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HomeMy WebLinkAboutPlanning 062717 MinutesKAUAI PLANNING COMMISSION REGULAR MEETING June 27, 2017 The regular meeting of the Planning Commission of the County of Kauai was called to order by Vice Chair Ho at 10:06 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A-213. The following Commissioners were present: Vice Chair Roy Ho Ms. Donna Apisa Mr. Wade Lord Mr. Sean Mahoney Ms. Glenda Nogami Streufert Absent and Excused: Chair Kimo Keawe Ms. Kanoe Ahuna The following staff members were present: Planning Department — Chance Bukoski, Director Michael Dahilig, Shanlee Jimenez•, Office of the County Attorney — Deputy County Attorney Jodi Higuchi Sayegusa; Office of Boards and Commissions — Administrator Paula Morikami, Commission Support Clerk Darcie Agaran Discussion of the meeting, in effect, ensued: Vice Chair Ho called the meeting to order at 10:06 a.m. Planning Director Michael Dahilig_ Commissioner Ahuna. Commissioner Lord. Mr. Lord: Here. Mr. Dahilig. Commissioner Streufert. Ms. Nogami Streufert: Here. Mr. Dahilig: Commissioner Mahoney. Mr. Mahoney: Here. Mr. Dahilig: Commissioner Apisa. Ms. Apisa: Here. Mr. Dahilig: Vice Chair Ho. Vice Chair Ho: Here. Mr. Dahilig: Chair Keawe. Mr. Vice Chair, we have five (5) members present. APPROVAL OF AGENDA Mr. Dahilig: The Department would request an approval of the agenda this morning; moving Items L.1. relating to the Princeville matter and Item K.1. after that matter, immediately after the Consent Calendar and before the Executive Sessions this morning. Vice Chair Ho: We need a motion, please. Mr. Mahoney: Chair, move to approve the amended agenda. Ms. Apisa: Second. Vice Chair Ho: All in favor? (Unanimous voice vote) It has been approved 5:0. Mr. Dahilig: Thank you, Mr. Chair. MINUTES of the meeting(s) of the Planning Commission Meetingof f May 23, 2017 Mr. Dahilig: We are on Item D., the minutes of May 23, 2017. Ms. Nogami Streufert: I move to accept the minutes of the meeting of May 23, 2017. Ms. Apisa: Second. Vice Chair Ho: Motion has been made and seconded. Any discussion? All in favor? (Unanimous voice vote) Motion carries 5:0. Mr. Dahilig: Thank you, Mr. Chair. RECEIPT OF ITEMS FOR THE RECORD 2 Mr. Dahilig: We are now on Item E., Receipt of Items for the Record. We have circulated a Supplemental (No.) 3 that was relating to testimony from Esaki Surveying and Mapping. The Department would request that this be received for the record. Mr. Mahoney: Chair, move to receive supplemental letter from Esaki Surveying for the record, please. Ms. Nogami Streufert: Second. Mr. Mahoney: Supplement No. 3. Vice Chair Ho: Any discussion? Seeing none. All in favor? (Unanimous voice vote) Motion carries 5:0. Mr. Dahilig: Thank you, Mr. Chair. HEARINGS AND PUBLIC COMMENT Continued Agency Hearing Class IV Zoning Permit Z -IV -2017-6 and Variance Permit V-2017-2 to deviate from the minimum lot size requirement within the Agriculture (A) zoning district, pursuant to Section 8-8-3(b) of the Kauai County Code (1987) as amended, involving a parcel situated on the makai side of K5hi6 Highway in Kilauea, approx. 600 ft. north of the Waiakalua Street/Kuhi6 Highway intersection and further identified as Tax Map Key (4) 5-1-005:132, and affecting a total area of 27,450 sq. ft. = Brian Lansing & David Camp. [Director's Report received 3/28/17, deferred 4/11/17.1 Mr. Dahilig: We are now on Item F. This is a Continued Agency Hearing, Class IV Zoning Permit Z -IV -2017-6 and Variance Permit V-2017-2 to deviate from the minimum lot size requirement within the Agriculture zoning district, pursuant to 8-8-3(b) of the Kauai County Code (1987) as amended, involving a parcel situated on the makai side of Kuhio Highway in Kilauea, approximately 600 feet north of the Waiakalua Street/Kuhio Highway intersection and further identified as Tax Map Key (4) 5-1-005 Parcel 132, and affecting a total area of 27,450 square feet. Applicants are Brian Lansing and David Camp. There is a Supplemental No. 2 report for the matter, Mr. Chair. The Department would recommend opening the Continued Agency Hearing at this time. Mr. Chair, given the lack of testimony, I would also refer back to the memo circulated by Mr. Bukoski via ... I mean, from Mr. Esaki via Mr. Bukoski that was received for the record just previously, asking for a 2 -month deferral on Item F. La. Given the request, the Department would have no objections moving this to the — we are planning on not scheduling a second meeting in August — first meeting in September, which would be September 12tH Ms.AApisa: I move that we accept the request for a 2 -month deferral. 3 Mr. Mahoney: Second. Vice Chair Ho: The motion is for a 2 -month deferral. It has been moved and seconded. Mr. Dahili& Just for the record, Mr. Chair, nobody has signed up to testify on this agenda item. Vice Chair Ho: Any further discussion? Seeing none. All in favor? (Unanimous voice vote) Motion carries 5:0. Mr. Dahilig: Thank you, Mr. Chair. COMMITTEE REPORTS Subdivision Mr. Dahilig: We are on Item K.1. This is the Subdivision Committee report for this morning's meeting. The Department would recommend the report be presented and acted upon by the Commission. Ms. Apisa: I move we approve the minutes of this morning's Subdivision Committee. Ms. Nogami Streufert: Second. Mr. Mahoney: Do you need to detail that? Or no? Vice Chair Ho: No. The motion has been made and seconded to receive the minutes of the Subdivision meeting. Mr. Dahilig: It is technically an approval so we will need a full ... the report maybe versus the minutes. To receive and approve the report would be the suggested motion. Ms. Apisa: I amend the motion to receive and approve the report from this morning's meeting. Ms. Nogami Streufert: I second that. Vice Chair Ho: A motion has been made and seconded. Further discussion? Seeing none. All in favor? (Unanimous voice vote) Motion carries 5:0. Mr. Dahilig: Thank you, Mr. Chair. UNFINISHED BUSINESS (For Action) Update of Application for Princeville Hanalei Plantation, LLC, a Delaware limited liability company, re Shoreline Setback Application and Determination SSD -2017-33, for 11 real property situated at Hanalei, Kauai, Hawaii, identified as Kauai Tax Map Key No. (4) 5-4-004:013. [Deferred 4/11/17, deferred 5/23/17.1 Mr. Dahilig: We are now on Item L. This is Unfinished Business. Update of Application for Princeville Hanalei Plantation, LLC. This is Shoreline Setback Determination SSD -2017-33 for real property situated at Hanalei, Kauai, Hawaii identified as Tax Map Key (4) 5-4-004 Parcel 013. There are three (3) transmittals to the Commission relating to this matter, including a motion to dismiss the appeal. I believe that counsel for both the Intervenor and the Department are present. Given that this is the Department's motion, it would probably be appropriate to call the attorney at this point. Vice Chair Ho: Attorneys, please. Deputy Attorney Adam Roversi: Good morning, Mr. Chair. Adam Roversi for the Planning Department. You have several items before you. Of substance is the Planning Department's motion to dismiss this contested case appeal. As you'll see attached to the Department's motion, on June 2, 2017, the Applicant, Princeville Hanalei Plantation, withdrew their application for a Shoreline Setback Determination. Subsequent to the withdrawal of that application, I have a supplemental letter to distribute to you from (the) Planning Director withdrawing the Director's determination. Given the withdrawal of the application and the subsequent vacating of the Director's decision, there is no longer a matter to be adjudicated by this body and the Department requests that the Planning Commission grant the Department's motion to dismiss this contested case. Harold Bronstein: Good morning. Harold Bronstein on behalf of the Limu Coalition, the Hanalei Watershed Hui, Carl Imparato individually, and Caren Diamond individually; collectively the Intervenors. Well, actually the Appellants, excuse me. I had submitted a memorandum considering the issue as to mootness and why this is not moot, and requesting that the Planning Director put into writing that he has withdrawn, or whatever the magic words are, with respect to his determination of March 1, 2017, and that determination was that the Applicant was exempt from the shoreline setback requirements. At this point in time, given that the withdrawal letter from Mr. Graham is dated June 2nd, I am looking for an order from this body. One, the predicate to the withdrawal is the Director's decision is hereby withdrawn, and I believe that needs to be approved by this ... in dismissing that you approve that the Director's decision to exempt is withdrawn, that the withdrawal of the application dated June 2nd is accepted by the Commission, and given those two (2) that the appeal, then, becomes moot. We will not argue against an order in that concept. I don't want to get into the arguments as to mootness and why the Supreme Court has or has not said, but that is the order that I believe should be entered by this body in dismissing this matter, if it so chooses. Thank you. Vice Chair Ho: Do you have a comment on that? Mr. Roversi: If I understand Mr. Bronstein's request, he is asking the Commission to issue an order that the Director vacate his decision. Subsequent to the Director vacating his decision, the Applicant withdrew their application. For what it is worth, that is the opposite of what actually happened. In this case, the Applicant withdrew their application, then the Director issued a letter noting that his decision is vacated. As I understand it, Mr. Bronstein effectively wants the Director to state on the record, or this Commission issue an order, that his decision was improper and he vacated it prior to the withdrawal of the application. That, then, gets into the substance of the decision-making process, which we argue doesn't need to be considered by the Commission. Because the application was withdrawn, there is no longer anything to be dealt with. And I think that that is the order that any decision from the Commission should follow. Vice Chair Ho: Mr. Bronstein, any further comments? Mr. Bronstein: Obviously, if you read the letter from Mr. Graham, I don't believe the withdrawal was based upon ... if you are going to close a file and then say my exemption letter is withdrawn, I don't see how you do that. And Mr. Graham, on behalf of the Applicant, was quite clear and was told by the County that it will be withdrawn. If he is trying to vacate or withdraw his application, that the exemption letter will be part of that, and he acknowledges that in paragraph 2. But I believe this commission is being asked to dismiss the appeal, which we haven't even gotten into, and all I am saying is you are approving the Director's decision to withdraw, you are approving the withdrawal by the Applicant, and you are saying it is moot. That is just the logical way it happened and that is what should be entered by the Commission. Mr. Roversi: I don't think that the withdrawal of an application or the Director vacating his own decision are items that are before this commission for approval or disapproval. What's before this commission is a contested case appeal of the Director's decision which arose from a specific application. The application went away. The Director's decision was vacated. Therefore, what is before this commission is whether there is a live appeal to be considered. The Planning Department's position is there is no longer a live appeal to be considered. It is not a requirement of this commission to accept the withdrawal of the application and/or the Director's decision. Those things took place and I don't believe that they are subject to Commission approval or disapproval. Vice Chair Ho: Commissioners? Mr. Bronstein: One last comment, Chair. Thank you. We haven't even discussed the rules. There are no rules. But there is a notice of appeal, okay? This needs to be dealt with in a logical order and you also need to know whether or not the Planning Department intends to go forward with promulgating rules for you to consider, or how that is going to be done. That was the initial response from this commission, asking for briefs on the rules and then it all shifted to withdrawing the application, withdrawing the determination. And I won't argue anymore. Thank you for the time. Vice Chair Ho: County Attorney. Deputy Attorney Jodi Hi cru hi Sam usa: Sure. Well, with respect to the rules, Director Dahilig, did you have any updates for that? 0 Mr. Dahilig: Our department is still undergoing a legal review and drafts for rules, but we are subject to timelines that are beyond our control with respect to when it appears before this Small Business Regulatory Review Board and when those become agreeable by them before it can be acted upon by this body. The rule-making process is purposely not to be expeditious, but meant to be deliberative, and so our current step right now is to get legal review with the County Attorney's Office before we go to the Small Business Regulatory Review Board. Vice Chair Ho: Commissioners, any further questions? Ms. Streufert. Ms. Nogami Streufert: So is it my understanding that Mr. Bronstein's argument is that the order in which the withdrawal of the application and the withdrawal of the determination is a problem; it's a procedural issue. Is that what you are talking about? Mr. Bronstein: Yes, basically a procedural issue. So the record is clear of what occurred and what is occurring so in five (5) or ten (10) years ago [sic], or whenever the next person or entity from the mainland that comes back and wants to try to build there understands clearly and the Commission who is sitting there in your spot, maybe, understands clearly what occurred. That's all I want to get clear on the record; is what occurred and how it occurred. Ms. Nogami Streufert: But the dates of the letters also serve as a chronological timeline. Do they not? Mr. Bronstein: It does, but if you look at Mr. Graham's letter, he is acknowledging obviously there was discussion or there was some discussion with the Planning Director or his attorney as to what this means and how it's to be done. And that's all I am saying. And I'm talking about paragraph 2 of the June 2nd letter. So clearly it had been... Ms. Nogami Streufert: I guess I'm not quite reading it that way, but I'm not a legal beagle. But one of the things that it does not say in there is that ... it just says that it will be null and void after the Applicant withdraws the application. It does not say anything about a preexisting agreement between the Planning Department and the Applicant. Mr. Bronstein: Well, if you think that language came from Mr. Graham, I understand that, but I'm sure that language came from the County. It told Mr. Graham that if you want to vacate, the determination of March 1St is also vacated. I just want to get that clear on the record; that's all I'm trying to do. If the Commission like, I can submit a proposed order. You can sign it or not sign it. Mr. Roversi can either agree or not agree. But all I ... I understand that it is withdrawn. l just want to make clear and make sure that it is understood and in the future it is understood that the exemption from the shoreline setback rules or regulations or ordinance is withdrawn in this case — it is not applicable — and they have to start over. And that's all I want to make sure is really clear because I'm not sure where Mr. Graham's letter will be in the file or what will be in the file, like I said, when the future comes back and we start arguing again over whether there can be development or not. Ms. Higuchi Saye sa: So what you folks have before you is you have to make a ruling on the motion to dismiss. From the parties, you kind of heard the history of how we got to this point 7 and what has been filed, which was ... well, it was an update. So Mr. Graham submitted a letter that updated you folks that the application was withdrawn, and then as a result of that, the Planning Director issued his update and notification to you folks that his determination, his exemption determination on the shoreline setback application, was also closed and withdrawn. That's sort of the brief history of what happened up until this point. So at this point, you folks will have to make a decision on the emotion to dismiss, and the order can memorialize the facts as we know it up until this point; i.e. referencing this withdrawal of determination, in addition the withdrawal that the application was withdrawn, and then the legal portion of the order would have to also memorialize that the contested case, since there is no application and there is no appeal on a determination because there is no exemption determination active, that it is dismissed, and just sort of a procedural matter, just closing up those loose ends. I could draft something for the Chair's review, or if you folks feel more comfortable deferring the matter and I could prepare a draft Findings of Fact, Conclusions of Law for you folks to adopt; that's up to you, too. Or you could just elaborate on record the action of approving the emotion to dismiss or not approving, and I can conform the Findings of Fact, Conclusions of Law in accordance to that for the parties to also review and sign. Vice Chair Ho: What would the Commission be most comfortable with? Ms. Apisa: I think I like the idea of having a little more background and maybe you drawing up something. Ms. Higuchi Sayegusa: Okay. Ms. Apisa: I am not real clear on the issue at this time. Ms. Higuchi Sayegusa: You could also — if the Chair allows — directing further questions and clarification that you want to the parties and they could try to clear up any issues that you may have. Ms. Nogami Streufert: It appears that a lot of the argument right now is based upon an interpretation of paragraph 2 and whether that implies a previous agreement between the Planning Department and the Applicant versus the Applicant coming forward and stating that they were just withdrawing their application. Is that correct? So that is an interpretation of how you read paragraph 2 as opposed to the data that we have ... or that I have that shows that, by date, the request for dismissal comes before the Planning Department Director's agreement to dismiss it. Mr. Bronstein: Commissioner, there is no argument over that. I can't argue that. Mr. Dahilig — and I had put in my memo that I want it in writing — had never before put it in writing, but (inaudible) what ... as I read Mr. Graham's letter, implicit in that is what he is saying, he understands that ... and I don't have the letter in front of me. I apologize. Let me get it. Ms. Nogami Streufert: Isn't a dismissal obvious after a withdrawal? I mean, isn't that a logical way that it would go so it has nothing to do with necessarily a previous agreement? Ms. Higuchi Sayegusa: I think— Mr. Roversi: May I make a comment, Mr. Chair? Vice Chair Ho: One moment please. Jodi. Ms. Higuchi Sayegusa: Again, there is no pending application. There is no exemption determination. So at this point, I see it as merely a procedural matter of closing up, I guess, the open end, which is the contested case matter that is still technically lodged with you folks, but there is no active application or determination to be appealed on. (Laughter) Appealed from. (Laughter) Vice Chair Ho: Mr. Roversi. Mr. Roversi: I believe that we are making this more complicated than it needs to be. As Jodi just stated, there is no longer an application, there is no longer a Director's decision, and so there is nothing to be appealed from. I understand ... I don't want to put words into Mr. Bronstein's mouth, but I understand this request for an order to create at least the question of whether the Director's decision was correct or incorrect so that it can be used as precedent if a future application is filed and I think that goes beyond the scope of what is before the Commission today. There is no longer an application. There is no longer the Director's decision. It would be improper to begin to draft a complex order that attempts to make qualitative decisions about whether the Director's decision was correct or incorrect that would affect any future applications that came in regarding this property. The correct time to deal with that would be when a future application came in, and then the application would be reviewed by the Director, the Director would make a decision, likely we will be back here in front of you again, and we can deal with the substance of the matter, hopefully by then, under new rules that had been drafted by the Department and approved by the Commission to deal with situations like this. So I think that the proper thing to do at this point would simply be to grant or deny the Department's motion to dismiss and that's the extent of what needs to be done today. Mr. Mahoney: Chair? Vice Chair Ho: Yes, Mr. Mahoney. Mr. Mahoney. I agree with the Assistant [sic] County Attorney. There is nothing before us right now. The application has been ... there is nothing before us as a contested case and I agree wholeheartedly with what the County Attorney just said. I think we should make a motion to dismiss this right now because there is nothing. There are hypotheticals before us and that is not our purview, I think, at this time. Ms. Apisa: I will move that we grant the motion to dismiss. Ms. Nogami Streufert: Second. Ms. Higuchi Sayegusa: There is a second. 0 Vice Chair Ho: Okay. Discussion. Let's continue the discussion. Mr. Lord. Mr. Lord: I don't have any real discussion to add to this. It seems pretty straightforward to me. I don't want to create precedence out of thin air. Vice Chair Ho: The motion is to ... Mr. Mahoney's motion is to dismiss. Mr. Mahoney: Dismiss. Vice Chair Ho: And it has been seconded. Do I have it backwards? Ms. Apisa: Motion. Second (pointing to Commissioner Nogami Streufert). Vice Chair Ho: Motion. Seconded by ... and the motion is to— Ms. Higuchi Sayegusa: Chair ... I'm sorry. Yeah, the current motion is to grant the motion to dismiss; the Planning Department's motion to dismiss. I still think there needs to be something, like a very ... not perfunctory, but a basic order just to memorialize the action. Mr. Roversi: I don't disagree with that— Ms. Higuchi Sayegusa: Okay. Just to clarify. Mr. Roversi: —if the Commission wants to put something in writing. Ms. Higuchi Sayegusa: Thank you. Just to clarify, I think there still needs to be an order to memorialize that the contested case was dismissed, so it's not that there won't be any, but it's just to clarify that point. Mr. Dahilig: So procedurally, if I could suggest for the Commission, that Mr. Roversi be ordered to prepare the order and the Chair be authorized to sign off on the order and Mr. Bronstein shall be given the order to at least review for form based off of the motion that is being presented, if that's okay. That's just to implement the motion, essentially. Ms. Apisa: Would that motion need to be amended to include that? Or it's just procedural? Mr. Dahilig: That would be my suggestion; is that it's a procedural attachment to your motion so that we understand who is drafting the order, how the order is going to be reviewed by the other party, and then who can sign -off on the order based off of the County Attorney's suggestion. Ms. Apisa: So we amend the motion that the County Attorney draft the order to be reviewed— Mr. Dahilig: By Mr. Bronstein for form. Ms. Apisa: Right. Mr. Dahilig: And to allow the Chair to sign -off on the order. 10 Ms. Apisa: I amend the motion to that effect. Vice Chair Ho: And your second still stands? Ms. Nogami Streufert: Second. It still stands. Vice Chair Ho: Any further discussion? Roll vote, please. Mr. Dahilig. The motion on the floor is to grant the Planning Department's motion to dismiss the appeal of the Planning Director's exemption determination for a Shoreline Setback Determination SSD -2017-33 filed on December 29, 2016 with the Department's attorney ordered to submit the order and have it reviewed for form by Mr. Bronstein and to allow the Chair to sign -off on the order effectuating the motion. Commissioner Lord. Mr. Lord: Aye. Mr. Dahilig: Commissioner Streufert. Ms. Nogami Streufert: Aye. Mr. Dahilig: Commissioner Mahoney. Mr. Mahoney: Aye. Mr. Dahilig: Commissioner Apisa. Ms. Apisa: Aye. Mr. Dahilig. Vice Chair Ho. Vice Chair Ho: Aye. Mr. Dahilig: Five (5) ayes, Mr. Chair. Vice Chair Ho: The motion has been made and passed 5:0. Mr. Dahilig: Alright. Thank you, Mr. Chair. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with County's legal counsel on questions, issues, status 11 and procedural matters pertaining to the Stipulated Decision and Order In the Matter of the Application of MOHALA KE OLA MANAGEMENT for Use Permit and Class IV Zoning Permit on property situated at Kapa`a, Kauai, Hawaii, identified by Kauai TMK No. (4)4-2-009: 011 containing 18,739 square feet; CC -2015-13 and CC -2016-3. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to this agenda item. Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with County's legal counsel on questions, issues, status and procedural matters pertainingto o Stipulation for Dismissal with Prejudice of the Appeal of the Planning Director's Decision Related to the Notice of Violation and Order to Pay Fines for the continued operation of an unpennitted vacation rental for properties situated in Hd'ena, Kauai, Hawaii, identified by Kauai TMK No. (4) 5-8-011:059, Unit A, and containing a total area of 6,250.0 Square Feet in TONI SUTHERLAND AND ALTA MANAGEMENT SERVICES LLC V. PLANNING DEPARTMENT OF THE COUNTY OF KAUAI CC -2016-8. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to this agenda item. Mr. Dahilig: I believe I'll bounce this over to the County Attorney for Executive Session. Ms. Higuchi Sayegusa: Chair, we are on Item H.1. If okay with you, I will read both items and then we will go into Exec for both items. So Items H.1. and 2. Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with County's legal counsel on questions, issues, status, and procedural matters pertaining to the Stipulated Decision and Order in the matter of the application of Mohala Ke Ola Management for Use Permit and Class IV Zoning Permit on property situated at Kapa`a, Kauai, Hawaii, identified by Kauai TMK No. (4) 4-2-009 Parcel 011 containing 18,739 square feet; Contested Case Nos. CC -2015-13 and CC -2016-3. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to this agenda item. Also, Item H.2., pursuant to Hawaii Revised Statutes Sections 92-4 and 92- 5(a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions, issues, status, and procedural matters pertaining to Stipulation for Dismissal with Prejudice of the Appeal of the Planning Director's Decision related to the Notice of Violation and Order to Pay Fines for the continued operation of an unpermitted vacation rental for properties situated in Hd'ena, Kauai, Hawaii, identified by Kauai TMK No. (4) 5-8-011 Parcel 059, Unit A, and containing a total area of 6,250 square feet in Toni Sutherland and Alta Management Services, LLC v. Planning Department of the County of Kauai; Contested Case No. CC -2016-8. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to this agenda item. Vice Chair Ho: I need a motion to go into Executive Session. Ms. Nogami Streufert: I move that we go into Executive Session to discuss the issues identified previously. 12 Mr. Mahoney: Second. Ms. Higuchi Sayeg_ sa: I suggest we do a roll call, Chair. Vice Chair Ho: Roll call vote, please. Mr. Dahilig: Mr. Chair, the motion on the floor is to go into Executive Session based off Items H.1. and 2. as posted in this morning's agenda. Commissioner Lord. Mr. Lord: Aye. Mr. Dahilig: Commissioner Streufert. Ms. Nogami Streufert: Aye. Mr. Dahilig: Commissioner Mahoney. Mr. Mahoney: Aye. Mr. Dahilig: Commissioner Apisa. Ms. Apisa: Aye. Mr. Dahilig: Vice Chair Ho. Vice Chair Ho: Aye. Mr. Dahilig: Five (5) ayes, Mr. Chair. Vice Chair Ho: We are now in Executive Session. The Commission entered into Executive Session at 10:39 a.m. The Commission returned to Open Session at 11:24 a.m. Vice Chair Ho: We are back in session. GENERAL BUSINESS MATTERS Request to amend Class IV Zoning Permit Z -IV -2004-24, Use Permit U-2004-23, and Special Permit SP -2004-9 to allow for an additional commercial agricultural tour, Tax Map Key: 3-4-005: Por. 1 & 3-4-005: Por. 3, Puhi, Kauai = Kaua `i Kilohana Partners. 13 Mr. Dahili& Mr. Chair, we are on Item I.1. This is a request to amend Class IV Zoning Permit Z -IV -2004-24, Use Permit U-2004-23, and Special Permit SP -2004-9 to allow for an additional commercial agricultural tour at Tax Map Keys 3-4-005 Portions 1 and 3 in Puhi, Kauai. Applicant is Kauai Kilohana Partners. Mr. Bukoski will be presenting the report on behalf of the Department. Staff Planner Chance Bukoski: Good afternoon, Chair and Commissioners. Mr. Bukoski read the Summary, Project Data, and Project Description and Use sections of the Director's Report for the record (on file with the Planning Department). Mr. Bukoski: And that would conclude my staff report. Do you have any questions, Commissioners? Vice Chair Ho: Is there someone here from Kauai Kilohana Partners? Mr. Atkins: My name is Fred Atkins. I air the general partner for Kauai Kilohana Partners. Thank you for the report. I just want to give you a little background of Kilohana. We actually negotiated with the Wilcox family to do the project in 1985. We opened in June of '86, so this last June 16`h we are thirty-one (3 1) years on Kauai. We started out with the smaller portion of the project. We opened as a local/visitor attraction. Then Lihu`e Plantation, they went out of sugar sometime right around 2000 and Steve Case ended up buying the eighteen thousand (18,000) acres right behind our property which gave us an opportunity to expand the plantation. We met with Allan Smith and David Pratt and we were able to secure another sixty-seven (67) acres right behind us. The main reason we did it at the time is that we do have a restaurant, Gaylord's, there and we wanted to make sure we could kind of protect ... whatever type of farming was going on there that it wouldn't impact the restaurant the way that the sugar did, especially with the burning. So we decided to create an agricultural project and we came before the Commission in 2003 asking for a Special Use Permit so we could build a railroad operation that would take locals/visitors around the hundred and four (104) acres and basically it was to show what is happening on Kauai with the transformation from sugar lands into other types of agriculture; whether it is small farming or some of the larger ... like cattle and things like that. We got the permit. We came before the Board [sic] and we showed thein a rendering of how it's going to look and I think if you went there today, what we showed you is basically almost exact to what we had done conceptually. We have five (5) local families that actually use parts of the project. They do the farming and they sell their products either to the Farmer's Market or if there is enough of it, like the Pineapple is in season, we use them in our luaus. We have twelve (12) acres of fruit orchards and we use the exotic fruits in our restaurant, and we do, like, farm -to - glass cocktails in our Mahiko Lounge. When we first started Kilohana, we wanted to do an agricultural part of it, but we didn't have acreage. We have seven (7) acres in the front. Tony Kunimura was the mayor at the time that helped me through the Planning Commission process when we did our first Use Permit and he wanted me to make a commitment to him that we would never develop the seven (7) acres where the home is — between the home and Lihu`e — because he showed me a plan back then thirty (30) years ago. It was all sugar from across the street 14 down to Nawiliwili Harbor on the right side, and he said it is all going to change. It has already been planned. They were just starting Kukui Grove and he said this will all be commercial so I want this green built in Lihu`e, and we pretty much honored that request. We take very seriously the Commission doing a Special Use Permit, so it has been a while since we have come and asked for one. But this tour, we think will really support our agritourism tours and also really support two (2) really major Kauai products, which are Kauai Coffee and K61oa Rum. As probably some of you know, we have the company store and tasting room at Kilohana for K61oa Rum and they have been quite successful. They have now come up with a product that uses our Kauai Coffee and the rum, and it is one of their best selling products they have. I was just in Washington D.C. with Hawaii on the Hill and that is something that our Senator Hirono has really done an incredible job getting all these products to our capitol and they were there as well. It was quite successful. So we have a train ride and you can sit there and visually see everything, but the concept of this tour is almost like a backlot tour; very small scale. We can do a hundred and forty (140) people on the train. This will be like sixteen (16) people at a time and they will be going through the Hardwood Forest, the Hawaiian and South American, and the banana fields, so it is a totally different take. They will be able to taste two (2) Kauai products. It is just a really beautiful piece of property; the tour. We are adding on another parcel to it, which is in a little valley that is quite nice that I would recommend any one of you guys in the future to try. We went with the Liquor Department and they are okay with us doing this type of tour. They let us do a mai tai on the train and so one Liquor Commissioner said well we have to try this tour once it is up and running. (Laughter) So I encourage you — if you do see fit to give us a Use Permit — that you come out and actually see what we are doing in regards to the agritourism. My son is the one that is going to be running this tour, so if you have any direct questions on how it is going to be operated or how many people are going to be doing it or exactly what it is, then he is here to answer any of those questions. But thank you very much for your time. Vice Chair Ho: Any questions, Commissioners? Mr. Mahoney: Could you give just a brief explanation of the tour? Nick Atkins: Brief description of the tour? Mr. Mahoney: Yeah. Mr. N. Atkins: Sure. Mr. Mahoney: That would be great. Mr. N. Atkins: As Chance said, we have purchased two (2) F-350 Ford Flatbed Trucks and we have modified them to sit sixteen (16) people in the back. The flatbed truck, there are four (4) rows of four each that is kind of in a stadium -style seating so it each goes up which gives everybody a really good view. What we are going to do is we are going to start out at a little check-in station in front of K61oa Rum Company at Kilohana, drive around the front of the 15 property, and then head out into the back of the diversified agricultural park. What the tour will do is it will basically — I like to say — bob and weave through the plantation. We will drive up and down the different rows of fruit trees and kind of educate people on the history of agriculture here in Hawaii; how it started, what it has become. So we are going to basically just drive around the property showcasing what we have there. We will do a little stop to do a little rum tasting; taste the different varieties of rum that K61oa Rum has. We are going to do that down in the valley behind Kilohana. The valley is kind of an open canopy, tropical, rainforest setting where we would like to do a little walking tour through the valley. It will be about a 300 -foot boardwalk — is what we are proposing — with a tasting room in the valley. After that, tour the plantation a little bit more and then stop at the second tasting area where we will actually plant — what I'm calling — a bar garden, which will have different varieties of vegetables and herbs and stuff like that where we can actually make a legitimate farm -to -glass cocktail. We will also incorporate fruits from the orchard. So it will be an interactive experience. You will learn a little bit of history about the island, the plantation, and the history of agriculture. After that, it is back to the depot. So we are expecting to do about a 2 -hour tour and then would also like to do evening tours in conjunction with the luau and Gaylord's Restaurant. Mr. Mahoney: Thank you. Vice Chair Ho: So it is an afternoon or evening tour? Mr. N. Atkins: Our first tour ... starting out, we would like to start out with three (3) tours a day. The first tour would probably go out at about 11:00 (a.m.), then about 1:30 (p.m.), and then about 3:30 (p.m.). And then depending on the success of the tour, we are asking up to five (5) tours a day, allowable, to start. Ms. Nogami Streufert: Is this, right now, for three (3) tours or for five (5) tours that you are looking for? Mr. N. Atkins: This is ... we are going to start out with three (3) tours a day and then we would like to be able to go up to at least five (5) tours a day. Ms. Nogami Streufert: So it is three (3) tours of thirty-two (32) people at each time. Mr. N. Atkins: Yeah. Ms. Nogami Streufert: And you don't think that there is going to be any traffic concerns or additional traffic? Mr. N. Atkins: Not too much. From the start we are going to try and get a lot of people that are already coming to K61oa Rum for the free rum tasting. What Koloa Rum does is they give them a little sample of each and we are hoping to kind of pick up off of that for people that want to go and explore the back. It is a little different than the train ride. It is a little different than the walking tour that we do. So we are just trying to add on to people's requests. People come in and we have been listening to their requests for a long time. 16 Ms. Nogami Streufert: Thank you. Mr. Atkins: Excuse me. One thing I would like to note is one of the nice things about doing the tour is that there are a lot of people that just can't do the walking, but they want to get out and experience and not just do a train ride, and this will definitely accommodate those kinds of people. Vice Chair Ho: Mr. Lord. Mr. Lord: Question. The Tasting Stop No. 1 in the valley, it looks like it is pretty heavily vegetated. What is your plan for clearing and utilizing that area? Is there a lot of construction? Mr. N. Atkins: Yeah, so there is already an existing road that goes down into the valley. We are going to use that existing road, which we currently do. There used to be a flower farm down there. After the hurricane, the flowers kind of all went wild so there is just a whole bunch of ginger, bromeliads, and all kinds of stuff down there. So we are actually not going to do very much cleaning. There are some trails and there are some open areas next to an old riverbed, or I'm not sure if it was a river or an irrigation ditch, but there won't be very much cleaning necessary. The building that we are proposing I think is ... or the kind of tasting gazebo that we are proposing is going to be screened -in, open ceiling. We are not going to need any electricity or anything like that. Mr. Lord: I saw the drawing here. Mr. N. Atkins: It is just a conceptual drawing. Mr. Lord: But that looks like the one you've got currently. Mr. N. Atkins: It is actually the same drawing from the gazebo that is out in front of Gaylord's Restaurant in the courtyard, so we just kind of want to stick with that kind of style; the plantation -style look. But there shouldn't be too much cleaning involved. We would actually probably end up planting more flowers and we are talking about doing a small area for ti leaf for the luau down there. Mr. Atkins: Now, in the valley, there is some remnant of...I don't know if it was a chicken coop or whatever it was that is dilapidated. There are ferns growing out of the roof. It is about the same footprint as a gazebo. Fortunately there is a road leading right up to it so there is not going to be really any impact from the construction. It is just going to replace an old, dilapidated shack. Mr. Lord: Great. Thank you. Vice Chair Ho: Mr. Bukoski, your recommendation, please. Mr. Bukoski: Based on the foregoing findings, it is hereby recommended that the amendment to Special Permit SP -2004-9, Use Permit U-2004-23, and Class IV Zoning Permit Z -IV -2004-24 to 17 allow for agriculture tours be approved. One, the Applicant shall execute a written agreement stating that ... oh, I'm sorry, Chair. Do you want me to go over all the recommendations as well? Vice Chair Ho: No. Do you understand the conditions for that? Mr. N. Atkins: Yes, sir. Vice Chair Ho: Do you agree to them? Mr. N. Atkins: Yes. Vice Chair Ho: Alright, Commission members. Mr. Mahoney: I would like to make a motion to approve the request for Class IV Zoning Permit Z -IV -2004-24, Use Permit U-2004-23, and Special Permit SP -2004-9 to allow for an additional commercial agricultural tour. Mr. Lord: Second. Vice Chair Ho: Motion has been made and seconded. Any discussion? Ms. Nogaini Streufert: Can I ask a question? Vice Chair Ho: Sure. Ms. Nogami Streufert: Is there anything about any kind of archaeological or ... was this at some point used as a residential area for ancient Hawaiians or something? Mr. Bukoski: No. The property, historically, was made for sugar plantation... part of the sugar plantation, so there was no significant impact on the historical... or culturally in that area. Ms. Nogami Streufert: But if something should be found— Mr. Atkins: It states in there if we find something— Mr. Bukoski: Correct. If something is found, then SHPD would be contacted immediately. Ms. Nogami Streufert: Thank you. Vice Chair Ho: The motion for approval has been made and seconded. All in favor? (Unanimous voice vote) Seeing no objections, you have your pen -nit. Motion carries 5:0. Mr. Atkins: Thank you very much. Mr. N. Atkins: Thank you. 18 Mr. Dahilig: Thank you, Mr. Chair. Clerk of the Commission's Recommendation to Refer an Appeal of the Planning Director's Decision Related to the Notice of Violation and Order to Pay Fines for the operation of an illegal transient accommodation use, Patricia D. McConnell, Tax Map Key (4)58005005, to a Hearings Officer (Contested Case No. CC -2017-4); Request for Delegation of Authority to the Clerk of the Commission to Procure and Appoint a Hearings Officer on Behalf of the Commission for the Instant Appeal. Mr. Dahilig: We are now on Item I.2. This is the Clerk of the Commission's recommendation to refer an appeal of the Planning Director's decision related to the Notice of Violation and Order to Pay Fines for the operation of an illegal transient accommodation use, Patricia D. McConnell at TMK: (4)58005005, to a Hearings Officer known as Contested Case No. CC -2017-4. We would request for the Delegation of Authority to the Clerk of the Commission to procure and appoint a Hearings Officer on behalf of the Commission for the appeal. Mr. Kugle has submitted the request for an appeal and he is actually out of the country, as previously noted, but we are simply asking the Commission to refer the matter to a Hearings Officer for disposition. Ms. Apisa: I move that we defer this matter to a Hearings Officer. Mr. Dahilig: Refer. Ms.AAyisa: Refer? I'm sorry, refer. Refer it to a Hearings Officer. Mr. Mahoney: Second. Vice Chair Ho: Discussion? Anybody? Motion has been made and seconded. All in favor? (Unanimous voice vote) Motion carries 5:0. Mr. Dahilig: Thank you, Mr. Chair. UNFINISHED BUSINESS (For Action) (Continued) In the Matter of the Application of Mohala Ke Ola Management, LLC for a Use Permit and Class IV Zoning Permit on property situated at Kapa`a, Kauai, Hawaii, identified by Kauai TMK No. (4)4-2-009: 011 containing 18,739 square feet; CC -2015-13 and CC - ?_016 -1. Mr. Dahilig: Now we are on Item L.2. This is the matter of the application of Mohala Ke Ola Management, LLC for a Use Permit and Class IV Zoning Permit on property located at Kapa`a, Hawaii, identified as Tax Map Key (4) 4-2-009 Parcel 011 containing an area of 18,739 square feet known as Contested Case Nos. CC -2015-13 and CC -2016-3. There is a stipulated Decision and Order and Exhibits A through F that have been submitted to the Commission for its review. R I believe counsel for both the Department and the Appellant are present and can present the stipulation. Mr. Chun: Good morning. Jonathan Chun on behalf of the Applicant. Present, also, behind me is Darcy Summer who is the manager of the LLC. County Attorney Mauna Kea Trask: Aloha, Honorable Chair and Honorable Commissioners. For the record, Mauna Kea Trask, County Attorney, representing the Department in this matter. Briefly, on behalf of the Department, I'll just say that this originally came in as a Notice of Violation. It was appealed and the Department and the, now, Applicant agreed to submit an application for the pen -nit and kind of hold the violation in abeyance. There were some issues regarding Department of Health requirements and interpretations, zoning, parking, and everything like that, so everything has been worked out. The Department and the Applicant have agreed to, in concept subject to the approval of the Commission, to grant them their permit to operate a bed and breakfast, they pay a $5,000 fine upon issuance of the permit, and this goes to the confusion of the Use Permit process, the B&B process, so this snakes everything alright. It has been reviewed and approved by the Planning Department as represented by my signature and the Applicant by Mr. Chun's. Mr. Chun: I would agree with the statements by Mr. Trask here that this is a situation where the Applicant was operating, for a number of years, a bed and breakfast; of course, they could not apply for a TVR because they were a bed and breakfast. Based upon the publicity or the information that bed and breakfasts would need to come in, they immediately applied for a bed and breakfast. They were assigned a contested case for the application for a bed and breakfast. During that process, there were a couple of things that needed to be done. We agree with that that they needed to be done to correct the structure. Those things took a while to get done. Those things have been done and signed off by all County and State agencies. Based upon the Applicant complying with those conditions, the Department thought it was comfortable with the recommendations that you have before you. I think that's... Vice Chair Ho: Any questions from the Commissioners? One concern, I think, is for Mike. There was an ADU on the property and how would you enforce it not being used. Mr. Chun: The ADU was removed from the application. I believe there is a letter from our office to the Planning Department removing the ADU from the bed and breakfast operation. The ADU is not part of the bed and breakfast operation at all. Only, I believe, the bedrooms in the main house that is part of the application. Mr. Trask: And if you look at page 13 of the stipulation, paragraph 56(a), it states that. Mr. Dahili . Just from an enforcement standpoint, if the usage — if approved by the Planning Commission through a future pen -nit — would lead to an expansion that is unpermitted, we would immediately come to the Commission for an Order to Show Cause for revocation; that's, again, with the presupposition that an application would come through, the Planning Commission would approve that, and very likely we would include and enroll as part of the conditions for approval that it be very clear about the ADU usage. 20 Mr. Lord: So there is an enforcement component to this? Mr. Dahilig: In the future, yes. Mr. Lord: Okay. Mr. Chun: Yeah, we understand ... I mean, yeah, it is totally understood. If the ADU — which is basically the structure above the garage — is used as a vacation rental, that would definitely be a violation. Right now, my understanding is one of the children of the Applicant is living there right now, so it is being used as a long-term rental for themselves. I don't know the relationship between the child and the Applicant. If you want, we can ask the Applicant to come in and explain it, but we totally understand that if the ADU is being used as part of the operation in any way, that would be a violation. Vice Chair Ho: Any other discussion? Ms. Nogami Streufert: And the Owner/Applicant will be residing in the main house at the time that the bed and breakfast is in operation? Mr. Chun: Yes. That was one of the things that we needed to clarify is that the Owner/Applicant had a homeowner's exemption in there, so that had been done already and that was one of the items that we were working out with the Planning Department. Vice Chair Ho: Mauna Kea, if the Commission should accept or grant approval, does this settle all claims between the Planning Department and Ms. Summer? Mr. Trask: Yeah, it addresses Contested Case (Nos.) CC -2015-13, CC -2016-3, and the associated permit applications; that's why part of this is the payment of a fine, the $5,000 fine, so that resolves everything with agreement with all parties, so all pan. Mr. Dahilig: Just to be clear, the Commission's action today would effectuate the stipulation which talks about the issuance and the settlement of— Mr. Trask: Correct. And the Hearings Officer signed off as well. Ms. Apisa: I would make a motion to approve it; again, I need help with forming the motion don't know... Mr. Dahilig: I guess to approve the stipulation. Ms. Apisa: Just approve the stipulation regarding the Mohala Ke Ola Management Class IV Zoning Permit and their homestay request. Vice Chair Ho: Motion on the floor— Ms. Nogami Streufert: Second. 21 Vice Chair Ho: Seconded. Further discussion? Anybody else? Mr. Dahilig: Mr. Chair, just to be clear since the effect of this is that there is going to be a permit that flows from this action, if you could just get orally on the record that the Applicant's representative is consenting to the conditions of approval. I understand they are in the stipulation, but just for the record. Mr. Chun: Yeah, the Applicant has reviewed and has agreed to all the conditions of the pen -nit as outlined in the stipulated decision. Vice Chair Ho: The motion on the floor is to ... could you frame it for us? Ms. Higuchi Sayegusa: Yeah, I guess the motion, as I understand it, Commissioner Apisa, is to approve and adopt the stipulated Decision and Order— Ms. Apisa: Correct. Ms. Higuchi Sayegusa: —as submitted. Ms. Apisa: Correct. Ms. Higuchi Sayegusa: Okay, thank you. Vice Chair Ho: And it has been seconded, so we need a vote. All those in favor? (Voice vote) You have it. Ms. Higuchi Sayegusa: Oh, any opposed? Sorry. Vice Chair Ho: No one opposed? Mr. Lord: I am opposed. Vice Chair Ho: You are opposed. I'm sorry. Let me go back. Let's do a roll call vote. Mr. Dahilig: Mr. Chair, the motion on the floor is to approve the stipulation and Decision and Order in Contested Case Hearings 2015-13 and 2016-3. Commissioner Lord. Mr. Lord: No. Mr. Dahilig: Commissioner Streufert. Ms. Nogami Streufert: Yes. Mr. Dahilig: Commissioner Mahoney. W Mr. Mahoney: Aye. Mr. Dahilig: Commissioner Apisa. Ms. Apisa: Aye. Mr. Dahilig: Vice Chair Ho. Vice Chair Ho: Aye. Mr. Dahilig: Four (4) ayes, one (1) no, Mr. Chair. Vice Chair Ho: Motion carries 4:1. Mr. Trask: Mahalo. Appeal of the Planning Director's Decision Related to the Notice of Violation and Order to Pay Fines by Toni Sutherland/Alta Management Services LIC for continued operation of an unpermitted vacation rental, TMK No. (4) 58011059-0001, H`ena, Kauai, to a Hearings Officer (Contested Case No. CC -2016-8). Mr. Dahilig: The last one, Mr. Chair, is Item L.3. This is an appeal of the Planning Director's decision related to the Notice of Violation and Order to Pay Fines for Toni Sutherland/Alta Management Services LLC for continued operation of an unpermitted vacation rental, TMK: (4) 58011059 CPR 0001 in Hd'ena, Kauai to a Hearings Officer; Contested Case No. CC -2016-8. There is a Stipulation for Dismissal with Prejudice of the appeal of the Planning Director's decision related to the Notice of Violation and Order to Pay Fines. I believe counsel for both parties are present to present the stipulation. Mr. Chun: Good morning. Jonathan Chun on behalf of the Appellant, Toni Sutherland and Alta Management Services, LLC. Deputy Attorney Teresa Tumbaga: Good morning, Commissioners. Deputy County Attorney Teresa Tumbaga on behalf of the Respondent, Planning Department of the County of Kauai. Ms. Apisa: I would like to recuse myself from this discussion. Ms. Apisa left the meeting at 11:52 a.m. Vice Chair Ho: Has that been noted? Okay. Mr. Chun: If the Commission wants (inaudible), I can give a slight overview in terms of how this contested case arose and the basis of the resolution; if the Chair wants. Vice Chair Ho: Please do. 23 Mr. Chun: Okay. This matter arose ... there was a Notice of Violation, I believe, sent by the Planning Department to Alta Management Services, LLC on the basis of their understanding at that time that Alta Management Services, LLC was operating a TVR without the proper permits. There were a number of procedural issues that arose as part of that contested case and those procedural issues were brought in front of the Circuit Court of the County of Kauai over here on the Fifth Circuit, and that is the reason why we have an appeal in front of the Fifth Circuit right now. But in an effort to try to resolve everything, the County and myself met in teens of a way to resolve that and the agreement was reached between all parties that they would, one, Alta Management Services would agree not to offer their property for a TVR and to withdraw the website and also ... I think the website was a big issue ... the website and I think they cancelled the TAT and the GET Licenses. So those items were done in essence and what the County required or requested is also a payment of a fine. I can't remember the amount. I think it was $5,000, yeah, $5,000 fine. So Alta Management Services did agree to those conditions. Alta Management has taken down its website. I don't think it has been operating for a couple years already and they have cancelled their GET and TAT Licenses. I forgot the date, but as of that day, we provided evidence to the Planning Department for that. And they were agreeable to paying the fine upon the dismissal of this contested case by the Planning Commission, then the dismissal of civil action in the Fifth Circuit will be filed also. I believe we signed off on all the paperwork for that. Yeah, we are just waiting to get everything else done by the Planning Commission. If the Commission has any questions, I can answer you, but that, in essence, was how the case formed. Vice Chair Ho: Thank you. Anything from Teresa? Ms. Tumbaga: Just as an update, the Circuit Court, which was ... there was an interlocutory appeal to the Circuit Court and that has already been dismissed by Judge Watanabe on April 201h Then the parties signed a settlement agreement, which was signed by the Department, the party, and then as to form by Mr. Chun and myself. So the last matter that needs to be resolved is the contested case appeal which is before this body, CC -2016-8, and that is what this Stipulation for Dismissal addresses. Vice Chair Ho: Thank you. Commission members, any questions? Ms. Streufert. Ms. Nogami Streufert: My understanding is that they have ... from what you have said, Mr. Chun, that there is no TAT and no GET numbers for this at this point. If this property were to be, then, sold to someone else ... I guess I'm not sure that that should not be to the County Attorney ... that this property cannot then be used as a bed and breakfast or a Transient Vacation Rental. Is that correct? Mr. Chun: I can answer some of that. It cannot be used as a Transient Vacation Rental at all. Some of the background is the Applicant did, at one time, did apply for a TVR for this property and ... without getting into details, there was a lot of confusion regarding that application. Suffice to say, the bottom line — and we don't contest that — is that the TVR was never ever granted by the Planning Department, so that ship has sailed. This property is not entitled to a TVR at all and this settlement agreement does not revitalize or allow or recognize any kind of opportunity for a TVR on this property, now and in the future. Now, as far as the Use Permit is concerned, the Im Applicant has never applied for a Use Permit and does not intend to apply for a Use Permit to use this as a homestay. If the Petitioner does want to sell the property in the future, we don't know whether ... I mean, that doesn't stop the new owner from applying (for) it, but it is up to the discretion of the Commission to grant it or not at that point in time. But my understanding with the Petitioner is they have not and nor have I been directly instructed to apply for a Use Permit because they don't live on Kauai. One of the things for a homestay is you have to live on the island and you have to live on the property, you have to declare that property as your principal residence; this is not their principal residence. Ms. Tumbaga: And the settlement agreement does state this payment does not entitle the subject property to transient accommodation usage. Any usage of the subject property for transient accommodations is subject to all applicable laws and regulations, including but not limited to Section 8-3.5 of the Kauai County Code, as amended. Ms. Nogami Streufert: Okay. Vice Chair Ho: Mr. Lord. Mr. Lord: I have a question for our attorney. So can that agreement run with the land? Ms. Higuchi Sayegusa: The settlement tenns of the case itself? Mr. Lord: Yeah, that it won't be used in the future. Ms. Higuchi Sayegusa: Well, there is no pennit, there are no entitlements, currently, to provide the right to do so. Mr. Lord: Well, I understand that, but I'm talking about the agreement itself. Ms. Higuchi Sayegusa: For the agreement, it sort of settles the underlying appeal. Mr. Lord: It settles it for today, right? Ms. Higuchi Sayegusa: And I think in the future, that will just be a question on enforcement via the Department to catch any transient uses without a permit and then an enforcement action would have to be lodged. Mr. Dahilig: The settlement agreement pretty much reaffirms the current status of the law and a recognition that that is what the law is at that point. However, if we were to have something run with the land that is binding that forecloses any use and let's say that the County were to remove the TVR restriction across the County via legislation, we would be placing that property in a predicament where they are forfeiting any future rights that may flow naturally from legislation, so that's why we would not say that the agreement to not operate is running with the land in perpetuity, but it is an acknowledgement of the current status of the land and their acknowledgement to not break the law, essentially. 25 Mr. Lord: Okay. Thank you. Vice Chair Ho: Seeing no further discussion, I'll entertain a motion. Ms. Nogami Streufert: I move to receive and accept the Stipulation for Dismissal with Prejudice of the appeal of the Planning Director's decision related to the Notice and Order to Pay Fines for the continued operation of an unpermitted vacation rental for properties situated in Ha` ena, Kauai, identified by Kauai TMK No. (4) 5-8-011:059, Unit A, and it containing a total area of 6,250 square feet. Mr. Mahoney: Second. Vice Chair Ho: Motion has been made and seconded. Any discussion? Seeing no discussion, a vote, please. All in favor? (Unanimous voice vote) Motion carries 4:0. Mr. Dahilig: Alright. Thank you, Mr. Chair. NEW BUSINESS Mr. Dahili& We do not have any further New Business items as the matter for hearing was deferred two (2) months. ANNOUNCEMENTS Topics for Future Meetings The following regularly 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, June 27, 2017. Mr. DahiliK Future meetings. Dale is out sick today so I haven't been able to get together an on -deck sheet, but we will circulate that via email to the Commissioners. Today is not Groundhog Day, so I would say that the next meeting is actually going to be on Tuesday, July 25, 2017. We have been able to consolidate dockets so the Commission meeting for the first of July will not need to occur. So we are able to consolidate the dockets for the next meeting, so that will be the second meeting in July is the next meeting. Other than that, Mr. Chair, those are all the items that are on the Commission's calendar today. ADJOURNMENT Vice Chair Ho: I need a motion to adjourn. W Mr. Mahoney: Chair, move to adjourn. Vice Chair Ho: Second, please. Mr. Lord: Second. Vice Chair Ho: Moved and seconded. All in favor? (Unanimous voice vote) We're done. Vice Chair Ho adjourned the meeting at 12:02 p.m. Respectfully submitted by: &rcie Agara , Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of meeting. 27