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HomeMy WebLinkAboutPlanning 092617 MinutesKAUAI PLANNING COMMISSION REGULAR MEETING September 26, 2017 The regular meeting of the Planning Commission of the County of Kauai was called to order by Chair Keawe at 1:39 p.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 Mr. Wade Lord Mr. Sean Mahoney Ms. Glenda Nogami Streufert Absent and Excused: Ms. Kanoe Ahuna Ms. Donna Apisa The following staff members were present: Planning Department — Director Michael Dahilig (entered at 2:10 p.m.), Deputy Director Kaaina Hull, Leslie Takasaki, Alex Wong; Office of the County Attorney — Deputy County Attorney Jodi Higuchi Sayegusa; Office of Boards and Commissions — Administrator Paula M. Morikami (left at 2:30 p.m.), Commission Support Clerk Darcie Agaran Discussion of the meeting, in effect, ensued: Chair Keawe called the meeting to order at 1:39 p.m. ROLL CALL There were five (5) commissioners present; Commissioners Lord, Mahoney, Nogami Streufert, Vice Chair Ho, and Chair Keawe. APPROVAL OF AGENDA Deputy Planning Director Kaaina Hull: Good afternoon, Chair and members of the Commission. For the second agenda, the first agenda item would be Approval of the Agenda. The Department would recommend one (1) amendment and that would be to move L.1., which is Unfinished Business Class IV Zoning Permit Z -IV -2017-15 and Use Permit U-2017-13, to the beginning of the agenda so that the...I see that the applicant is here in the audience and we can kind of take care of him first and then move on to the other rule amendments. So that would be our one (1) recommended amendment to the agenda. Chair Keawe: Alright. I will entertain a motion to approve the agenda with the change. Ms. Nogami Streufert: I move to approve the agenda as changed. Mr. Mahoney: Second. Chair Keawe: Moved and seconded to approve the agenda. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. MINUTES of the meeting(s) of the Planning Commission Mr. Hull: The next item is D, Minutes of the ... oh no, sorry. We do not have any minutes. RECEIPT OF ITEMS FOR THE RECORD There were no items to receive for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: The next item is Hearings and Public Comment. At this time, if there is anybody in the audience that would like to comment on any of the agenda items, now is the time to do so. Also, generally the Chair — at his discretion — does allow testimony during the actual agenda item, so either you can testify now for any agenda item or if you would like to wait for the specific agenda item, that is also available to you. Seeing none. UNFINISHED BUSINESS (For Action) Class IV Zoning Permit Z -IV -2017-15 and Use Permit U-2017-13 to allow construction of a swimming pool and pavilion on a parcel situated within the Seacliff Plantation Subdivision in Kilauea, located along the mauka side of Makanaano Place, further identified as 2183F Makanaano Place, Tax Map Key: 5-2-004:091, and affecting a portion of a larger parcel containing 5.204 acres = Robert Leonard. [Director's Report received 7/11/17, hearing postponed due to applicant's notification of abutting owners 7/25/17, SUP 1 DR received, hearing closed, action deferred 9/12/17.1 Mr. Hull: The next agenda item is Unfinished Business L.1., Class IV Zoning Permit Z -IV - 2017 -15 and Use Pen -nit U-2017-13 to allow construction of a swimming pool and pavilion on a parcel situated within the Seacliff Plantation Subdivision in Kilauea, located along the mauka side of Makanaano Place, further identified as Tax Map Key: 5-2-004:091, and affecting a portion of a larger parcel containing 5.204 acres. The applicant is Robert Leonard and the staff on this project today is Alex Wong. Chair Keawe: Mr. Wong. Staff Planner Alex Wong: Aloha, Mr. Chair. Chair Keawe: Proceed. Mr. Wong: Last week we postponed because the applicant was not present at the time. Also, there was one (1) change that was made. I did create Supplement No. 2 to the Planning Director's Report and it is attached to your agenda as L. La., September 26, 2017. This is the additional findings, including the applicant's farm plan, which was received by the Planning Department. Would you like me to read—? Chair Keawe: Well, you could just give us a brief summary of what the project is and— Mr. Wong: Okay. To recap, this is the construction of a pavilion, patio, deck, barbeque area, and swimming pool at an existing residence in Kilauea Seacliff. Chair Keawe: Okay. Can we hear from the applicant, Mr. Leonard? Mr. Robert Leonard: Yes. Hi. Chair Keawe: We appreciate your patience, Mr. Leonard. I know you were here two (2) weeks ago, so go ahead. Mr. Leonard: I left by mistake, so that was my error. I was here in the morning and I thought it was over. Chair Keawe: Okay. Could you state your name for the record and move forward? Mr. Leonard: Robert Leonard. I reside at the house in Kilauea. It is 2183 Makanaano Place. Chair Keawe: Okay, thank you. What would you like to say with regard to this application? Mr. Leonard: Well, my wife and I are retired. We moved here two and a half (2 ''/2) years ago and we are hoping to build a pool and a barbeque area for our grandson and grandkids to follow, and for ourselves to enjoy. Chair Keawe: Okay. Anything else you would like to say about your project? Mr. Leonard: Well, that is the crux of the project. Being from California, I know properties that are near to the coast have to go through coastal commission approval, so I think this is similar because of my proximity to the shoreline. Chair Keawe: Yes, similar. Any questions for the applicant from the Commissioners? Commissioner Streufert. Ms. Nogami Streufert: On your application for grading and grubbing, at the bottom of it, it says this "project includes a property line wall, retaining walls, and planters located partially in a small gully that is mostly dry. Drainage from the project will result in a continuous and natural flow." What did you mean by "continuous and natural flow" and how long is that supposed to continue on? Mr. Leonard: What I really meant by that is that there is — where this pool is going to go — a small gully. The main drainage around this property comes from above the house and around the other side, and then there is a bridge with two (2) big pipes that actually goes the other way to the pool. So what I was trying to say is that putting the pool at this location is going to have very little effect to the drainage of that side of that area because most of it goes the other way around the house. This side is dry, except for what comes off the hill from where the other swale starts, which is just above the house. Ms. Nogami Streufert: So when you say it is a continuous and natural flow, is that going all the way to the water? Mr. Leonard: No. I don't see how that could happen. We are about 1,600 feet inland and about 750 feet in elevation. It would have to cross Kilauea Road; the Kilauea Road on this side, our side, as opposed to the main one. It would cross — not only the road — several other properties. You have been there, Alex. I think it is too far. Ms. Nogami Streufert: Okay. How do I understand that sentence then? Mr. Wong: Another way that you could think about it is this application, even though it is in the SMA, it is beyond the 550 feet requirement that would trigger a Shoreline Setback Determination, so it is not even within the Shoreline Setback Determination area. If you are thinking in context of his proximity to the actual shoreline, the distance is substantial and undeveloped for the most part. Ms. Nogami Streufert: So the continuous and natural flow is not really going anywhere? Mr. Wong: Yes, I wouldn't describe it as a perennial stream. I don't believe that is what the applicant means by that phrase. Mr. Leonard: I think I was trying to mean that I do not see it changing anything. Ms. Nogami Streufert: Okay. Mr. Leonard: Drainage -wise. Chair Keawe: Alright. Any other questions for Mr. Leonard? Alex, can you read your report and recommendation, please? Just a summary. 12 Mr. Wong: Okay. Mr. Wong read the Preliminary Conclusion section of the Director's Report for the record (on file with the Planning Department). Mr. Wong: Would you like me to read the Preliminary Recommendation as well? Chair Keawe: Just summarize. Take the key points from there and— Mr. Wong: Okay. So I have eleven (11) points. The applicant has actually addressed No. 1, which is to submit an updated plot plan and design plan, which has been submitted to you previously as Supplement No. 1, along with the 3-D renderings. Another key point is the farm plan, which I believe was brought up in the last Planning Commission (meeting), and the applicant has submitted that. It was accepted by the Planning Department and it is here, now, today as Supplement No. 2. If you have any questions about that, the applicant is here to answer them. The rest of them are pretty standard; operating procedure, Best Management Practices, and things addressing, like, lighting and the Shearwaters. Chair Keawe: Okay. Any other questions? Mr. Mahoney: Yes. Chair Keawe: Commissioner Mahoney. Mr. Mahonev. Could you review ... what is your farm plan? Could you let us know — in your words — what your farm plan is at this place? Mr. Leonard: My farm plan is basically the exhibit that shows the existing fruit trees, coconut trees, and flower trees. The coconut trees are harvested. My property is part of a CPR and the other one, Mr. Hurt, he has ... of the eighty (80) coconut trees, he has seventy-two (72) of them. He has made a deal with somebody to harvest all those coconuts. The trees that we use are the avocado tree and mango. They produce more than we can use so, my wife and I, we take it to the Kilauea Food Pantry, and that is about the extent of our— And I pick flowers and my wife has a vegetable garden. Mr. Mahoney: Oh. Picking flowers and a vegetable garden and some fruit does not sound like a great farm plan, but I guess it is a farm plan. Chair Keawe: Any comments, Alex? Mr. Wong: There is no requirement in terms of revenue generated for this. Mr. Mahoney: I understand. Mr. Wong: It is difficult to ... this is a gray area. Mr. Mahoney: I understand that. Thank you. Chair Keawe: Okay. Any other questions for the applicant or for Mr. Wong? No? Okay. Are we ready to make a decision? Can I have a motion, please? Ms. Nogami Streufert: I move that we accept the Class IV Zoning Permit Z -IV -2017-15 and Use Permit U-2017-13 to allow construction of a swimming pool and pavilion on a parcel situated within the Seacliff Plantation Subdivision in Kilauea, located along the mauka side of Makanaano Place, further identified as 2183F Makanaano Place, Tax Map Key: 5-2-004:091, and affecting a portion of a larger parcel containing 5.204 acres, Robert Leonard. Chair Keawe: Okay. Do I have a second? Mr. Lord: Second. Chair Keawe: It has been moved and seconded. All those in favor? (Four (4) ayes) Any opposed? Mr. Ho: No. Chair Keawe: Thank you. Oh, we had one (1) opposed, so there are four (4) ayes and one (1) nay. Alright, thank you. Motion passed 4:1. Mr. WonK. Thank you, Mr. Chair. Mr. Leonard: Thank you. Chair Keawe: Thank you, Mr. Leonard. HEARINGS AND PUBLIC COMMENT (Continued) Continued Agency Hearing Special Management Area Use Permit SMA(U)-2018-3 for the construction of a public shared use path extending from Papaloa Road to the Uhelekawawa Canal, and associated improvements involving an existing parking lot and a new comfort station, and Shoreline Setback Variance Permit SSV -2018-1 to deviate from the shoreline setback requirement, involving several properties along the makai side of Kuhio Highway in Waipouli identified as Tax Map Keys: 4-3-002:001, 012-016, 019, 020; 4-3-007:009, 011, 027, 028; 4-3-008:016, and containing a total area of approx. 2.14 acres = County of Kautz `i, Department of Public Works. [Director's Report (DR), Sup 1 DR, S2 DR received 9/12/17; hearing_ continued 9/12/17 at request of the Office of the County Attorneys for further review of Petition to Intervene by Wailua-Kapa`a Neighborhood Association 9/12/17.1 Gel Mr. Hull: The next agenda item is Continued Agency Hearing I. a., Special Management Area Use Permit SMA(U)-2018-3 for the construction of a public shared use path and associated improvements involving an existing parking lot and a new comfort station, and Shoreline Setback Variance Permit SSV -2018-1 to deviate from the shoreline setback requirement, involving several properties along the makai side of Kuhio Highway, further identified as Tax Map Keys: 4-3-002:001, 012-016, 019, 020, and 4-3-007:009, 011, 027, 028, and final Tax Map Key 4-3-008:016, and containing a total area of approximately 2.14 acres. The applicant is the County of Kauai, Department of Public Works. Today we have Adam from the County Attorney's Office representing the Department. Chair Keawe: Okay. Deputy County Attorney Jodi Higuchi Sayegusa: Again, as you folks know, we did receive a Petition for Intervention prior to the last meeting and it was deferred to today. So prior to going into the permit and taking any testimonies or hearing any presentation on the permit itself, we have to decide on the Petition for Intervention from the Wailua Neighborhood— Chair Keawe: Wailua-Kapa`a Neighborhood Association. Ms. Higuchi Sam tg isa: Neighborhood Association. So that is where we are today at this point. Chair Keawe: I guess before we move into any other direction, we need to deal with the Petition to Intervene because that would, in the future, affect all of the decisions that we do make, so we have to take that one out first. So we have counsel for the applicant? Deputy County Attorney Adam Roversi: No. Chair Keawe: No, for the— Go ahead. Sorry. Mr. Roversi: Deputy County Attorney Adam Roversi. I am representing the Department in today's hearing. Chair Keawe: Okay, the Department. Do we have anyone from the petitioners? Yes, please come forward. Rayne, go ahead and have a seat. Deputy County Attorney Teresa Tumbaga: Deputy County Attorney Teresa Tumbaga. I am appearing for the Public Works Department, the applicant. Chair Keawe: Okay. And Rayne, can you introduce yourself? Ms. Rayne Regush: Aloha, Rayne Regush, Chairperson for the Wailua-Kapa`a Neighborhood Association (WKNA). Chair Keawe: Okay. We have received your Petition for Intervention. Do you have anything else to add at this point? Ms. Regush: Please, thank you, Chair. Our goal, of course, is just to ensure that the best and most relevant information is presented to the decision-making body. WKNA supports the bike path. We do not want the project to be delayed unnecessarily, but we do have additional infonnation to share of relevancy and that's about it. Thank you. Chair Keawe: Okay. Ms. Regush: Question. Chair Keawe: Go ahead. Ms. Regush: If you would like us to speak to our standing with regards to the petition, I wanted to thank the Planning Director for recognizing the importance of citizen participation because he does direct developers that come to the Planning Department to contact our association for early input on their projects. In the past, we have hosted community meetings that featured guest speakers, such as Avery Youn, who is the architect for the Waipouli Longs/CVS Drug Store. We've hosted Tyler Greene, who is the managing partner of Coco Patens and he spoke about rebuilding the Coco Palms back in 2013; Greg Allen with Hokua Place, formerly Kapa`a Highlands; and Doug Haigh — we have invited twice as well to speak about the bike path on the east side. So the Association has been active for about a dozen years. Chair Keawe: Rayne, how many members do you have? Ms. Regush: Offhand, I can't say. I did not bring that infonnation with me. Chair Keawe: Okay. Go ahead. Continue. Ms. Regush: So again, I believe the WKNA really does have the background, the history, the perspective, and the goals to help the Commission make a more fully -informed decision. As a petitioner, we really hope to ensure accurate implementation of the shoreline setback and Coastal Protection Ordinance with the belief that if we site the path too close to the ocean, it will really minimize the margin of that coastal open space that serves the public benefit. That active beach zone is really subject to change because of tides and currents, and if the path is sited less than 40 feet from the certified shoreline in some places, it will be an area that is really considered the active beach zone, so we want to be cautious and conservative about where it is located. Chair Keawe: Okay. Teresa, do you have any further comments? Ms. Tumbaga: No further comment. We stated our position in the letter dated September 22nd Chair Keawe: I understand that Public Works has no objection to the intervenor. Ms. Tumbaga: That is correct. Chair Keawe: Okay. Adam, any further comments? Mr. Roversi: The Department takes no position, one way or the other, on the intervention. Chair Keawe: Alright. Commissioners, do you have any questions with regard to this particular action? Commissioner Lord. Mr. Lord: Rayne, I want to understand "active beach zone". Can you clarify that for me? When you say "active beach zone", do you mean subject to wave— Ms. Regush: Correct, yes. There are many coastal hazards and although we have a no -build zone, which is called the setback — the 40 -foot setback — in this case, the applicant is looking for a variance, so that is an exception to the rules, so to speak. Having the path within the setback area leaves it somewhat vulnerable to coastal hazards. Mr. Lord: Sections of that area are inside of the reef, aren't they? It is not open. Ms. Regush: The setback area would be defined as from the certified shoreline and then 40 feet landward. Mr. Lord: No, I am just talking about the actual, physical— Ms. Higuchi Sayegusa: I'm sorry. I don't want to interject too much, but I just want to ... maybe let's decide on the intervenor issue first and then we can move forward in the actual discussion of the permit at a future date. Mr. Lord: I just wanted clarification on one point. Chair Keawe: I guess at some point we will get to ask all the questions. At this point, we just need to know if she is going to be approved as an intervenor. Ms. Higuchi Sayegusa: Again, it is just pure process at this point. Now we want to kind of determine who is going to be sitting at the table during the hearing on the permit. Mr. Lord: I got you. Thank you. Ms. Higuchi Sayegusa: Yes, so that is what we are deciding. And again, we are in Chapter 4, so there are standards that are iterated within Chapter 4 on how to analyze whether to admit a member of the public or a third party who is not just the applicant to intervene. We are looking at Rule 1-4-1, persons who hold an interest in the land, who lawfully reside on the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed application that their interest in the proceeding is clearly distinguishable from that of the general public. Also notable is... another standard to keep in mind is 1-4-2, Grounds for Denial. Things to consider are whether the position of the applicant is substantially the same as any other position of any other intervenors that are already admitted — there is no other intervenor at this point, if the proceedings will be rendered inefficient or unmanageable, or it will overly broaden the issues. We did hear the position of the applicant. Public Works is not objecting to the admission of the intervenor. The Planning Department took no position. So those are all the issues to factor into your decision on whether or not to admit the intervenor as a party. Chair Keawe: Mr. Ho. Mr. Ho: Question for Rayne. Are you intervening as yourself or Wailua-Kapaa—? Ms. Regush: ish: Thank you for the question. I am authorized by the other board members for Wailua-Kapa`a Neighborhood Association to be the point person for this matter. Mr. Ho: And that meets our criteria, right? Ms. Higuchi Sayegusa: Yes. Chair Keawe: I hope you have all had a chance to read her petition going forward. It was very thorough. Ms. Regush: Oh, thank you so much. Chair Keawe: Okay. Any other questions for the petitioner? For the attorneys? No? Alright. At this point, we need to decide, you know, are we going to allow the intervenor, which we would grant their Petition to Intervene, or deny their Petition to Intervene. And, I guess Jodi has read those conditions that are for grounds of denial. I think it is a question at this point, you know, are any of those — 1-4-2 (1), (2), or (3) — an issue with regard to this intervention. I think, from that standpoint, we need to decide how we move forward, or if any of you think that or feel that one of those particular issues would have a bearing in our decision. Okay, Mr. Ho. Mr. Ho: Oh, I have a motion. Chair Keawe: (Laughter) Okay. Mr. Ho: I move that we accept Rayne Regush, Kapa`a Neighborhood Association, as an intervenor. - Ms. Higuchi Sayegusa: The intervenor would be the Wailua-Kapa`a Neighborhood Association. Chair Keawe: Okay. Do I have a second? Ms. Nogami Streufert: Second. Chair Keawe: It is moved and seconded to accept the Wailua-Kapa`a Neighborhood Association as an intervenor. Any discussion or further discussion on this issue? If not, can we do a roll call vote, Jodi? Ms. Higuchi Sayegusa: Yes, I'm sorry. The motion on the floor is to approve the Petition for Intervention. Commissioner Streufert. 10 Ms. Nogami Streufert: Yes. Ms. Higuchi Savegusa: Commissioner Mahoney. Mr. Mahoney: Aye. Ms. Higuchi Sayegusa: Commissioner Apisa. Absent. Commissioner Ho. Mr. Ho: Aye. Ms. Higuchi Sayegusa: Commissioner Ahuna. Absent. Commissioner Lord. Mr. Lord: Aye. Ms. Higuchi Sayegusa: Chair Keawe. Chair Keawe: Aye. Ms. Higuchi Sayegusa: It is approved 5:0. Chair Keawe: Unanimous. Ms. Higuchi Sayegusa: Unanimous. Chair Keawe: Your petition is granted. Ms. Regush: Mahalo, Commissioners. Chair Keawe: Okay. I guess, from this standpoint, we need to determine how we move forward. If we are going to appoint a Hearings Officer for this contested case or hear the case ourselves. I think that is the decision that we need to make before we can move further in this particular project. Is that right, Jodi? Ms. Higuchi Sayegusa: Right. One other option that you do have on the table is to appoint a member amongst yourselves to go through the evidentiary portion of the contested case. Now that there is an intervenor that is admitted, it automatically moves into this contested case formalized hearing process for the consideration of the permit itself, so that is why you have an option to refer the matter to a Hearings Officer so the Hearings Officer can go through that formalized process, more like an administrative hearing type of process, and then issue his/her recommendations back to the Commission, and for you folks to make the final, ultimate decision. Alternatively, you folks can just go through the whole process yourself, just go through the contested case. We did a formalized contested case just this morning so we have done it before, so you do have that option. And then finally, I mean, if you prefer, you can appoint, again, a commissioner to go through the evidentiary portion and then I would say the... receiving of the proposed Findings of Fact, Conclusions of Law by each of the parties; you folks will receive and then decide upon that. II Chair Keawe: Do any of you feel the need to serve as our de facto attorney on this particular issue? Mr. Ho, go ahead, you had a question? Mr. Ho: Okay. Jodi, we, as a commission, can be the Presiding Officer in this contested case? Ms. Hi cgu hi Sayegusa: tsa: Right, as the body. Mr. Ho: As a body, right? Chair Keawe: Yes. Ms. Hi cgu hi Sayegusa: Perhaps we can get the position of the parties at this point; any preferences for them. Chair Keawe: Teresa. Ms. Tumbaga: The Department of Public Works is requesting that, in the interest of efficiency, either the Commission as a body or one of the Commissioners be appointed to conduct the hearing, versus a Hearings Officer. Chair Keawe: Versus what? I can't hear you. Ms. Tumbaga: Versus a Hearings Officer. The Department would prefer either the Commission or one of the Commissioners to preside over the hearing. Chair Keawe: Okay. Rayne. Ms. Regush: Thank you. I am in agreement with Teresa as well. I think it is a very good opportunity for commissioners to learn more in depth about the issue because we will have more sections of the coastal bypath before us and it is important. Chair Keawe: Okay. Ms. Regush. Thank you. Chair Keawe: Adam. Mr. Roversi: The Department concurs with the request of the applicant. Chair Keawe: Okay. I guess we need to know a little bit more, Jodi, if you can just kind of give us a little bit more information about what would be required over and above what we normally do as far as commissioners in contested case hearings. We have done a few ourselves, but is there anything else that we need to consider before we make a decision? Ms. Higuchi Sayegusa: I am not sure how long this matter will stretch. Perhaps it could be done with one (1) meeting. If it extends beyond that, then of course you folks will have to ... if you are 12 holding the contested case, of course you would have to have quorum each time you convene and so it might stretch multiple meetings or you might have to consider convening special meetings, but hopefully we can go through it within a regular commission day in which case, then, it is a matter of going through each party and allowing them to make a presentation and then checking back with each other party, give them an opportunity to cross-examine any witnesses. Again, it is something like what we have done this morning, basically. It is just more of an organized process. You also have to swear in witnesses like we did this morning. After each party is given the opportunity to make a presentation and each of the other parties are able to cross-examine each of the witnesses, then you folks have the option of requesting proposed Findings of Fact, Conclusions of Law from each of the parties. You can take that, consider each one of them, and make a decision on which one you would like to adopt. Director Michael Dahilig entered the meeting at 2:10 p.m. Director Michael Dahilig: Just for the Commission's information, I have already circulated the batting order for everybody to see. Our intake has been very light to the point that, in reality, the amount of permits that have dates set will probably be the limit of the permits that the Commission will handle for the rest of the year based on our notification requirements. So between this meeting and the end of the year, pretty much there are only two (2) more permits that need to be handled by the Commission. If the Commission is concerned about its calendar being heavy until the end of 2017, we do not have any, I guess, heavy items pretty much for the rest of the year. Again, pending on whether or not the counsel for each of the parties is able to go through the briefing process with enough ample time, it is conceivable that evidentiary proceedings could supplant meeting dates that do not have any type of commission business because of our light intake right now. Chair Keawe: Commissioner Streufert. Ms. Nogami Streufert: Can this be concluded today? Chair Keawe: I don't know. Ms. Higuchi Savegusa: I think, at this point, it was just the matter of intervention to be decided. We have to give an opportunity for all the parties to prepare their presentation on the permit itself. Mr. Dahilig: Is it possible for the parties to agree on a briefing schedule today in front of the Planning Commission if the Commission were to decide to hear the matter themselves? Ms. Regush: So in other words, we would be looking at the next date for the Commission to meet for this item. Mr. Dahilig: Well, I guess what ends up happening is that the deadlines trickle back from when ... if the Commission were to hear evidence, that evidentiary hearing then dictates the briefing schedule. If the Commission were to entertain the idea of holding a contested case 13 hearing, are the parties available to actually set the briefing schedule today as well, given that ... if the Commission were to make that decision? Ms. Regush. Yes, I would be prepared. Chair Keawe: I guess, Commissioners, the question, again, goes back to ... it has been suggested that we have the Commission handle this particular issue and I do not have an issue with that. I think if we went to the Hearings Officer route, it would probably take a lot longer to do. I think that is where we are at at this point; that was the recommendation from both sides. If that is where we want to go with this, then we will entertain a motion to that effect; basically that we would hear the case as a commission, as opposed to any of the other alternative solutions, which was Hearings Officer or appoint one of you to serve as our attorney in fact, Glenda... (Laughter in background) Ms. Nogami Streufert: I move that the Commission reviews this case or decide on this— Chair Keawe: Commission hear this contested case. Ms. Nogami Streufert: Hear this contested case. Chair Keawe: Do I have a second? Mr. Ho: Second. Chair Keawe: It has been moved and seconded. Any further discussion about this item? If not, all those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. Now scheduling, right? Ms. Hi cug hi Say ig lsa: Scheduling, yes. Chair Keawe: Okay. Now— Oh, go ahead. Sorry, Mike. Mr. Dahilig: In response, Mr. Chair, the Commission's schedule actually is available ... we do not have anything on the calendar... pending ascertaining whether we have quorum or not, November 14th, as well as December 12th are pretty wide open in terms of the Commission's calendar. Chair Keawe: Okay. Glenda, you will be back, right? (Laughter in background) Sean, you okay on dates? Mr. Mahoney: Yes, I will be okay. Chair Keawe: Wade? 14 Mr. Lord: What were the dates again? November...? Chair Keawe: I think it was November... Mr. Dahilig: November 14th or December 12"'. Ms. Tumbaga: On behalf of the Department of Public Works, is there anything available in October? Actually only October 10th Mr. Dahilig: If we go with October 10th, I think we have issues with quorum. October 24th... Ms. Tumbaga: We actually cannot do October 24th, so we would just ask for the earlier November date, if possible. Mr. Dahilig: November 14th ... we do have five (5) commissioners for the 141h of November. Chair Keawe: Okay. Is that good? Mr. Lord: I'm good. Chair Keawe: Okay. We will take a minute while they deliberate here. Mr. Dahilig: Counsel, I guess we will work backwards, if you have calendars in front of you. The 10th is a holiday, right; November 10'119 So I guess witness lists and replies by November 8t11 — working back — and then any memos and support have to be done by November 1St with evidence. Does that make sense? Chair Keawe: With a subject hearing date as what? Mr. Dahilig: As the 14th, November 141h Chair Keawe: 14th, okay. Mr. Dahilig. It would be witness lists and any replies by the 8th— Ms. Higuchi Sayegusa: I mean, do you folks prefer briefs to memorialize initial positions of the parties, or would you rather have it just unfold during the hearing and then the opportunity to submit Findings of Fact, Conclusions of Law? And then more so it is just the deadline for witness and exhibit lists prior to the hearing itself. Ms. Tumbaga: Public Works Department would be fine with just the witness and exhibit lists being due and then presenting the evidence during the hearing. Ms. Higuchi Sayegusa: Okay. 15 Ms. Reg_ush: I would agree that no briefs are necessary and I can certainly get together our witness list and exhibits by November P. Ms. Higuchi Sayegusa: Okay. Mr. Roversi: The Department will likely rely on the Director's Report and simply cover briefly, orally some portions of the Director's Report. I might suggest to our group that we convene and amongst ourselves share exhibits, perhaps come to some sort of stipulation on their disability and agreement ahead of time so that we don't have to have witnesses to authenticate and introduce exhibits into evidence and so forth. Ms. Higuchi Sayegusa: Okay. So the parties will get together and sort of coordinate witnesses and exhibits, and to hopefully make the hearing go as efficient and smoothly as possible. I guess, just to put for our record, the deadline for those lists or the exchange to happen by November 7th. Or if you could submit a witness and exhibit list to the Commission at least by the 7th of November, if that is okay with you folks. Ms. Regush. So now it is not the 8th? It is the 7t19 Ms. Higuchi Sayegusa: The 7th, yes. Apologies because we have to post ... we want to give ample time to our staff to be able to compile it in a packet for the Commission. Mr. Roversi: The 7th would be fine with the Department. Ms. Higuchi Sayegusa: Thank you. Mr. Roversi: Thank you. Mr. Dahilig: If I could also, just from a logistics standpoint, request that if there is any evidence, that you coordinate amongst yourselves, you know, who is using numbers, who is using letters, who is using whatever not, and that we could also have copies of all those exhibits also submitted to the Clerk of the Commission by November 7th as well, so we can distribute to the Commissioners. Mr. Roversi: Does the Commission require twelve (12) copies? Is that what is stipulated in the rules? Ms. Higuchi Sayegusa: Well, we are reliant more on the electronic sharing of those documents, so maybe one (1) or two (2), just so it doesn't get... Chair Keawe: To summarize, we— Ms. Higuchi Sayegusa: Sorry, I apologize, four (4) copies. Chair Keawe: To summarize, we are looking at document production by the 7th. Is that it? For hearing on the 14th. Is that right? Mr. Roversi: Correct. Chair Keawe: Okay. Mr. Dahilig: Just one last request also that if there are documents to be submitted, that there is also one (1) set that is transmitted either on CD-ROM or by email to the Clerk of the Commission by Dropbox or something so that we can distribute, digitally, to the Commissioners. Chair Keawe: Okay. Mr. Dahilig: In order to effectuate this, we would need a motion from the Commission to set the evidentiary hearing for this contested case on November 14th with witness and exhibit lists and exhibit documents filed with the Clerk of the Commission by November 7th, including four (4) copies in hard and one (1) digital copy. Chair Keawe: So can we just read that into the record — what the motion was basically? Are we good? Ms. Higuchi Sayegusa: Yes. Chair Keawe: So, again, document— Mr. Dahilig: The suggested motion would be to set the evidentiary hearing for the contested case on November 14th and set the submittal of witness and exhibit lists and exhibits in both hard copy — four (4) hard copies — and one (1) digital copy submitted to the Clerk of the Commission by November 7th Chair Keawe: So that was the motion. Can somebody initiate that motion? Mr. Ho. Mr. Ho: Motion to accept. Ms. Nogami Streufert: Second. Chair Keawe: Okay. It has been moved and seconded with regard to moving this hearing forward with document production on the 7th and actual evidentiary hearing on the 14th. Any further discussion? If not, all those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. I guess that is it. Thank you very much. Ms. Tumbaga: Thank you. Ms. Regush: Mahalo. Mr. Dahilig: One last item, just for housekeeping, Mr. Chair, is that we would need the agency hearing for Item F.1.a. closed. Chair Keawe: F.l.a.? IVA Mr. Dahilig: That is this matter, so that the limitation on intervention is already closed off as an opportunity. Chair Keawe: Okay, so we need to have a motion to close the agency hearing for this item, which would be the bike path. Mr. Dahilig: F. La. Chair Keawe: F.1.a. Mr. Mahoney: Chair, move to close the agency hearing, F. La. Chair Keawe: Okay. Do I have a second? Mr. Ho: Second. Chair Keawe: It has been moved and seconded. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. New Agency Hearing There was no New Agency Hearing. Continued Public Hearing There was no Continued Public Hearing New Public Hearing Proposed Amendments to the "Interpretative Administrative Zoning Rules and Regulations (2014) of the Kauai Planning Commission," Relatingto o Chapter 8, 9, and 10 of the Kauai County Code (1987), Enforcement of KPAR 8-19, Kauai County Code, Chapter 8, Article 17, Relating to Transient Vacation Rentals of the Kauai County Code. Regarding the proposed Amendments to the "Interpretative Administrative Zoning Rules and Regulations (2014) of the Kauai Planning Commission," Relatingto o Chapter 8, 9, and 10 of the Kauai County Code 1987), Enforcement of KPAR 8-19, Kauai County Code, Chapter 8, Article 17, Relating to Transient Vacation Rentals of the Kauai County Code, the Planning_ Commission is proposing amendments to bring the rules in line with the requirements of KCC Chapter 8, Article 17. Namely, the amendment explains what items must be submitted to the Planning Department alongwith ith applications to renew non- conforming use certificates (NCUC), the deadlines for NCUC applicants, and the repercussions for failing to submit an application by the NCUC's annual expiration date. In addition, the amendment increases the per day fine amount for Class I or II type structural violations from $250 to $500 and non-compliance with the ordinance violations, which include posting no NCUC sign from $250 to $1,000. Mr. Hull: Chair, the next agenda item is New Public Hearing, Agenda Item F.4.a., proposed amendments to the "Interpretative Administrative Zoning Rules and Regulations (2014) of the Kauai Planning Commission," relating to Chapter 8, 9, and 10 of the Kauai County Code, enforcement of KPAR 8-19, Kauai County Code, Chapter 8, Article 17, relating to Transient Vacation Rentals of the Kauai County Code. Regarding the proposed amendments to the "Interpretative Administrative Zoning Rules and Regulations (2014) of the Kauai Planning Commission," relating to Chapter 8, 9, and 10 of the Kauai County Code, enforcement of KPAR 8-19, Kauai County Code, Chapter 8, Article 17, the Planning Commission is proposing amendments to bring the rules in line with the requirements of Kauai County Code, Chapter 8, Article 17. Namely, the amendment explains what items must be submitted to the Planning Department along with the applications to renew Non -Conforming Use Certificates (NCUC), the deadlines for NCUC applications, and the repercussions for failing to submit an application by the NCUC's annual expiration date. In addition, the amendment increases the per day fine amount for Class I or II type structural violations from $250 to $500 and non-compliance with the ordinance violations, which include posting no NCUC sign from $250 to $1,000. The Department does have a report that was submitted to you folks. There are essentially three (3) changes going on here. The first one is concerning the Non -Conforming Use Certificate renewal process. There are roughly 450 Non -Conforming Use Certificates for vacation rentals outside of the VDA that are currently in effect and they have to annually submit a renewal application to the Department per ordinance. The ordinance specifically states that failure to meet this condition will result in the automatic denial of the application for renewal of the Non - Conforming Use Certificates. However, the rules, which were adopted subsequent to the ordinance, actually allow for a 30 -day time window in which additional fees can be exacted to allow some late applications to come in. But in looking at the two, they are incongruous and, in fact, the rules are attempting to allow something that the ordinance prohibits. We have been in consultation with the County Attorney's Office on this and they have been very clear with us that, indeed, rules cannot supersede or trump an ordinance, so we have been effecting the ordinance and stating to applicants that come in late that there is no renewal process available to them. You folks have seen some of those appeals of late submissions of course, but it is just cleaning up the rules to snake sure that the rules specifically align with the ordinance. The second change is looking at the fine schedule that is in the rules. The first one is the fine for structural violations on any TVR NCUC property being increased from $250 to $500. Again, that is another issue where the ordinance mandates no less than $500 fines on these properties, so essentially the rules, again, are incongruous with the ordinance and we are aligning them back up with the ordinance to read effectively. The third change is the Non -Conforming Use Certificate sign fine language which we are recommending to increase from $250 to $1,000. There is a requirement for Transient Vacation Rental Non -Conforming Use Certificate holders to put a sign along their property boundary that notifies anybody that reads it that this is a Transient Vacation Rental. As of late, our enforcement team has found several of the existing vacation rentals that have NCUC's not to be 19 in compliance with this and they have been noticed and issued violation notices. But in order to somewhat compel the owners a bit more to come and stay in compliance with this requirement, we are looking at increasing that fine to $1,000. And there are a few other non -substantive, essentially, just grammatical and syntactical changes made to correct it. That is essentially it in a nutshell. I will also state that we have received written testimony from Michael Levy and Alexis Boilini, owners and operators of Marjorie's Kauai Inn, Bed and Breakfast, concerning this particular agenda item, so that has been circulated with you folks. We have also received written testimony from Caren Diamond relating to the proposed amendments. I know that Ms. Diamond's submission has several recommended changes which ... for the most part, if the Commission wants to entertain some of those changes, with the exception of one, the Department has no objections to those changes as well. But that is our presentation in a nutshell if you have any questions. Chair Keawe: Any questions for Mr. Hull with regard to the proposed amendments to the rules? Mr. Ho: These amendment changes, do they have to have a higher authority to sign off on them; the Mayor or somebody? Ms. Hi chi Sayegusa: Yes. The rule amendment process required... well, first of all, we did go to the Small Business Regulatory Review Board and the purpose of that — under State law, we are required for any rule change that may have an effect to small businesses, we have to go before that board and seek their input and their suggestions on how to minimize any of those type of impacts, so we did that. We came before them on July 19th for three (3) of the amendments that are on today's agenda. Subsequent to that, here we are. This is the public hearing where we have to seek testimony and input from interested persons, the public at -large. Then, depending on what is done today, if the Commission votes to adopt these rules, then it is transmitted for the Mayor's approval. If the Mayor approves, then he will have to sign off and then it gets transmitted to the County Clerk. The County Clerk transmits it to the Lieutenant Governor of the State who compiles records of all rules that are passed in the State, and then ten (10) days after the Clerk signs off and receives them, it becomes an effective rule. So that is the longwinded story to say Mayor has to sign off. Mr. Ho: Okay. (Laughter in background) Mr. Hull: But it does not go to a Legislative body like the County Council or whatnot. Chair Keawe: Alright. So we will go ahead and open the hearing for testimony on these particular items. Is there anyone within the audience that would like to testify? Come forward. Ms. Higuchi Sayegusa: Perhaps just for clarity sake, we are on the first matter, the first amendment only. Chair Keawe: Yes, the first amendment. ME Ms. Caren Diamond: Aloha. Caren Diamond. First, I want to say I do support these rule changes and I do have a couple things that hopefully will, maybe, clarify it and improve the suggested language a little bit. My first change is on Page 2 and basically, the way it is worded now, it just says a copy of the current and valid General Excise Tax certificate and a copy of the current and valid Transient Accommodation Tax certificate. Basically, the only change I am suggesting is that you put in and clarify that that certificate is for the purpose of that Transient Vacation Rental. Lots of people have TAT certificates or GET certificates and it does not evidence anything, and only you are asking for it to specifically evidence that particular Transient Vacation Rental. The next change that I suggest is, again, for clarity. Your wording is, "A copy of all print and internet advertising that includes the NCUC certificate number." Basically, the way I read that is you are asking for thein to give you a copy of the advertising that includes that number; different than saying all advertising must include that number. The ordinance that these rules are for are really specific. It is §8-27.8(b)(4) [sic] that all print and internet advertising for transient vacation rental operations, including listings, must include that certificate number, so the language that I am asking to suggest just makes it more clear. My next change is for the safety and comfort. I come from the north shore, which, unfortunately, has the most amount of vacation rentals on the island; more than 50% of the vacation rentals all over the island are located in small Hanalei, Wainiha area. Even though we are really the tiniest part of the island and even though we have had tsunamis before and we have really coastal hazards, it was never meant to be a commercial area. It was really strictly residential. There are seven (7) one -lane bridges to get there. There are no evacuation plans. Really, it is an unintentional resort out there. But the liability to the County is pretty large because no one is even made aware that they are going to book a place to stay in a tsunami evacuation zone and nobody is made aware that they are actually going to have to evacuate if they come and stay there. What I am proposing is that in that "For Your Safety and Comfort", it actually does tell people what to do when you have to evacuate. All the advertising — I am suggesting — has to announce to people that they actually are staying in a tsunami evacuation zone. Chair Keawe: Caren, you are actually asking to put that into the "For Your Safety and Comfort" document that is in the unit itself. Ms. Diamond: That is right, yes. And then my next recommendation is just simply not to delete the address requirement of the vacation rental. Mr. Hull: Three (3) minutes, Mr. Chair. Ms. Diamond: Yes. Chair Keawe: Okay. 21 Ms. Diamond: I'm sorry. (Laughter) And again, just to be clear that the documentation that they are submitting is for that particular vacation rental. The only other change that I have is regarding the enforcement of unpermitted vacation rentals. At the moment, your language says that they have to do an inspection, and the law — §8-1711 — actually just says they have to do ... it is prima facie evidence, not necessarily a physical inspection, and I wondered if the language in here shouldn't track that to be more clear. Chair Keawe: Okay. Thank you. Ms. Diamond: And that is it for my changes. I do support the rule changes and thank you for considering the changes. Chair Keawe: Thank you. Anyone else wishing to testify? Please come forward. Ms. Alexis Boilini: Hello. I am Alexis Boilini from Marjorie's Kauai Inn. Chair Keawe: I am sorry. I didn't get your name. Ms. Boilini: Alexis Boilini from Marjorie's Kauai Inn. First of all, thank you to the members of the Commission for the opportunity to add my testimony today. There are two (2) documents that I am including for you to review. The first one is we are requesting to enter into the record today our comments that we feel strongly that the changes being proposed today to the KPAR, the Kauai Planning Administrative Rules, have a much greater impact than is described in the attached document, which the attached document is the Pre -Public Hearing Small Business Impact Statement to the Small Business Regulatory Review Board. I just want that entered into the record that we believe that. Okay? That is the first thing. The second thing is just a side-by-side reference to the changes that are being made and there is a disclaimer there, as you notice, because I am not a TVR, I am a Bed and Breakfast, but I am just a bit worried about how this might impact us in the future. I just put this side-by-side together so that it is basically very vague, but...to the right side is the changes being made, the left side is just the comments that I made as I was reviewing them; just so that you can kind of see the formatting that I used. That is all I have to say. Thank you. Chair Keawe: Thank you. Anyone else? Caren, can you come back up for a minute? One of the Commissioners wanted to ask you a question. Ms. Nogami Streufert: The document "For Your Safety and Comfort" — where does that come from? Who publishes that? Ms. Diamond: Individual TVR owners publish it, but it is a requirement in the ordinance and in the rules. 22 Ms. Nogami Streufert: So there is no standard one that everybody has? Ms. Diamond: At the beginning, there was a standard one. I think it has been amended by different people at this point. There is a fairly similar document that gets used across the board. Ms. Nogami Streufert: If this were to be implemented, who would be responsible for...? Mr. Hull: Well, currently the TVR ordinance requires that a "For Your Safety and Comfort" handbook or document, if you will, be provided at the operation for all of the guests. The vacation rental owner or operator has to submit, during their annual renewal, that document for us to review internally. There are specific things in there we are looking for. We don't say that it has to be all the same, but we are looking for things like contact information, a certain curfew for loud noises and what have you. So there is specific information that our team combs through those documents, but there is no one preordained document that we make them adhere to. In the recommendation that Ms. Diamond is asking for in the rules that for those that are in an evacuation zone that it be included in that document, in fact, the Department fields several community concerns about that issue and it is, in fact, requiring it right now of Transient Vacation Rental operators, which is why we have no objection to memorializing it in the rules, but it is a requirement we are already imposing administratively. Ms. Nogami Streufert: Does the County become liable at the point where we require it but we don't have any set rules as to what should be in it? Ms. Hi cgu hi Sayegusa: For the information to the— Ms. Nogami Streufert: Right. Ms. Hi ug chi Sayegusa: Well, (laughter) I mean, that is an interesting discussion, but I think it is clear there are certain requirements for any residence or any... for instance, flood regulations are already a requirement that homeowners should not have any habitation going on below the base flood elevation, for instance, so there are certain regulations that already apply. But how far that ... I would probably have to research a little bit further exactly what may be the exposure of the County, but I guess my answer is there are regulations that homeowners should already be compliant with. A TVR is an extension of a residence and should also be in compliance with those type of things. Chair Keawe: Is anyone else wishing to testify? Thank you, Ms. Diamond. Yes, come forward, sir. Bill Cowern: Bill Cowern, Kua Road, Lawa`i. Just more as a point of order, if you are anticipating taking up additional changes as proposed by someone from the floor at this meeting, wouldn't that violate Chapter 91 in terms of notice? Ms. Higuchi Sayegusa: The purpose of the public hearing is to seek input and additional changes of the proposed amendments at this point. 23 Mr. Cowern: But it is also required that that be published prior to the meeting, and these have not been published prior. Ms. Higuchi Saye ig isa: The amendments that were published were the proposed amendments. Mr. Cowern: Yes. Ms. Higuchi Sayegusa: And by nature of the public hearing, those proposed could be amended after we get input from the public. But this meeting is open, so anyone in the public could attend and it is also being recorded and telecasted. This is essentially the process, the public hearing process. Mr. Cowern: Well, I understand it is the process, but if, in fact, you are taking up issues which are different from what were listed on the issues to be taken up, right? It seems to me that someone may have said gee, everything I read is fine, I don't even need to go to that meeting, but if you suddenly take up something else, right, and you haven't given anybody an opportunity to see that, then that snakes no sense. Mr. Hull: Chapter 91, which is referred to as the Sunshine Law in the State of Hawaii, requires that public notice be given when a rule amendment is being proposed. It also requires that the agency post the proposed rules up on our website, as well as a public area for at least twenty-one (21) days; the proposed rules. If the attorney finds that any changes that are entertained by the body still fall within the legal requirements of the notice itself, changes can be made. Mr. Cowern: That makes sense to me, but not if they are not within those ... just raising the issue; that is all. Chair Keawe: Thank you. Mr. Lord: Chair, I have a question. Chair Keawe: Go ahead, Mr. Lord. Mr. Lord: Kaaina, the safety and comfort document, I have not ever seen it so I ain shooting in the dark here. Does it have a section in it about locking your doors? Mr. Hull: That is not a requirement per ordinance or per rule. If an operator wants to include that in their safety and comfort documents, they can, but it is not a requirement per ordinance. Mr. Lord: So there is an ordinance that drives the contents of that document? Mr. Hull: The bare minimum contents, yes. Mr. Lord: Okay, and if someone wanted to see something added to that? 24 Mr. Hull: For the ordinance change, it would first go before the body and then ultimately to the County Council. Chair Keawe: I had a question, Kaaina. I have seen several of those "For Your Safety and Comfort" and a lot of folks just personalize that. They include the information that they are supposed to include and then they add Aloha, welcome to so-and-so, make sure you do this but, you know, and they include or encompass the "For Your Safety" suggestions that are in the rules and then they add their own personalization to it, so a lot of that happens. And, you know, you go to any hospitality establishment, they have something similar. Mr. Lord: Right. I only bring that up having been in the visitor industry and knowing that when you are not in a hotel, you don't have the safety of the security force, right, and a property that is being controlled. Chair Keawe: Right. Mr. Lord: I think people can become the targets of bad guys, especially when there is a sign out in the yard that says TVR or whatever (laughter) and a visitor's car there, right? Just a thought. Chair Keawe: Okay. Mr. Lord: Okay, thanks. Chair Keawe: Any other comments with regard to these proposed administrative rules? If not, are we ready to make a decision on the rules? Ms. Higuchi Sam sa: One more thing to clarify, though. I did notice that there is a little bit of a typo still that remains in what was transmitted. The second paragraph, first line, it says pursuant to KCC §8-17.12(h); that should be §8-17.10(h). I would just ask for the opportunity to make that minor amendment. Also, should the Commission be headed in the direction of adopting these amendments, we would have to kind of fit this within the rest of the interpretative rules and the way the interpretative rules are sort of laid out. This is subsumed in the other interpretative rules, like mid -page, so we are going to have to make some amendments to the interpretative rules; just spacing. So to take out the previous verbiage and then insert this new section as amended. They are minor formatting edits just to make sure that this gets subsumed into the previous interpretative rules. We are not touching the other rules, other than just to put a page break and then putting these in and then letting the others continue untouched. Chair Keawe: Okay. One last call for public testimony. If not, we will entertain a motion to close the hearing. Mr. Mahoney: Chair, move to close the hearing. Ms. Nogami Streufert: Second. 25 Chair Keawe: Okay. It has been moved and seconded to close the hearing. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. Okay, are we ready— Go ahead, Commissioner Streufert. Ms. Nogami Streufert: May I ask a question about "D. Inspections"? One of the things that was at the HCPO Conference was that there were some concerns about Fire Codes and Building Codes for TVRs and Bed and Breakfasts that are not at the standard that most hotel rooms are. Is that something that needs to be at least considered, not necessarily changed, but to be thought about here for the inspections? Mr. Hull: To be honest, the inspections... there are two (2) different inspections, to be clear, that I think is being referred to, though. The inspections Ms. Diamond was referring to were inspections that are done sometimes when investigating illegal vacation rentals, essentially. Whether it is looking at the website or doing an on-site inspection, I think Ms. Diamond's position is that ... you know, the ordinance allows the Department to just find the advertisement and use it as prima facie evidence. I did explain to her on the side that essentially we do count online inspections as an inspection, so to speak. I think the inspections that you are referring to, Commissioner, are those inspections when we actually have personnel walking onto existing vacation rentals that have a Non -Conforming Use Certificate to inspect their property to ensure it is in confonnance with the zoning ordinance. I will be honest, our staff does not have the ability to check out the property when they are doing their zoning inspection to ensure that it meets Fire Code and Fire requirements, but I think we can definitely reach out to the Fire Department as we redo our inspections to see if they would like to accompany us to ensure that those properties are properly meeting Fire Code. We can definitely reach out to them. Chair Keawe: Okay. Any further questions? No? Are we ready to make a decision? Mr. Hull: Before any motions are made, I will just state that, for the record, you have our recommended amendments and then you have a proposal from a member of the public that has multiple recommendations being made. The Department would recognize the proposed amendment that "All print and internet advertising for Transient Vacation Rental operations, including listings with a rental service or real estate firm, must include the NCUC certificate number and an on -island 24/7 contact name and phone number. For those Transient Vacation Rentals located in the tsunami evacuation zone, advertising must include information that the TVR is located in the tsunami evacuation zone"; that amendment, as well as the Safety and Comfort amendment including the tsunami evacuation zone, the Department would recognize those as friendly amendments so we would be in support of it if a motion was proposed in that way. The other amendments, I have to say, the Department would not support any of the other changes, and not that we disagree with Ms. Diamond, it is just that some of those are just not necessary, essentially, in the eyes of the Department. Chair Keawe: Okay. Commissioners, I think we need to make a decision on these three (3) proposed amendments — number one. Number two — we need to make a decision if we accept the Department's recommendation to alter several of those proposed amendments, which would basically mean accepting proposed language from the public. And then decide, at that point, are W we willing to move forward and accept the amendments as altered. So you are recommending that we alter the amendments, or amend the amendments. Mr. Hull: It is really at the discretion of the Commission. I mean, first and foremost, the Department is recommending the document you have in your hand right now. All I am saying just for disclosure, if there was any entertainment on Ms. Diamond's recommendations, the Department just wanted to go on the record saying we do not object to two (2) of the amendments being proposed by Ms. Diamond; the other amendment she is proposing we do object to. But ultimately, what you folks have in your hand is our ultimate recommendation. Chair Keawe: Alright. Commissioner Mahoney. Mr. Mahoney. Are you looking for a motion now? Are we through with our discussion? Chair Keawe: Well, yes, if there are no more comments and no more Commission comments, I think we are ready to make a motion. Glenda, do you have— Ms. Nogami Streufert: Just a question. In this particular case, do Transient Vacation Rentals also include Bed and Breakfasts, or are you doing that separately? Mr. Hull: No. These rules do not apply to Bed and Breakfasts, or what are referred to in the CZO as a Homestay in which the owner is residing on property. These rules are specific to vacation rentals only. Mr. Mahoney: Chair, I would move to accept the rules that are here, adding the friendly amendments stated by the Deputy Planning Director from Ms. Diamond, and also it is needed to correct the numbers that the Deputy Attorney had mentioned. Is it §8-17.10 to be corrected as? Ms. Higuchi Sam tg_isa: Thank you. And then just, again, minor edits to formatting so that these rules will be inserted into the existing rules. Mr. Mahoney: Yes, including the formatting. Chair Keawe: Okay. Do I have a second? Ms. Nogami Streufert: Second. Chair Keawe: It has been moved and seconded. Any further discussion on proposed amendments and rule changes? If not, all those in favor? (Unanimous voice vote) Any opposed? (None) Motion passed 5:0. Proposed Amendments to Chapter 9, Appeals from Actions of the Planning Director, Rules of Practice and Procedure of the County of Kauai Planning Commission. Regarding Proposed Amendments to Chapter 9, Appeals from Actions of the Planning Director, Rules of Practice and Procedure of the County of Kauai f►. Planning Commission, the Planning Commission is proposing amendments to its rules governing appeals of Planning Director's actions b clarifyin the he types Planning Director actions under the Comprehensive Zoning Ordinance and Subdivision Ordinance that may be appealed to the Planning Commission, and clarifying that any person, not just applicants, can petition to appeal actions pursuant to the Shoreline Setback Ordinance. Finally, the amendment clarifies the deadline for filing petitions to appeal for each type of action. These amendments are designed to clarify the process contested case appeals of Planning Director actions. Mr. Hull: The next agenda item is New Public Hearing, F.4.b., proposed amendments to Chapter 9, Appeals from Actions of the Planning Director, Rules of Practice and Procedure of the County of Kauai Planning Commission regarding proposed amendments to Chapter 9, Appeals from Actions of the Planning Director, again, Rules of Practice and Procedure of the County of Kauai Planning Commission, and the Planning Commission is proposed amendments to its rules governing appeals of Planning Director's actions by clarifying the types of Planning Director actions under the CZO and Subdivision Ordinance that may be appealed to the Planning Commission, and clarifying that any person, not just applicants, can petition to appeal actions pursuant to the Shoreline Setback Ordinance. Finally, the amendment clarifies the deadline for filing petitions to appeal for each type of action. These amendments are designed to clarify the contested case appeals process for the Planning Director's actions. You do have a Director's Report pertaining to this matter. I will also state that written testimony has been submitted by Caren Diamond on this agenda item as well. The crux of the issue... actually, it occurred with the Princeville application that you folks had several months ago in which you had an intervention request for a shoreline setback exemption determination that the Director made and they were requesting intervention to appeal that decision; excuse me, it was not an intervention request, it was an appeal request. Now, in virtually all ministerial actions taken by the Planning Director — that would be Class I, II, and III Zoning Permits, as well as violation notices — the applicant or the identified violator has the right to appeal to the Planning Commission; only those bodies. It is very clear in the ordinance that only the applicant or the identified violator can appeal the Planning Director's actions. The Shoreline Setback Ordinance, which was recently... well, it has been in effect for a couple years now, does specify, above and beyond the applicant, members of the public can appeal the Director's determination of exemption, but the rules do not clarify that. Ultimately, all we are doing is updating the rules so that they mirror the Shoreline Setback Ordinance which does allow for members of the public to appeal the Director's shoreline setback exemption determinations. You folks had that before you, like I said, several months ago in which there was some lack of clarity on how to proceed with that appeal because the ordinance does allow it, but the rules do not. The Department's position at the time was, indeed, because the ordinance allows it, we have to allow the appeal to be entertained. Ultimately, that issue was resolved because the application was withdrawn. But moving forward, we still felt it necessary to clarify the process and, again, to align the rules to be congruent with the Shoreline Setback Ordinance. Mr. Ho: Any questions? Ms. Higuchi Savegusa: Just a couple other things that were clarified in the rules and amended. There were references to articles within Chapter 8, the Comprehensive Zoning Ordinance that were taken out. That is primarily because there were two (2) references that were actually repealed, so while the articles remained here, the rules — certain ones — were repealed. I think it was ... for instance, Article 28 within the CZO, there is no such thing at this point. So to prevent that type of issue from happening in the future, we have omitted certain references to specific articles. For instance, Article 8 allows the Director to issue over-the-counter permits and technically denials of those permits could also be appealed to the Commission, so that was omitted as a reference here. To eliminate that issue of having to update our rules to match the ordinance if the ordinance ever changes or if we are missing anything, we just took those references out and just relied on any applicant may petition pursuant to the CZO or the Subdivision, and just to let the ordinances kind of dictate what can be appealed or not; what type of Director's actions could be appealed. In addition, there was clarification made in the time for filing the appeal. Initially, there were twenty-one (21) days listed as the time deadline for submitting an appeal within the CZO; however, the CZO referred to orders becoming final thirty (30) days after service of the order, so that kind of led to an ambiguity. In order to kind of eliminate that issue and to make it completely crystal clear, we aligned the thirty (30) days that is referenced in the ordinance. So, again, the time for appeal for most of the Director's decisions is thirty (30) days. Ms. Nogami Streufert: Thirty (30) days after the Commission meeting? Ms. Hi uchi Sayegusa: Thirty (30) days from service of a Director's decision or an order. The only difference is because the Subdivision Ordinance specifies fifteen (15) days, we kept it as fifteen (15) days. Mr. Hull: Again, similar to the last set of amendments, these amendments are essentially to bring your rules up into order with the ordinances that they seek to implement. Mr. Ho: Kaaina, in that appeal of Director's Shoreline Setback, you are saying that any person can appeal. Wouldn't the person have the show some kind of foundation to why he is appealing, or some kind of— Mr. Hull: This language is taken directly from the ordinance, so it is just a member of the public. I think the reason behind Council having that languages in there is because of the fact that, say, unlike when the Director issues a Class I Zoning Permit, that Class I Zoning Permit is an entitlement directly to that property; or should I say he denies a Class I Zoning Permit. That is denying an entitlement to a specific property, which is why the ordinance just restricts it to that property owner because it is dealing with that property owner's individual property rights. When looking at the shoreline area and Hawaii State Law, which defines or basically states that anything makai of the certified shoreline is public space, essentially. In looking at the Director's determination of exemptions from the Shoreline Setback Ordinance, Council is looking at it as it is in the interest of the public on whether or not these exemptions should be allowed, and if a member of the public has an objection to an exemption from the Shoreline Setback Ordinance being made by the Planning Department, then, indeed, members of the public can appeal that. (Laughter) 29 Mr. Ho: Okay. Chair Keawe: Didn't the original language say "applicant"? Remember the— Mr. Hull: The original— Chair Keawe: Yes, because that was the issue the last time we through it. Mr. Hull: Correct. Right, it just said the applicant can appeal. Chair Keawe: So if you are not an applicant, you cannot appeal. Mr. Hull: Exactly. Chair Keawe: Okay. Jodi, do you have anything? Anymore discussion about this particular item? We will take testimony from anyone with regard to this particular issue. Ms. Diamond. Ms. Diamond: Good afternoon, Commissioners. Caren Diamond. Again, I support these rule changes and want to clarify that the Shoreline Setback Determination ... when we appealed the ridge project, there was no appeal process, so what this does is put the language in that does exactly check what the ordinance says and adds those to the rules, so I believe that is proper. I do have a few recommendations for changes. In that first sentence, it says, "An applicant may petition to appeal..." I suggested changing that as well to "any person". After hearing Kaaina, I understand why he did not include that, but I would ask you just to think about it because when you are dealing with TVR ordinances and things like that, only the applicant can appeal. We have had so much problems that actually if neighbors and other people were able to join appeals, it might actually help the Planning Department, so I just ask you to consider that. The last sentence, where I red lined out the intervention, which also was not allowed, and that was taken out some years ago in a Planning Commission hearing with other Planning Commissioners. They took out the right for citizens to intervene; mostly those were TVR applications. I think you have had so much trouble with TVR issues that it might not be a bad thing to think about; adding in people being able to appeal or at least being able to intervene in that. The only other change that I have is adding the word "exemption". Basically, the Shoreline Setback Bill ... in reviewing all the applications that carne through, predominantly your Shoreline Setback Ordinance now works as an exemption ordinance where over 90% of all the applications ended up being exempt. I am not sure if the words here actually work if you don't add "exemption" because that is what people are given. It is different than determination of applicability where somebody might be 700 feet, you know, distant from the shoreline and therefore, the ordinance is not applicable to them. But if you are exempt, it doesn't mean that it is not applicable to you. It is just you are exempt. 30 Not all the Shoreline Setback Determinations have gotten published. There is an online website that most of the applications are published on, but they are not all published. And then they get noticed in your Planning Commission agenda, but they are also all not because some of the exemptions don't come through. Because there is a public trust responsibility and the public trust is what abuts the shoreline setbacks, the notice is important and I ask you to consider these changes. Thank you. Chair Keawe: Okay. Kaaina. Opinion? Mr. Hull: I talked with Ms. Diamond on the side about her proposed amendments to it. It definitely is for your entertainment to discuss and deliberate. The objection the Department has in this case is that it would actually be incongruous with the ordinance because the ordinance, while it allows for any person or member of the public to appeal for Shoreline Setback Determinations, it does not allow that for any other cases. In the proposal that Ms. Diamond is submitting, it is basically saying in all other cases, a person or member of the public can appeal. In order to do that, you have to do a legislative amendment to the ordinance. Simultaneously — and I'll say it for the record — the Department would not support that type of legislative proposal. While Ms. Diamond and others have done much great service for their communities in providing input on many applications, a proposal of that nature would lend itself to, quite honestly, a lot of, I'll say, abuse of the Department by other types of individuals. You would be surprised, I guess, or shocked to know how many violation inspections our department has to go out on as — what is more often than not — a consequence of neighbors feuding (laughter) and we see that a lot, quite frankly. We have to deal with them because they do come across as official complaints, but there are several situations in which our enforcement team is wrapped up into many of these feuds as a consequence, not really of the zoning issue, but, again, just because it is a feud. So the ability where it could lend itself, potentially, to that, the Department would have concerns. Chair Keawe: Okay, thank you. Mr. Ho and I actually went out on one of those inspections and it was very educational for us to do that, and that was a result of a neighbor feuding with the other neighbor. Okay. Where are we? Mr. Hull: I will also state ... some of Ms. Diamond's other concerns about the issues not being published — she is correct. There are some exemptions that you folks do not see and are not published, and those are specifically the exemptions that are granted through the Public Works Division in which it is found to be a repair of a structure. We have had talks with Ms. Diamond. She does have concerns about how that process is going, but ultimately, that is an ordinance provision that in order for those to be sent to the Planning Commission or put on the website, it, again, requires a legislative amendment and not a rule amendment. Chair Keawe: Okay. So the proposed changes as you have outlined in what was sent to us ... you are not going to make any more changes, so what is here, that is it. Alright, Commissioners, any further questions for Mr. Hull or in general? Commissioner Streufert. Ms. Nogami Streufert: Does this mean that you are not supporting changing "an applicant" to "any person"? 31 Mr. Hull: Yes, we would not support that. I think even if we did, which we don't, but even if we did, I think Jodi would probably jump in there to say that would be inappropriate because of the fact that it requires a legislative action by Council first. Ms. Nogami Streufert: And not including the word "exemption" either. Is that correct? Mr. Hull: It is not necessary, quite frankly. The Director's determination for shoreline setbacks — there is a detennination of exemption, there is a determination of applicability. All determinations — we are saying — are subject to appeal from the members of the public. Chair Keawe: Okay. Any further action on this? If not, any further ... well, there is only you, Caren, out there, so no one else to testify. We will entertain a motion to close the public hearing. Ms. Nogami Streufert: I move to close the public hearing. Chair Keawe: Do I have a second? Mr. Mahoney: Second. Chair Keawe: It has been moved and seconded to close the public hearing on this item. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. Okay. Now we need to make a decision on this particular item — Chapter 9. Are we ready to do that? Ms. Nogaini Streufert: I move that we accept the Department's amendments to Chapter 9, Appeals from Actions of the Planning Director, Rules of Practice and Procedure of the County of Kauai Planning Commission. Chair Keawe: Okay. Mr. Lord: Second. Chair Keawe: I have a second. It has been moved and seconded. Any discussion on this item? If not, all those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Thank you. Mr. Ho: Mr. Chair, can we have a 5 -minute recess? Chair Keawe: Yes. I'm sorry. Let's take a 5 -minute break. We got one (1) more item and I think ... well, actually two (2) and then we are done. The Commission recessed this portion of the meeting at 3:14 p.m. The Commission reconvened this portion of the meeting at 3:23 p.m. 32 Chair Keawe: Let's reconvene. We've got one (1) more ... or do we have anything else, Jodi, you want to... something we need to do again? Ms. Higuchi Sam sa: Yes. I apologize. I did not catch it initially, but just to make sure that the record is clear for Item 4.b. I just wanted to make sure that the ... so the motion was to approve the... Chair Keawe: The changes. Ms. Higuchi Saye Lg isa: The changes. Chair Keawe: As submitted. Ms. Higuchi hi Sayegusa: Okay, thank you. Chair Keawe: With no further amendments or changes. Ms. Higuchi Sam tg isa: Okay, thank you very much. Chair Keawe: Okay. Mr. Hull. Proposed Amendments to Chapter 6, Agency Hearing Procedures, Rules of Practice and Procedure of the County of Kauai Planning Commission. Regarding the Proposed amendments to Chapter 6, Agency Hearing Procedures, Rules of Practice and Procedure of the County of Kauai Planning Commission, the Planning Commission is proposing amendments to its rules governing contested cases by eliminating civil style discovery, clarifng the time for filing motions, requiring resolution of motions by the Presiding Officer without a hearing unless the Presiding Officer requires otherwise, and specifying that no reply or supplemental memoranda shall be filed unless required by the Presiding Officer. These amendments are designed to encourage an expeditious and inexpensive contested case process whilerop vidin for or procedural due process at the administrative level. Mr. Hull: The last hearing we have scheduled is Agenda Item F.4.c. regarding the proposed amendments to Chapter 6, Agency Hearing Procedures, Rules of Practice and Procedure of the County of Kauai Planning Commission. The Planning Commission is proposing amendments to its rules governing contested cases by eliminating civil style discovery, clarifying the time for filing motions, requiring resolution of motions by the Presiding Officer without a hearing unless the Presiding Officer requires otherwise, and specifying that no reply or supplemental memoranda shall be filed unless required by the Presiding Officer. These amendments are designed'to encourage an expeditious and inexpensive contested case process while providing for procedural due process at the administrative level. You folks do have a Director's Report pertaining to this matter. 33 Essentially, what we are looking at here is the Commission has twenty or thirty -some -odd contested case hearings before it right now. Many of them are at the Hearings Officer level; have been referred to a Hearings Officer, I should say. Many of those cases have been idling for the past two (2) years and the Department is definitely attuned to the frustration of some of the Commissioners on how long this is taking. Quite frankly, the Department and the Administration itself is fairly frustrated with the process up until this point. What we are seeing in a lot of these cases, quite frankly, and many of them having to do with vacation rentals ... I won't say all the representation or counsel for these applicants are doing this, but in some cases, we do have some of the attorneys essentially using the lack of clarity in our rules, as well as the civil style discovery process to draw out the process in and of itself to somewhat delay the process. We are finding that we are no closer to having the Hearings Officer, or you folks, discuss the merits of the case because of the fact that we are being inundated with things like overly lengthy, I will say, interrogatories that the Department has to answer that could be, quite frankly, handled during the actual hearing itself. So we are looking at eliminating civil style discovery in the hearings process, as well as clarifying how motions are handled by the Hearings Officer in order to essentially have these arguments ultimately made before the Hearings Officer or before the Planning Commission, and no longer allow some of these attorneys to essentially, like I said, delay the process of ever hearing the case. That is it in a nutshell. You guys have the specific amendments before you. So, one, it is to eliminate civil style discovery; two, we are looking at clarifying motions; and three, there are some, again, non -substantive changes that are more grammar and syntactical in nature. If you have any questions, the Department, as well as Jodi, is here to answer them. Chair Keawe: Any questions for Mr. Hull or Jodi? Mr. Lord: I have a question. Chair Keawe: Yes, Commissioner Lord. Mr. Lord: Thank you. Will this have the intended effect? (Laughter in background) Chair Keawe: Good question. (Laughter in background) Mr. Hull: I can say that much of this will have an effect on how hearings would proceed with the Hearings Officer today. Some of the — I don't know how to couch it — antics, if you will, that have frustrated the Commission of late — I got to be honest — those won't be resolved via these rules. Some of the discussions that you folks are having right now concerning, say, the procurement process for the Hearings Officer or whether or not the County Attorney is able to have one (1) set of his staff sitting in one chair and he sitting in the other, which you folks recently were challenged with — I got to be honest — these rule changes would not affect that. Those are issues that we are trying to resolve out with the County Attorney's Office, but, like I said, these rules don't affect that. But, much in the manner in which those type of proposals are being made and ultimately delay the process longer from ever discussing the merits of the case, I think, in many situations, the Department... and we are hearing from some of the actual operators themselves saying they want the case heard already, but things like you have seen with that that delay the process, we are also seeing in the hearings themselves that these rule changes are 34 attempting to clean up the hearings process itself and at least be able to expedite it once, say, those procurement issues are resolved. Ms. Higuchi Sayegusa: Just to give more, I guess, context to how this came about as well — for the discovery issue, we kind of also looked at other boards. We looked at the Maui Planning Commission rules, the Land Use Commission, and the Honolulu Zoning Board of Appeals, and other various boards at the state level. We found a variety of approaches to ... and each board handles the exact procedures and how a hearing is conducted a little differently, but for the most part, it is either ... so the discretion to whether to allow for discovery, so that is interrogatory so those are, like, lists of questions that are transmitted to another party — the opposing party — for them to answer. There are also requests for production of documents, so that is, you know, please give to us "x", "y", and "z" documents and depositions, ability to have mini, recorded often, questions asked to certain witnesses prior to the actual hearing; that is what we mean as civil style discovery, for example. So for instance, Maui gives discretion to the Hearings Officer or Presiding Officer whether to allow discovery where appropriate and where it would not unreasonably delay the process. The Land Use Commission does not explicitly allow discovery, but it gives other tools, for instance, like, subpoenas; the ability for the Body to issue subpoenas. Subpoenas for documents or to subpoena witnesses to come before the Commission for the actual hearing at the time of the hearing. Honolulu also ... it fosters more of this informal process. The rules just specify each party will give each other the necessary documents that are required, and also to attest that they have basically, in good faith, provided whatever the necessary documents are to each party. But this specific amendment was taken from the Hearings Officer from the Department of Health. This is how Department of Health handles the issue of discovery, so this language actually is taken from the Department of Health Hawaii Administrative Rules §I 1-1-24. So it is nothing plucked from the sky. It is something that is modeled after something that is done and something that, I think, would help to encourage more of an efficient, timely process and prevent a lot of this civil style discovery that really ... and to preserve this process to be a little bit more informal; I mean, less formal than a full, civil litigation that is. So primarily, a lot of the questions will be reserved for the hearing itself and if there is any necessary document exchange, then that will happen hopefully between the parties. Otherwise, there is still Chapter 92(f), which is the open records law that the government and the County is still subject to comply with, and so it starts with the premise that all government records are public with certain exemptions. Currently, my understanding is the Department is extensively fielding a lot of these HRS 92(f) open records requests, so it won't be eliminated in the process to get the necessary documents prior to a contested case. Chair Keawe: Okay. Any further questions of Jodi or Mr. Hull? So obviously, in this particular Chapter 6, they are trying to streamline the whole process so we don't end up with ... like this morning, you know, the 6 -inch high document that they brought with them. Any questions of Jodi or Kaaina? Mr. Lord: Well, this is going forward. Chair Keawe: My question is, should we pass them all, when do they become effective? 35 Ms. Higuchi Sayer Again, this, like the other amendments, if you folks adopt the amendments, then it will be transmitted for the Mayor's approval, and then if the Mayor does sign off, then it gets transmitted to the County Clerk and within ten (10) days of them being transmitted — the Mayor's signed copy — then it becomes a valid rule. Chair Keawe: Because it is county rules, once he signs, that is it? Ms. Higuchi Sayegusa: Yes. Chair Keawe: It does not need to be transmitted anyplace else? Ms. Higuchi Sayegusa: No. It is an amendment to your rules. Chair Keawe: Right. I understand. Ms. Nogami Streufert: Are the other commissions also following the same rules? Ms. Higuchi hi Sayeg sa: This is your procedural rules. Chair Keawe: Are there major variances, I guess, between islands? Ms. Nogami Streufert: Even within commissions within our county, are there...? Ms. Higuchi Sayegusa: The rules here are geared towards the type of permits and the actions that you have to oversee. Mr. Hull: Because these are specific to land use entitlements, or the blocking thereof, it is very specific to Planning Commissions. I will say the other Planning Commissions do have similar rules, but I would not say the same. These are a bit more, I will say, or we are attempting in our proposals to streamline them a bit more than, say, the other counties. I will say that is a consequence also because in our discussions with other counties, the enforcement against illegal vacation rentals is probably the most robust here on Kauai. There are still a lot out there — don't get me wrong — but compared to many other counties, as actively as our enforcement team is going out there, you are not seeing as much movement in the other counties. As a consequence of a robust enforcement program, you are seeing appeals from these actions, right? Essentially, we are telling these individuals that they do not have the land use entitlement to operate a vacation rental and we are telling them to stop, so they are appealing that decision and we 100% support their due process rights, but we are saying, ultimately, let's get to the case, guys. Chair Keawe: Ms. Diamond, since you are the only member of the public out there (laughter), do you have any comments? You are okay? Okay. Are we ready to close the public hearing at this point? Yes? Okay, I will entertain a motion to close the public hearing. Mr. Mahoney: Chair, move to close the public hearing. Mr. Ho: Second. 36 Chair Keawe: Okay. It has been moved and seconded to close the public hearing. All those in favor? (Unanimous voice vote) Any opposed? (None) Okay, motion carries 5:0. Any further questions for Jodi or Kaaina? Ms. Hi chi Sayegusa: I'm sorry. To explain the background, again, for the other piece of the amendment here for the motions, it is really clarifying the timing of the motions and then also clarifying that they won't be hearing ... so once a motion is lodged, there is not going to be a hearing scheduled for it because that ultimately will delay the process. The motion will be received and a Memorandum in Opposition from the opposing party, if there is any, is submitted, and the Hearings Officer or the Body will just make a detennination without a hearing, unless that is preferred. So again, it is just more of the preference towards efficiency. And then clarifying that there are not endless motions after that. It is just the Memorandum in Opposition because at least in a couple of instances there were replies and then supplemental memoranda, etc., etc., so it could go on and on and on, so really, it is just clarifying that it is the motion and the Memo in Opp.; no hearing unless the Presiding Officer prefers to schedule such a hearing. And that's it. (Laughter) And then also clarifying the timing. Chair Keawe: Commissioner Lord. Mr. Lord: I wonder why the language you are proposing doesn't ... why it says shall not order or approve civil style discovery unless stipulated by all parties. Why are the parties getting to make that decision? Why isn't the Presiding Officer making that decision if it is intended to streamline? Mr. Hull: At least the way I read it — and correct me if I am wrong, Jodi, on how it would be implemented — is that the Presiding Officer still would at his/her discretion if the two (2) parties stipulate that they can do civil style discovery, at the Hearings Officer's discretion, he can approve a civil style discovery, but only if the two (2) parties stipulate. But he can also say no, there will be no ... he also has the ability to say— Mr. Lord: So he still has the right, then, to determine first whether that is— Mr. Hull: Appropriate. Mr. Lord: (Inaudible) make that appropriate. Okay. Chair Keawe: Commissioner Streufert. Ms. Nogami Streufert: How does this work if the Presiding Officer ... or we don't send it to a Hearings Officer, but the Commission actually decides this? How does that change this? Ms. Hi ucg hi Sayegusa: It will just be the Body's motion and second, and you would have to decide as a body whether or not to approve civil style discovery, for instance. Ms. Nogami Streufert: So should that say the Presiding Officer or the Chair of the Commission? 37 Chair Keawe: I would assume it is going to be similar to what we did this morning; you know, agreeing to the dates and okay, we are going to get documents by such and such a date. Mr. Lord: So in a contested case hearing whereby the Commission acts as the body, do they then become the Presiding Officer? Ms. Higuchi Sayegusa: I apologize. We can make an amendment here just to keep it consistent; Presiding Officer. So the Presiding Officer would either be the Hearings Officer or the Presiding Officer, I guess in this instance, would be the Chair. So if the Commission is hearing the issue, then it would be the Chair ... your discretion. Chair Keawe: So the Chair would be the Presiding Officer if the Commission is hearing the contested case. Ms. Higuchi Sayegusa: Yes. Ms. Nogami Streufert: So then that could just be part of a glossary kind of thing. When it says "Presiding Officer", it can mean either one. Chair Keawe: Right. Ms. Higuchi Sayegusa: Yes. So I think we could make a minor amendment to the second line of that. So, "The Presiding Officer shall not order or approve civil style discovery against non- parties; and unless stipulated to by all parties, the Presiding Officer shall not order or approve civil style discovery..." just to keep it consistent with the whole sentence. Chair Keawe: Okay. Ms. Higuchi Sayegusa: Thank you. Chair Keawe: So that will be a short, small edit. Ms. Higuchi Sayegusa: Okay. Chair Keawe: Any other questions? Are we ready to make a decision on this particular amendment change? Anybody? (Laughter) Mr. Lord: I will make a motion that we accept the Department's— Mr. Hull: Excuse me, Commissioner, the Department... and I will look at Jodi on this. The motion would either be appropriate to approve or to deny. Mr. Lord: Okay. Mr. Hull: The term "accept" I think - 38 Mr. Lord: Okay. Alright, I will make a motion to approve the Department's recommendation to amend ... no, to approve Item FA.c. with the amended language. Ms. Higuchi Sayegusa: Thank you. Chair Keawe: Okay. Do I have a second? Mr. Mahoney: Second. Chair Keawe: It has been moved and seconded. Any discussion? No? All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carried 5:0. Yay! Mr. Ho: Good job. Mr. Hull: Thank you, Chair. Chair Keawe: Good job. CONSENT CALENDAR Status Reports Director's Report(s) for Project(s) Scheduled for Agency Hearing on 10/10/17 (NONE) There was no Consent Calendar. EXECUTIVE SESSION There was no Executive Session. GENERAL BUSINESS MATTERS There were no General Business Matters. COMMUNICATION (For Action) There was no Communication. COMMITTEE REPORTS Subdivision 39 Chair Keawe: Alright. We got one (1) last... Subdivision. Mr. Hull: The one (1) last agenda item is Committee Reports; the Subdivision Committee. Chair Keawe: Mr. Ho, that's you. Mr. Ho: What is that? Chair Keawe: Your committee report. Mr. Ho: Oh. I got that. (Laughter in background) One (1) item; request for extension, Welk Resorts, granted until January 2018. And that is all we had. Chair Keawe: Okay. Can I have a motion to accept the Subdivision—? Mr. Mahoney: Move to accept. Chair Keawe: It has been moved. Second? Mr. Lord: Second. Chair Keawe: Moved and seconded to accept the Subdivision Report. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 5:0. Is there anything else to come before this body at this time? Mr. Hull: There are no other agenda items at this time. NEW BUSINESS See Hearings and Public Comment section. 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, October 10, 2017. Mr. Hull: The Director previously circulated the upcoming projects and I will discuss that with you, so he did discuss the 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 M Center, Moikeha Building, Meeting Room 2A-213, 4444 Rice Street, Uhu`e, Kauai on Tuesday, October 10`h Chair Keawe: Okay, that is the next meeting. You guys are going to be gone, right? Ms. Nogami Streufert: We are going. Chair Keawe: Both of you are going. Okay. Mr. Mahoney: Let's hope we have a quorum. Chair Keawe: Alright. Got to make sure we have a quorum. 111111N11401 Chair Keawe: Okay. If not, I will entertain a motion to adjourn. Mr. Mahoney: Move to adjourn. Chair Keawe: Second? Mr. Ho: Second. Chair Keawe: Moved and seconded. Meeting adjourned. Chair Keawe adjourned the meeting at 3:44 p.m. Respectfully submitted by: i arcie Agaran, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of meeting. 41