to the main house. In addition, the applicant shall bring the primary structure
into conformity with the Kauai County Code, 1987, as amended, and shall work closely with the
Planning Department in resolving this matter."
Mr. Katayama: Are there other deficiencies other than the door?
Mr. Hull: No.
Mr. Katayama: That was the only one.
Chair Mahoney: Is there any recommended changes to the condition? Or proceed with it? Or...
Mr. Ho: Again, Jodi, this would...if we tried to delete Condition No. 3, it's a motion to delete?
Ms. Hi cu hi Sayegusa: So it would be to recommend approval as recommended by the
Department with the amendment of deleting Condition No. 3.
Mr. Abrams: It's called a friendly amendment. (Laughter in background)
Chair Mahoney: Can we hear the final recommendation and (inaudible)?
Mr. Katayama: Well, does the Department have an opinion on that? Counsel?
Mr. Hull: Officially, that is our recommendation. But at the end of the day, if it's the
prerogative of this Commission that you find that ... absent that interior access way, you believe it
will be compatible use, then it's your prerogative to remove that condition. You can remove that
condition.
Mr. Keawe: So that means you can live with it? (Laughter in background) It's the bottom -line.
47
Chair Mahoney: Well...
Mr. Ifull: Officially, that is the recommendation of the Department. (Laughter in background)
Chair Mahoney: Let's move things a little bit forward. We've heard the recommendation from
the Department. I think we know where the Department stands. And we've listened to the
applicant, and we know his preference, but we also know that he's willing to comply if that's,
you know, if that condition is put in there. So now it's up to us to either ... I think we've had
enough discussion on this, and maybe we can move forward and come up with a motion, or hear
the final recommendation from the Planner.
Mr. Hull: The final recommendation stands as -is, and stands as transmitted. Correct.
Chair Mahoney: Alright. So now, maybe we could come up with a motion; either to approve as
stated or approve with your prerogative of adjusting... amendment or deleting it. And that would
be... Yeah.
Mr. Ho: Are you looking for a motion now?
Chair Mahoney: Well I think we can move the question now. Yeah.
Mr. Ho: I move to approve Class IV Zoning Pen-nit Z -IV- 2016 -14, Use Pen-nit U- 2016 -11 for
the Yasutake Family Revocable Trust, and to delete Condition No. 3.
Chair Mahoney: Okay. It's been moved. Is there a second?
Mr. Katayama: Second.
Chair Mahoney: Any discussion? I think the condition should have been left, but that's just me,
so going forward. Change the tape? Okay. We'll take a caption break.
The Commission recessed this portion of the meeting at 12:22 p.m.
The Commission reconvened this portion of the meeting at 12:28 p.m.
Chair Mahoney: Call the meeting back to order. Before we had a caption break, there was a
motion on the floor, and it was seconded, concerning Class IV Zoning Permit Z -IV- 2016 -14, Use
Permit U- 2016 -11 to allow conversion of an existing residence into a bed and breakfast operation
on a parcel located along the western side of Ahele (Street) within the Wailua Homesteads.
Okay, so we had our motion and second. Any discussion? Hearing ... any discussion on the...?
We kind of went round and round.
Mr. Keawe: Yeah, I think we've went around as much as (inaudible).
Chair Mahoney: Okay. Alright. Hearing none. All in favor signify by saying aye. (Voice vote)
Opposed? (None) Motion carried.
48
Ms. Higuchi Sayegusa: I'm sorry. Just for the clarification of the record, can we do a roll call
vote on the previous...?
Chair Mahoney: Okay.
Ms. Higuchi Sayegusa: Yeah. The volume may not have carried, or the non - volume.
(Laughter)
Chair Mahoney: Okay.
Mr. Hull: Roll call. Commissioner Streufert?
Ms. Nogami Streufert: Only because it could set precedence, I have to vote no.
Mr. Hull: Commissioner Katayama?
Mr. Katayama: Aye.
Mr. Hull: Commissioner Ho?
Mr. Ho: Aye.
Mr. Hull: Commissioner Abrams?
Mr. Abrams: Aye.
Mr. Hull: Commissioner Keawe?
Mr. Keawe: Aye.
Mr. Hull: Chair Mahoney?
Chair Mahoney: Aye.
Mr. Hull: Motion passes 5:1.
Chair Mahoney: If we can adjourn and return...
Ms. Higuchi Sayegusa: Oh, not adjourn, just...
Chair Mahoney: Excuse me. Take a lunch break and we will return, instead of adjourn, at ... I
guess it was wishful thinking... 1:25 p.m., okay?
The Commission recessed this portion of the meeting at 12:30 p.m.
The Commission reconvened this portion of the meeting at 1:26 p.m.
WE
Chair Mahoney: Call the meeting back to order.
GENERAL BUSINESS MATTERS (Continued)
Special Management Area Use Permit SMA(U)- 2014 -2 to accommodate commercial tour
boat loading and unloading activities at Black Pot Beach Park in Hanalei (pursuant to the
"Peddlers and Concessionaires" ordinance), situated at the northern terminus of Weke
Road, further identified as Tax Map Key 5 -5 -001: 004 & 011, and containing a total land
area of 6.19 acres = Countyof Kaua `i, Department of Parks and Recreation.
Ms. Higuchi Sayegusa: Chair, we are on Item I.3., Special Management Area Use Permit
SMA(U)- 2014 -2 to accommodate commercial tour boat loading and unloading activities at Black
Pot Beach Park in Hanalei (pursuant to the "Peddlers and Concessionaires" ordinance), situated
at the north terminus of Weke Road, further identified as Tax Map Key 5 -5 -001 Parcels 004 and
011, and containing a total land area of 6.19 acres, County of Kauai, Department of Parks and
Recreation. Under that we have final argument. Also transmitted to the Commission were the
proposed Findings of Fact, Conclusions of Law, and Decision and Order submitted by
Intervenors Limu Coalition and Barbara Robeson. Also transmitted was the proposed Findings
of Fact, Conclusions of Law, and Decision and Order submitted by Leonard Rapozo, Jr.,
Director, County of Kauai, Department of Parks and Recreation. And also submitted was
exceptions to Limu Coalition and Barbara Robeson's proposed Findings of Fact, Conclusions of
Law, and Decision and Order submitted by Leonard Rapozo, Jr., Director, County of Kauai,
Department of Parks and Recreation.
Chair Mahoney: Okay, thank you. Before we start, is there any member of the public that
wanted to testify on this agenda item? Seeing none. Okay.
Ms. Higuchi Sayegusa: I can just give a ... just general overview for the Commissioners'
information. This matter was...I guess this has a very long history. Obviously, it's been over a
year since the actual Contested Case happened. What happened was Chair Anderson, Angela
Anderson, at the time, who was ... remained on the Commission, was appointed sort of as the
Hearings Officer, but not necessarily in the same sense as the previous cases we've seen in
today's agenda, but more so like a representative on behalf of the Commission to conduct the
evidentiary portion of the Contested Case, and so that occurred. I think that was on April 27,
2015.
In reviewing those minutes, what happened was the Chair instructed that the parties, at the
conclusion of the evidentiary portion of the hearing, would have thirty (3 0) days or fourteen (14)
days from the submission of the transcripts, whichever was later, to submit proposed Findings of
Fact, Conclusions of Law, and Decisions and Orders, and that was done. Under the rules, the
parties could also file exceptions to the proposed Findings of Fact, Conclusions of Law, and
Decision and Order within seven (7) days from the service of each of the proposed Decisions and
Orders. Any submissions, i.e. any proposed Findings of Fact, Conclusions of Law, and also any
exceptions were then transmitted to the Commission, as well as the entire record and the
minutes, which is what happened.
50
Administrator Furfaro entered the meeting at 1:29 p.m.
Ms. Higuchi Sayegusa: So before you folks today, you have the record, any submissions, and
the transcript of the actual evidentiary portion of the Contested Case. So today, what was set
was the final argument by each of the parties, and then you folks will have the option to adopt
one or the other proposed submitted Findings of Fact, Conclusions of Law. I think we have one
from the Parks Department and also one from the Intervenors, Limu Coalition and Barbara
Robeson. You also have the option of taking an action and requiring a submission of written
decision that conforms to the evidence as you see fit. So those, at this point, I think are the
options at the conclusion of the argument. Also, because there's such a long storied history of
this case, typically we'd want to just get down to an action, but because there's such a long
history, I briefly talked with the Chair that maybe it would be appropriate to have ... to field
questions with the parties and the Commission, if you folks have any questions after the
conclusion of the final argument.
Chair Mahoney: So at this time, could I have the petitioner and the counsel for the applicant
state their names for the record, please?
County Attorney Mauna Kea Trask: For the record, Mauna Kea Trask on behalf of Applicant
Leonard A. Rapozo, Jr., Director of Parks and Recreation.
Chair Mahoney: Thank you.
Carl Imparato: I'm Carl Imparato. I represent the Limu Coalition, one of the intervenors, and
today, I'm also representing Intervenor Barbara Robeson who had a bit of an emergency and
couldn't be here. She apologizes for her absence.
Chair Mahoney: Thank you.
Michael Sheehan: Michael Sheehan on behalf of myself, Hanalei River Enterprises, Hanalei
River Holdings, a Cook Island Corporation, and that's about it for the afternoon. Thank you.
Chair Mahoney: Thank you. Okay, so...
Deputy County Attorney Adam Roversi: Mr. Chair?
Chair Mahoney: Yes.
Mr. Roversi: If I may, Adam Roversi, Deputy County Attorney on behalf of the Planning
Department.
Chair Mahoney: Oh, I'm sorry. Thank you. Okay, so now we are going to move into final
arguments. What we're going to try to do is ... for each party to have a time limit, and agree on
how much time would be needed. If we could start, you know, 10 to 15 minutes. Is that
adequate? Or more would be needed? I'm going to ask the panel to come up with a fair amount
of time.
51
Mr. Roversi: On behalf of the Department, I don't intend to make a statement, so I'll leave it to
the ... Parks and the intervenors.
Mr. Trask: For the record, Mauna Kea Trask on behalf of the applicant. Thank you, Chair and
honorable Commission members. I did try to reduce my presentation as much as possible, but
like Ms. Higuchi Sayegusa said, there is substantial history on this matter going back to at least
the late 70s, so I did prepare ... imy argument does contain a recitation as brief as possible, yet
complete, regarding that history. I timed it. It's about 45 minutes. But with that history, I think
that will contextualize everyone's arguments. If it's not your indulgence to do that, that's fine.
can make accommodation, but I tried my best.
Chair Mahoney: And Mr. Imparato?
Mr. Imparato: We would appreciate about 20 minutes, if that's possible, please.
Chair Mahoney: Mr. Sheehan?
Mr. Sheehan: I think I'll probably need about 3 minutes.
Chair Mahoney: Okay. Well, you know, with the lengrth of this, you know, history and the
briefness of some and the longevity of other testimony, I think we can accept the request from
the County Attorney and we'll proceed with that that way.
Ms. Higuchi Sayegusa: Sorry. Not to interject. Just wanted to clear something up for the record
that we haven't ... the Commission did not receive any motions or any exceptions or corrections
to the transcript. Is that correct? None was submitted?
Mr. Trask: Correct.
Ms. Higuchi hi Sayegusa: Okay.
Chair Mahoney: And then each party will have rebuttal arguments. Hopefully we can keep that
to a reserved amount of time, also, okay? And then once the arguments are complete, the
proceedings shall stand submitted for decision by the Commission, and then we'll either adopt a
Decision and Order of submittal by any of the parties with revisions, or take action on the matter.
It may require the Department or the party to the proceeding to submit written Decision and
Order that conforms to the evidence. So having said that, I guess we can begin. Mauna Kea,
you could start your presentation.
Mr. Trask: Yes, Chair. Thank you.
Mr. Keawe: Mauna Kea, can you speak up a little bit?
Mr. Trask: Yes, I will. Can you hear me? Is that good? Again, thank you, honorable Chair and
Commission members. Boating at Hanalei is a timeless issue. The hearing today represents the
next step in seeking a balance within the community towards a continuing strategy on how to
52
best approach this situation. Mr. Rapozo, according to his best efforts and with input from all
portions of the community, humbly sits before you today and requests that the Planning
Commission grant him the necessary permits so as to regulate the limited usage of County parks,
specifically Black Pot Beach Park, within the overarching and multijurisdictional regulatory
framework of commercial boating and the navigable waters of Hanalei Bay.
Black Pot Beach Park totals about 6 acres, as stated. Department of Parks and Recreation is
authorized to manage that portion of Weke Road, also known as "Weke Ramp ", for any and all
uses that would come under the jurisdiction of the Kauai County Code, 1987, as amended,
Chapter 23 Article 3, also known as the "Peddlers and Concessionaires Ordinance ". Black Pot
Beach Park is located within the State Land Use District Urban District. It's located within the
Special Management Area. It is County zoned Open. And Black Pot Beach Park is located
within the Kauai General Plan "Park" designation. Furthermore, Black Pot is located within the
North Shore Development Plan Area.
At this time, I'd like to go through the boating history beginning in the mid -70s and bringing us
up until now. In the mid -1970s through 1985, commercial tour boat activity began to proliferate
in Hanalei with operators launching their vessels and loading their passengers from the beach
area in the immediate vicinity of the Hanalei Pier. At some point during that period of time, the
Department of Land and Natural Resources, or DLNR, began to regulate those activities through
their jurisdiction under Chapter 171, HRS, and revocable licenses were issued to the operators to
conduct their commercial activities. In 1985, because the operators' activities had increased to
the point that the passengers were impinging upon the general public's use of Hanalei Black Pot
Beach Park and the beach around the pier, the commercial boaters were asked to relocate their
activities to the Hanalei River area, where they staged their craft at the boat ramp at the end of
Weke Road and on a sand bank which extended from the park into the river proper in the vicinity
of the river mouth. A Special Management Area Minor Permit was issued to the DLNR by the
County for the purposes of having the commercial boating activities occur. In 1987, the DLNR
gave a management right -of -entry to the State Department of Transportation, or the DOT, to
manage and regulate the commercial tour boat activity in Hanalei. Under the terms of the
Special Management Area Minor Permit originally issued to DLNR and ultimately transferred to
DOT, the DOT was to promulgate ocean management rules and regulations to clarify the
parameters of the boating activity, and to limit the number of operators in Hanalei. The County
had issued SMA Minor Permits to DLNR, and extended the permit on several occasions to DOT,
under the premise that the regulation by the State, via those respective agencies, was still in an
experimental management stage, as DLNR and DOT were experimenting with what was the
right number of permits, trips, and passengers for Hanalei. Once the DOT promulgated their
ocean management rules and regulations proposing a permanent commercial tour boat base of
operations within the Hanalei River, however, they could no longer exempt themselves from the
need to present the County with an environmental assessment of the development, and were
advised to, and did submit an application for a Special Management Area Use Permit. In
presenting the information required to process an SMA Use Permit, the DOT provided an
environmental assessment which assessed not the commercial tour boat activity, but the
regulation and management by the DOT of the commercial tour boat activity, which is an
important distinction, and similarly, the same thing that the Director of Parks and Recreation is
here today; not to ... for the specific activities, but the regulation thereof via the Park's Peddlers
53
and Concessionaires rules. Now, before any contested case hearings on the permit could be had
before the County Planning Commission, State DOT withdrew its application on the grounds that
regulation and management of the commercial tour boat activity did not constitute a
development as defined by Chapter 205A, HRS, the Coastal Zone Management Act, also known
as the CZMA. The commercial tour boat operators continued to conduct their activities in
Hanalei River and its environs in absence of a Special Management Area Permit, which
prompted the County to bring actions against the individual operators both under Chapter 205A
of the HRS and the Special Management Area Rules and Regulations of the County of Kauai.
During the late 80s, on or about 1988 to 1989, the County had taken the position that,
notwithstanding the jurisdiction conferred upon DOT pursuant to Chapter 266, HRS, with
respect to navigable streams, that is Hanalei River, the Planning Department and /or Planning
Commission have the Special Management Area authority over commercial tour boat activities
within the river itself. At this time, the County came to the conclusion that even the DOT cannot
issue any commercial tour boat permits until such time that the proposed development has been
approved by the County. Accordingly, the State of Hawaii Attorney General's Office
concluded that if the Kauai County Planning Director or Planning Commission required the
commercial tour boat operators to obtain SMA Use Permits, then DOT could not issue any
commercial permits for tour boat operators until they comply with SMA requirements.
Therefore, since the County had determined at that time that the commercial tour boat activities
constituted a development, the tour boat operators were required to obtain a SMA Use Pen-nit
before DOT could issue the operators a commercial permit. In November 1991, then Mayor
Joann Yukimura asked the Planning Commission of the County of Kauai to develop a plan.
This plan would provide guidance in decision - making for all commercial boating within the
Hanalei Estuary. This plan came to be known as the Hanalei Estuary Management Plan, or
HEMP. The HEMP plan process designed by the Planning Department included the review of
existing documents including State, County, and community plans; existing Hanalei- focused
studies, environmental impact statements, and comments related thereto; public opinion surveys;
and extensive public education and participation. The purpose of HEMP was to ensure the
protection of recreational, residential, agricultural, and open space uses and to provide guidance
for the regulation of commercial boating in the Hanalei Estuary consistent with the County of
Kauai General Plan; the Comprehensive Zoning Ordinance; the North Shore Development Plan
Update; the North Shore Special Planning Area, Ordinance 476; the Coastal Zone Management
Act, 205A, HRS; and the County of Kauai Special Management Area Rules and Regulations.
According to HEMP, the recommended maximum range of commercial tour boat permits to be
issued were from 0 to 6 which allowed activities that conformed to the intent of the plan and the
conditions contained therein. And as shown by the record, the State of Hawaii currently permits
five (5). According to HEMP, individual permits should be limited to a boat or boats that could
accommodate no more than seventeen (17) passengers and crew at one time, with a frequency of
operation not to exceed two (2) trips per day. The recommended type of commercial boating
was non - motorized, and within the designation of non - motorized, a diversity of types was
desirable and was suggested to be considered. According to HEMP, the particular permits
issued, as well as the total number of permits issued, should be based upon consideration of the
intensity of the uses proposed. According to HEMP, permit holders should demonstrate the
ability to conduct operations without significant social, cultural, or environmental impact upon
Black Pot Beach Park, the Hanalei Estuary itself, or the surrounding residential neighborhoods,
wildlife preserves, and agricultural lands. HEMP also articulated that the determination of the
54
need for additional information or an EIS is made by the Planning Director pursuant to S'/1A
Rules and, more specifically, Section 7.4, Significant Adverse Effect Criteria, and that limited
commercial use of the estuary at or below the recommended maximum levels may not require
the filing of an environmental impact statement. HEMP provided that an SMA Use Permit, a
Comprehensive Zoning Ordinance Use Permit, and a Comprehensive Zoning Ordinance Class IV
Permit were required to conduct commercial operations in the Hanalei Estuary. And these were
individual issued permits to the individual operators. HEMP also provided guidelines detailing
the application requirements, permit issuance, transferal of permits, reissuance of permits, permit
conditions, enforcement, management authority network, and plan review and amendment.
HEMP was adopted by the Planning Commission of the County of Kauai on September 10,
1992. Approximately six (6) years later, on or about March 11, 1998, the Planning Department
of the County of Kauai submitted a petition to the Planning Commission of the County to
amend Section 19 of the Special Management Area Rules and Regulations. In its petition, the
Department proposed to remove permitting requirements for individual commercial tour boat
operators, and establish policies for the management of land based activities which may have a
significant impact on coastal waters or related coastal resources. The Department noted, at that
time, that Section 19 of the SMA Rules and Regulations established a procedure whereby the
Commission issues permits to conduct commercial boating within the Hanalei Estuary and River.
Furthermore, the Department stated that through the permit processes, the Commission
established requirements for permit holders, and regulated activity. However, noted the
Department, permitting of individual commercial tour boat operators by the Commission had
proven difficult to administer and to enforce. In its petition, the Department proposed that the
regulation and enforcement of the criteria set forth in the CZMA be accomplished primarily
through the management of land based activities. The Department's position was that in the case
of commercial tour boat operations at the Hanalei Estuary, the impacts of tour operations can
more effectively be addressed through management of the facilities needed or utilized for vessel
launching and retrieving, passenger loading and unloading, vessel maintenance, and other
commercial tour related activity. The Planning Department further provided that the State
Department of Land and Natural Resources, DLNR, Division of Boating and Ocean Recreation,
or DOBOR, has administrative jurisdiction for recreational boating and related vessel activity in
the waters of the State. The Department opined that through the provision of HAR, Chapter 13-
256 Subchapter 2, the North Shore Kauai Ocean Recreation management Area, DOBOR issues
commercial permits for operation of commercial vessels within the Hanalei River mouth and the
waters of Hanalei, and that the Division of Conservation and Resource Enforcement of DLNR
helps ensure compliance with regulations such as HAR, Chapter 13 -256. The Department then
stated that with the Commission's regulation and permitting of launching and retrieving sites,
and DOBOR's authority for the management of commercial vessels activity within the waters of
Hanalei, conformance with the objections, policies, and guidelines contained in the County SMA
Rules and Regulations can be assured. So at that time again, in the late 90s, it was seen that this
was a dual jurisdictional issue. The Department proposed that SMA Rule Section 19.0 be
amended to its current form which states, "No person shall be allowed to conduct any use,
activity, or operation on lands located within the SMA, which may significantly impact coastal
waters or related coastal resources, without first obtaining a Special Management Area Permit
pursuant to these Rules and Regulations. An application for a SMA Permit filed under this
section shall be subject to the review of the Director, Planning Department, and Planning
Commission, and shall be evaluated for consistency with the objectives, policies, and guidelines
55
of the CZMA ", which is why we are before you today. On April 3, 1998, the Planning
Department issued a memorandum regarding permit requirements for commercial tour boat
launching from Weke Ramp in the Hanalei Estuary. In its memorandum, the Planning
Department articulated its position that launching of commercial tour boats from Weke Ramp for
the purpose of taking paying customers on a tour, is a development pursuant to the County of
Kauai SMA Rules, and therefore requires an SMA Pen-nit. The Planning Department's petition
to amend Section 19 of the SMA Rules was adopted by the Planning Commission on June 9,
1998. On or about June 23, 1998, the Planning Department stated, in an unrelated matter
pertaining to Hd'ena Beach Park, that their position was that traversing through the County Park
at I Wena for purpose of launching and retrieving kayaks for guided tours, was not considered a
development pursuant to the County of Kauai SMA Rules and Regulations at that time.
However, the Department stated, an SMA Pen-nit would be required for any structures or
improvements, and a Use Pen-nit may be required for commercial use in the Open Zone. Now,
I'd like to note that as part of this application, the Parks Department is not seeking to erect any
structures or improvements per this application. These are simply regulatory rules. On August
24, 1998, Governor Benjamin Cayetano announced that he was in favor of moving all North
Shore commercial boating activities out of the Ilanalei Estuary and into small boat harbors
within the County of Kauai. According to the then Director of DLNR and current Hawaii
Supreme Court Justice, Michael Wilson, existing boat pen-nits would be phased out during the
following twelve (12) months, and during that time, alternative sites for commercial boating
were to be determined. Pursuant to the Governor's actions, in October 2000, the State of
Hawaii adopted HAR Rule 13- 256 -36, which stated in relevant part the following: (1) No
commercial vessels shall operate at or use the Hanalei River, Hanalei Bay ocean waters, or
`Anini Beach launching ramp for any commercial purposes without a commercial use permit;
and (2) No commercial use pen-nits were to be issued for commercial vessels to operate at or on
the Hanalei River or Hanalei Bay ocean waters, except that up to two (2) commercial use permits
may be issued for kayaks to operate on the Hanalei River or Hanalei Bay ocean waters. Pursuant
to the passage of the rule, DLNR notified commercial tour boat operators Ralph A. Young, dba
I Ianalei Sport Fishing & Tours; Whitey's Boat Cruises, Inc., dba Na Pali Catamarans; and
Robert F. Butler, Jr., dba Capt. Sundown Enterprises that their use permits would automatically
expire on November 30, 2000, the effective date of the rule. On December 1, 2000, the
aforementioned commercial tour boat operators filed a complaint against the State of Hawaii
and its various divisions and officers in their official capacity in the Federal District Court for the
District of Hawaii seeking a declaratory judgment and injunctive relief on the ground that the
rule violated the federal Constitution. After both parties moved for summary judgment, the
District Court granted a pennanent injunction in favor of the Plaintiffs, concluding that the rule
violated the Supremacy Clause of the Constitution because it conflicted with federal licensing
laws, specifically that of the Coast Guard. The District Court also found that the rule violated
the Commerce Clause. Upon appellate review by the 91h Circuit Federal Court of Appeals, the
appellate court affirmed the decision of the District Court under preemption analysis and
declined to consider whether the ban violates the Commerce Clause. In affinning the District
Court's decision, the 9`h Circuit concluded that the rule, in conjunction with the relevant federal
shipping laws, violated the Supremacy Clause, United States Constitution. Simply stated, the
ban completely excluded the Plaintiffs from conducting their federally - licensed tour boat
businesses in Hanalei Bay. Plaintiffs also held U.S. Coast Guard licenses including
56
endorsements allowing Plaintiffs to engage in coast wide trade in the navigable waters of the
United States, which include the Hanalei Bay.
The Young case, which is what this was ... the case was entitled Young v. Coloma - Agaran, et al,
provided that the State is legally bound to allow these boaters to operate. The State, in that case,
tried to promulgate the environmental argument and lost. The Young case, in citing Douglas,
which was 431 U.S. at 285 note 21, 97 Supreme Court 1740, stated that "a State cannot escape
Federal preemption by cloaking objectionable legislation in the currently fashionable garb of
environmental protection." In Young, the Plaintiffs presented the Declaration of Richard W.
Grigg, Ph. D, Professor of Oceanography, researcher and marine biologist at the University of
Hawaii, who has been qualified by various judges by the Federal Court to testify as an expert
witness regarding marine environment and water safety. Grigg was familiar with Hanalei Bay as
a recreational surfer and as an expert on marine life and coral reefs for the development of the
Princeville Resort in the vicinity of Hanalei Bay. Grigg had ridden on Young's vessel in Hanalei
Bay and was informed about the type of vessels operated by Plaintiffs Whitey and Butler. Grigg
opined that the ban was unlikely to have any scientifically significant benefits to the ecosystem
in Hanalei Bay, and that it was unnecessary and unreasonable from the perspective of marine
science. Now, again, I'm reciting the case law. This is not an endorsement of the statements
therein, but is what the case says. Furthermore, in that case, the State provided no evidence to
show that Plaintiffs' vessels cause more damage to the ecosystem in Hanalei Bay than vessels
not affected by the ban. The specific focus of that case was commercial... regulation of
commercial boats versus the non - regulation of non - commercial boats. In essence, the court said
if aunty and uncle and ten (10) people went on a non - commercial boat and fished, whereas two
(2) gentlemen and ten (10) tourists went on a commercial boat and fished, the environment
impact was nonetheless the same. If the motors or the size of certain vessels gave rise to
Defendant's concerns, the court stated that the State had the ability to prohibit all motorized
vessels, all vessels of a certain size, or all vessels meeting certain criteria relevant to ecological
protection and conservation, or other legitimate concerns. If the damage to the ecosystem were
the State's concern, the court said, the ban would prohibit Plaintiffs from operating their vessels
in Hanalei, whether or not they were carrying paying passengers. In that case, the court
recognized the ban only prohibited Plaintiffs from operating vessels commercially, that is, with
paying customers aboard. The ban targeted, again, only the commercial use of Plaintiffs'
vessels, a distinction which the court found had no rational relation to the aim of ecological
preservation. The court therefore stated that the purported reason of ecological preservation was
not rationally related to the terms of the ban and had not been shown to be based on any factual
information.
After the Young case, on or about late 2010, early 2011, State DLNR, DOBOR began the
process of amending HAR 13- 256 -39, which was the Administrative Rule for Hanalei Bay ocean
waters. On or about February 14, 2011, Bernard P. Carvalho Jr., Mayor of the County of Kauai,
submitted testimony to the State of Hawaii Board of Land and Natural Resources, or BLNR, in
support of said amendments. In his testimony, the Mayor stated that upon passage of the
proposed amendment by the BLNR, the County of Kauai will then be able to promulgate its
own administrative rules that would lead to more efficient management of Black Pot Beach Park,
which would enrich the experience of the use of the park by both residents and tourists alike. It
was Mayor's stated belief that passage of the rules would lead to a future of State and County
57
cooperation that would only better protect and manage the Hanalei resource. The proposed
BLNR rule provided in pertinent part that no commercial vessel shall load or unload passengers
in Hanalei Bay ocean waters or lands adjacent thereto without a permit issued by the Department
and approved by the County of Kauai, and that all vessels authorized to load and unload
passengers in Hanalei Bay ocean waters or the lands adjacent thereto shall travel to and from the
beach only through a designated ingress /egress zone. The proposed rule also provided that the
Department may issue up to five (5) commercial use pen-nits for the use of self - propelled vessels
to load and unload passengers at Hanalei Bay. Priority for the initial issuance of the permits
under this 2011 amendment were given to the persons that held a commercial use permit and
operated under said permit in November 2000 for the Hanalei Bay ocean waters. And this was
done to recognize the Plaintiffs that sued in Federal Court. Through attrition, the rules provide
that these initial five (5) pennittees would be reduced to three (3). Pen-nits would be limited to
passenger vessels certified by the Coast Guard to carry twenty -five (25) or fewer passengers, and
each permit shall authorize the carrying of no more than thirty (30) passengers daily.
Furthermore, no commercial tours would be conducted in the Hanalei Bay ocean waters from
adjacent beaches without a permit from the Department and approval by the County of Kauai.
BLNR approved the proposed rule amendments on or about November 7, 2011. Pursuant to the
BLNR adopted rule, DOBOR issued five (5) Ocean Recreation Management permits for Hanalei
Kauai. At that time, the pennittees included Bluewater Sailing Kauai; Whitey's Boat Cruises;
Na Pali Coast Hanalei, Inc.; Captain Sundown Ent.; and Na Pali Tours, Inc. All pennittees were
subject to seventeen (17) further terns and conditions regarding their operations which were
attached to their DOBOR pen-nits.
Now going to the Parks Department's rule in this process. Now, the Peddlers and
Concessionaires Ordinance of the County of Kauai was first enacted under Ordinance No. 219
on July 3, 1974 and has been regularly amended by the Kauai County Council until most
recently pursuant to Ordinance 941 on May 8, 2013. Under the Peddlers and Concessionaires
Ordinance, the Council has found that peddling of wares and services on or near County parks,
beaches, playgrounds, and visitor sites have increased at an alarming rate primarily because a
gathering of people means potential customers. The puipose of the Peddlers and
Concessionaires Ordinance was to regulate peddlers at County parks, playgrounds, and other
facilities and prohibit peddling on the beaches of Kauai. Under the Peddlers and
Concessionaires Ordinance, "Peddler" means a person or persons in the business of traveling
about carrying goods, wares, food, or merchandise for sale and /or rent to customers. And in
specific part, any person or persons engaged in the business or service of providing sport or
recreational activities or rental of equipment therefor for commercial gain on either a fee basis or
a donation in lieu of a fee and activities associated therewith, including but not limited to loading
and unloading of passengers, transporting passengers, parking, or traversing over and through
County parks. Under the Peddlers and Concessionaires Ordinance, Mr. Rapozo, as Director of
Parks and Recreation, is authorized and shall establish rules and regulations for peddling and
concession operations. Under that Ordinance, such regulations shall include a requirement to
conduct public hearings during which input by the local coirununity, cumulative impacts from
individual and commercial uses of County lands, and cumulative impacts from individual and
commercial uses on Special Management Areas shall be considered; all of which was done.
Such rules and regulations are also required to address clean-up, maintenance, parking, signage,
insurance, damage liability, and other matters deemed necessary or desirable for the orderly
58
control of peddlers and concession operators, and for the protection of the County at County
parks, playgrounds, other facilities, and beaches; again, all of which had been done. And under
the Ordinance in brief it is illegal to conduct peddling activity without a Peddlers and
Concessionaires Permit from the Director of Parks and Recreation.
As to (inaudible) completely in its proposed Findings of Fact, Conclusions of Law, and Decision
and Order, Mr. Rapozo has engaged in substantial processes and procedures in order to follow
State and County law regarding the promulgation of Administrative Rules under the Peddlers
and Concessionaires Ordinance, and this is in paragraphs 94 to 141. These rules are before you
today and the basis for Mr. Rapozo's present permit request. Now, in sum, I'd like to review the
content of these rules. Now, pursuant to the rules and regulations, which I'm going to refer to as
the County rules, in order to operate a commercial boating activity, operators must have, in their
possession, a current and valid Ocean Recreation Management Area Commercial Permit issued
by the State of Hawaii, DLNR, DOBOR. If a permittee fails /forfeits his/her State Permit and or
their State Permit is otherwise revoked or suspended, said permittee's County Permit will
automatically expire. Under the County rules, the maximum number of passengers permitted to
participate in a commercial boating activity authorized by the rules within the County Park are
limited to that number allowed in the Operator's current State Permits; and this is pursuant to this
body's previous and the Planning Department's previous recognition of the State's authority
regarding boating in navigable waterways. Under the County rules, no commercial boating
activities shall occur within the County parks on Sundays. Under the County rules, permittees
shall limit their commercial boating and accessory activities between the hours of 7:00 a.m. and
7:00 p.m. Under the County rules, permits for operation shall have a duration of up to one (1)
year, and shall expire automatically, without notice to the permit holder, on the date specified on
the permit, and /or if a pennittee forfeits his/her State pen-nit and /or their State permit is otherwise
revoked or suspended. Under the County rules, the Director may renew a permit for additional
periods of up to one (1) year, provided the permittee is in compliance with all applicable rules.
Permit renewal shall also be contingent upon the permittee renewing or attaining any necessary
state and federal permits. A renewed permit shall be subject to the terns and conditions of the
rules and any subsequent amendments. Under the County rules, permittees shall use inclement
weather as criteria to cease operations; that is continuous rain, flash flood warning, strong
currents, heavy debris and high winds, or any other weather or water conditions that may cause a
hazard. Under the County rules, picnic tables and benches and other facilities owned by the
County shall not be used by permittees for commercial purposes, nor shall they be used for
storage or as staging areas for commercial boating activities, equipment, or supplies. Loading or
unloading of equipment at County beach parks is restricted to areas designated by the
Department. All equipment not being utilized shall be stored at the operator's place of business.
Equipment shall not, under any circumstances, be dragged across grassy recreational surfaces
and slopes within County parks. County showers and hose bibs shall not be utilized by the
permittee for cleaning of equipment. Under County rules, permittees shall not be allowed to
store, display, and showcase their business in any County beach park or parking lot. Under the
County rules, vehicles used for commercial boating activities shall not be driven onto or be
parked in any County beach area. All customers and /or employees shall be shuttled to and from
the County parks and any and all unloading of customers or loading of customers and/or
instructors shall take place at a loading and unloading location designated by the Department.
Use of loading and unloading areas by permittees shall be limited to active loading and
59
unloading for periods not exceeding thirty (30) minutes. And all vehicles used for shuttling
instructors and. /or customers shall clearly indicate that they are owned and. /or operated on behalf
of the permittee and shall further display the permit issued by the Department allowing the
shuttling to take place. Under the County rules, trash generated by the commercial operations
shall be disposed of properly. Under County rules, soliciting and /or conducting business is
prohibited within any of the beach parks or parking lots. Under the County rules, soliciting
commercial notices or advertisements for commercial boating activities shall not be displayed,
posted, or distributed within any of the beach parks or parking lots. Under County rules,
permittees and any instructors operating under their permit shall be required to present their
permit, when requested, to any authorized representative of the Department, any police officer,
and, /or any individual acting under the authority of any County, State, or Federal governmental
agency. Under County rules, all permittees must possess off -site, permitted commercial staging
areas and shuttle their customers to and from any County beach parks. Solicitation of monies
and /or exchanging of money is prohibited within the County parks. Under County rules,
permittees shall comply with all Federal, State, and County laws and ordinances and the rules of
the Department. Under County rules, permittees shall demonstrate to the Director's satisfaction
their experience and familiarity with seasonal and high surf conditions typical of the location
requested. Under County rules, pennittees shall complete a course provided by the Department
regarding the customary and historical place naives (reefs, channels, rivers, landmarks, etc.)
typical of the location and surrounding areas being requested. Under the County rules,
permittees shall demonstrate to the Director's satisfaction their personal years of experience,
knowledge, and history of performing the requested activity for the specific location requested.
Under the County rules, pennittees and their patrons shall use designated pathways to gain
access to the beach areas through park property. And finally, under the County rules, permittees
shall conduct operations so as to impose no more than a minimal impact upon public facilities
and the physical features of the County parks. No fueling, washing or storage of boats, trailers,
or supplies are permitted in the County parks identified in the rules or County parking lots or in
road rights of way. And the reason why this is all important is because Mr. Rapozo took great
efforts to ensure the minimal impact of the County parks and to this very important resource in
Hanalei.
Now ... I'm almost done. In regarding the CZMA, in its submittals, the applicant, Mr. Rapozo,
has deferred to the Planning Commission as to whether an SMA Major Use Permit is necessary.
The history can be viewed as conflicting, but the Director at this point, given the review of
everything, feels that given the history itself and the emotional value and the previous statements
of the County, irrespective of the positions of the State, does not oppose the issue (inaudible) and
the application obviously for a SMA Major Pen-nit. Mr. Rapozo's position is that based upon
reliable, probative, and substantial evidence on the record, he has met his burden of proving by
preponderance of the evidence that the promulgation of rules and regulations relating to the use
of Black Pot Beach Park, Weke Rarnp for State authorized commercial tour boat operations,
which is the only commercial tour boat operations that this applies to, is consistent with the
objectives of the CZMA. Mr. Rapozo's position is that based upon reliable, probative, and
substantial evidence, he has met his burden by proving by preponderance of the evidence that the
rules, as presented to you, are consistent with the guidelines of the County SMA rules; Rule 4.1
to ensure that (1) adequate access to publicly owned or used beaches, recreation areas, and
natural reserves is provided to the extent consistent with sound conservation principles, (2)
60
adequate and properly located public recreation areas and wildlife preserves are reserved, (3)
provisions are made for solid and liquid waste treatment disposition and management that will
minimize adverse effects upon special management area resources, and (4) no alteration to
existing landforms will occur and that the proposed regulatory program will minimize any
adverse effect to water resources and scenic and recreational amenities, and minimum danger of
floods, wind damage, storm surge, landslides, erosion, siltation, or failure in the event of an
earthquake. Again, no structures are being proposed to be built and /or no developments are
going to be erected. Mr. Rapozo's position is that he has met his burden of proof that the
promulgation of rules relating to Black Pot for the State authorized commercial tour boat
operators will not have any substantial adverse environmental or ecological effect, especially
given the tenants of the Young case, and that any adverse effect is minimized to the extent
practicable and clearly outweighed by public health, safety, and welfare, or compelling public
interest, specifically the assistance in cooperation with the State of Hawaii DOBOR regulation
of commercial tour boat activities in the Hanalei area as ordered by the Federal Court. The
regulatory program is consistent with the objectives and policies, as enumerated in HRS 205A
and as referred to in Section 3.0 of the County SMA Rules and the Special Management Area
guidelines set forth in the SMA Rules. And that the regulatory program is consistent with the
County General Plan and zoning ordinances. Furthermore, the rules are consistent with the
establishment, activity, or use of this particular case is compatible in the Open District, and is not
detrimental to health, safety, peace, morals, comfort, and the general welfare of persons residing
or working in the neighborhood of the proposed use, or detrimental or injurious to the property
and improvements in the neighborhood or to the general welfare of the community, and will not
cause any substantial harmful environmental consequences on the land of the applicant or on
other lands or waters, and will not be inconsistent with the intent of this Chapter and General
Plan. It was Mr. Rapozo's intent to ensure that although there are arguments regarding the
current applicability of HEMP that HEMP, nonetheless, was a community exercise and then it
should be analyzed, considered, and respected, whether or not it's legally binding at this point.
Mr. Rapozo's position is that he has met his burden to show that his rules fulfill the Kauai
General Plan standards as they pertain to County parks located within the General Plan Land Use
Designated Open lands. Specifically, this permitting program will accommodate a State
permitted ecotourism activity that will conserve resources to the best extent possible; provide for
the use by the general public, that is individuals, families, `ohana; and (3) allow for group use,
including commercial tours and equipment rentals, within conservation limits. Furthermore, the
rules are consistent with the comprehensive park permit system for regulating organized group
activities at County parks, which is called for by the General Plan. Activities to be regulated
relating to commercial tour boat operations include entry into the beach park or to other park
property by a business or other organization collecting a fee or service. The system provides for
a permit fee. It's currently $100 for anybody under the Peddlers and Concessionaires Ordinance.
Furthermore, enforcement measures will be taken for compliance and in order to ensure
compliance thereof. Finally, the County is permitting commercial boating activities only in the
Black Pot area at this time and only under the specified conditions as stated prior. Mr. Rapozo
believes that he has fulfilled his burden of proof regarding the rules and showing that they are
consistent with the goals contained in the North Shore Development Plan because it regulates the
commercial activities of small ecotourism oriented businesses by minimizing their impact on the
public's use and enjoyment of the park facilities.
Me
Now, regarding the EIS, Mr. Rapozo's position is that based upon reliable, probative, and
substantial evidence on the record, the promulgation of rules and regulations is not subject to the
provisions of HRS Chapter 343. Not only is this the same position taken by the State nearly
twenty (20) years ago, but also, pursuant to the County of Kauai, Department of Public Works
and Parks EIS Exemption List dated November 1999. And it should note for the record,
currently there is a ... the current EIS Exemption List was promulgated on or about 2012 or '13,
but nonetheless, these rules were passed prior to the enactment of the current EIS Exemption List
and so therefore, the 1999 Exemption List would have been applicable. Nonetheless, for the
record, the specific exemption is the same. Specifically, Exemption Class No. 1, which includes
operation, repairs, or maintenance of existing structures, facilities, equipment, or topographic
features involving negligible or no expansion or change of use beyond that previously existing;
in this case, Weke Road Rainp. Class 1 No. 7, the operation of initial or continuing recreational
programs consistent with established park use. Because the County is only permitting those
operators with a State DOBOR permit, the County sees its role as ancillary to that of the State of
Hawaii who is actually permitting the activity in the water, again, where the actual activity itself
is taking place. The County believes, and is currently taking place and was taking place prior to
the promulgation of rules by the County. As soon as the State amended their rules back in 2011,
they issued State permits, and these companies have been operating since then. The County
believes that this program is consistent with the aforementioned laws and plans for these park
areas, as provided for in State and County law and the tenants of the Federal and Constitutional
issues as covered by the 9 °i Circuit Court of Appeals. Factually, on or about October 16, 2012,
notice was sent by the applicant, Mr. Rapozo, to the State of Hawaii, Office of Environmental
Quality Control, or the OEQC, that applicant had determined in pertinent part that the County's
implementation of Administrative Rules allowing peddlers and concessionaires to engage in
State authorized commercial tour boat operations was exempt from the EIS requirements in
Chapter 343 and the comprehensive exemption list for the Department of Public Works, Park
Department, County of Kauai, as approved by the OEQC under HAR Section 11- 200 -8(a) and
as planned and contemplated in HEMP 1992. The applicant specifically notified OEQC that the
promulgation of these rules regulating commercial tour boating in Hanalei fell under Exemption
Class No. 1, Section 7, as previously stated. Mr. Rapozo's position is that based upon the record
and reliable, probative, and substantial evidence that the promulgation of rules will not have a
negative impact on any traditional or customary practices of Native Hawaiians in the area, which
is an important consideration to Mr. Rapozo. Specifically, applicant's proposed operations, as
regulated by the rules as limited thereto, will not detrimentally affect access to any streams,
access to the shoreline or other adjacent shoreline areas, or gathering along any streams, the
shoreline, or in the ocean.
Now, in conclusion, based upon the foregoing and everything that I've stated for you today, Mr.
Rapozo respectfully requests that the Planning Commission of the County of Kauai render a
Decision and Order and grant him the necessary permits in order to ... regarding these rules in
order to regulate current State permitted commercial boating activity in Hanalei. Let's see.
Therefore, we request the permits and any conditions that the Planning Commission deems
appropriate and consistent with the CZMA, the County SMA Rules, and the U.S. Constitutional
Protections. As you can see, Mr. Rapozo and the Department of Parks and Recreation went
through substantial analysis and consideration of the entire record up until this point. We
acknowledge that boating in Hanalei won't end. This will not solve it or resolve it in any way,
62
shape, or form. But this is the next step. We are moving towards reasonable regulation. And we
believe ... and he believes that based upon the input which was gathered through the County rule
making process, State rule making process, and this process that this is the appropriate action to
take at this time. Thank you very much. If you have any questions, I'm sure you can ask me
after the other parties have stated their case. Thank you.
Chair Mahoney: Thank you for your testimony. Okay. Okay. Next we'll hear from Mr. Carl
Imparato.
Carl Imparato: Honorable Commissioners and County Attorney, appreciate the opportunity to
present the final argument on behalf of the Limu Coalition and Barbara Robeson. Our proposed
Findings of Fact and Conclusions of Law speak for themselves. Therefore, our final argument
will address only those portions of our proposed Decision and Order, only our objections to those
in the applicant's proposed Conclusions of Law and Decisions and Orders, and only those
concerns about the applicant's exceptions to our proposed Findings that are directly relevant to
your decision - making.
First, a few key points of introduction. This SMA Use Pen-nit must address the cumulative
impacts of the proposed commercial tour boat activities, not only on the Black Pot Beach Park
parcel, but also on the other areas of the Hanalei SMA. And to be clear, we are talking here
about the impacts on the land, not the impacts on the ocean waters, the land. The Parks Rules do
not limit the total amount of commercial activity; they leave that up to DOBOR by default, but
you have to keep in mind that DOBOR has no concern for the SMA. The Parks Rules also do
not clearly address where tour boat customer parking is allowed. So the rules are insufficient to
protect the SMA, and we believe that they must be supplemented by Commission- imposed
conditions in this SMA Use Permit. The maximum amount ... the maximum allowable level of
commercial tour boat activity in the Hanalei SMA must remain under the control of the Planning
Commission. It cannot be left up to the discretion of DOBOR or the Department of Parks and
Recreation. Now, absent a new Environmental Impact Statement, that maximum level must be
no greater than the maximum level that was already studied and recommended by the Planning
Department and the Planning Commission in the Hanalei Estuary Management Plan. The only
study that has assessed the environmental impacts of commercial boating on the Hanalei SMA
was conducted under HEMP, and HEMP stated that approval of additional activity beyond the
level of 204 persons per day may result in individual and cumulative impacts that would be
inconsistent with the SMA Rules and Regulations, the CZO, and HEMP, and that approval of
activity above that level "may be detrimental to the neighborhood and the community, and may
result in individual and cumulative harmful environmental consequences."
With that background, I'd like to first go into our proposed Decision and Order. Our proposed
Decision and Order asks you to explicitly add just three (3) very important conditions to the
requested SMA Use Permit. We appreciate all of the work that Lenny Rapozo, Parks and
Recreation, and the rest of the County Staff has done to get us to this point, but we believe that
there are still three (3) very important conditions that need to be addressed here. None of these
three conditions is onerous, none of them departs from the County's established position for the
last 24 years, and none of them is inconsistent with the current DOBOR rules for commercial
boating in Hanalei. The first condition. The applicant shall not allow more than 170 persons per
63
day, including all passengers and crews, to participate in commercial tour boat activities. Any
increase beyond this level shall require the preparation of an Environmental Impact Statement.
Now, this condition is needed because the language in the SMA Use Pen-nit application and in
the Parks Rules is open -ended regarding the maximum level of commercial tour boat activity that
would be allowed in the SMA. The current language gives a blank check to DOBOR to decide
on the acceptable intensity of development and the impacts of that development due to
commercial boating operations on the lands in the Hanalei SMA. Section 32(a) of the Parks
Rules says that if DOBOR chooses ... it implicitly states, implicitly, that if DOBOR chooses to
increase the maximum allowable level of commercial boat activity, which it can do with no duty
to consider the impacts on the SMA, then Parks would under its rules also increase the maximum
allowable level of commercial activity at Black Pot; again, with no legal requirement to consider
the impacts on the SMA. That would happen unless Parks is constrained by a condition in the
SMA Use Permit. So, Section 32(a) almost begs this Commission to act by imposing a limit.
Now, our concern isn't hypothetical. There is ample evidence today that DOBOR is currently
allowing, as it's been allowing for the last several years, its permit holders to operate at levels
that far exceed the 30 passenger per pen-nit limit that it's in the DOBOR Rules for Hanalei Bay.
Simply and clearly put, DOBOR and DOCARE do not care. DOBOR does not even enforce its
own rules. DOBOR has expressed no concern about limiting the impacts of commercial boating
on the Hanalei SMA. That's why putting an explicit maximum amount of daily commercial
activity condition in the SMA Use Permit is the only protection available to prevent DOBOR and
County Parks from deciding to allow higher levels of commercial activities, more tour boat
pennittees, more tours per day per permittee, larger tour boats, etc., and all of those things could
have very significant impacts on the lands, the community, and the residents of Hanalei. The
duty to limit the impacts of development on the SMA resides solely with you and with the
Planning Department; neither DOBOR, nor the applicant has such a duty. We, therefore, ask
that you meet the responsibility to protect the SMA by including the maximum 170 person per
day condition in the SMA. And I note once again that that 170 person per day condition would
allow each of the five (5) existing DOBOR pennittees to operate at the 30 passenger per day
maximum level that's in the current DOBOR rules; 30 times 5 is 150 and the other 20 is for
crew. Secondly, we believe that you should add a condition that says no commercial boating
activities shall take place on Sundays. Indeed, Section 33(a) of the Parks Rules currently states
that no commercial boating activities shall take place on Sundays, but DOBOR does not prohibit
Sunday operation. And last year, Parks, in fact, proposed to eliminate the no Sundays rule from
the Parks Rules, so we believe it's imperative that the Planning Commission explicitly state that
no commercial boating activity shall be allowed on Sundays under this permit, just as both
HEMP and the SMA permits that were issued to the five (5) permittees pursuant to HEMP
required. If you do not do so, then I fear that what will happen is that Parks will decide to
change the rules to allow Sundays and then we'll have a dispute as to whether they'll need to
come back for a revised SMA Use Pen-nit by snaking that change. Third, all customers and
employees must be shuttled from and to commercially- pennitted parking areas. Now, Section
36(n) of the Parks Rules regarding customer and employee parking is ambiguous; it will be
gained. Although it requires that the pennittees possess commercially- pennitted staging areas, it
does not require that the staging areas and parking areas be one - and - the - same. It does not
require that permittees shuttle their customers to and from Black Pot from commercially -zoned
parking areas, and that there be no parking on public lands or within a public right -of -way.
Without your clarification of this rule as a condition of the Use Permit, the commercial boating
64
companies could direct their customers to park in areas throughout the Hanalei SMA from which
they would be shuttled because the rules are not crystal clear. And this, again, is not a
hypothetical concern. The tour boat companies have done precisely this in the very recent past;
parking their customers at the Hanalei Courthouse, parking them at Waioli Town Park because
it's cheaper than providing private off - street parking. So in summary, regarding three (3)
conditions that we're asking you to impose, if there is to be any increase in the amount in the
impacts of commercial boating activities on the lands of the Hanalei SMA or in the days of
operation or any watering down of the parking requirements, they should be allowed only with
the approval of the Planning Commission. The only way to ensure that oversight is for you to
explicitly include the three (3) conditions that we've requested, and they are in our proposed
Decision and Order in the SMA Use Permit.
I'll turn, now, to the applicant's proposed Conclusions of Law and Decision and Order. We take
issue with the applicant's proposed Conclusions of Law 18, 27, and 40. These proposed
conclusions assert that the applicant has met its burden approving that the Parks Rules will not
have any substantial adverse impacts, environmental impacts, and that such adverse impacts are
minimized to the extent practicable that the Parks Rules are not detrimental to the peace and
general welfare of the people of Hanalei, that they're not detrimental to the neighborhood, that
they will not cause any substantial harmful environmental consequences on any lands, and that
the Parks Rules would minimize the impact of commercial boating on the public's use and
enjoyment of such park facilities. Now, these conclusions are arguably correct, but they are
correct only if the SMA Use Permit explicitly limits the scope of the commercial activities and
impacts to stay within the bounds of the HEMP limits. And the SMA Use Permit explicitly
requires the boating companies to limit their parking related impacts on the neighborhoods in the
SNMA through the language that's similar to what was used in HEMP and in the SMA Use
Permits issued thereunder. Without those two (2) conditions, which are some of the conditions
we've requested in our Decision and Order, Parks' proposed Conclusions of Law, in these three
(3) areas, are not true and should not be adopted. An open -ended amount of commercial boating
would not allow these conclusions to be valid. Similarly, the applicant's proposed Conclusions
of Law 41 and 43 claim compliance with HRS 343. But here, again, these conclusions are
correct only if you impose conditions in the SMA Use Permit to ensure that the level of intensity
of the commercial activities would be limited to the level that was already studied and approved
under HEMP, and that the parking impacts of the commercial boating activities are mitigated as
they were done under HEMP. Without those conditions, we do not believe that there's
compliance with HRS 343. With those conditions, we believe that compliance is there because
the studies have been done. As sort of a side issue, we do not believe that Parks reliance on the
exemptions that they were stating earlier are necessarily valid. They may be, they may not be.
But we don't believe that they are even important because, again, if you limit the amount of
commercial boating to what was allowed under HEMP or what's allowed currently under the
DOBOR Rules, if you're explicit about that, then the exemption isn't really necessary because
that amount of boating has been studied and found to be reasonable by HEMP. But there is
one ... so I think on these Conclusions of Law to the extent that you put these conditions in, we
have no dispute with those Conclusions of Law. There's only one (1) area that we disagree
strongly with and that's another claim made in Conclusions of Law 43. And it's the statement
that because the County is only permitting operators with a DOBOR permit, the County sees its
role as ancillary to that of the State which permits the activity in the water where the actual
65
activity itself is taking place. We want to be clear about this. The commercial boating activities
and their impact do not take place only in the water. They take place ... many of the aspects take
place on the land, and they impact the land and the community of Hanalei. That's why an SMA
Use Permit is even being requested here. DOBOR has no obligation or process to ensure that
commercial boating activities and their impacts on County jurisdictional SMA lands, as opposed
to State jurisdictional waters, meet the requirements of the CZMA or the County's SMA Rules
and Regs. So, the County's role is really not ancillary or secondary to the State's role. The
County's role is primary with regard to commercial boating activities that take place on and have
impacts on County jurisdictional SMA lands, so we do believe that it's very important that this
incorrect statement be deleted from any Conclusions of Law that you adopt. Regarding the
applicant's proposed Decision and Order, without the three (3) proposed conditions that we have
in our proposed Decision and Order, we believe that the applicant's Decision and Order should
not be adopted by you as the rules would then not address the problems that I've described to
you so far. On the other hand, if you do impose those three (3) conditions and delete the one (1)
sentence that I just referred to earlier, then we would support the applicant's proposed Findings
of Fact, Conclusions of Law, and Decision and Order in their entirety.
Moving on, finally, to the applicant's exception to our Findings of Fact, Conclusions of Law, and
Decision and Order. Because it's on the agenda, we need to make it clear that we disagree with
each and every one of the applicant's exceptions; many of which mischaracterize our proposed
Findings of Fact, Conclusions of Law, and Decision and Order. For brevity, though, we'll only
address those issues that are of immediate relevance to your decision- making. If you desire, we
will ... and I can... certainly explicitly discuss each and every one of the applicant's exceptions.
The first, currently, commercial tour boat operators in Hanalei are not operating legally. They
are conducting activities that are development in the SMA without an SMA Use Permit; that's
not legal. The DOBOR Permits are explicitly conditioned on approval by the County of Kauai,
but such approval has not yet been granted and cannot be legally granted without CZMA
compliance through the issuance of the SMA Use Pen-nit that's currently being discussed today.
Further, the so called, Federal Court injunction to which the applicant refers applied to only three
(3) of the five (5) current pernittees, and it did not say that they could increase their passenger
counts without limits, so the Federal Court injunction is a very limited injunction. Next, as I
stated, there are some imischaracterizations of our documents here. As one example, we feel that
the applicants tried to undennine our credibility by stating our arguments are mistakenly directed
at the water - related impacts of commercial boating tours, which, indeed, are State jurisdictional.
But the facts are that throughout this entire contested case, we have focused exclusively on the
SMA and the land - related impacts of commercial boat tours. Our concerns are the impacts on
the lands of the SMA and the entirety of our Findings of Fact, Conclusions of Law, and Decision
and Order focus on compliance with the SMA [sic] and the rules and regulations regulated to the
impacts of commercial boating on the SMA lands. The applicant also professes to not
understand what other areas of the Hanalei SMA we're concerned about besides the park in
regards to the impacts of commercial boat tour. Some of those impacts are parking, traffic,
increased tourism throughout the Hanalei Town, which is in the Hanalei SMA. We are
concerned about the impacts on Hanalei SMA beyond Black Pot and these are relevant. Just as
when you consider the approval of a new shoreline hotel, you consider the hotel's traffic and
other impacts beyond the site of that hotel. You consider the impacts on the SMA in general. So
we hope that you'll understand that we do feel that our Findings of Fact, Conclusions of Law,
M.
and Decision and Order are very well - focused on what's under your jurisdiction. Regarding the
applicant's exceptions to our proposed Decision and Order, first, the applicant's claim that we
request that you regulate the maximum number of passengers and that's something that's beyond
your jurisdiction. We believe that that's incorrect. Any increase in the number of passengers
engaged in commercial boat tour activities at Black Pot is clearly an intensification of
development in the Hanalei SMA and clearly increases adverse environmental impacts on the
SMA lands. Among these land - related impacts are parking, traffic, more intense use of the land,
and change in the character of the area due to increased tourism. So under the CZMA, the
Planning Commission is responsible for addressing these impacts. In addition, the applicant's
assertion that Parks is exempt from the necessity to get an EIS pursuant to the County exemption
list is, as I said, true only to the extent that the level of commercial boating is that that was
already studied and that already exists and does not constitute an increase, so common sense
dictates that there's a limit to any possible exemption. If Parks, in concert with DOBOR, will
allow a two -fold or a three -fold increase in such activities, the EIS exemption could certainly not
exist. This underscores the need once more for the SMA Use Permit to limit the amount of
commercial tour boat activities to the historical HEMP -based level. And finally ... not
finally... regarding Park's Rule 33(a), no Sundays, that rule can be changed or revoked by Parks
and indeed Parks has proposed a revocation of that rule, so this longstanding HEMP -based
prohibition against Sunday boating, commercial boating, should be explicitly stated in the SMA
Use Permit, and you have the ability to do that because we're talking about the impact on a park,
the SMA. And finally, as to Park's Rule 36(n) regarding parking, as we've clearly stated, it's
ambiguous because it does not require that boating companies shuttle their companies [sic] from
and to commercially -zoned parking areas.
In conclusion, the critical problem in the applicant's rules, which are generally excellent and
generally show a great amount of work, but the critical problem in those rules is that the rules
state that the allowable level of commercial boating on the Hanalei SMA is whatever DOBOR's
current or future rules allow. Further, those few commercial boat tour operators, who are today,
complying with the 30 passenger per day limit have testified... they've submitted
testimony ... that the 30 passenger per day limit is consistently violated and that DOBOR has
consciously decided to not enforce the 30 passenger per day limits in the DOBOR permits. The
fact is that DOBOR is an active partner in increasing the intensity of development on County -
jurisdictional lands in the Hanalei SMA to a level beyond that studied and envisioned in HEMP,
a level beyond that that was agreed upon by the Hanalei community when the current DOBOR
rules for Hanalei were approved in August 2011, and beyond what the current DOBOR rules
even allow. The only way that the Hanalei SMA will be protected is through enforcement by the
County and that means putting the limit into the SMA Use Permit. It can't possibly be in the
County's interest to give a blank check to DOBOR to decide the level of commercial
development that should be allowed to impact the SMA lands in Hanalei. The Planning
Commission should not cede to DOBOR the authority to determine the level of development in
the Hanalei SMA by allowing DOBOR to set whatever limits DOBOR chooses on the amount of
commercial boating that impacts the Hanalei SMA lands. If in the future there is to be an
increase in commercial activity, we would say that it's appropriate for this body, the Planning
Commission, to examine and possibly approve or deny that. Again, but the only way to ensure
that oversight is for you to put the three (3) conditions that we've proposed into the Decision and
Order. For these reasons, we respectfully request that you do one (1) of two (2) things. Either
67
adopt our proposed Findings of Fact, Conclusions of Law, and Decision and Order; or
alternatively, impose the three (3) conditions that we've requested in the SMA Pen-nit regarding
maximum levels of activity, days of operation, and customer parking. They're stated again on
the last page of the document I handed to you. Impose those three (3) conditions and then adopt
the applicant's proposed Findings of Fact, Conclusions of Law, and Decision and Order with a
single amendment of excluding that one sentence that says that the County does not have a
primary role in here. With that, we thank you for giving thoughtful consideration to this very
important matter that's really been under discussion and dispute for 30 to 40 years. Thank you.
Chair Mahoney: Thank you for your testimony. We can hear from Mr. Sheehan.
Mr. Sheehan: Mr. Chairnan and members of the Commission, I see a few of you here have been
following this for the 40 years that I've been involved with this since Mayor Kunimura and
Senator Lehua Fernandes - Salling asked ire to build a boating facility adjacent to the State pier
and the County Black Pot Park to take the congestion away from Black Pot Park. So what we're
looking at here is almost a 180- degree reversal of the County's very firm position throughout
these years. The County was adamant. They didn't want commercial activity in the Black Pot
Beach Park primarily because of the user conflicts with the local residents and the tourists. It's
an unintended consequence that needs to be considered by you. And that was the purpose that I
carne before the Planning Commission in 1986 and originally got a Class II Zoning Permit to
accommodate all of the pennittees then permitted by the confused, overlapping jurisdiction of
DOT and DLNR State Parks. They couldn't get their act together. It was incredibly confusing.
DOT should've been the proper party in charge, and had they asserted their authority, I don't
think we'd be where we are here today. But because of everybody trying to be nice to everybody
else, it was a totally confused exercise.
Having said that, I obtained a Class lI Zoning Permit in 1986 for 61.58 acres; a big area of
Hanalei to try and get all the tourists off the park, off the beach, put theirs somewhere away so
they didn't impact the County park facilities. So I built a boatyard, got a Class IV Zoning
Pennit, got an SMA Pen-nit, got a Special Use Pen-nit, some other permit ... I forget what it
was...with the understanding... unfortunately I didn't get it in clear and concise writing—that
within one (1) year the State was going to promulgate rules, ORMA rules, Ocean Recreation
Management Area rules, and take over my boatyard and operate it in conjunction with the State
pier and the small boat harbor. Due to politics, that never carne to pass and here we are today,
and it's been an interesting exercise.
There are still a number of lawsuits that are pending in Federal court that may have an outcome
on your decision; particularly as it relates to numbers. I appreciate Mr. lnparato's interest in
trying to maintain the validity of HEMP, the Hanalei Estuary Management Plan. It is my
understanding it is no longer a valid plan at all. Judge Helen Gillmor in her one (1) Federal court
case, 050425, which the State appealed, she ordered and Judge Ezra ordered, the 9`h Circuit
Court ordered that unless there's a rational nexus for the numbers, you can't arbitrarily impose
numbers, so there has to be some kind of a scientific basis for these numbers. And I would just
share that with you so that in case you put up some number that's different from the
environmental assessment that I obtained. Mr. Imparato said that only the Hanalei Estuary
Management Plan did an EIS; that's not correct. I applied a ... I performed an environmental
68
assessment, which was accepted by the Planning Commission back in 1987, which provided for
42 boat companies, 76 boats, 1,441 passengers per day; that was my mandate. That's what I was
to build the boatyard to accommodate because that was the number of persons, boats, and
companies that were in business at the time. So the County has purchased a portion of that
boatyard from me and has the facilities to finally, in conjunction with the State of Hawaii, the
State is interested in operating a boatyard which they need to do. They are only thirty (30) years
behind the plan here.
So I think because of what I foresee to be an impossible situation attempting to have Black Pot
be some sort of a staging area, I'm going to ask you people not to even consider it and instead
suggest to the Parks Director that he withdraw this application and redirect everyone over to my
boatyard and that's what it's supposed to do. I have the only EPA, State of Hawaii, Department
of Health certified wastewater wash -down facility of any boatyard in the State of Hawaii and
it's just sitting there. I got restrooms that are far better than the County's porta potties, and
they're just sitting there unused. And I think you guys are maybe the proper folks to fully
consider all of this and say look, we're not looking at this picture broadly enough. I have a
picture here of the Black Pot Park on a Saturday or Sunday afternoon, and many of you have no
idea the congestion there. Black Pot can't handle it. It's got to shift across the street and over
into my boatyard. And the County Council here is very interested and we are working closely
with them to try and resolve all the pending lawsuits and increase the square footage, acreage
available for ocean recreation in Hanalei; both in the river and the bay. So I would respectfully
ask of you all to reevaluate the whole exercise. I mean, it's worth spending a little extra time
now and come up with a good plan, come down ... take a look down, walk around the old
boatyard, have a look, compare that on a Saturday or Sunday. You can't even drive down Weke
Road. It's an impossible situation and this isn't going to solve it; the County Parks' proposal.
That's from my perspective anyway. And that's all I really have to say right now and I thank
you all very much for your time and interest and concern, and any questions, I'd be happy to
answer them.
Chair Mahoney: Okay, thank you. I think at this time we're going to take a caption break for
fifteen (15) minutes.
The Commission recessed this portion of the meeting at 2:51 p.m.
The Commission reconvened this portion of the meeting at 3:03 p.m.
Chair Mahoney: Call the meeting back to order. Okay, we left off with Mr. Sheehan's
testimony as intervenor, and at this juncture, I think our ... the Planning Department, I think
earlier you stated you didn't want anything.
Mr. Roversi: No. No, the Planning Department doesn't intend to make a statement.
Chair Mahoney: Okay. Sorry. I didn't mean to exclude you. I was going on your previous
statement, but thank you. At this time, then, we could have rebuttal from the applicant, Parks
Department.
Mr. Trask: Thank you, Chair. Just a brief rebuttal. I'd like to snake clear that my client, Mr.
Rapozo, again, he is not advocating for the proliferation of commercial boating at Hanalei. What
Mr. Rapozo is here to do is to advocate for the regulation thereof, and so I think that's an
important distinction to snake. Again, we're not looking to pump commercial boating. We're
looking to deal with the present situation. So in that, the positions that we've taken, and
we'll ... in regards to the points raised by Mr. Imparato, we'll rest on our submitted exceptions to
their proposed. I don't want to belabor the point. It's stated there clearly and I think that's fine.
I do have a couple things I'd like to address just for clarity of record currently.
The positions we're taking are determined because of the extensive legal history and regulatory
history of this issue. You know, like, if you're stuck in a current in the water, you go with it.
You don't fight it. You go with the current. After a million years after water flows down the
mountain, it cuts a path and you follow that path; that's the way it is. So after looking at 40
years of rules and cases and State/Federal lawsuits, this is what it looks like we're currently at
right now. So regarding the specific scope, the reason why we...the Department is staying away
from specific numbers of boaters in the commercial boating activity is because the commercial
tour boat happens on the water, and we understand the position of Limu Coalition; that was the
position. There's an old case in the 5`h Circuit that says changing size of engines, you know,
from the 80s, as part of the County regulatory action that was taken in the 80s as described, was
a development. It was increasing the use. However, if you look at the SMA subsequent rulings,
specifically Young in 2001, have gone contradictory to that. The 9"' Circuit is a higher court and
it is a more recent decision. So it appears to the Parks Department that that's the decision to
follow at this time. We're just trying to follow the law as it currently is in the correct application
thereof. It may change in the future, but that's our position as that's how it is now. If you look
at the definition of Special Management Area in the rules, and this is Rule 1.4(s), a Special
Management Area means the land extending inland from the shoreline as delineated on maps
filed with the Planning Commission. So we're looking to regulate parking because that's inland.
We're looking to regulate all land -based activities because that was the change of direction of the
Planning Department and this body in 1998, and so however many numbers of passengers on a
commercial boat is makai of the shoreline. So it seems to us, given the case law and the
definition of the SMA, this SMA Pen-nit would pertain only to the County's park, so that's how
it stands right there. Again, understand the difficulty because Black Pot, whereas the County
jurisdiction ends on a line, the users go back and forth freely. That's why the dual jurisdiction,
the cooperation between the State and County, is so important. If one of those bodies, and
there's been allegation that one of those bodies is not fulfilling their role that may or may not be
true, but we both need to, and that's why we're here today. We're trying to fulfill ours.
You know, as far as the no commercial activities on Sundays that is currently provided in the
rule. We cover that within our exceptions.
And the commercially pennitted parking areas, again, I don't want to argue with Mr. hnparato.
On the record today, we've stated our position as to that and you're going to snake your decision
related thereto. Whether it's commercial staging areas, our position is that it includes parking.
His position is you need to snake it a little more specific. Up to you. We think it's adequate the
way it is. If you find different, so be it.
70
And then there's been talk about open -ended because DOBOR regulates the activity regarding
what DOBOR does and the County kind of throwing their hands up in relation to DOBOR's
regulations. We would just say we meet our jurisdictional requirements up to our jurisdictional
line, and DOBOR meets theirs as to theirs. We're dealing with Federally - licensed, you know,
seafaring vessels that's regulated by the Coast Guard; that's the Supremacy Clause. The Parks
Department is not looking to court another lawsuit. We're looking to deal with the situation
proactively.
This application was submitted back in April 26, 2013. This has taken some time. And since
then, we haven't implemented the rules because we didn't have the SMA Permit for it. And
again, there's been talk as to what constitutes development or not, but Mr. Rapozo (1) never to
shy away from controversy, but in fact, to deal with it, to approach it appropriately, to manage it.
This is where we're at now. So we have been waiting over three (3) years to be before you today
and try to implement this for the best of the community. It is currently season right now, and we
would like to get these rules in as soon as possible so as to protect the resource.
Now, if you deny this request today, there's going to be no ... any less regulation than there
should be. If you accept it, it can be changed later. If you put something in the ground now, you
can change it later. Rules will be amended. You amend your rules, Parks will amend theirs, and
the County Council amends the ordinances. That's how it is. But to have nothing is not an
option, I think, in this case.
In regarding some of the statements that Mr. Sheehan made, there's been too much time. The
State promulgated the rules in 2011; that's five (5) years ago. The County submitted its rules
after going through extensive rule snaking, public input processes, going to OEQC, going to the
Small Business Regulatory Review Board. It took us two (2) years thereafter to submit our
application. We've waited for three (3) years ... over three (3) years now to be before you today
to ask for this. There has been sufficient time for this action to be taken today, for this step to be
taken today.
The Parks Department is glad to hear what Mr. Sheehan says because he submitted no written
proposed Findings of Fact, Conclusions of Law, or Decision and Order. There is no written
submittal on behalf of himself before you today, so it's difficult to deal with, and I apologize for
that today. Furthermore, he filed no exceptions to either the Intervenor's proposal or to the
Applicant's proposal. So all I can say at this point is that the Parks Director understands
Sheehan's self - interest in this issue. You know, it's a matter of fact Sheehan had permits to
operate a boatyard, granted by this body in the 80s. It is also a fact that Mr. Sheehan failed to
comply with those permit conditions and subsequently lost those permits. Had Mr. Sheehan
complied with the permits, he may still have a viable boatyard today. That's unknown. Whether
it should or it shouldn't, it could've been done and it wasn't, and that's no one else's
responsibility but that corporate entity's, whether it's Mr. Sheehan, or Hanalei Enterprises, or
whomever.
So the request, as far as from Intervenor Sheehan, to have Mr. Rapozo move this entire request
mauka to the condemned lands that was once the old Sheehan boatyard is an unreasonable
request. Currently, the County Parks Department has put it to the community to plan (inaudible).
71
The community right now is deciding what to do with the mauka lands, and it should be their
decision to do that. It should not be forced to be a boatyard unless the people of Hanalei choose
it to be, and that is an ongoing process. I believe it's been going on for a year or so now. So that
decision is not the applicant's desire and the applicant will not do that. The applicant will
maintain that's a community decision to make after an inclusive community planning process,
and that's the appropriate action.
What we're asking you to do right now is ... the Parks Department is doing everything it can to
promulgate its rules to regulate its park activities. As stated on the record, the Planning
Department had previously said that traversing over a County park by commercial operator did
not require an SMA Use Permit. That is a huge loophole, and the only way to fill that hole is for
the Parks Department to fulfill their duties, to regulate commercial activities in their park. The
paly here is not in the SMA and requiring individual SMA Permits. This body has moved away
from that. The play right now is at Parks, and to regulate commercial activity therein; that's the
purpose of the Peddlers and Concessionaires Rules. I think the record clearly shows and the
statements today clearly show that the Parks had analyzed this issue exhaustively the best that it
can and presents you with a balanced, reasonable regulatory process considering Federal, State,
County, community, both enviromnental and business - related, as far as dealing with the County
park property, which is the focus of this application. And we worked extensively with all the
parties in trying to achieve this, and, again, this is where we're at right now. So thank you very
much. That's all I have to add at rebuttal at this time, and I'm happy to take any questions you
may have.
Chair Mahoney: Thank you. Okay, so ... okay, at this point we can open up questioning to any
of the parties. Any of the Commissioners have any questions for the applicant or intervenors?
Commissioner Ho.
Mr. Ho: Mauna Kea, what is the interaction between DOBOR and the County, now, on use of
the park?
Mr. Trask: Pardon me. Can you repeat that?
Mr. Ho: What is the interaction of DOBOR and the County?
Mr. Trask: The interaction is that DOBOR does not have a presence or any rule enforcement
ability within the County Park. DOBOR regulates boating in the water. So shoreline makai is
DOBOR, shoreline mauka is County. And the interplay there is what we are trying to achieve
today.
Mr. Keawe: I have a question. Mauna Kea, with regard to the numbers from the intervenor's
petition with regard to the 170, do ... I mean, is that something that we have jurisdiction over?
Mr. Trask: Well, I would leave the legal advice as to that question up to your counsel. The
Parks' position and the reason why Parks took the position it did in its application was that it
appears it is not. This body has stated in the record previously that the regulation of boating is
DLNR, at the time, DOT; that's their kuleana. And because of the Young case with federal
72
supremacy and each commercial... and I don't know, maybe even non - commercial, you need
Coast Guard permits in order to operate a boat, and those are Federal permits. Federal permits
supersedes State and County. So under that case, so as to avoid courting any further litigation,
which the Parks Department has been threatened with, we think it's appropriate to defer it to
DLNR, DOBOR as far as carrying capacity and reasonableness because that is their stated
charge under State law and the County has no jurisdiction within the navigable waterways of the
State of Hawaii. And I think that's the reason why our position is that the numbers within the
boating operations is not ours.
Chair Mahoney: Commissioner Ho.
Mr. Ho: Mauna Kea, we're addressing the commercial tour. What about the mom and pop
Sunday boater?
Mr. Trask: So non - commercial... if mom and pop or aunty and uncle want to take their family or
`ohana out, this has no application thereto, and that was the issue in the Young case. It was that
the court had said you are requiring all these environmental, you know, analysis and regulations
on commercial, where the commercial could run the same boat as aunty and uncle. So either
regulate all of them, or you regulate ... or it's got to be fair. So because the Parks Department is
not seeking to prohibit or regulate non - commercial activities, we are running, you know,
ancillary or maybe appropriately co -equal with the State. If the State wants to regulate all
boating, whether commercial or not, then the County would look at that and see if it's
appropriate to follow suit. But right now, we're not looking to regulate non - commercial, and so
therefore, we're tracking what the State is doing.
Ms. Nogami Streufert: Mauna Kea, although you're trying to regulate ... or you don't want to
regulate numbers, they have to get on ... if they ... and obviously, if they're corning from
someplace else and they're on a boat, they're coming in, you obviously can't regulate the
numbers, but if they're going from the land onto a boat, can those numbers be regulated? In
other words, part of it, but not the entire ... you can't regulate everybody coming in, but you can
regulate people who are traversing over the land to get onto the boat.
Mr. Trask: In looking at the analysis that has taken place, it appears that to do so would also
require to analyze the impact of non - commercial users of that park. As Mr. Sheehan said, Black
Pot's overrun, and I actually think that you know that. That's probably why a lot of you don't
even go there anymore. It's a reason why I tend to stay away from Black Pot on the weekends.
It's just too much. So if 25 people who are going on a commercial tour boat is an important
number to look at on the park, then what about the 100 that use the park nonetheless, whether for
commercial or not. All of them have an impact on the park, and the Parks Department is not in
the position right now to regulate the entire use of that park or go through an extensive
permitting requirement for commercial and non - commercial users. It's a public park. And
again, that is why we're trying to deal with the record that we have at this time after 40 years
because an impact from one person's feet walking across the park should be the same whether
you're going here or there, and I think that's why this body and the Planning Department has
said before that traversing over a County park by commercial operators was not an SMA impact
because they said traversing by commercial or non - commercial was the same. That's why we're
73
regulating under Peddlers and Concessionaires, which is specifically geared towards
commercial; that's the focus. You know, if you had ... and that's where the play is. It's at the
Peddlers and Concessionaires level; not necessarily the overall SMA Pen-nit level.
Ms. Nogaini Streufert: But you're also looking at parking.
Mr. Trask: The parking is all off -site, correct. And that is an associated use as provided for in
the County ordinance for Peddlers and Concessionaires. Again, that ordinance also requires the
Parks Department to look at SMA impacts,
provided for in the actual County ordinance
Ms. Nogami Streufert: Okay.
Chair Mahoney: Commissioner Katayama.
which has, in effect, brought us here today. So that's
Mr. Katayama: Thank you, Mr. Chair. Mauna Kea, through what lens did the Parks Department
look at the environmental impact to the community with the boating traffic? I mean, to the
extent that there are issues with just general traffic, you know, ignoring the boating issue at the
park, per se, but in the total Hanalei area where, you know, the instituting of the bus or other
traffic - quieting or car removal things are being looked at by the County. Why would any
number of boating activities be acceptable at Hanalei Black Pot facility? Because it seems like
that community is being overtaxed given the accessibility as we speak now.
Mr. Trask: Thank you for the question. I think it's ... and it's multi- various. We looked at every
single lens that we could, and Mr. Imparato is correct. It's kind of fortuitous that the HEMP
numbers currently work with the DOBOR numbers, and DOBOR did look at HEMP trying to
scope their rules. So it kind of just works out at this point, and we're very happy that they do,
and we are going to take advantage of that because HEMP, whether or not Judge Ezra said it is
okay and Judge Gilhnor said it's not in their respective different issues on those different,
separate Federal court cases, it should be respected. It's part of our historical record nonetheless
and it provides a snapshot of Hanalei at that time, so there's value in it there. Currently, the
Parks Department, as I stated, is looking at community planning for the park. The extension of
the park is going to go mauka. They're looking at user ... where should these things operate?
Nonetheless, regulation has to currently occur as well. We can't afford to wait anymore. And,
as kind of just touched upon what Commissioner Nogaini Streufert mentioned, if DOBOR does
come up with you can have 200 passengers, three (3) times a day, this will be a problem that we
are going to have to deal with, and I know Mr. Rapozo will run towards that problem and deal
with it. So right now, it currently works, but we cannot ... it camiot anticipate or prophesize what
will happen in the future. Like I told you today, we're just at this current step. There will be
another step, and there will always be another step because Ilanalei is a limited resource. It's a
beautiful area and people will continue to come, and public infrastructure there is Black Pot
Pavilion and Waioli, and that's it. Everything else, multi - million dollar houses.
Mr. Katayama: Sort of to follow -up on a more micro- level, are there ... is there capacity in place
that ... the Department of Parks to enforce or to monitor or to administer or govern the rules that
the Department is suggesting that this body adopt?
74
Mr. Trask: A year or so ago, in anticipation of this being permitted or passed by this body, Mr.
Rapozo did go and I believe he did receive budget for Enforcement Officers in Hanalei. And
that was, again, we submitted in 2013, so that's been 1 ' i / 2 years since we got that funding, but
my understanding is he did put it in and did receive that, and I can confirm that later.
Mr. Katayama: So are those bodies in place as we speak?
Mr. Trask: I believe so. And obviously they're not enforcing these rules, but I do believe they
are doing their best to enforce surf school rules which were put in, and there's problems with
those, too, and there will be problems with these; growing pains, like has been talked about. But
again, the best we can do is the best we can do.
Mr. Katayama: One (1) more follow -up question. Is there a more balanced relationship that you
can strike with the State in ensuring that you don't have the State's ability to increase capacity
without sort of looking at the environmental impact with the County?
Mr. Trask: I think ultimately, the Parks Department recognizes that State has plenary authority
to regulate boating, commercial boating, and they do that very effectively throughout the island
by the establishment of small boat harbors and boat harbors; Nawiliwili, Port Allen, even the
little slips in Kapa`a. The pier at Hanalei is not a ... it's not recognized as anything more than a
historic structure. It's not currently in use for boating, specifically, but it was at one time, and
the Parks Department believes that ultimately, the State has to address that. If boating is to be
officially regulated, there needs to be a boating facility. You can't have, you know, the reason
why we have no wash -down or refueling at the County Park is because it may leak. There is no
opportunity for that. I cannot speak for the veracity of Mr. Sheehan's claim that his old wash -
down even works anymore. I heard that it doesn't, but I don't know. I'm not an engineer. But
ultimately, thG State needs to look at these things. And as far as getting them to move, your
guess is as good as mine. I don't mean to be flippant with that.
Administrator Furfaro left the meeting at 3:27 p.m.
Chair Mahoney: Commissioner Keawe.
Mr. Keawe: Mr. Imparato, can we hear from you with regard to the numbers? I know you've
talked about it in your presentation. Give us a sense of what the condition is on the ground now.
Mr. Imparato: First of all, it's not just fortuitive [sic] circumstance that the DOBOR numbers
happen to correspond to the HEMP numbers. I used to be present at the Hanalei- Hd'ena
Community Association and when the boating problem started up again around 2007 or so, the
Community Association and others of us in Hanalei in the community spent many years working
to have DOBOR incorporate the HEMP numbers into the DOBOR rules that were ultimately
passed in 2011. So it's not just fortuitous, it was a conscious and consistent and long battle to
basically have them, the HEMP numbers, acknowledged by DOBOR, and that's how they're
there. It's not just happenstance. Those numbers, in selling that idea to the
community... because I don't know of anyone in the community, let me put it this way, other
than possibly someone who might work for a boating company, who wanted to see the boating
75
numbers increase beyond HEMP. Certainly there were people in the community that wanted the
numbers to be zero, and the compromise between members of the community at the time and the
position that the Community Association took and worked for years with DOBOR was the 5
permittees, 30 passengers per day, and then plus crew, which is 170. So what you see in the
DOBOR rules is that 5 permittees, 30 per day. That's not what's happening now. One (1) or
two (2) of the boating companies that have permits have continued to ... well, in Hanalei, I
believe only one (1) of their has continued to abide by those limits, and the others who got their
DOBOR permits and they're running on Sundays, they're running ... some of them 3 trips a day,
so the numbers are higher. It's not (inaudible), but there's a question of fairness to the boating
companies that are complying with the law, but I guess that's not the issue here for you folks to
worry about. I think the issue here is that you are charged with regulating what happens on the
land, and I would pose the question to you. Mauna Kea says well, if DOBOR ups the number to
200/300, we, the County, will deal with that later. I think that we need to not allow that sort of
loophole to be created, that we need to basically grapple with it. This is the land of the SMA.
When you ... if someone came in for a permit for a botanical garden in the Hanalei SMA ... I
mean, it's not very feasible, but ... or an amusement park in the Hanalei SMA, you would not just
say fine, an unlimited amount of people. You have the right to basically, and the duty to say you
can have an amusement park that can only be so big. It can only accormnodate so many
customers is what we project. You have to have parking for those things. So your duty here is
to, I think, come up with a number, and not to leave an open -ended number that then the State,
which of course doesn't have any duty, to look at the SMA. Their kuleana ends at the high wash
of the waves. The County starts imauka of the high wash of the waves, and it's the only body that
has that duty, or the Plarming Department and the Planning Commission. So as to the numbers, I
think it's a very important issue and one that you should use the numbers that are currently
in ... to me, the conservation approach is use the numbers that are in HEMP which happen to be
the numbers that are in the DOBOR rules. There's nothing inconsistent about putting the 170
number in the SMA Use Pen-nit. And then if, at a later time, DOBOR wants to increase the
numbers, as Mauna Kea says, at that point, we'll deal with that issue, but at least we'll know that
at this point we're protected. And then possibly if DOBOR wants to increase the numbers,
they'll have to come and negotiate with the County because they know a new County SMA
Permit has to be put in. So I'd say the County should have the upper hand on this. The County
is the body that we feel protects us the most, rather than the State. So as for the numbers, I think
the numbers are those that the Hanalei community has generally said it can live with and
supports, and we would hope that you'll recognize that and say that's the compromise and let's
all put those numbers in and then we are consistent with HEMP, the community, DOBOR, and
the SMA Pen-nit.
Chair Mahoney: Any further questions?
Mr. Abrams: Yes. Carl, I know you've talked about the cumulative impact, which, from a
boating standpoint, that was very apparent in the early 90s when it all carne down, and now it's
apparent with the TVRs of concern that deal with that. Do you think if it was like a Hanauma
Bay, where there's no commercial activity there, that the cumulative impact has risen to a level
that park and that whole Hanalei Bay itself is going to be very congested and possibly at its
peak? Even with just the amount of people that may be coming from Po`ipu or other parts of the
island to visit for the day. Is it something that the boats ... I mean, I understand that right in that
76
small area, it is the biggest impact that is there from what I can tell, but do you see that as
something that's just not going to go away and that to have a baseline game plan, shall you say,
about how many would be allowed is the maximum that is acceptable, I guess at that point, in
order to continue on doing this; otherwise, it would be just futile and it would be more, shall we
say, appropriate to just simply say none. And in effect, do what the State did, which I thought
was something that kind of helped the situation and maybe it didn't, to move them all over to
Port Allen where they had to come from a commercial area and stage there and all of that that
did that. Is that something that is, sort of, what is the feeling that generates your positions here
for the Limu Coalition?
Mr. Imparato: I think we've gone beyond the stage of saying that the number can be none.
People have, in a sense, made their peace with the number that's there, and they recognize ... or I
certainly recognize that there was the Federal court order basically saying that number zero is not
acceptable. Judge Gillmor did state that the State could ... and County could reasonably regulate,
but that zero was not reasonable regulation, and much of that whole discussion focused on one of
Mauna Kea's quotes during his presentation. It made clear... focused on whether there were
impacts in the water and that's not what we're talking about here today. But I think no one can
argue very credibly right now for zero given the history of the court rulings. On the other hand,
the ... Judge Ezra, in September 1996, recognized that HEMP was legitimate. The process
through... which HEMP was created was legitimate, and he stated that the guidelines are not
arbitrary or irrational. They were formulated in consideration of environmental, economic, and
social impact of commercial boating on the Hanalei community, rationally related to the
County's legitimate interest in protecting and preserving the Hanalei Estuary. So there are courts
that have basically said it's reasonable to have a number, and we have a number right now that
we've made peace with, and increasing it ... every little bit makes things worse. As you're
probably aware, you know, there were maybe 10,000 tourist units on island now, but there were
3,000 more that are already ... have been approved by this Commission. They're fully vested and
they will be built at some time. We have to cope with that. The question is how do we cope
with it? Will it be that we will have 6 boat companies? Or double the amount of boat ... restrict
the amount of boat tours? I would say that what we need to do is keep the number where it is
now and then a certain amount of that tourism will not further come into Hanalei. So every little
bit ... you know, it's almost like the straw that breaks the camel's back. Let's not increase it.
Mr. Abrams: Yeah. Thank you.
Ms. Nogami Streufert: HEMP says 170, but there's also indications that there were ... it used to
be up to 204 because there was one that was already operating at that time. Is that ... would that
make a significant difference to you? Whether it was 204 versus 170?
Mr. Imparato: Well, what we're consistent with is HEMP did have the number 204, and that was
when they permitted 5 boat companies and 2 kayak companies. So when HEMP came out, the 2
kayak companies roughly had about 30 a piece, okay. And then the boating companies, actually
some of them were not even allowed to take 30 passengers out; some were at a lower number.
So the HEMP cap was 204. Now, there is only one (1) kayak company permitted in Hanalei and
the other one has departed. So when we take the 204 number and take off the 34 for that one
77
kayak company that leaves us with 170, so the 170 number is entirely consistent with the 204
once you siphon off the number that's already been allocated to the commercial kayak company.
Ms. Nogami Streufert: So you're still assuming that the kayak company would be operating with
34 per day?
Mr. Imparato: That's what their permit allows them to do.
Ms. Nogaini Streufert: Okay. And if I could ask one more question on that ... not on that, but on
something else. Commercial staging areas equal to or not equal to parking areas? Or including
versus not including? I've gotten ... Mauna Kea has one perspective, you have another
perspective. Would you elaborate on that?
Mr. Imparato: There's no accurate definition of commercial staging area, and that's our concern.
While in one person's mind that may include the parking, it's very possible and this has been a
problem. We used to have actually 3 boating companies in Hanalei that were operating under
the Federal court order. And then when the DOBOR rules came into play in 2011, two (2) of the
permits which hadn't been used for many years, which were dormant and should have
been... actually never been reissued, they should've been gone through attrition, those 2 permits
were actually given out by DOBOR, so now we have 5 boating companies ... 5 boats. The
companies that carne in actually forced out one of the other boating companies from their
commercial premises where they had parking. They lost their parking. And it's been a problem,
so indeed, there's a very distinct possibility that the staging areas in shopping centers may
be ... have to be ... just because the shopping centers themselves in Hanalei are at capacity ... may
have to be different than the parking areas. They may not have to be, but they might, and so it's
just very important, I think, to distinguish very clearly what we mean so that we don't have
people gaining this language in the future. I think the intent, as Mauna Kea is saying, is that
well, if they have staging areas, that's where the parking is, and then really, what's your
problem, Limu Coalition? And I guess we see that there is always room for an attorney to say
that's a staging area, I'm talking about parking area. I'm not violating this rule. So all we're
asking for is clarification, not a substantive change, but really a clarification to the intent that
Mauna Kea has already stated.
Mr. Trask: If I could just add to that. Again, I'm not ... Parks Department is not trying to make a,
you know, a big deal about this. We think commercial staging is (inaudible), and that's
specifically because Parks Department can only ask for a pen-nit for its property, Black Pot
Beach Park. If someone has a commercial staging area that they need a Commercial Use Pen-nit
for in Hanalei, they need to come before you in order to get the permit to do that. So whoever
Operator "X" is, that staging area would come to you. It's not like they can do that without your
pennission, and so you could have that regulate ... or, you know, if someone says I'm going to do
a boating operation in Hanalei, I need a staging area. Do you have a State permit? You can ask
that question. Do you have a Federal permit? Do you have the County permit? No. Where's
your parking? How are you going to shuttle to and from? So again, these ... that's the
interrelation between these rules and these situations. The Parks Department does not think they
can possibly address everything in this one application. All the Parks Department can do is look
to Black Pot, its property, and that's ... and I just thought that may be helpful.
78
Ms. Nogami Streufert: Okay. Thank you.
Mr. Imparato: If I could, I agree that the Parks does have to look to its property. But the
Commission here has to look to the broader SMA, and that's why we turn to you to add the
additional conditions that are necessary.
Chair Mahoney: Okay. Okay, so we've ... any other questions for the applicant or intervenors
from any members of the Commission? So we've heard testimony and questions, and now
there's a ... what we can do, and I'll have the County Attorney correct me if I misspeak, adopt the
Decision and Order as submitted by any of the parties, with or without revisions, or take action
on the matter and may require the Department or the party to the proceedings to submit a written
Decision and Order that confirms to this evidence. So we can explore what our decision - making
would be today; to adopt the applicant's testimony and request fully, to adopt the intervenor's, or
to adopt part of it and add conditions from, say, the Parks Department and something from the
intervenors. So those are some of the options that we have to explore if I am correct and if I
have left anything out, which I may have. But maybe we can explore some of that right now. I
know everybody has listened to a lot of testimony today and there's coffee going around.
(Laughter in background) So we'll get some synapses happening, and ... you know, it's been a
very complicated issue for many years and I'm just going to ... if nobody's jumping up to speak
right away ... I'm going to mention... Well, as far as ... doing nothing is not going to help us any,
that's for sure, so ... and I think from the testimony from the applicant is to get some rules into
place and then work with them, and then there were concerns from the intervenor. You know, a
good part of Hanalei is their very concerned citizenship up there who take active roles in their
community. But, you know, and the threatened... you know, we've seen lawsuits and things
happen throughout the County, and not that we're afraid of snaking decisions based on, you
know, veiled threats, but we don't, you know, just to approach something that ... to get some rules
into place that we can work off of and then, you know, amend. Because there's going to
be ... with population growth ... and if there was not another boat added into the water, just the
population growth is going to happen on Kauai in general, there's going to be more and more
people there throughout the years. So, you know, I'm willing to explore, you know, accepting
the Parks Department's testimony and open to listening to any conditions from the intervenor.
Anybody have any additional comments?
Mr. Keawe: Well, I think it's ... you know, in all of the testimony, I think there's no question
that, you know, rules need to be implemented. I think it's more a question of, you know, do we
go ahead with accepting a D &O from one side as -is? Or making some adjustments to that
D &O? And for me, you know, my concern is just about the number of people per day. The
other part I had a question on is who's going to enforce that? You know, if we decide to ... I
mean, it doesn't make any sense to say okay, you can't ... 170. Well, who's going to check? And
do they have resources to do that? And is there a budget to do that? Are there people to do that?
Chair Mahoney: I think that was mentioned earlier that there were some appropriations made, if
I'm correct, in 2013 from the Parks Department that hasn't been used.
Mr. Keawe: But that was 3 years ago.
79
Chair Mahoney: Well, there haven't been any rules either. Commissioner Katayama.
Mr. Katayama: Well, may I ask the applicant a question?
Chair Mahoney: Okay. You can.
Mr. Katayama: Okay. Mauna Kea, in the intervenor's desire to put a cap number in the way it's
worded in his D &O, shall not allow more than 170 persons per day, including passengers and
crew, is that applicable or enforceable? Or is this meaningful on the SMA shore side? I mean,
how would you measure that? And how would you enforce that number? Because that's sort of
on the makai side of the shoreline.
Mr. Trask: Like all regulations, there's going to be some difficulties ... there's going to be some
difficulties regulating it as it is, so there will be some difficulties again regulating any of the
counterproposals, and that is just ... I don't know. I know Parks Department is going to try their
best to do that. I think that if the numbers get changed per the intervenor's said ... or per their
request, that's going to be your decision, and I'm not going to give you a Chicken Little
argument regarding it. But if that's the call, then Parks Department will take the pennits, receive
the permit as you issue today, and then have discussions with DOBOR, as far as what does this
mean as far as what you're allowing in the water. Because if there is a discrepancy between the
County and the State, there is less cooperation, and that's really what is necessary here; it's
cooperation. And I think that's ... if you look at the record, regardless of the ins and outs or your
opinion thereof, it's clear that the State and the County need to work together better, and that's
what we're really seeking. So whatever your decision is today, just be assured that Parks
Department will do everything it can to seek further cooperation from the State, and if necessary,
the Federal Government.
Mr. Katayama: According to the rules in DOBOR, that's precisely stated. Now, it's been
implied that those numbers are being violated as we speak, so I think, again, we have an efficacy
issue, as well as a governance issue.
Mr. Trask: I don't mean to denigrate any of the representations made today, but there is no
evidence of that in the record. I have heard those allegations, too. I don't know the extent of
whether they're true or not, but definitely, it's serious and a lot of people say DOBOR's
not... State doesn't do enough, the County doesn't do enough. I know they generally try as hard
as they can, so with that, definitely need to continue to communicate with them and see what's
going on.
Chair Mahoney: Yes ... okay, and as we go forward, you know, maybe we can ... you know, we
had our question, and you can ask this one, but let's kind of start moving to us deliberating what
we've heard so far. But you can ask that question.
Ms. Nogarni Streufert: Has the ... the Planning Department, has the Planning Department issued
any guidelines for the numbers of people that they think is appropriate for this area or for
commercial boating?
I
Mr. Roversi: Not to my knowledge. The Department has instructed me that for this issue and
the—whether to grant this SMA Permit for Parks' rule making or not is ... the Department is
content to leave that to the wisdom of the Commission in light of the testimony presented by
Parks and the intervenors.
Ms. Nogami Streufert: And if I could ask ... I'm sorry, would you... If I could ask Mauna Kea
one question on the submission by the Limu Coalition, the very end of it, which is Conclusion of
Law 43. It's at the very last page. If one were to eliminate that sentence, what would be the
impact?
Mr. Trask: Subject to further clarification of the client, I don't think that this would be
something that ... the Parks Department is not looking to bring litigation against the Planning
Commission. We're presenting everything to you we think is reasonable and ask for that. And
it's kind of how the Department sees it. You could change "ancillary" to "co- equal" or however,
or you could strike it.
Ms. Nogami Streufert: Is there any impact is what I'm asking.
Mr. Trask: I don't ... let's see. So it would read specifically, let's see, the County believes that
the program is consistent with the aforementioned laws... We'll defer to you. We're not going
to make a big issue about it today.
Chair Mahoney: Okay. At this point, we're going to take a caption break. 15 minutes.
The Commission recessed this portion of the meeting at 3:53 p.m.
The Commission reconvened this portion of the meeting at 4:05 p.m.
Chair Mahoney: Call the meeting back to order. Okay, you left off and ... we had some
questions. You know, let's kind of formulate a little plan for going forward. So we did have our
question and answer period, but just in fairness to everyone, we can go around, you know, and
we did listen to a lot of testimony and a lot of history/background. We have four (4)
representatives and to be fair to the Commissioners, we're going to go around for any questions
and concerns. And I think we should move towards deliberations, and then the deliberations
between us, start formulating some idea ... the direction we want to take because we don't want to
be here another 30 years. (Laughter in background) No, but let's answer our pertinent
questions. So Commissioner Streufert, do you have any other...
Ms. Nogami Streufert: Just a note, under 112, which says, under the County Boating Rules, the
maximum number of passengers permitted to participate in a commercial boating activity
authorized by these rules within the County park shall be limited to that number allowed in the
operator's current and valid Ocean Recreational Management Area Commercial Permit issued by
the State of Hawaii, Department of Land and Natural Resources, Division of Boating and Ocean
Recreation, and any and all permits issued by the County, including but not limited to SMA,
zoning, and -or land use permits. That being the case, that automatically, I think, takes into
account some of your concerns, Mr. Imparato, about the numbers of people because DOBOR has
already established some limits on that. Or does that?
81
Mr. Imparato: It doesn't. I mean, that ... exactly our concern is that DOBOR can choose to
change its limits, and in changing its limits, DOBOR is under no obligation to consider any
impacts on the SMA at all. The only ... their jurisdiction is the water, so the concern is exactly
that. I had a hand in actually writing that section, and the understanding at the time was that we
would achieve protection for the land through the language that said "and subject to any SMA
Use Permits." That brings us to where we are right now with the idea that the County
should ... the Planning Commission should add that number there. And again, it's a number
consistent with DOBOR, and I wouldn't see the harm in it, but I would see that it does prevent
DOBOR from unilaterally changing its numbers to... as they've been pressured to do by some of
the boating companies.
Ms. Nogami Streufert: Thank you.
Chair Mahoney: Commissioner Ho, do you have any questions?
Mr. Ho: No questions. I think the people of Hanalei want these regulations. They need it. The
place ... it's just bad. They just need to get it organized, and they need a sheriff out there; that's
what they need. And this is long and coming, and I think we should move on it.
Chair Mahoney: Okay. Thank you. Commissioner Abrams. Thoughts?
Mr. Abrams: (Inaudible)
Chair Mahoney: Commissioner Katayama.
Mr. Katayama: I think what would be really helpful for us to sort of look at this and organize it
is that we get copies of both parties' D &O, and we start crafting what we think we'd like to
adopt. And if I'm looking at my notes with parties' testimony, I think, you know, we can insert
some of these issues and then vet it again before the party. Right now, it's sort of a patchwork,
at least in my mind. It's not on paper. I don't know if anybody took notes, but I got notes and
arrows. I don't have it on a hard copy where somebody could, you know, do a, sort of, draft for
our review in the D &O. Because, you know, I think the intervenors have brought up some good
points. I don't know if it's practical or enforceable, right? I think that's what we got to vet.
Chair Mahoney: Part of the opening statement there about adopting a decision as submitted by
any of the parties with or without revisions, or take action on a matter ... may require the
Department or the party to the proceeding to submit a written Decision and Order that confirms
the evidence. If there's parts that ... you know, I think the contentions from the intervenor and the
applicant weren't that far off, except for some conditions; you can correct ire if I'm wrong. Mr.
Imparato, did...
Mr. Imparato: If I could clarify on that.
Chair Mahoney: Yes.
82
Mr. Imparato: On the very last page of the document that I handed out today, basically what we
are willing to say is reasonable is that we would basically adopt ... if you look at 2(b), adopt the
applicant's Findings of Fact, Conclusions of Law, and D &O with the exclusion of that one (1)
sentence and with the addition of 2(a), those three (3) conditions, which are actually not even
necessarily inconsistent with the D &O of the applicant because the applicant says please approve
the permits subject to whatever additional conditions you may find reasonable. So I think it's
not that... hopefully not that hard, unless you have other ideas, to basically merge these two (2)
things together. You just take the applicant's thing and, from our perspective, remove one (1)
sentence and add three (3) extra conditions to the SMA Use Permit.
And if I could respond to your previous question because one thing (inaudible) you asked, as did
Commissioner Keawe, about enforcement. There's a difficulty in enforcing from the water.
Photographic evidence is hard to find. In Hanalei, we have a strong Makai Watch Program that's
a program where citizens provide eyes and ears for DLNR. If the County's law does include
these numbers, then citizens can basically see and photograph the number of people who are
exiting from the vans to go onto the boats, and there is a real way to provide the enforcement.
Mr. Katayama: I guess my question to our counsel is if you look at things like no commercial
boating activities shall take place on Sundays, isn't that outside of the purview of this
Commission? Because that's happening makai of the no -cross line.
Ms. Higuchi Sayegusa: Right. Perhaps we could amend that sentence to focus more on the land -
based types of impacts, which is within our purview; not necessarily the boating that's being
engaged within the water, which would probably be the State that regulates that part. So perhaps
we could...
Mr. Keawe: So you would change it to something like no commercial land -based boating
activities?
Ms. Higuchi Sayegusa: No land -based commercial boating activities shall take place on
Sundays.
Chair Mahoney: Is that even a...
Ms. Higuchi Sayegusa: Or land -based activities related to commercial boating activities.
Mr. Imparato: That is the intent.
Ms. Higuchi Sayegusa: Right.
Chair Mahoney: Can we hear from...
Mr. Trask: And again, that is the intent that the County Parks' property, you know, would not be
used for boating on Sundays. If they were to launch from Port Allen on Sundays and go in
Hanalei, that's a different issue.
83
Mr. Katayama: What about 2(a)(iii)?
Chair Mahoney: Can we get the Parks Department on 2(a) and your perspective on that and the
conditions that the intervenor was...
Mr. Roversi: Could you be more specific as to your question? This is Adam Roversi for the
Parks Department... Planning, sorry.
Chair Mahoney: Okay. On 2(a)...
Mr. Roversi: Were you asking to hear from...
Chair Mahoney: From Mauna Kea. I'm sorry.
Mr. Roversi: Okay. Pardon ire.
Chair Mahoney: I'm sorry, the Parks Department. I apologize. From Mauna Kea. So on 2(a),
what is the applicant's perspective on adding those conditions?
Mr. Trask: We would prefer that stated numbers not be included, that DOBOR sets the numbers.
Again, the current rules provide nothing on Sundays. If you want to add that condition, that's
your kuleana. And regarding commercially- permitted versus commercially staging parking
areas ... or commercial staging areas versus commercially- pennitted parking areas, again, we
don't want to make a mountain out of a molehill. We'll just defer to you; that's within your
authority. We're just committed to see this program work the best we can.
Chair Mahoney: Okay. And on 2(b), what was the sentence that should be deleted? Because the
County is only permitting those operators with a State DOBOR pennit, the County sees its role
as ancillary to the State of Hawaii who is actually permitting the activity in the water where the
actual activity itself is taking place. And that was ... ain I correct? That's the request from the
intervenor to strike that?
Mr. Imparato: Correct because the activity that we're concerned with is not taking place in the
water. The actual activity that we're concerned with is the activity on the land. And secondly
because the role is not ancillary, it's primary (inaudible).
Chair Mahoney: Okay.
Mr. Trask: Maybe if ..Parks Department would suggest the revision just to the word "ancillary ";
just to recognize the dual jurisdiction, but maybe that it's more cooperative or co- equal. We
think that's fine, but we would like the Conclusion of Law to reflect that it's not just the Parks,
whether it's primary or secondary, maybe "co- equal" or "cooperative" is a better tern.
Chair Mahoney: Commissioner Keawe.
84
Mr. Keawe: So we've covered that. Going back to 2(a)(i), so the concern, Carl, is the potential
for DOBOR to increase the number. Is that right?
Mr. Imparato: Correct.
Mr. Keawe: Because we agree that we're currently at this level for both; however, there's
nothing to prevent them from increasing that number, in your opinion.
Mr. Imparato: Correct. They'd have to go through a public process and all, but...
Mr. Keawe: True. They still have to go through their public process to do that.
Mr. Imparato: But it would be driven by, as we've seen with other things, Honolulu in certain
ways, we have a higher hurdle to achieve in order to hold the line, and again, the problem would
be that if they do that increase, if you don't have the number here, there's no obligation for
anything to come back to you. If you just say ... if you don't put the 170 number in, then when
DOBOR changes the number to 300, the County just says okay, we go along. And that's our
concern. The County does not handover the keys to Black Pot Beach Park to DOBOR to have
authority over the land when it really only has authority in the water. So that's why it's ... both
parties need to say what the limits are, and we're talking about limits that are identical at this
point, which are consistent with HEMP and the community's understanding.
Mr. Keawe: Would there be a situation where they would not be identical?
Mr. hnparato: Well, very easily DOBOR could... because some of the boat companies want to
do this and are doing it already, illegally... they want to run three (3) boats per day, so DOBOR
would change HAR to basically change the number from no ... that each permit shall be limited to
30 passengers a day, they'll just change it to 45 passengers per day. And of course they'd have
to have a public process, but...
Mr. Keawe: Well, since they instituted those rules, has there been an indication that ... have they
done that?
Mr. Imparato: They have not. What's happened is...
Mr. Keawe: And how long has that been in place?
Mr. Imparato: The rules have been in place for about 4 years now.
Mr. Keawe: Okay.
Mr. Imparato: There has been pressure from some of the boating companies to operate three (3)
trips per day. Some of them are doing three (3) trips per day, outside the rules, but the rules
aren't being enforced. I think part of the problem is that people are waiting for the County to get
its part together, too. Hopefully with the County basically saying the number is whatever
DOBOR says, then those boating companies that want to increase the amount of activity only
85
have to fight at ... or whatever they need to do with DOBOR rather than have to deal with two (2)
bodies increasing the number.
Mr. Keawe: But it's still a public process.
Mr. Imparato: It's a public process, but to be honest, I think ... I feel and I think a lot of people in
the community feel we get a fairer hearing here than at the process that we have from the State
because there are other factors driving decision - making.
Chair Mahoney: Okay. Would you agree that the 170 per day is reasonable now?
Mr. hnparato: Of course because it's consistent with what we, as a community association,
said...
Chair Mahoney: Okay, so what I...
Mr. Imparato: Okay.
Chair Mahoney: The point I was trying to get to is if...you know, I think part of this was, you
know, maybe some long -range cooperation and that if .. And would we be ... Mauna Kea, could
you contribute to that?
Mr. Trask: I just wanted to ... this thought just occurred to me; just to further illustrate the
complexity of this issue. One of the things that the Young case focused on was that the State
didn't proffer any evidence that, you know, that there was adverse impact with the commercial
tour boat operators, as opposed to non - commercial tour boat operators. So hypothetically in the
future, I agree that the State should be looking at these things in the water, you know, Hanalei
River Estuary. The Endangered Species Law has grown ... the application of that law has grown
leaps and bounds since the late 70s; you all can see that. What if the State goes and does that
EIS, and they find that oh, you can up it without ecological impact? Again, I'm just proffering a
hypothetical. And it's accepted by OEQC and it's accepted by whatever and that's okay. It
would ... this never would, then, have to be changed as well. Would this body be able to go
against that science? It can go either way is what I'm trying to say, and that's why I think that
regulating the boating numbers ... and Parks believes that regulating the boating numbers is best
suited with the regulatory body that has direct control over that, and they need to be looking at
this because right now, we are working with the best that we have. But if the Planning
Department ties itself to ... the Planning Commission ties itself to any number, whether it goes up
or down, you are going to have to revisit this. And then, again, if there's discrepancy between
the State rules and the County rules, those are loopholes, those are avenues for less organization,
you know, more confusing regulation. Just wanted to throw that out there.
Chair Mahoney: Okay, thank you.
Ms. Higuchi Sayegusa: So it seems that there's... we're making somewhat progress and that
we're narrowing down the possible amendments to the Parks' proposed Findings of Fact,
Conclusions of Law, and Decision and Order; (1) that the conditions that Limu Coalition and
::
Carl Imparato proposed within his submitted final arguments would be included with the only
amendment to 2(a)(ii), no land -based activities related to commercial boating activities shall take
place on Sundays. We're still deciding the issue on DOBOR versus the 170 persons per day
limit, but the third condition seems okay. And then it's a matter of striking "ancillary" and
putting "co- equal" in the proposed amendment to the Conclusions of Law 43.
Mr. Katayama: Well, isn't 2(a) items i, ii, and iii, we need to craft it somewhere within the body
of the Parks and...
Ms. Higuchi Sayegusa: Yeah, so that would be added to the Decision and Order. Am I correct?
Mr. Katayama: What paragraph?
Ms. Nogami Streufert: 2(a)(ii) looks very similar to 113.
Ms. Higuchi Sayegusa: Okay. Of the ... is that the Conclusions of Law?
Ms. Nogami Streufert: Yes.
Ms. Higuchi Sayegusa: Okay.
Ms. Nogami Streufert: Under the County Boating Rules, no commercial boating activities shall
occur within the County parks on Sundays.
Ms. Higuchi Sayegusa: Okay. So we could...
Mr. Katayama: 113?
Ms. Nogami Streufert: 113.
Mr. Imparato: If I could, when you had a similar issue come up with the SMA Minor Permit for
the commercial surf schools in Hanalei, the conditions were just added within the SMA Use
Permit and subsequently, Parks, then, recrafted its rules to incorporate those into their rules. So
you can put those conditions into the SMA Use Permit without putting them into Parks' rules,
per se.
Ms. Higuchi Sayegusa: Right. Because, I mean, at this point, these items, the Conclusions of
Law that were included, I think it's from 110 onward to ... at least to 129 or more, that's kind of
just a summary and overview of what the Parks Rules at this point is going to include, so really,
it's ... those conditions would have to be, I guess, made a part of the condition of the Use Permit,
which will then maybe constrain the drafting of the Parks Rules.
Chair Mahoney: Okay. Alright, so we're at a point of...
Mr. Katayama: We're going to get some hard copies so we can kind of look at it.
87
Ms. Higuchi Sayegusa: But really, I think it's just Item 43 ... the Conclusions of Law No. 43.
Mr. Katayama: Well, I think there's some debate on the ... Item 2(a)(i) on the 170.
Ms. Higuchi Sayegusa: Right. So I would think that these conditions that are proposed would
be, you know, incorporated in the Decision and Order portion, so nothing ... not really touching
the Findings of Fact, Conclusions of Law, but those things would be ... could be incorporated
with the Decision and Order. But, I mean, the one thing to consider for the amendment is
the ... Item 43 of the Conclusions of Law, that one sentence that's being proposed to be either
taken out completely or instead, striking "ancillary"... leaving that sentence in, striking
"ancillary", putting "co-equal"... replacing with "co- equal ".
Mr. Katayama: What's the word?
Ms. Higuchi Sayegusa: "Co- equal ".
Mr. Keawe: Co- what?
Mr. Ho: Equal.
Ms. Higuchi Sayegusa: So, again, it would be...it would read, "Because the County is only...
Mr. Katayama: Is that a true statement though?
Ms. Higuchi Sayegusa: I mean, we heard a lot of testimony kind of circling that. You know,
really, the County has jurisdiction over the land -based types of activities and the impacts related
on the land, but you know, obviously there is the interplay between the land because they
eventually enter the water and they actually do the boating activity, so I mean, it's... (Laughter)
It's related, and so, you know, I guess I don't ... I personally see a problem with the word "co-
equal". It's really a wordsmithing exercise for your folks' consideration, but...
Mr. Katayama: Mauna Kea, correct me if I'm wrong, the reason why you put that statement in
there was to clarify that the County is on the makai side of the waterline.
Mr. Trask: Mauka. Correct.
Chair Mahoney: Mauka.
Mr. Katayama: Mauka.
Mr. Trask: Correct.
Mr. Katayama: And the State takes care of anything below ... makai of that.
Mr. Trask: The Parks Department feels that based on the record, that's where the respective
parties have been placed.
88
Mr. Katayama_ Yeah, so I don't think "co- equal" is the right word.
Mr. Abrams: Mauna Kea, I keep going back to rational nexus, something that would survive
someone challenging whatever we are doing here, and I'm thinking the nexus seems to be more
driven by the Coast Guard's capacity carrying for boats. Was there any thought given to, I
guess, the amount of boats that could arrive at one spot between a period of time, and be able to
pick up passengers and ferry them down to wherever and come back and unload as terms of
capacity that would be rational, I guess at that point? Where you could—because at that point, if
they're parking somewhere and staging somewhere else, their impact is really there at the park
for a period of time; I guess driving in and driving out, and then that's it. It would be something
that may be ... and obviously, most of the boats could not get in there if they were Pearl Harbor
cruise boats or something like that, so there is some guidance, I guess at that point, to come up
with something that may not be tied to just a number.
Mr. Trask: Yeah, and DOBOR has extensive administrative rules pertaining to all that. And
then even if you have, you know, both commercial and recreational boating, there's no wake
zones, there's swimming zones that you can't go in, there's speed limits enforcement, limited
mooring capacity, limited mooring areas. The only ingress /egress into Hanalei Bay is either up
to Pavilion Park or the river mouth.
Mr. Keawe left the meeting at 4:31 p.m.
Mr. Trask: So there's a ton of regulations that DOBOR ... and I'm not going to speak
authoritatively about it, but I'm sure they do address, generally, not necessarily in the Hanalei
rules, but carrying capacity of certain vessels, you know, the depth of a bay, all that kind of stuff
is very important.
Mr. Abrams: Yeah, yeah.
Mr. Trask: And then that's within the State's jurisdiction.
Mr. Abrams: Where some of these ones, like for instance, even Sunday. I mean, I understand
Sunday is a very busy day from the recreational side of it and maybe not the commercial.
Whether there's a nexus that other jurisdictions are not allowing it on Sunday, I don't know
whether that would be rational or not, but all of those thoughts should probably be talked about
other than the fact that, you know, a number of these things are for limiting it down, and in
effect, trying to go ahead and come up with some sort of rules on whether it's a County, or
DOBOR, or whatever, would be something that it would behoove some sort of interaction at this
point between the State. Perhaps our legislators could help get part of it. I don't know whether
it comes up under an EIS. I mean, I'm not quite ... I can't remember exactly whether ... I think the
EIS was not required when the first boaters were put up in front of having to go ahead and come
up with some sort of process or the Planning Commission was to come up with some process to
allow, where that was...
Mr. Trask: Yeah, there were EIS's conducted, as Mr. Imparato has said and Mr. Sheehan said.
And it's always been ... but then when DOT went in, they said it wasn't a development, its
89
regulatory rules, we don't want to do that. So I think you have good points. The Parks
Department position is that the State definitely has the authority and is best placed to look at
boating capacity and carrying capacity, which would then affect how many can traverse over the
park, and I can't speak to that right now, but you bring up a good point.
Chair Mahoney: Okay. Okay, so we have a...
Ms. Higuchi Sayegusa: So getting back to the proposed amendment to Conclusions of Law No.
43, perhaps we can settle on other words for "ancillary". There is "in collaboration "; "as in
collaboration to ". So it would read, because the County is only permitting those operators with a
State DOBOR permit, the County sees its role as...
Mr. Katayama: Collaborative.
Ms. Higuchi Sayegusa: Collaborative with the State of Hawaii who is actually pennitting the
activity in the water where the actual activity itself is taking place.
Mr. Katayama: How about "permitting authority "?
Ms. Higuchi Sayegusa: Okay. So, as collaborative with the permitting authority who is actually
permitting the activity in... Is that...? Who is actually permitting the activity in...
Mr. Katayama: State of Hawaii who is the permitting authority for the activity in the water
where the activity is taking place.
Mr. Keawe returned to the meeting at 4:35 p.m.
Ms. Higuchi Sayegusa: Okay. So ... sorry. So, because the County is only permitting those
operators with a State DOBOR pennit, the County sees its role as collaborative with the State of
Hawaii who is actually the permitting authority of the activity in the water where the actual
activity is taking place. Okay?
Chair Mahoney: Are the parties in agreement of that change in the sentence structure? From the
Parks Department and Intervenor. Are you guys in agreement with the changes in the sentence
structure?
Mr. Trask: Parks has no objection to the collaborative...
Chair Mahoney: Instead of "ancillary ", "collaborative ".
Mr. Trask: Yeah.
Mr. hmparato: And no problem with the "ancillary" to "collaborative ". The other problem is the
very last phrase, "where the actual activity itself is taking place ", because that leads to the
construct that all of the activity is taking place in the water, whereas there's all of the activity
a
that's taking place on the land, which is really what's being dealt with. I would suggest maybe
just deleting the last words after "water ", "where the actual activity itself is taking place ".
Mr. Trask: And we'd just say that the threshold requirement for a County Peddlers and
Concessionaires Permit is the DOBOR permit. You have to be permitted by DOBOR in order to
get this. There is no way around it. And because we, the Parks Department, recognize that and
that's the threshold requirement, we're not trying to argue whether it's, you know. It
really ... we're avoiding the chicken or the egg. It's you need the DOBOR first, then we'll even
consider you, and so that's why we believe ... and you only get the DOBOR permit because
you're running commercial boats. It's semantic to a degree, but given that the DOBOR permits,
the threshold issue, we just ... that's why we wrote it that way.
Chair Mahoney: Okay.
Ms. Higuchi Sayegusa: So I can read the current state of how it would read, that one sentence in
43, "Because the County is only permitting those operators with a State DOBOR permit, the
County sees its role as collaborative with the State of Hawaii who is actually the permitting
authority of the activity in the water." Okay. Is everybody in agreement?
Chair Mahoney: Or does ... I mean, if the sentence starts off, "Because the County is only
permitting operators with a State DOBOR permit... ", and that would automatically signal that
it's water -based already that they need that; that would be the first step. That kind of...does that
set the tone to...?
Mr. Trask: Parks will defer to Commission on that specific point.
Chair Mahoney: Okay. So we ... operate with a State DOBOR ... it already states that you have to
have...
Ms. Higuchi Sayegusa: Okay.
Chair Mahoney: With a State DOBOR permit, the County sees its role as ... what is that?
Collaborative.
Ms. Higuchi Sayegusa: As collaborative with the State of Hawaii
Chair Mahoney: And then ... with the State of Hawaii, and the rest, where the actual activity
itself takes ... is almost redundant to the DOBOR permit that's in the first clause.
Ms. Higuchi Sayegusa: Okay. So...
Chair Mahoney: Is that satisfactory? Or more confusing? Or what? Anybody have any...
Okay, what are the objections? That was...
Ms. Higuchi Sayegusa: Well, it seems like we are almost there. I think we could either keep it
as I've read it, or we can, as ... Chair, as you suggest, we can further amend it to, "Because the
91
County is only permitting those operators with a State..." I'm sorry. Retract that. "The County
is only permitting those operators with a State DOBOR permit." That's the other option; that
one sentence.
Mr. Katayama: Can we add "valid "?
Ms. Higuchi Sayegusa: Okay. With a valid ... okay, so "The County is only penmitting those
operators with a valid State DOBOR permit." Okay? So that's currently the proposal there.
Chair Mahoney: Any objections on that? Okay, hearing none. Let's move on to...
Ms. Higuchi Sayegusa: Okay.
Chair Mahoney: What else do we have in...?
Ms. Higuchi Sayegusa: Okay. So I guess the only other issue now is, again, just to resolve the
matter of the proposed 2(a)(i) to be added to the proposed Decision and Order, and so that's the
issue of the 170 persons per day versus leaving it to DOBOR on the limits.
Mr. Katayama: Wliere would you put that?
Ms. Higuchi Sayegusa: And so, we could ... we'd have to include it within the Decision and
Order itself, any conditions to the Use Pen-nit. The exact wording of that, I mean, I can venture
to come up with a draft for the Commission's perusal. And that doesn't have to be vetted today.
I mean, we could just decide on the conditions ... the context of the conditions itself, and then I'll
come up with the proposed, and then it'll be submitted back around to you folks.
Mr. Katayama: What about 2(a)(iii)?
Ms. Higuchi Sayegusa: Right. At least for that, it sounded as if...my understanding, based on
the responses from the parties, is that there's no disagreement by the Parks Department for that
one to be included.
Ms. Nogacni Streufert: For 2(a)(iii)?
Ms. Higuchi Sayegusa: Yes, for 2(a)(iii). So, really, I think we're ... and...we're really on
2(a)(i).
Chair Mahoney: Okay, and 2(a)(i), that's the number.
Ms. Higuchi Sayegusa: 170 versus leaving it to DOBOR on the number.
Chair Mahoney: Does the number contradict the other condition that says we're going to be in
cooperation or collaboration with DOBOR by telling them the number? By not allowing theirs to
decide the number?
92
Mr. Katayama: Well, right now, the regulation allows for kayaking as well.
Mr. Imparato: That's a separate clause in the HAR.
Mr. Katayama: Yes, but in totality, if you look at the total capacity that they are looking at, so
there's really two (2) parts to it. There is the boating portion and kayaking portion.
Mr. Imparato: Correct. And the boating portion ... I don't have the text in front of me ... the
boating portion says may issue up to five (5) boating permits which shall allow up to 30
passengers per day, which that's the...
Mr. Katayama: 150.
Mr. Imparato: That's 150 and then they ... on each of those, the 20 is the crew. Alternatively, if
you wanted to be completely consistent, one could say the applicant shall not allow more than
150 passengers per day, instead of saying 170 passengers and crew, then there'd be more of a
direct nexus because the 150 passengers equals five (5) permits times 30. If you're concerned
about anybody having to do math.
Chair Mahoney: If you're interested in changing the condition, somebody wants to come up
with something to consider, but I don't think we should mess with the number either way. Even
if it's decided to adopt the number by reducing it and stating down below that we want to be in
collaboration with an entity that's going to help us decide the future of the boating by telling
them we want to cooperate, but we want to do it only on our terms. And I understand the, you
know, being the State and the County, but I think going forward, we're going to need all the help
we can to resolve any future problems, but that's just my thought on it.
And I think in a few moments we're going to have to have a ... take a caption break for a change
in the tape, so we can maybe ... a couple more minutes I think.
Mr. Keawe: I think the issue is, you know, do we put a number in or not? That's the bottom
line. So if we don't put a number in, then, you know, it would be something like, shall not allow
more than the current DOBOR limit, or whatever.
Chair Mahoney: Okay. If anybody has any ... how you doing, B.C.?
Mr. Abrams: They actually have that under 112.
Chair Mahoney: Yeah.
Ms. Higuchi Sayeg sa: And again, that's the existing Conclusions of Law, which characterizes
what will be included as a rule.
Ms. Nogami Streufert: I suggest we leave it the way it is right now.
Chair Mahoney: Okay. Commissioner Ho.
93
Mr. Ho: Leave it.
Chair Mahoney: Consensus.
_Ms. Higuchi Sayegusa: Okay. Well, and because that's a Conclusion of Law, I mean, it's just,
again, referencing what may be included as Parks rule. I mean, you could also include...cut and
paste that and snake that into a condition in the Decision and Order, and a condition on the Use
Permit; that's up to you.
Chair Mahoney: Okay.
Ms. Higuchi Sayegusa: So instead of 2(a)(i), we could cut and paste from Item ... the
Conclusions of Law 112, and so it would read something like, the maximum number of
passengers permitted to participate in a commercial boating activity authorized by these rules
within the County park shall be limited to that number allowed in the operator's current and valid
Ocean Recreational Management Area Commercial Permit issued by the State of Hawaii,
DLNR, DOBOR, and with any and all pen-nits issued to the County, including but not limited to
SMA, zoning, and/or land use pen-nits.
Chair Mahoney: Alright. Okay, we're going to have to take a caption break.
The Commission recessed this portion of the meeting at 4:48 p.m.
The Commission reconvened this portion of the meeting at 4:58 p.m.
Chair Mahoney: Call the meeting back to order.
Ms. Higuchi Sayegusa: Okay, so to kind of pull everything together to a possible motion, should
you guys agree with something that I'm proffering, but we could, again, on Conclusions of Law
No. 43, amend one (1) sentence within that paragraph to what we've come up with on the board,
"The County is only pennitting those operators with a State DOBOR pen-nit." And also,
including the three (3) conditions that were suggested by the intervenor, Limu Coalition, and so
based on the notes, so far, I have is, the first condition, either taking that out completely or
include that 170 persons per day as proposed or cutting and pasting something like Conclusion of
Law No. 112 in 2(a)(i). Condition 2(a)(ii) would read ... would generally be wordsmith, and I can
do that myself, is to ... there will be no...no land -based activities related to commercial boating
activity shall take place on Sundays, or something to that effect.
Ms. Nogami Streufert: 113 seems very similar to that.
Ms. Higuchi Sayegusa: Okay. So, I mean, again, I can try to work with exact language of that,
but I think if we could come to an agreement on ... overall ... that's where you want to go, then we
could ... that would be included in the /notion. And then adopting 2(a)(iii) as proposed by the
intervenors, so those would be included in the Decision and Order. So that could be a start of a
possible /notion. You just have to decide whether or not you're going to that 170 persons per
day language already proposed, take that one out completely, or cutting and pasting something
like the Conclusions of Law No. 112.
94
Ms. Nogami Streufert: Would something like 114, which states that the only time ... the
only... commercial boating and accessory activities would be between the hours of 7:00 a.m. and
7:00 p.m. That would also be (inaudible).
Ms. Higuchi Sayegusa: Yeah, I mean, that's ... you can ... that's your option. If you want to
include that in the motion, you can do so, too. We can try to do it as a whole to do globally, you
know, something, or we can go through it one by one. We can go through, one by one, each
proposal and we can make progress from there, if you prefer.
Chair Mahoney: Okay. So what is the Commission's pleasure on this? Shall we take them as a
whole? Try to take it as a whole, or one by one, but let's make a decision on which way we want
to proceed.
Ms. Higuchi Sayegusa: How about we consider the proposed ... the Conclusion of Law ... the
amendment to Conclusion of Law No. 43? The sentence that we worked on there. Is there any
motion related to that item?
Mr. Keawe: Just that item?
Ms. Higuchi Sayegusa: For now. And then we can move forward.
Mr. Keawe: Okay. So...
Chair Mahoney: The wording of the motion.
Ms. Higuchi Sayegusa: I guess it would be ... the first step, we're going to be adopting the Park's
proposed Findings of Fact, Conclusions of Law, Decision and Order with amendments, and the
first possible amendment would be the amendment to the sentence on Conclusion of Law No. 43,
"The County is only permitting those operators with a State DOBOR permit."
Chair Mahoney: Is there a motion on the floor? It's hard to word the ... just...
Mr. Abrams: Wouldn't we want to say "considering "? I mean, because you may decide that
somebody with a DOBOR permit is something you may not want to approve? Say they're
constantly...
Ms. Higuchi Sayegusa: Yeah, so again, it's just amending that one (1) sentence that was
objectionable by the intervenor, and so that's in context of the whole paragraph which was...
Mr. Abrams: Okay.
Ms. Higuchi Sayegusa: Yeah, submitted.
Chair Mahoney: And it's the County is only permitting those with a valid State DOBOR permit.
Ms. Nogami Streufert: Do you want a motion for that?
95
Ms. Higuchi Saeg isa: Yes.
Ms. Nogami Streufert: I so move that Conclusion of Law 43 be changed to ... with that one
sentence being changed to "The County is only permitting those operators with a valid State
DOBOR permit."
Chair Mahoney: Okay.
Mr. Keawe: I second.
Chair Mahoney: Any discussion?
Mr. Abrams: So that's what's being stricken out, or suggested to be stricken out. It's being
replaced with that.
Ms. Higuchi Sayegusa: Yes.
Chair Mahoney: Yes.
Mr. Abrams: And the rest of it is still the same?
Ms. Higuchi Sayegusa: Yes.
Ms. Nogaini Streufert: It's still the same.
Chair Mahoney: Okay. Any further discussion? Hearing none. All in favor? (Unanimous
voice vote) Motion carried 6:0. Thank you.
Ms. Higuchi Sayegusa: Okay.
Chair Mahoney: Can we move to...
Ms. Higuchi Sayegusa: How about we move to the proposed condition 2(a)(ii) as stated in the
intervenor's final argument? And so I guess the concept being that the ... no activities on the land
will take place on Sundays; no land -based activities related to commercial boating activities shall
take place on Sundays, or...
Ms. Nogami Streufert: There's 113 that...
Mr. Keawe: 113, right?
Ms. Nogami Streufert: Right. Under the County Boating Rules, no commercial boating
activities shall occur within the County parks on Sundays.
Ms. Higuchi Sayegusa: Okay.
M.
Chair Mahoney: So that is kind of redundant anyway, right?
Ms. Higuchi Sayegusa: And so we would need a motion for that.
Ms. Nogami Streufert: I move that 2(a)(ii) read, as stated in 113, "Under the County Boating
Rules, no commercial boating activities shall occur within the County parks on Sundays."
Ms. Higuchi Sayegusa: And that would be to be included in the Decision and Order.
Ms. Nogami Streufert: That's correct.
Mr. Katayama: Where would you put that?
Ms. Higuchi Sayegusa: It would just be...it would be, again, within the Decision and Order. I'd
include imposed conditions to the SMA Use Permit.
Chair Mahoney: Okay, so we have a motion on the floor. Do we have a second?
Mr. Keawe: I second.
Chair Mahoney: Okay. Any discussion on the motion from any of the Commissioners? Any
discussion? Hearing none. All in favor signify by saying aye. (Unanimous voice vote)
Opposed? (None) Motion carried 6:0. Thank you.
Ms. Higuchi Sayegusa: Okay. How about 2(a)(iii)? So this is the paragraph that would read,
"All customers and employees of permittees that are authorized by the Applicant to engage in
commercial boating activities in Hanalei must possess off -site, commercially- permitted staging
areas at which all activities, other than loading or unloading of customers at the County park,
shall take place. All customers and or employees of the permittees shall be shuttled to from the
County parks from'to commercially - permitted parking areas. The locations of these
commercially- permitted staging and parking areas shall be specified in each entity's permit.
There shall be no parking on public lands or within a public right of way." So again, the motion
would be to include that language within the Decision and Order.
Chair Mahoney: Okay. The Chair will entertain a motion.
Mr. Ho: How would you craft that, Jodi? How would you craft that motion?
Ms. Higuchi Sayegusa: At this point, I would cut and paste the exact language.
Mr. Katayaama: You know, if you look at Paragraph 36, that's sort of the catch -all for that kind
of language, I would think.
Ms. Higuchi Sayegusa: I'm sorry, 36 in the Conclusions of Law?
97
Mr. Katayama: Yes. Because if you look at the construct of the Conclusions of Law, it's in
some order. So you have a choice of 34, 35, or 36. 36 sounds like (inaudible).
Ms. Higuchi Sayegusa: Again, those are the Conclusions of Law; that's just basically just the
conclusion. If you want to include any conditions that will be, again, translated into a rule, the
Parks' rules when it goes through the rule- making process, that's what we're deciding upon.
Chair Mahoney: So that kind of brings us back to the condition that the intervenor proffered in
Condition iii. If a motion crafted ... what are our options? To adopt it? Reject it? Modify it?
Ms. Higuchi Sayegusa: Yeah. Okay, well, if there's no motion on that, we don't have to include
it, either. So if there's...
Mr. Katayama: I'm good. I'll let it die naturally.
Ms. Higuchi Sayegusa: We don't have to include 2(a)(i) [sic], so if there's no motion, then we
can ... we can discuss 2(a)...
Mr. Katayama: 1... (i).
Ms. Higuchi Sayegusa: (i) first, little ... one (1) (i) first.
Mr. Keawe: Okay. So we covered 2(b), 2(a)...
Ms. Higuchi Sayegusa: 2.
Mr. Keawe: Two (2) i's.
Ms. Higuchi Sayegusa: Two (2) i's. It doesn't sound like...
Mr. Keawe: 2(a)(iii) we are not going to include.
Ms. Higuchi Sayegusa: It doesn't sound like anyone is snaking a motion on that.
Mr. Keawe: And then we still have 2(a)(i).
Ms. Higuchi Sayegusa: One (1) i. Yes.
Chair Mahoney: Okay. And that's the...
Mr. Trask: I just ... may I just ask one (1) question on behalf of the Parks Department?
Chair Mahoney: Yes.
Mr. Trask: If...so just to be clear, if 2(a)(i) is adopted and there is an increase, it's going to
require a new SMA Pen-nit application and preparation of an Enviromnental hnpact Statement.
98
So the Parks' understanding is then it could take up to three (3) more years after DOBOR
changes it's rule and the preparation of an ... or, first the preparation of an Environmental Impact
Statement, which may take ... however long that takes, a year or so, and then potentially up to
another three (3) years for the application process to go through. If that's the case, I think the
Parks Department would have an issue with that on behalf of the community just because you're
looking at over, you know, potentially four (4), five (5) years because of the change of a number
which is beyond our control. So I just wanted to ... (inaudible) talking about numbers, but I
just ... it's the second part of that sentence, the paragraph which I think is ... would be more
concerning to the Parks Department because that's a lot of time and money.
Mr. Keawe: Which part are you talking about, Mauna Kea?
Mr. Trask: When it says, "Any increase beyond this level shall require a new application and the
preparation of an Environmental Impact Statement." I'm not in a position to agree to that
portion today.
Chair Mahoney: Yeah. So we have a choice.
Mr. Keawe: We can adopt it...
Chair Mahoney: VVe can eliminate it all together.
Mr. Keawe: We can eliminate all together, or adopt Section [sic] 112.
Chair Mahoney: Those are the...
Ms. HiQuchi Sayegusa: You don't have to include it in the Decision and Order, you can include
this language, or you can cut and paste from the Conclusion of Law 112.
Chair Mahoney: Yeah, and...
Ms. Hi cu hi Sayegusa: And make that a condition of the Use Permit included in the Decision
and Order.
Chair Mahoney: And at this point, I won't be in favor of adopting it, if there is a motion. I think
it's ... I think it delays the mission that we're trying to reach by something that may cause major
delays, and we're already 30 years in the hole already.
Mr. Keawe: May I ask a question?
Ms. Hi chi Sayegusa: It's up to you.
Chair Mahoney: Okay, and then we're going to return to our deliberations. You may ask the
question.
99
Mr. Keawe: Okay. So, Mauna Kea, based on your last statement, if we were to use the
Condition [sic] 112, would that not trigger this long...
Mr. Trask: Parks does not believe so. We'd be fine with 112 being adopted instead.
Mr. Keawe: Okay. I assume so because it's in here. (Laughter in background)
Mr. Trask: Yes.
Chair Mahoney: Okay. I think we've kind of gone over this one. If there's any motion to
include ... to exclude ... to do some deliberation from the Commissioners.
Mr. Keawe: Which one are we talking about, Chairman?
Chair Mahoney: 2(a)...
Mr. Keawe: 2(a)(i)?
Chair Mahoney: (i).
Mr. Keawe: 2(a)(i). I would move that we adopt Section [sic] 112 from the D &O in lieu of the
current 2(a)(i).
Chair Mahoney: And clarification on 112?
Ms. Higuchi Sayegusa: So that would read, again, "The maximum number of passengers
permitted to participate in a commercial boating activity authorized by the rules within the
County park shall be limited to that number allowed in the operator's current and valid Ocean
Recreational Management Area Commercial Permit issued by the State of Hawaii, Department
of Land and Natural Resources, Division of Boating and Ocean Recreation and any and all
permits issued to the County, including but not limited to SMA, zoning, and'or land use
pen-nits."
Chair Mahoney: Okay.
Mr. Abrams: So if 2(a)(i) is saying that you have to have an EIS if it goes up, is there a criteria
that you wouldn't have to go up if, in fact...
Chair Mahoney: No.
Mr. Abrams: You're tied into the County getting an SMA Permit. If DOBOR goes up, then you
would decide to go up? Or you just don't do anything, I guess?
Mr. Trask: If the Parks Department is required to get an EIS if DOBOR goes up, practically, if
DOBOR ups their numbers, we will necessarily have to follow the process to try to at least up
the County numbers as well. I don't know how we can ... or DOBOR would have to load and
100
unload their passengers from a different area, which is, again, it's just ... I don't know how that
would work.
Chair Mahoney: Should we return to the motion?
Mr. Abrams: Pardon? I don't think we had a motion. It was more of a question.
Chair Mahoney: Is that a motion or a...
Mr. Abrams: Question.
Mr. Keawe: That was a motion.
Chair Mahoney: That was a motion.
Mr. Keawe: It was seconded at this point.
Ms. Nogami Streufert: Second.
Chair Mahoney: Yeah. There was a motion on the floor to include 112, and then there was a
clarification as for 112.
Mr. Abrams: Okay.
Chair Mahoney: Yeah, so that's where we're at now. There is a motion.
Mr. Abrams: I'll second it.
Chair Mahoney: Okay.
Ms. Higuchi Sayegusa: It's already been seconded.
Chair Mahoney: Okay.
Mr. Abrams: I take it back.
Chair Mahoney: Alright, so...
Mr. Keawe: Okay, so can we make a clear ... Jodi, there was some concern based on the County
Attorney, from Mauna Kea with regard to that. So if we include this, is there some downside to
this, should the DOBOR decide to increase their numbers?
Ms. Higuchi Sayegusa: I think I may have misunderstood, but it sounds like it's already going to
be required, and the County will inevitably have to be a part of any uping of the number in any
case, but...
101
Mr. Keawe: Right. Okay.
Chair Mahoney: That one's an automatic; just about.
Ms. Higuchi Sayegusa: Yeah.
Chair Mahoney: Okay, so can we return to the motion? It's been moved and seconded. Any
discussion? Further discussion? Hearing none. Let's call for a vote. Signify by saying aye, all
members in favor of the motion. (Unanimous voice vote) Opposed? (None) Motion carries
6:0. Thank you.
Ms. Higuchi Sayegusa: I think that's about it, so...
Chair Mahoney: Okay.
Mr. Keawe: So did we actually approve the D &O in total? (Laughter) The actual...
Chair Mahoney: Do we have to approve that?
Mr. Keawe: We approved the amendments, right?
Ms. Higuchi Sayegusa: Okay, so those were the amendments. I'm sorry. So we still need to
adopt the Parks' proposed Findings of Fact, Conclusions of Law, Decisions and Order as
amended (inaudible).
Chair Mahoney: Can we have a motion on that?
Mr. Katayama: Do you want a motion?
Chair Mahoney: Yes. Could we get a motion to...?
Mr. Katayarna: I move that we approve Special Management Area Use Pen-nit SMA(U)- 2014 -2
as amended to accommodate commercial tour boating loading and unloading activities at Black
Pot Beach Park in Hanalei.
Ms. Higuchi Sayegusa: And ... I'm sorry ... and then also to adopt the proposed Findings of Fact,
Conclusions of Law, and Decision and Order.
Mr. Katayama: And also adopt the...
Ms. Higuchi Sayegusa: Submitted by the Parks Department as amended.
Mr. Katayama: As amended. Okay.
Chair Mahoney: Okay. Could we have a second?
102
Mr. Ho: Second.
Chair Mahoney: It's been moved and seconded. Any discussion? Hearing none. All in favor?
Mr. Abrams: Roll call.
Chair Mahoney: We'll have a roll call. Yes, roll call.
Ms. Higuchi Sayegusa: Okay. Commissioner Streufert?
Ms. Nogami Streufert: Aye.
Ms. Higuchi Sayegusa: Commissioner Katayama?
Mr. Katayama: Aye.
Ms. Higuchi Sayegusa: Commissioner Ho?
Mr. Ho: Aye.
Ms. Higuchi Sayegusa: Commissioner Abrams?
Mr. Abrams: Aye.
Ms. Higuchi Sayegusa: Commissioner Keawe?
Mr. Keawe: Aye.
Ms. Higuchi Sayegusa: Chair Mahoney?
Chair Mahoney: Aye. Motion carries 6:0. Thank you. Okay, thank you. Do we have any
further agenda items?
Mr. Dahilig. Yes, Mr. Chair, we do have one (1) more agenda item for the Commission's
discussion.
NEW BUSINESS (Continued)
Adoption of administrative rules interpreting provision of Chapter 8, Kauai County
Code, as amended, pertaining to the enforcement of structures relating to Chapter 8,
Article 27 (Shoreline Setback Determination) = County of Kaua `i, Planning Department.
Mr. Dahilig. I'm going to turn it over to the Deputy Director for Item F.4.a., which is the
adoption of administrative rules interpreting provision of Chapter 8, County Code, as amended,
pertaining to the enforcement of structures relating to Chapter 8, Article 27.
103
Mr. Hull: Good evening, Chair and members of the Commission. For the last item, we're
looking at administrative rules for the purposes of interpreting and administering the Shoreline
Setback Ordinance.
Mr. Hull read the Director's Report for the record (on file with the Planning Department).
Mr. Hull: So it's essentially two (2) rules being proposed. It is here for your discussion and
review. I can say as of recently, we had discussions with the County Attorney's Office and there
are certain concerns in the administering of the first rule that we need to further review, so
ultimately, we will be recommending denial ... no, excuse me ... deferral of this item to July 26`x'.
But if there's any discussion or questions that the Commission had at this time on these proposed
rules, the Department is here to answer those questions.
Chair Mahoney: Is there a motion on the floor? Or any ... what's the will of the Commission?
Deferral or discuss any...
Mr. Ho: Move to defer to August 26 "i.
Chair Mahoney: It's been moved to defer. Is there a second?
Mr. Keawe: 23`d
Ms. Nogami Streufert: Second.
Chair Mahoney: It's been moved and ... to the ... let's get the correct date.
Ms. Higuchi Sayegusa: 23`a
Chair Mahoney: To the 23`d
Mr. Abrams: Fourth Tuesday.
Mr. Hull: No, it should be July 26'x'.
Mr. Abrains: We went over this already, right? It was the 26`x', then it went to the 23x.
Chair Mahoney: Okay, we had a long day, so let's get back to the ... clarify the motion. It was to
defer...
Mr. Hull: The final meeting date in July is July 26"'.
Chair Mahoney: It would be July 26`x'. Okay, there was a second on that?
Mr. Keawe: Yes.
104
Chair Mahoney: Okay, moved and seconded. Any discussion? Hearing none. All in favor
signify by saying aye. (Unanimous voice vote) Opposed? (None) Motion carried 6:0. Thank
you.
ANNOUNCEMENTS
Topics for Future Meetings
Mr. Dahilig: Thank you, Mr. Chair. We are on Item N.1. This is topics for future meetings.
We have distributed the batting orders for the Commission's entertainment. You'll see that we
are a little (inaudible) heading into the fall, but there are a lot of, kind of, (inaudible) to the
Department in respect to other applications that are pending.
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, Lihu`e, Kauai, Hawaii 96766 on Tuesday, July 12, 2016.
Mr. Dahilix And the following scheduled Planning Commission meeting will be held in this
room at 9:00 a.m. on Tuesday, July 12, 2016.
Chair Mahoney: Thank you. With no further business, meeting adjourned. Thank you
everyone.
ADJOURNMENT
Chair Mahoney adjourned the meeting at 5:25 p.m.
Respectfully submitted by:
d)� r
rcie Agar ,
Commission Support Clerk
( ) Approved as circulated (add date of meeting approval)
( ) Approved as amended. See minutes of meeting.
105