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HomeMy WebLinkAboutPlanning 080817 Workshop MinutesKAUAI PLANNING COMMISSION WORKSHOP August 8, 2017 The workshop of the Planning Commission of the County of Kauai was called to order by Chair Keawe at 11:36 a.m., at the Lihu`e Civic Center, Mo`ikeha Building, in meeting room 2A -2B. The following Commissioners were present: Chair Kimo Keawe Vice Chair Roy Ho Ms. Kanoe Ahuna (entered at 11:38 a.m.) Ms. Donna Apisa Mr. Wade Lord Mr. Sean Mahoney Ms. Glenda Nogami Streufert The following staff members were present: Planning Department — Director Michael Dahilig, Leslie Takasaki, and various staff members; Office of the County Attorney — Deputy County Attorney Jodi Higuchi Sayegusa; Office of Boards and Commissions — Commission Support Clerk Darcie Agaran Discussion of the workshop, in effect, ensued: Chair Keawe called the workshop to order at 11:36 a.m. Planning Director Michael Dahilig noted that there were six (6) commissioners present and that Commissioner Ahuna was outside of the meeting room. APPROVAL OF AGENDA Chair Keawe asked Mr. Dahilig if there were any changes to the agenda to which there were none. Chair Keawe called for a motion to approve the agenda. On the motion by Sean Mahoney and seconded by Glenda Nogami Streufert to approve the agenda, the motion carried by unanimous voice vote (6:0). Mr. Dahilig stated that there were no items to receive for the record. COASTAL ZONE MANAGEMENT (CZM/SPECIAL MANAGEMENT AREA (SMA) PRESENTATION TO THE KAUAI PLANNING COMMISSION — STATE OFFICE OF PLANNING, COASTAL ZONE MANAGEMENT (CZM) PROGRAM MANAGER JUSTINE NIHIPALI. THIS IS FOR INFORMATION PURPOSES. Mr. Dahilig explained that the County of Kauai is one of three (3) counties that receive Coastal Zone Management Grant funds through the National Oceanic and Atmospheric Administration. He stated that part of the county's efforts was to help facilitate the enforcement of the coastal zone area that was established under the Coastal Zone Management Act. As part of those efforts to protect the coastline, the Department wanted to ensure that the Commissioners were up to speed with how the CZM Program works, how the Department interfaces with the State Office of Planning, and what the departments' responsibilities, collectively, are at the county level. Commissioner Ahuna entered the workshop at 11:38 a.m. Ms. Justine Nihipali, Program Manager for the Coastal Zone Management Program with the State Office of Planning, introduced herself and thanked the Commission and Staff. She stated that they periodically conduct presentations/trainings with planning commissions to familiarize the commissioners with the CZM Program and some of the ways that the counties collaborate with the state in the administration of the Special Management Area Permitting System. Ms. Nihipali presented a PowerPoint presentation to the Commission on the Coastal Zone Management and Special Management Area Permit (on file with the Planning Department). She noted that the Office of Planning is administratively attached to the Department of Business, Economic Development and Tourism, and that the Coastal Zone Management Program within the Planning Division is the program that she has been managing for about a year. Ms. Nihipali stated that the Office of Planning analyzes and provides information to the governor and assists with overall analysis on the formulation of state policies and strategies. She added that the purpose of the Coastal Zone Management Program is to provide for the effective management, beneficial use, protection, and development of the coastal zone. Ms. Nihipali noted that the coastal zone in Hawaii is the entire State of Hawaii. She stated that the coastal zone for other states is 30 miles inland; however, the coastal zone for Hawaii is the entire state because there is no point that falls outside of that 30 -mile area inland. She also recognized that anything that occurs on land in Hawaii, being an island state, would affect the coastal area. Ms. Nogami Streufert asked if it included streams or if it only included the coastal exterior to which Ms. Nihipali replied that it was the entire state. Ms. Nihipali noted that there were federal areas that did not fall under the Coastal Zone Management Area, such as the military bases. Ms. Nihipali discussed the background of the program. She stated that the National Coastal Zone Management Act of 1972 was enacted by Congress and Congress determined that the state was in the best position to manage the coastal zone areas. She explained that the coastal zone is identified as areas that connect land and sea, and the state exercises the discretionary use of the land use policies. The program is administered by the National Oceanic and Atmospheric Administration at the federal level. There are thirty-four (34) states and territories that currently participate in the voluntary federal -state partnership program which allows the State Coastal Zone Management Program to receive funds for state planning and administration. She added that they also have the privilege of administering the federal consistency review program. In addition to their annual Coastal Zone Management grants, Ms. Nihipali stated that they compete for other grant funding opportunities as well, including the Projects of Special Merits, which allows the approved programs to further enhance strategies that focus on the nine (9) enhancement areas. In response to the enactment of the Coastal Zone Management Act, the state mandated the development of a statewide CZM program. The statewide CZM program was enacted in 1977 in consultation with the counties and community participation. Ms. Nihipali stated that it was formally approved in 1978, which will make the program 40 years old next year. She noted that they currently receive approximately $2.2 million in federal funds annually to administer the program and the funds support the Hawaii CZM Program, which is about ten and a half (10''/2) positions at the state level. Ms. Nihipali stated that they fund the county administration of the Special Management Area Permitting System as well. She noted that they currently support approximately four (4) positions in the County of Kaua`i's Planning Department. Ms. Nihipali stated that the Hawaii CZM Program components included federal consistency reviews, the SMA Permit, the Ocean Resources Management Plan (ORMP), and the Marine and Coastal Zone Advocacy Council (MACZAC). She explained that federal consistency meant that certain activities that are funded by federal programs are reviewed against state policies to ensure they are consistent with the enforceable policies of the CZM program. This highlights the need for the collaboration of the program with other agencies at the state and county levels to ensure that their reviews include a level of consistency. Ms. Nihipali noted that the Commission reviews and either approves or denies SMA Permits. She stated that the ORMP is a statewide plan with three (3) guiding perspectives: connecting the land and sea, preserving the ocean heritage, and promoting collaboration and stewardship. Ms. Nihipali added that this plan, which started in 1985, is a state and county plan that is done with community development. It has been updated several times and the current goal is to update the plan approximately every five (5) years; an update is slated for next year. She noted that the Office of Planning is the lead agency for tracking the implementation and the coordination of the plan. Ms. Nihipali stated that the establishment of a National Estuarine Research Reserve (NERR) was a recent accomplishment. She explained that the site selection process began in 2013 when former Governor Abercrombie determined that a site in Hawaii should be nominated as a NERR. The site selection and nomination processes were facilitated by the Office of Planning and on January 19, 2017, the ahupua`a of He`eia was designated as the 291h NERR in the state. Ms. Nihipali noted that the University of Hawaii, Hawaii Institute of Marine Biology (UH-HIMB), along with the Reserve Advisory Board is the current lead agency and that allows federal funding to support research in that area. She estimated that the UH-HIMB is receiving approximately 3 $670,000 for the current fiscal year. Ms. Nihipali stated that the MACZAC, which is their community outreach component, was established by mandate. The MACZAC meets quarterly and part of their responsibilities is to advocate and evaluate the CZM Program. Ms. Nihipali noted that the MACZAC advocates for support at the federal and state levels. There are twelve (12) members — currently two (2) vacancies — with representation from areas such as business, tourism, environment, cultural aspects, recreation, etc. Former Commissioner Angela Anderson is one of the Kauai representatives. Referencing an illustration on the Hawaii CZM Network, Ms. Nihipali stated that it showed how complicated it can get and how they really need to focus on collaboration and coordination between jurisdictions. She noted that the State Conservation District is 3 miles seaward from the highest wash of the wave, which was delineated by the shoreline. She also noted that the shoreline setback is a minimum of 20 feet within the Special Management Area, which is part of the county's jurisdiction. Ms. Nihipali stated that Shichao Li, SMA Coordinator for the State of Hawaii, would be speaking to the Commission about the Special Management Area Permitting System. Before continuing with the PowerPoint presentation, Mr. Li provided a brief background about himself, noting that he has been involved with the CZM Program for about 10 years, he has a Planning Certificate in Urban and Regional Planning, and a Ph. Degree in Geography. Regarding the Hawaii CZM Network, Mr. Li stated that the shoreline is important because it serves as the jurisdiction line between the county and the state. He noted that shoreline setbacks are an important part of the SMA and that the County of Kauai is strict regarding shoreline setbacks. Mr. Li explained that SMA was established in 1975 by Act 176, or the Shoreline Protection Act. He added that before CZM became a law in the State of Hawaii, SMA's were already in effect in the counties. Historically, the SMA area was 100 yards from the shoreline; however, the law has since been amended. Ms. Nogami Streufert asked if the shoreline setbacks are different in each county within the State of Hawaii to which Mr. Li replied that HRS 205A requires a minimum of 20 feet; however, each county has the authority to specify their shoreline setback. Ms. Apisa asked if the County of Kaua`i's shoreline setback was 40 feet to which Mr. Li replied that it was much more than that. Mr. Li stated that it was dependent upon the parcel as well, but she should check with the Planning Department. Referring to an image in the presentation, Mr. Li pointed out the SMA boundaries for each island. He stated that it is a really sensitive area. Mr. Li explained that when the public calls their office to find out if they are in the SMA, he informs them that the state GIS program provides a visualization of the SMA; however, it is the county's authority to make that determination. Mr. Ho asked how would they enforce the SMA on a private island, such as Niihau to which Mr. Li replied that the Planning Department would assess that. Mr. Li' noted that although M Niihau is private, it is still under the CZM. He added that if the SMA boundary map was already decided for Niihau in 1975, they must follow the requirement; they cannot be exempt. Mr. Li explained that the key purpose of the SMA Permit was to try to control development within and along the shoreline to protect the valuable resources and to keep the open space for public access, beaches, and recreation areas. Ms. Nogami Streufert stated that the shorelines could change with the anticipated increase in the water level. She asked if the SMA changes as the shoreline changes or if it was based upon a particular date in time to which Mr. Li replied that that the shoreline setback line changes as the shoreline changes, but it depends on the character of the shoreline. Based on the Administrative Rules, the shoreline is valid for only one (1) year after approval; however, a time extension could be requested. Mr. Li explained that the shoreline erosion is taken into consideration when detennining the shoreline setback, which is why the setback is much larger than the minimum requirement. He stated that any structure and/or activity within the shoreline area is prohibited. The shoreline area encompasses the area from the shoreline to the shoreline setback line. Mr. Li reiterated that each county has the SMA authority and they each have their own SMA rules and shoreline setback rules. He noted that Hawaii County has two (2) planning commissions — Windward and Leeward Planning Commissions; Kauai County has one (1) planning commission, and Maui County has three (3) planning commissions — Maui, Molokai, and Lanai Planning Commissions. Mr. Li stated that the City and County of Honolulu is different from the other counties by which the City Council has the SMA authority. Mr. Li stated that the Office of Planning is the lead agency in the administration of the CZM Program and they oversee the consistency of the SMA Permit System. He noted that the Office of Planning provides CZM/SMA training sessions to county SMA personnel and planning commissions and county authorities, as well as provides SMA guidance to ensure that there is consistency with the SMA Permit statewide. Mr. Li added that the Office of Planning also reviews the SMA Permit and shoreline setback for two (2) community development districts — Kaka`ako and Kalaeloa. Mr. Li stated that the "Participant's Guide to the Special Management Area (SMA) Permit Process in the State of Hawaii" was distributed to all of the counties, including the County of Kauai. He noted that the 1St edition was published in 2006 and it was subsequently updated in 2012 due to an increase in the cost threshold. From 1991 to 2011, the cost threshold for SMA Major Permits was $112,000 and it increased to $500,000 in 2012. Mr. Li stated that he reviewed the number of SMA Major Permits after the increase and there was a decline in SMA Major Permits from forty-five (45) to twenty-five (25), or less, statewide. Mr. Li explained that per HRS 205A, the SMA Permit is the first permit that is required for development within the SMA. He emphasized that no other permit should be issued without first obtaining an SMA Permit. Mr. Li stated that sometimes the SMA Permit is misinterpreted as the land use policy. He noted that the SMA permit is used for mitigation purposes to ensure that the development is consistent with the objective and policies of the CZM, as well as the SMA guidelines. Ms. Nogaini Streufert asked for clarification if SMA Permits were used more for mitigation to which Mr. Li replied yes. Mr. Li stated that if there will be a significant impact, the development must provide mitigation measures to mitigate the impact. If mitigation measures cannot be provided, the SMA Permit may be denied. He said there are some actions that are not considered "development", which is listed in HRS Section 205A-22. He added that an SMA Permit is not required if it the action is not a development. Mr. Li noted that a single-family residence was previously exempt from an SMA Permit; however, it is now required if the floor area is greater than 7,500 square feet. The impact of a proposed project determines whether it requires an SMA Major or SMA Minor Permit, as well as the cost threshold. He stated that it was important for the public to confirm with the govermnent on the project cost to detennine which SMA Permit would be needed. Ms. Apisa asked if an SMA Permit was required to install a fence to which Mr. Li replied that it depended on the assessment and the proposed area, but it would probably require an SMA Minor Permit. When the application is submitted to the Planning Department, either the Planning Director or Staff can assess the proposed action. The Director will make the determination if a proposed action is exempt. If it is not exempt and an SMA Minor Pen -nit is required, the Director will decide to issue or deny the SMA Minor Permit and report it to the Planning Commission. Mr. Li explained that if an SMA Major Permit is required, the Director will provide a recommendation to the Commission and the Commission will make the ultimate decision. He noted that SMA Major Permits require a public hearing. Ms. Apisa asked if an SMA Permit was required for landscaping to which Mr. Li replied that generally, he couldn't say; however, based on HRS 205A, agricultural landscaping can occasionally be exempt. Mr. Li stated that sometimes the applicant or the developer will claim that they are exempt, but they must submit an application to the Planning Department for assessment; otherwise, they could be in violation. Mr. Li stated that the CZM objectives and policies provide guidance to the SMA Permit administration. He noted that there were ten (10) CZM objectives — recreational resources, historic resources, scenic and open space resources, coastal ecosystems, economic uses, coastal hazards, managing development, public participation, beach protection, and marine resources. Some important elements for assessing the SMA Permit application were public access to beaches, recreation areas, and coastal areas; alterations to existing land fonns; danger of coastal hazards; and historical and archaeological resources. He emphasized that the SMA Permit conditions must be related to the CZM Law's provisions and that it cannot be beyond the CZM requirement. He provided some potential SMA Pen -nit conditions and noted that they must be site specific. Mr. Li also provided some examples of questionable SMA Permit conditions. He stated that if the SMA Permit conditions were not related to the CZM Law's provisions, it would be hard to enforce the permit conditions. Mr. Li added that the developer could be asked to provide a status report as a permit condition. He noted that normally there is an expiration date for an SMA permit; however, a time extension could be requested. Ms. Apisa asked what a typical expiration time would be to which Mr. Li replied that it was within the County's authority to determine the amount of time. Based on previous meetings with planning directors, Mr. Li stated that some counties allow a project five (5) years to 0 complete or three (3) years to commence. He added that the counties include a sentence that states a time extension can be requested provided there is reason and/or justification for that request. Mr. Li stated that per HRS Section 205A-32, civil fines are imposed if there is an SMA violation or a shoreline setback violation, which could be up to $10,000 for each day the violation persists. Civil fines cannot exceed $100,000. Mr. Li noted that in his experience, he has never heard of a county imposing a $100,000 civil fine. He added that the civil fine was imperative for enforcement. When a Notice of Violation is issued, there is a timeline for compliance that must be met. Ms. Nogami Streufert stated that there were people that could afford a fine of $10,000 a day. She asked if there were other enforcement possibilities after the fine to which Mr. Li replied that the damage would need to be restored. Ms. Nogami Streufert asked what happens after the civil fine is paid and there continues to be no compliance to which Mr. Li replied that court was an option. Mr. Li stated that the payment of the civil fine does not preclude the permittee from taking action to correct the violation. Chair Keawe asked if there was a force of law that could be used as enforcement to rectify the violation to which Mr. Li replied that the Notice of Violation would include language to say that they either take action to comply or it is their responsibility to remove any structures from the property. Mr. Li added that the Notice of Violation is a legal requirement and the Commission's attorney would provide guidance for this type of enforcement. Deputy County Attorney Jodi Higuchi Sayegusa stated that there could be an injunction to have a court order require compliance with the law. She noted that if there was a violation with a permit condition, the permit could be revoked. Mr. Li stated that it would become a police function at that point. Chair Keawe asked if there was a federal statute that could be enforced to which Ms. Higuchi Sayegusa replied that it was a civil function under HRS. Mr. Li pointed out that there is no mention of criminal fines in HRS 205A; only civil fines. In conclusion to the PowerPoint presentation, Mr. Li encouraged the Commissioners to visit the State Office of Planning's website for more information. Chair Keawe asked the Commissioners if they had any further questions. In regard to Slide No. 6, Ms. Nogami Streufert asked if they anticipated a change in the federal funding to which Ms. Nihipali replied that what she could share was that there have been challenges with funding with the recent Administration change; however, they currently have very strong funding. Ms. Nihipali stated that the White House Administration proposed a zero line item for Coastal Zone Management in the "Skinny Budget" proposal earlier this year. She explained that the House reinstated $45 million for the national program and then zeroed out what the Office of Planning uses for some of their competitive grants — the Coastal Resilience Grant Program. However, when it passed through to the Commerce, Justice, and Science Appropriations Subcommittee — the committee in which Senator Schatz is a member of — the line item was placed back at Federal Fiscal Year '17 funding for $70 million for the national program. Ms. Nihipali stated that they are currently looking at flat funding for many of the critical NOAA programs, such as Sea Grant, the NERR, as well as the Coral Conservation Program. She noted that it was her understanding that the House and the Senate have to reconcile the numbers, but it was looking positive. She added that this year was one of their stronger years thus far. They are closely working with the Coastal States Organization, as well as NOAA to advocate for their program. Ms. Nihipali stated that they understand that there might be another zero line item proposal in the next fiscal year. Ms. Nogami Streufert asked if there were state contingencies to continue to fund some of the positions if there was a decrease in funding to which Ms. Nihipali replied none that she knew of. Ms. Nihipali stated that there were more general funded positions in the program previously. She noted that there have been furloughs and that they rely a lot on federal funding. Chair Keawe asked what the greatest impact would be to the programs if the funding from the federal government dried up to which Ms. Nihipali replied the twenty-five (25) positions statewide,, fourteen (14) of which are in the three (3) counties would no longer receive federal funding. Ms. Nihipali added that they have been fortunate enough to apply for and receive competitive grants. She stated that they are currently working on a $430,000 project to look at tsunami zone design mapping and probabilistic mapping with the latest tsunami science. Another project that they hope to start would be to support Dr. Fletcher's updates for coastal erosion mapping on Kauai, Oahu, and Maui. Ms. Nihipali noted that those two (2) projects were currently not at risk; however, fixture projects such as those that have a very strong contribution to the state might be at risk in addition to the program funding for the twenty-five (25) positions as stated previously. Ms. Nogami Streufert asked how many of those positions were on Kauai to which Ms. Nihipali replied four (4). With no further questions, Chair Keawe thanked Ms. Nihipali and Mr. Li for their presentation. ADJOURNMENT Chair Keawe called for a motion to adjourn. On the motion by Sean Mahoney and seconded by Glenda Nogami Streufert to adjourn, the motion carried by unanimous voice vote (7:0). Chair Keawe adjourned the workshop at 12:31 p.m. Respectfully submitted by: Oarcie Ag n, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of meeting.