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HomeMy WebLinkAboutPlanning CCC 111417 MinutesKAUA'I PLANNING COMMISSION CONTESTED CASE CALENDAR November 14, 2017 The contested case calendar of the Planning Commission of the County of Kaua'i was called to order by Chair Keawe at 1:22 p.m., at the L-ihu'e Civic Center, Mo'ikeha Building, in meeting room 2A-213. The following Commissioners were present: Chair Kimo Keawe Vice Chair Roy Ho Ms. Kanoe Ahuna (left at 4:22 p.m.) Ms. Donna Apisa Mr. Wade Lord Mr. Sean Mahoney Ms. Glenda Nogami Streufert The following staff members were present: Office of the County Attorney — Deputy County Attorney Jodi Higuchi Sayegusa (left at 5:21 p.m.), Deputy County Attorney Peter Morimoto (entered at 5:35p.m.); Planning Department — Commission Secretary Leslie Takasaki; Office of Boards and Commissions — Administrator Paula M. Morikami, Commission Support Clerk Darcie Agaran Discussion of the meeting, in effect, ensued: AVUUK�1 ' Chair Keawe called the Contested Case Calendar to order at 1:22 p.m. 30990M Hearing and Action in the Matter of Contested Case CC -2017-12, Special Management Area Use Permit SMA(U)-2018-3 for the construction of a public shared use path extending from Pqpaloa 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 Kahia 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 ofKaua'i, Department ofPublic Works. [Director's Report (DR), Sup I 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-Kgpa'a Neighborhood Association 9/12/17; Petition to Intervene by Wailua-Ka-Da'a Neighborhood Association approved 9/26/17, hearing closed 9/26M Chair Keawe: The item that we are looking at right now is the hearing and action in the matter of Contested Case CC -2017-12, 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 the 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. We have to follow a little bit more formal process because it is a contested case, so this will be more like an actual jury -type of trial where we call witnesses and swear them in. Let me explain a little bit about what we would like to do. First, we will deal with a few preliminary procedural matters and then we will move on to the opening statements. The Parties will have five (5) minutes for your opening statement. Is that enough? Not your presentation, just an opening statement. Deputy County Attorney Teresa Tumbaga: Teresa Tumbaga for Department of Public Works. That is more than enough time. Chair Keawe: Okay, so the Parties will have five (5) minutes. The evidentiary hearing will follow with the Petitioner — the Department of Public Works' presentation first — then the Planning Department's presentation, and, finally, the Intervenor's presentation. The Parties will have an opportunity to present rebuttal evidence, if necessary. The public will be given an opportunity to present testimony. After the conclusion of the Contested Case, the parties may elect to submit proposed Findings of Fact, Conclusions of Law, and Decision and Order. Deputy County Attorney Jodi Higuchi Sayegusa: Sorry to interject. Maybe we can have the other parties come and have a seat? Chair Keawe: Yes, I was just going to have them come up; the other parties. Okay. Are we ready to proceed? Alright, counsel for the Department, could you introduce yourself? Deputy County Attorney Adam Roversi: Deputy County Attorney Adam Roversi representing the Planning Department. Chair Keawe: Okay. Ms. Regush, please introduce yourself. Ms. Rayne Regush: Good afternoon, Commissioners. My name is Rayne Regush— Chair Keawe: Regush? Ms. Regush: Thank you, and I am Chair of the Wailua-Kapa`a Neighborhood Association. Mahalo. Chair Keawe: Okay. And then... 2 Ms. Tumbaga: Good afternoon, Commissioners. Deputy County Attorney Teresa Tumbaga on behalf of the Department of Public Works. Chair Keawe: Okay. Alright, so that is counsel. I have a few preliminary matters. Each of you have received the others' witnesses and exhibits. Can I confirm that? Yes? Teresa. Ms. Tumbaga: Yes. Chair Keawe: Okay. Do any of the parties have any exhibits that they wish to enter as evidence at this time? Ms. Regush: Any new exhibits? Chair Keawe: Any new evidence; something you have not submitted previously. Ms. Tumbaga: Department of Public Works does not. Chair Keawe: Okay. Ms. Regush? Ms. Regush: ish: The Intervenor does not. Thank you. Chair Keawe: Okay. Adam? Mr. Roversi: No, Mr. Chair. Thank you. Chair Keawe: Thank you very much. Alright. Now on to opening statements; the parties will have five (5) minutes each and then we will follow with the evidentiary hearing. So who would like to go first? I think we were going with Public Works. Ms. Tumbaga: Good afternoon, again, Teresa Tumbaga on behalf of the Department of Public Works. We are here today to deal with Phases C and D of the pedestrianibike path. Our evidence and our exhibits will show that this path complies with the policies, the goals, the objectives of the Coastal Zone Management and Special Management Areas, as well as is deserving of a variance from the shoreline setback. This path is not only not going to negatively impact the shoreline or any of the beaches, but it is also going to provide access in an area which currently is filled with hotels, resorts, and empty lots that are set for new resorts to be built. So this is going to ensure access for the public while complying with all of the requirements under the law. That is it from the Department of Public Works. Thank you. Chair Keawe: Okay, thank you. Mr. Roversi. Mr. Roversi: The Planning Department will generally waive an opening statement. We will present our position in the presentation of the Director's Report and my questioning of the Planner. Thank you. Chair Keawe: Thank you. Ms. Regush. Ms. Regush: Actually, I have a question about process and whether or not you were going to waive the rules to allow public testimony. Chair Keawe: No, we have, within the procedure, an opportunity for people to testify. Ms. Regush: Once the Contested Case has begun? Chair Keawe: Yes. Ms. Regush: Thank you. With regards to our opening statement, Wailua-Kapa`a Neighborhood Association, we want the path to succeed and we support the path but yet, we are concerned with its placement in some of the locations where the proposed setback is too close to the shoreline. So we have intervened to present evidence that illustrates a range of concerns about its placement and we seek to ensure accurate implementation of the shoreline setback and Coastal Protection Ordinance, as well as HRS 205A, while protecting the County's interest as well in serving the greater public. We intend to show how this Variance Pen -nit application can be modified so that the path is not constructed closer to the ocean than necessary, particularly within the northern parcel that currently has no existing buildings; it's Coconut Plantation. We seek consistency with the intent and purpose of the Coastal Zone Management rules, and although we've been tracking the setback calculations that have been resubmitted and changed through several of Public Works' amendments, there are still some problem areas where the path is too seaward. We also feel we have an opportunity to benefit from some other examples of nearby properties, which are shown in one of our exhibits, and we will also be pointing to some of the relevant facts in the final EA and the Archeological Inventory Survey and the Cultural Impact Assessment that will highlight some historic and cultural problem areas in a concise and meaningful way for you to understand. Our evidence is going to focus primarily on the shoreline setback; coastal hazards; a recent king tide event and that evidence; historic, cultural, archaeological resources in that coastal zone; and to a lesser extent, evidence will talk about coastal, recreational, and open space resource. We ask that all of our exhibits be accepted because they do provide the evidence to aid in your decision-making, and again, our intent is not to delay the project. Our goal is for the path to be sited appropriately and protect historic resources and scenic resources, recreational and cultural traditions as well. This will be a win- win for both parties. So the goal is really to have the best path possible. Mahalo. Chair Keawe: Thank you. Okay, so the Petitioner's presentation is first and I need to swear in whoever is going to start. Ms. Tumbaga: Chair, before we begin, there are some exhibits that the Parties all stipulated and agreed to, to be into evidence. I can list those for you right now. Chair Keawe: Yes, that would be good. Have all the Parties stipulated to those? Ms. Tumbaga: Not all of the exhibits, but certain ones, and I will list them right now. Chair Keawe: Okay. 11 Ms. Tumbaga: And yes, all three (3) parties did. Chair Keawe: Okay. Ms. Tumbaga: Okay, so these are the Petitioner's exhibits; Exhibits A through E — that is "A", as in apple, through "E", as in egg — A, B, C, D, and E of the Petitioner's exhibits, which are all electronic due to the size. And in addition to those, Exhibits I, J, K, L, M, N. Chair Keawe: Okay. Ms. Tumbaga. That is it for the Petitioner's exhibits. Chair Keawe: Okay. Ms. Higuchi hi Sayegusa: Just want to make sure, so not Petitioner's F, G, H, O, P, onward to ZZ. Ms. Tumbaga: Onward through Y and then A ... yes, Z, AA. Chair Keawe: Okay. Ms. Higuchi Sayegusa: Were there any other— Chair Keawe: Were there any other? Ms. Higuchi Save sa: —stipulations of the other exhibits of all the parties? Ms. Rei ish: For clarification, for the exhibits from the Intervenor that were not stipulated, what is the process to address those? Ms. Tumbaga: I'm sorry, let me just list the exhibits from the Intervenor that were ... well, actually those are the only exhibits that all three (3) parties have stipulated to. The other exhibits — the Planning Department hasn't put their position or stated their position before the hearing. So just those exhibits. Ms. Higuchi Sayegusa: Okay. Ms. Regush: So the Intervenor is willing to stipulate to the majority of the ones that have not been dealt with, with the exception of Exhibit S. This is an exhibit formerly sent to me as Document 9. It is referred to as a map of a site plan, but it has — it looks like this — and it has no title, no exhibit number, no legend, no color -coding definition, and it seems to have been the one that is replacing the document earlier, which was called Project in Relation to the SMA and Shoreline Setback, which listed the shoreline setback encroachments. Ms. Higuchi Sayegusa: That is fine. The Petitioner provided it as part of their exhibits, so when we get to their presentation, they can attempt to introduce it into evidence at that time, and that is 5 fine. But just want to try to see if we could reach some agreements on some of the exhibits beforehand in an attempt to sort of streamline and save some time for the regular proceeding. Ms. Regush: Alright then, in that regard, I would be glad to stipulate to all of them with the exception of Exhibit S. Ms. Higuchi Sayegusa: Okay. Chair Keawe: Okay. Ms. Higuchi Sayegusa: The Planning Department. Mr. Roversi: The Planning Department is fine with the requested entry into evidence from the Department of Public Works. Ms. Higuchi hi Sayegusa: Okay. What I am hearing, then, is all of Petitioner's exhibits, with the exception of S, will be entered as evidence. Chair Keawe: Is that correct? Ms. Tumbaga: That is correct. Chair Keawe: Yes. Okay. Ms. Higuchi Sayegusa: Were there any other stipulations as to the Planning Department's or Intervenor's exhibits? Ms. Tumbaga: No. Ms. Higuchi hi Sayeegusa: Okay, thank you. Chair Keawe: Okay. Ms. Tumbaga: Okay, so Department of Public Works' first witness is Doug Haigh. Chair Keawe: What was it? I couldn't hear. Ms. Tumbaga: I'm sorry. The Petitioner's first witness is Doug Haigh. Chair Keawe: Doug Haigh? Okay. Mr. Haigh, can you come forward? Oh, you're right here. Sorry. Okay, could you stand real quick and raise your right hand? Do you swear and affirm that you will tell the truth? Mr. Douglas Haigh: Yes, I do. 0 Chair Keawe: Okay, now that you have been sworn in, can you say your name and address for the record, please? Mr. Haigh: Douglas Haigh; 6431 Kahuna Road, Kapa`a. Chair Keawe: Thank you. You may be seated. Proceed. Ms. Tumbaga: Would you like the witness sitting here or at that table? Chair Keawe: Whatever is convenient for you. Ms. Tumbaga: Okay. Please state your name. Mr. Haigh: Douglas Haigh. Ms. Tumbaga: Please tell us your occupation. Mr. Haigh: Civil Engineer. Ms. Tumbaga: And how long have you been a civil engineer? Mr. Haigh: I have been a civil engineer over twenty-five (25) years. Ms. Tumbaga: Who is your current employer? Mr. Haigh: County of Kauai. Ms. Tumbaga: And what is your position at the County of Kauai? Mr. Haigh: I am Chief of the Building Division. Ms. Tumbaga. And how long have you held that position? Mr. Haigh: About twenty-two (22) years (as) Chief of the Building Division. I have been with the County over twenty-five (25) years. Ms. Tumbaga: Okay. Is Exhibit V your resume? Mr. Haigh: That is correct. Ms. Tumbaga: And what degrees, certificates, or licenses do you have? Mr. Haigh: Okay, I am a licensed Civil Engineer — State of Hawaii. I have an undergraduate degree — Bachelor of Science in Construction Management from Cal Poly, San Luis Obispo. I have a Master's Degree in Business Administration from the University of Hawaii at Manoa. And I ... actually, that is good enough. V/ Ms. Tumbagp, Okay, and everything is listed on Exhibit V — your resume? Mr. Haigh: It is correct — my resume. Ms. Tumbaga: Okay. Let's get into the project. Can you generally describe the proposed project? Commissioners, at this point I was going to project onto the screen, but if all of you have the exhibits in front of you, I can direct you to the page to look at; whichever is easier. Chair Keawe: Okay. Go ahead. Ms. Tumbaga: We are going to look at Exhibit "B", as in boy, page 12. Mr. Haigh: Okay. Lydgate-Kapa`a Bike/Pedestrian Path, Phases C and D, is completing the gap in order to have a bike path that goes from Lydgate Park to Kuna Bay. From the north, it connects at the Waipouli Beach Resort at the Uhelekawawa Canal, crosses the canal— Ms. Higuchi Sayegusa: So sorry to interrupt. I think it might be easiest if you have projections. Ms. Tumbaga: Sure, we will project. The only thing is the Chair might have to move over so we are not projecting... Mr. Haigh: So starting at the canal, it crosses the canal and goes down the current driveway for the Bull Shed; the plan is that driveway will be closed to vehicular traffic. And then we will cut across a residential lot and then cut across the Mokihana lot behind the tennis courts and connect to an existing easement that is on the north side of the Coconut Plantation property. Also in that area is a public access to a parking lot and in that, we plan to improve that whole parking lot; expand it, add additional parking, and provide a comfort station and continue the vertical access to the ocean. And then cut across between the resorts and the ocean, all the way to the south side of Islander on the Beach and then comzect back to Papaloa Road. So the key elements are the bike path, the parking lot, trailhead, comfort station improvements, and the crossing of Uhelekawawa Canal. Ms. Nog_ami Streufert: Just for my edification, are we looking at Phases C and D? Or just— Mr. Haigh: We are looking at Phases C and D; both sections. Ms. Tumbaga: Thank you. What is your role in relation to this project? Mr. Haigh: I am the Project Manager for the project. Ms. Tumbaga: And how long have you been working in that capacity? Mr. Haigh: I have been the Project Manager for this project since 2003. Ms. Tumbaga: Did you oversee the completion of the SMA Use Permit application, which is Exhibit A, including the Environmental Assessment — Exhibit B, the original plans — Exhibit H, and the tree removal plans — Exhibit I? Mr. Haigh: Yes, I did. Ms. Tumbaga: Did you oversee the completion of the Shoreline Setback Variance application and all attachments, which are Exhibits J through K? Mr. Haigh: Yes, I did. Ms. Tumbaga: And did you oversee all of the amendments to this application or both applications, which are Exhibits L though R? Mr. Haigh: Yes, I did. Ms. Tumbaga: So, again, I think you've already explained the location of Phases C and D, but let's go into a little more detail. Okay, I am showing you page 17 of Exhibit B. Mr. Haigh: Okay. Now we are starting from the south. You are starting at Papaloa Road, right by the driveway going into Kapa`a Sands. There is an existing County easement 6 feet wide, I believe, that goes from that parking lot in between Kauai Sands and Islander on the Beach. Historically, that easement is unmarked and unusable. It has gotten a little more useable recently, but typically... well, in the past, it has not been useable. And then we continue along in front of the Islander, in front of the Beachboy, the two (2) vacant lots — which are not included in our SMA Permit — and then the Courtyard Marriott, and then the Coconut Plantation project. At the north side of the Coconut Plantation project, we take the existing easement... now, both these easements we will be widening in order to provide safe access. And then you can see where we are cutting through Mokihana property, vacant lot, and going along the driveway to connect at the bridge. Ms. Tumbaga: Okay. We can turn the lights back on if you prefer. So what State Land Use District is the project in? Mr. Haigh: This is in Urban District. Ms. Tumbaga: And what is the General Plan designation? Mr. Haigh: Resort. Ms. Tumbaga: What is the land zoned? Mr. Haigh: The land is primarily Resort. There is an Open District and there is a small Commercial -Neighborhood District. Ms. Tumbaga: So is this project consistent with the County General Plan and zoning? 9 Mr. Haigh: It is in compliance with the County General Plan, Development Plan, zoning, and Subdivision Ordinance. It promotes County policies, and preserves and promotes access to coastal and scenic resources. It facilitates access to coastal areas for all members of the general public, and develops Kaua`i's bikeways and promotes the use of non -motorized transportation. Ms. Tumbaga: What is the total length of Phases C and D? Mr. Haigh: Approximately 1.1 mile. Ms. Tumbaga: During the construction of the path, will there be any excavation or digging? Mr. Haigh: Generally for the path, about a 1 -foot depth. Ms. Tumbaga: And then again, we've seen it on the map, but can you explain, again, what is currently located on the properties where the project will be located? Mr. Haigh: We are going through, primarily, existing resorts and then the property that does not have an existing resort does have full SMA pennitting for a resort. Ms. Tuinbaga: So is there currently a way for a member of the public to access the coast and the beach in this area? Mr. Haigh Currently, there are only three (3) ways; one would be illegally through private property, one via the unmarked easement between Kauai Sands and Islander — there is an easement between Lae Nani and Kauai Shores — and then there is access on the north side, but it is currently overgrown and inaccessible; that would be the County easement on the north side of the Coconut Plantation property. Ms. Tumbaga: Is there anything currently blocking the public's view of the coast and the shoreline in this area? Mr. Haigh: The existing resorts block the view and most of the view planes, except for the vacant lots. Really, the only two (2) big vacant lots are the only places where you can see the ocean from the public right-of-way. Ms. Tuinbaga: So does the SMA application, all the exhibits, the amendments that have all been admitted into evidence ... do those explain how this project is consistent with the objectives, policies, and guidelines of HRS Chapter 205A? Mr. Haigh: Yes, they do. Ms. Tumbaga: In a little more detail, what is the purpose of constructing this path? Mr. Haigh: To provide a bike and pedestrian path that is safer and more accessible than existing assemblages of highways, local roads, and informal trails; to close a key gap in the recently constructed shared -use paths and increase the connectivity of the existing network; to ensure 10 lateral coastal access for public and appropriate recreational development within the area, which includes Waipouli Beach. Ms. Tumbaga: How will the path affect scenic and open space resources? Mr. Haigh: It will not have any noticeable impacts on the view plane of the coastline, except for, maybe, the people walking along the path; those who you would be seeing, but the path itself is not within the view plane and the proposed comfort station is not within the view plane. Well, it is within the view plane, but it is at the ground level so you don't see it. Ms. Tumbaga: How would the path affect coastal ecosystems and marine resources? Mr. Haigh: There will be no adverse effects to the coastal environment. Ms. Tumbaga: Will there be any major grading done to build the path? Mr. Haigh_ There is no major grading being done for the path. Ms. Tumbaga: Is there going to be any effect on coastal hazards; meaning hazards to life and property from tsunamis, storm waves, stream flooding, erosion, and pollution? Mr. Haigh: It would depend on the specifics. Okay, well, the path is located near a sandy beach, but it is upland of the area where the seasonal shifts to the beach are. The path will be located in a tsunami inundation area, but will not affect the occurrence or likelihood of damage from tsunamis, storm waves, flooding, erosion, or subsidence. Ms. Tumbaga: How would the Department of Public Works deal with occurrences, such as tsunamis, king tides, if it did affect the path? Mr. Haigh: Okay, this would depend on specifics. If debris is deposited on the path from high- water events, the debris will be cleaned. If the path is damaged, it could be repaired. If it was undermined by erosion from an extreme event, it might be appropriate to do beach nourishment and put the path back in. But if it was undermined by normal shoreline erosion, it would be time to retreat or reroute the path. Ms. Tumbaga: So what effect would this path have on the public beach in this area? Mr. Haigh: The path enhances access and does not directly impact the sandy beach. Ms. Tumbaga: Okay, going into the shoreline setback. In this area, is there anything else currently located within the shoreline setback area? Mr. Haigh: The existing resort structures and disconnected, improved lateral paths are within the shoreline setback area. Ms. Tumbaga: We are going to... 11 Mr. Haigh: That would be Exhibits S, T, and U. Ms. Tumbaga: We are going to draw your attention to Exhibits S, T, and U; T and U have been stipulated into evidence. I am going to go to those right now. So we are showing you Exhibit T, once it pops up. Mr. Haigh: Okay. This exhibit shows you where the certified shoreline is, where the path is, where the property lines (are) and the shoreline setback (is). You can also see the outline of the buildings. Islander on the Beach — you will see that the shoreline setback line goes through existing buildings of Islander on the Beach and also goes through buildings for Coconut Coast Resort, the Beachboy. So that is why we have to come in and ask for a shoreline setback variance because otherwise, we would be going through buildings for a path. Ms. Tumbaga: Okay, and I am going to move on to Exhibit U, which has also been admitted into evidence. Mr. Haigh: Again — a similar snap — this is of the Courtyard Marriott and then also Coconut Plantation. You can see that with the Marriott property, the green line — the shoreline setback — goes through existing buildings, so we are forced to ask for a variance in this area. The path is actually on the ... does not go beyond the makai edge of the existing pedestrian path in that parcel and then we have the path going through the Coconut Plantation property; pretty much working with them and their existing SMA Pen -nit in locating where the path goes. Ms. Tumbaga: Okay, thank you. Can you explain the Department of Public Works' justification to obtain a variance from the shoreline setback rules? Mr. Haigh: Okay. We are developing a public access for public use that is going to assure lateral access for all in perpetuity, and for all, a key function is a fully accessible path; so people with walkers, mothers with baby carriages, people in wheelchairs, they can also enjoy the coastal environment. This is an environment that has historically been somewhat restricted to the public and considered somewhat private to the resorts in the area. This will help to fully establish that this is a public area and the public has a right to this area. Ms. Tumbaga: Will the project artificially fix or harden the shoreline? Mr. Haigh: The project will not harden or artificially fix the shoreline. Ms. Tumbaga: Will the path impede the natural processes and/or movement of the shoreline or sand dunes? Mr. Haigh: No, it does not, and that is further evidenced by the study done by the U.S. Core of Engineers that we referenced in the SMA application. They did a study for us when we were working on the Wailua Beach area and looked at the impact of what a "path" — concrete slab — has on beach processes and they concluded that it does not impact the natural processes at the beach. 12 Ms. Tumbaga: Will the path diminish the public beach? Mr. Haigh: Diminish the what? Ms. Tumbaga: Diminish the public beach. Mr. Haigh: No, it will not diminish the beach. It is up and off the sandy beach area. Ms. Tumbaga: Will the path alter the grade of the shoreline setback area? Mr. Haigh: Not at all significantly. There are areas where we are going through areas where there are cultural, non -burial deposits. There we intend to put the path on grade and then we would have to do some grading alongside — about 6 inches of grading — to provide a safe edge between the path and the soil, surrounding area. Ms. Tumbaga: Okay. And we've gone through this, but will the path alter existing public views of the shoreline? Mr. Haigh: Like I said, it will not. Ms. Tumbaga: I am going to bring your attention to minor structures; that is defined in the Kauai County Code 8-27.2. Did this path meet most of the criteria for a minor structure so that the Department could have applied for approval of the project as a minor structure? Mr. Haigh: It complies with all the definitions of a minor structure, except for cost. Also, the minor structure definition requires control joints at every 3 feet and we chose to use 5 feet. If that was the only issue, we could have easily done the joints at 3 feet, but really, it is cost. Because we are providing an enhanced structure for the public, because we are looking at a 12 - foot wide, multi -use path, that cannot be built in this area for under the $125,000 limit that is put in for minor structures. Ms. Tumbaga: So for a minor structure, who approves the minor structure? Mr. Haigh: The Planning Director. Ms. Tumbaga: Would you need to apply for this shoreline setback variance? Mr. Haigh: If we had qualified as a minor structure, we would not need to apply for a variance because those minor structures are accepted without variances within the shoreline setback. Ms. Tumbaga: Before we go any further, can you explain what was changed by the two (2) amendments to the applications? The first amendment is covered in Exhibits L, M, and N. Mr. Haigh: The first amendment — we shifted the coastal path to 16.4 feet in consideration of new information we received about monk seal habitat. We revised the setbacks to be in consistency with the current ordinance. We added offset dimensions at each transect. We 13 shifted the path mauka through Courtyard to line up with the makai edge of the new path to an existing path; before we were matching up with the mauka edge, so we did a little bit of a retreat in that area. And then we added an alternate alignment for Sheet 7A and 8A fronting Islander and the Beachboy showing what the path would be if we kept it only within County property. (For) part of this path, we have to acquire easements from the existing resorts. So if we cannot successfully negotiate easements, we would be either looking at condemnation or trying to keep it within the County property. If you look at those sheets, it, of course, results in us being much closer to the certified shoreline. There was a slight change at Uhelekawawa Bridge based on our current design concept. Ms. Tumbaga: Can you go through what the second amendment changed? That is covered in Exhibits O, P, Q, and R. Mr. Haigh: Primarily, the second amendment was driven by review of the Planning Director's report. We revised the offset, the path, to make sure we did not exceed or be less than the 20 - foot minimum setback. This is really at the south end of the Islander. We moved the path closer to that property. We also revised typical sections to show a 20 -foot minimum offset to certified shoreline. And then at the Beachboy, we brought the path a little bit further inland where we could because the Beachboy is the area with the highest erosion rate and it was the most sensitive to potential erosion affecting the path, so we were able to retreat a little bit further. We worked with the property owner there and came up with a solution that would give us a little more distance but still be within ... not interfering with the operations of the resort. Ms. Tumbaga: What is the range of distance the path would be from the certified shoreline? Mr. Haigh: From 20.6 feet to 418 feet. Ms. Tumbaga: Okay, so in order to apply for the SMA Use Permit and the Shoreline Setback Variance Permit, did the Department of Public Works evaluate the effect of the project on the environment? Mr. Haigh: Yes, we definitely did. Ms. Tumbaga: How did you do this? Mr. Haigh: We did a ... kind of culminated it in the 2014 final Environmental Assessment and Finding of No Significant Impact. Also, this project — we plan on using Federal funds, so we needed to go through the NEPA environmental clearance process, which is what we had spent the last six (6) years working on. Ms. Tumbaga: Did you receive a determination by the Federal Highways Administration regarding the effects on endangered or threatened species? Mr. Haigh: Yes, through the Section 7 process, which looks at the endangered species issues. For any federally funded project, there is a Section 7 process we go through, so we check and 14 work with U.S. Fish and Wildlife services and also NOAH, both for marine mammals and essential fish habitat issues. Ms. Tumbaga: And what was their determination? Mr. Haigh- They concurred with Federal Highway Administration that, with the mitigation measures we are taking, there was no adverse effect, no significant effect. Ms. Tumbaga: Is that finding in Exhibit Z? Mr. Hai& Yes, it is. Ms. Tumbaga: Did the State of Hawaii, Office of Planning perform a Federal Consistency Review for the project? Mr. Haigh: Yes, they did. Ms. Tumbaga: And what was its determination? Mr. Haigh: The determination, again, is they concurred with our determination that there are no adverse effects. Ms. Tumbaga: Is that Exhibit F? Mr. Haigh: Yes, that is true. They also had conditions that we get an SMA Permit and a few other issues. Ms. Tumbaga: As part of the Environmental Assessment and to comply with the historic preservation requirements, was the project's effect on archaeological, historical, and cultural resources evaluated? Mr. Haigh: Absolutely. This, again, was through the Section 106 process, which is stipulated by Federal law for federally highway funded projects and other Federal projects, also. We went through an exhaustive 106 process. We were very fortunate Mauna Kea Trask helped work with elders of the Hawaiian community — respected elders — to set up a process that was respectful, and we spent, I believe, almost two (2) years going through that process. Ms. Tumbaga. And what was the Federal Highway Administration's position regarding the Section 106 process? Mr. Haigh: They have taken a no adverse effect determination. Ms. Tumbaga: Is that found in Exhibit G? Mr. Haigh: That is correct. 15 Ms. Tuinbaga: Did the Department of Public Works also consider Native Hawaiian customary and traditional rights? Mr. Haigh: Yes, we do. Ms. Tumbaga: And what was done to address that? Mr. Haigh: We are providing access to the area, to the resource, so we are enhancing their ability for their access rights and cultural practices. Ms. Tumbaga: Can you briefly describe the Archaeological Inventory Survey? Was that done as part of the Environmental Assessment? Mr. Haigh: That, and also part of the Section 106 process. Ms. Tumbaga: Was the draft Archaeological Inventory Survey, which is located in ... as part of Exhibit B, was that approved by the State Historic Preservation Division? Mr. Haigh: Yes, it was. And to go back to your one question, the Archaeological Inventory Survey is an exhaustive study survey including background research, site inspection, ground penetrating radar, and subsurface testing. Ms. Tumbaga: Okay, so when did ... we are just going to call them SHPD, the State Historic Preservation Division—when did SHPD approve the draft? Mr. Haigh: Let's see. I didn't memorize that date. I believe it was in 2014; in September 2014, I believe. Ms. Tumbagq Is it Exhibit C? The letter from... Mr. Haigh: Yes, it is Exhibit C. Ms. Tumbaga: Exhibit C has the date of October 16, 2014. Mr. Haigh: Okay. Ms. Tumbaga: Was a Final Archaeological Inventory Survey done? Mr. Haigh: Yes, the final ... there was really no significant changes from the draft document, but it took several years to get from the draft to the final. Ms. Tumbaga: Is that final AIS Exhibit D? Mr. Haigh: That is correct. Ms. Tumbaga: And was a Cultural Impact Assessment also done? 16 Mr. Haigh: Yes, and the Cultural Impact Assessment includes background research, community consultation, and community interviews. Ms. Tumbaga: Were these documents included with the applications for these permits? Mr. Haigh: Yes, they were. Ms. Tumbaga: And were they considered as the Department went forward with this project? Mr. Haigh: Yes, they were. Ms. Tumbaga: And did the public and the community have the opportunity to be involved in this process? Mr. Haigh: Yes, very much so. Ms. Tumbaga: So what effect would the path have on historic resources? Mr. Haigh: It would have no adverse effect with the mitigation measures we are taking. Ms. Tumbaga: Okay, so as a result of the EA, which includes the Archaeological Inventory Survey and the Cultural Impact Assessment, mitigation measures were suggested? Mr. Haigh: That is correct, and if you look at our SMA application — page 20 — there is a chart that summarizes the mitigation measures. Ms. Tumbaga: We are not going to go through every one of those right now, but were these recommendations considered as the project moves forward? Mr. Haigh: Yes, they are commitments. Ms. Tumbaga: Okay, so what was done to comply with those? Mr. Haigh: Well, we are near completion on the burial treatment plan and we are committed to the remaining. They will occur as appropriate in the process of the project development. Ms. Tumbaga: Was a burial treatment plan created? Mr. Haigh: Yes. Ms. Tumbaga: Moving on to the alternative placements of the path, what alternatives were there to placing the path in the Special Management Area? Mr. Haigh: Basically, if you look in the FEA — pages 33 through 41 — that is where we talk about the alternatives. Well, we looked at Alepa Loop and we looked at along the highway. Farther back in time, we actually looked at across the highway from the canals. But as we move 17 forward with this project, we are committed to being on the makai side of the highway. Overwhelmingly in our public meetings, the public greatly preferred the makai side. Primarily, it was safety issues for those two (2) other alignments; being along the high-speed highway or being on Alepa Loop, there is really not adequate room there to fit in a shared -use path with the existing width of that road. It would require a more difficult land acquisition if we were going to try to put the path through that area. And it does not give the coastal experience and provide the lateral access along the coast that is one of the benefits of this path. Ms. Tumbaga: Were the alternatives placing it in the shoreline setback? Mr. Haigh: No, those alternatives would not have been within the shoreline setback. They would have still been within the SMA area, but not within the shoreline setback. Ms. TumhML And as you showed us earlier, does the shoreline setback line ... are there buildings that currently are— Mr. Haigh: Yes. Ms. Tumbaga: Sorry, go ahead. Mr. Haigh: Yes, the shoreline setback line goes through existing buildings. Ms. Tumbaga: How many presentations to the public or public infonnational meetings has your department held on Phases C and D of this path? Mr. Haigh: Many. A public information meeting in 2012. We had five (5) Section 106 meetings. We've had various meetings with the resort representatives. We've had two (2) recent meetings with Wailua-Kapa`a Neighborhood Association. We've had various presentations to the County Council. Also, we had numerous meetings before in the overall Lydgate/Kapa`a project. Ms. Tumbaga: Okay. When you said "Wailua-Kapa`a Neighborhood Association", is that the Intervenor that is intervening today? Mr. Haigh: That is correct. Ms. Tumbaga: And did they contact you for information? Mr. Haigh: Yes, they did. And I contacted them, reaching out to thein to meet with them, and agreed to do a presentation to the Board. They were gracious enough to also set up a meeting with the public, so we had a public meeting at the Uhu`e Library with the Wailua-Kapa`a Neighborhood Association. Ms. Tumbaga: What was the purpose of the meeting with them? 18 Mr. Haigh: The meeting was to provide information about the path and to brief the public that we were going for an SMA Permit and let them know about the paths so they would be ready and understand what we were asking for when we came for the SMA Permit and the Shoreline Setback Variance. Ms. Tumbaga: Did you present any information, like a PowerPoint, to the Wailua-Kapa`a Neighborhood Association when you went to present information to them? Mr. Haigh: That is correct, and that is one of the exhibits from the Intervenor. Ms. Tumbaga: The PowerPoint — did you share it with the Intervenor? Mr. Haigh: Yes, I did. Ms. Tumbagq Is that PowerPoint still current? Mr. Haigh: It is pretty much current. We have modified the alignment as I discussed earlier in the two (2) amendments that we submitted to the Planning Department. We did make some minor adjustments to the alignments. Ms. Tumbaga: Was the presentation given before the amendments were done? Mr. Haigh: That is correct. Ms. Tumbaga: Okay, so not all of the information is still accurate. Mr. Haigh: That is correct. Ms. Tumbaga: Okay, I have no further questions. Chair Keawe: Okay. I think the Department's attorney has an opportunity to cross-examine. Mr. Roversi: Thank you, Mr. Chair. Deputy County Attorney Adam Roversi for the Department. Just a few clarifying questions for Doug. In advance of the hearing, I handed out a hard copy of the Department of Public Works' second amended application, which is the most current application. I just wanted to clarify — and if I could refer the Commission members to it — on the very first page of the maps — and I would ask Doug to clarify this — the current application before the Commission — if you could clarify, Doug — does not include the Coconut Beach Resort and Courtyard properties in the center of this map. Mr. Haigh: That is correct. Mr. Roversi: And a future plan will be handled separately through a separate permitting process by those resort properties? Mr. Haigh: That is my understanding; it is going under a separate permitting process. 19 Mr. Roversi: Okay, so excluding those properties that are not part of this current application, is it correct that along this entire proposed project area, except for the Coconut Plantation property, there is an existing sidewalk? Mr. Haigh: That is correct. Mr. Roversi: And by the various pen -nits that were granted to these resorts, those sidewalks are supposed to be available for public access? Mr. Haigh: It was actually in the 1960s subdivision that established the requirement to provide this sidewalk, but they have never been acquired by the County by easement and they have historically not been obviously for the public. Mr. Roversi: So there is a condition in place for public access, but in practice, it hasn't perhaps been fully realized? Mr. Haigh: That is correct, and we never obtained a fonnal easement for the public access. Mr. Roversi: Just to clarify so everyone knows what we are talking about, when I talk about lateral access, we are talking about along the shoreline; whereas vertical access, I am talking about from the shoreline to the public roadway. You mentioned this, but I sort of want to drive it home — at the south end of this project, there is an existing vertical access from the shoreline out to Papaloa Road, but it is semi -abandoned, not maintained? What is the status of that? Mr. Haigh: When we first started working on this project, there was no way to have any indication there was such a public access. Recently, in the last couple years with the work done at Kauai Sands, it has become more visible. It is, I believe, 6 feet wide and we do plan on acquiring land from the resorts so we can maintain a minimum of 8 feet wide. And then along the lateral access, we are negotiating with the owners so that we can maintain a public lateral access of 12 feet wide, which is the recommended width for a shared -use path. Our negotiations are such, rather than putting a straight line, we are trying to meander in and out, one, to provide interest because that makes a path more enjoyable, and also to work with the resort owners so that we can go in where it has the least impact on them and come out where it would have the most impact so that we can acquire the land in a friendly manner. Mr. Roversi: Would I be correct to assume that the existing sidewalks, both the lateral sidewalks that exist in front of the resorts, as well as the vertical accesses that currently exist, are not ADA compliant? Mr. Haigh: That would be correct. I'm not sure the lateral access... whether or not it is ADA compliant, but it is not connected ... it would not be ADA compliant in that it is not connected to a public... If it is a public access, it is not connected to a public right-of-way; therefore, it does not have the connectivity requirement you need for ADA access. So there is no ADA access to the beach and no ADA access to that lateral path. Mr. Roversi: Okay, but the proposed project will be fully ADA compliant? 20 Mr. Haigh: That is correct. Mr. Roversi: Again, this was mentioned but just to clarify, at the south end of the project in front of the Aston Islander on the Beach and the Kauai Coast Resort Beachboy, the County actually owns a strip of land along the shoreline? Mr. Haigh: That is correct. It used to be referred to as a 100 -foot beach reserve that we acquired from the State, but it is no longer 100 feet. Mr. Roversi: But that entire County -owned property is makai of the shoreline setback line? Mr. Haigh: That is correct. That is where Exhibit 7A and 813 show where we would have to put the path if we tried to keep it within the County property. Mr. Roversi: I wanted to clarify one more thing you mentioned. You talked about cultural deposits at one point in your Q&A and you described how the path in the area of that cultural deposit would be constructed on grade. Mr. Hai : That is correct. It's the non -burial cultural deposits. There is potential for cultural deposits almost all the way to the highway. It is at least 608 feet, they go back, so no matter what ... but there are some areas where it is well-established. In our Archaeological Inventory Survey, they established an area on a map showing where those cultural deposits were — non - burial cultural deposits — and through the 106 process, we talked about how best to deal with it and came up with the solution that we will go over it. Mr. Roversi: Okay. Can you describe, exactly, what "on grade" means? Does that mean that the concrete will be poured on top of the ground as opposed to excavating under the surface? Mr. Haigh: That is correct, but we will probably have to remove the grass. This is going to be a challenge for our engineers because they are used to having free range and digging down deep and putting base course and that sort of thing, so we have to design our concrete to be able to meet our needs — the archaeological sensitivity needs — to stay ... so probably remove the grass and then put the concrete on top of that subgrade. Mr. Roversi: Okay. I have no further questions, Mr. Chair. Chair Keawe: Okay. Ms. Regush, cross. Ms. Regush: Thank you, Mr. Chair. Rayne Regush for the record. At the beginning of your presentation, Doug, you spoke about this section of the path — Phases C and D — completing a gap between L3hu`e and Kapa`a portions of the path. Can you confirm that the two (2) vacant parcels of Coconut Beach Resort, which is, in fact, one-third of this path, have been removed from this SMA application, and doesn't that create a gap? Mr. Haigh: Our understanding is the resort developer is doing their very best to move ahead and they plan on building the path as part of their resort development. We were hoping they would 21 be done before us, and they appear that they have gained traction again. The benefit of that for the people of Kauai is not only ... because as we obtain these easements, if they are gifted to us and the 6 -foot easement, which the Planning Department in their wisdom in 1960 required, we value that, we appraise it, and we are able to use that as a match for Federal Highway funds that we are using to build the path. That match is a 75/25% grant, so for every dollar of the value of the easements and every dollar of the easement and the construction and development cost of the path at those two (2) vacant lots, we get $4 of Federal Highway funds to put toward building the path. So far, they have allowed us to use these matches for the entire Ke Ala Hele Makalae. This is really a potential along this area to gain these — hopefully — easements as gifts and generate sufficient income that will be able to continue the path all the way to Lihu`e. Ms. Regush: Thank you. We have noticed that most of the documents from the draft Environmental Assessment or the final Environmental Assessment, the Cultural Inventory Surveys, the archaeological work, they have all included Coconut Beach Resort — those two (2) parcels in there. Would you not call that segmentation now that it has been taken out? Mr. Haigh: Typically, segmentation — particularly in the Federal Highway world — is during the planning process. Once you get into construction, it is not at all a problem to construct separately, so we don't consider it a segmentation issue on constructing by phases; just like Lydgate-Kapa`a Phase A, Phase B, Kawaihau Elevated Boardwalk Phase. We did three (3) phases of construction; that was perfectly acceptable. Ms. Regush: Maybe I wasn't clear that that large parcel, which comprises one-third of the path, was part of Phase C and D. Mr. Haigh: No, it ... well, it was during our enviromnental planning stage; it was, yes. Ms. Regush: And what is the permit process that they will go through? Mr. Haigh: I would defer to the Planning Department as far as the SMA shoreline setback requirements for that project. They will not require a building permit to build paths. Ms. Regush: Will they need an SMA Pen -nit for the path? Mr. Haigh: I cannot comment. Ms. Tumbaga: I am going to object to this line of questioning at this point in time because these questions are beyond the scope of the current case in front of the Commission, which is whether this phase should receive an SMA Pen -nit and a Shoreline Setback Variance. Asking whether another phase will have to do this or not is not relevant to what the Commission is deciding today. Chair Keawe: Are you— Ms. Regush. If I can have a clarifying question, what is the phase number? What is the new phase label for that gap corridor? It is not Phase C, it is not D; what is that phase corridor? 22 Chair Keawe: Are you raising a formal objection, Ms. Regush? Ms. Regush: I need clarification because this is an SMA Permit and they have taken one-third of the bike path from consideration from your purview, and it seemed pertinent to see if an SMA Permit would be required for that and how we speak to that gap area if they even named it. Chair Keawe: So is that relevant? Ms. Tumbaga, you were saying that it is not? Ms. Tumbaga: Yes. She asked the question and then I, on behalf of the Department, objected to her question being that it is not relevant to what is before the Commission today. Chair Keawe: Okay. We will move on. Go ahead. Not relevant. Ms. Regush: ish: Thank you. Doug, I heard you say earlier that should ocean debris be brought up by king tide or swells or high-water that it will be cleaned. Can you explain that? Mr. Haigh- Yes. The paths are maintained by the Department of Public Works and the Planning Department ... I mean — not Planning, I'm sorry — Parks and Recreation Department. Primarily, when it is within a County park area off a County road right-of-way, it is maintained by the Parks and Recreation Department. They have caretakers who drive along the path daily and they would maintain the path. If there was debris upon the path, they would clean it off the path. Ms. Regush: So, in other words, do you have staff there regularly traversing during high -wave events to ensure that sand, which is a hazard and a safety ... they will be able to address that? Mr. Haigh: Well, typically during the event itself, it is very possible we won't be standing by for the event. It is possible that less likely there will be users using it. Ms. Regush: Yes, post -event. Mr. Haigh: So post -event, there will be caretakers. We have County caretakers who are assigned to the path and that is their job. They have appropriate vehicles that they use to help them maintain the path. And I think if you look at Lydgate Park, that is a prime example of how well our County caretakers maintain the path and keep it accessible because even there we get debris and what not on the path, but our caretakers do a wonderful job taking care of it. Ms. Regush: So did I not hear you earlier explain that an easement that the County owns that provided access to this coastline was not maintained? Mr. Haigh: That easement had never been fully developed, so it is very difficult to maintain. Once we— Ms. Regush: Can you explain what "fully developed" is? I'm sorry. Because I know there was a parking lot there and a sidewalk there going to the beach. 23 Mr. Haigh: I don't believe there was a sidewalk and it certainly wasn't an ADA accessible sidewalk. But once we move forward with these improvements, they will be part of an infrastructure that the Parks and Recreation Department is fully committed to maintaining. Ms. Refinish: You might think that there was no sidewalk there, but I know that the large rubber tree disturbed that sidewalk, so it, throughout the length there, just became overgrown so I'in— Ms. Tumbaga: I am going to object at this point. Ms. Regush: My question is ... I am really wondering whether maintenance will be available at, you know, great expense to the County to have additional folks taking care to ensure that if the path is too close to the shoreline and they need to deal with debris and sand, it just seems a great expense. Chair Keawe: Can we ask you to keep the questions to the narrative and don't deviate from that? Ms. Higuchi Sayegusa: I think it's just to keep to the questions and not allow for a lot of interjections, please. Ms. Regush. Okay. Ms. Higuchi Saye tg isa: Thank you. Ms. Regush: I have another question. You also, in your presentation, said that you would be working with Coconut Plantation Village — the, as of yet, undeveloped resort parcel — and that you would be working with them as to where the path goes. My question (is) doesn't this body, the Planning Commission, decide the location of the path? Mr. Haigh: We worked with them and in our plans, we presented what we believe in coordination with them, is a correct place for the path to be located. Ms. Regush: So is it true that this Coconut Plantation parcel is in the Open District with a 100 - foot building setback? Mr. Haigh: I believe it is in the Resort District and it may have some Open District. Ms. Regush. As shown in the conceptual plans and maps in the permit, there is a 100 -foot Open District, which is adjacent to the resort; the coastal area is deemed Open District. Ms. Higuchi Savegusa: I'm sorry. Was that a question? Ms. Tumbaga: I am going to object if it is a narrative. It's not a question. She needs to ask questions, not make statements. Ms. Regush. Well, I would like to see— PZ111 Ms. Higuchi Sayegusa: Wait one second. Chair Keawe: Yes, we will sustain your objection. Ms. Regush: Doug, I keep hearing you use the word "offsets" and I would like to hear you define that because in siting the path, we are always looking at shoreline setback, and instead, your exhibits talk about "offsets", such as Exhibit R. Mr. Haigh: Can you provide a specific question, please? Ms. Regush: ish: Define "offsets". Mr. Haigh: We are using the term "offset" in Table I on page 4-5 as saying the distance. It is offset, the distance from; that is the term "offset". Ms. Regush: ish: So why would you not use the terin "setback", which is part of the Shoreline Setback Ordinance? Mr. Haigh: If you look at the table, we definitely use the shoreline "setback" word in defining the shoreline setback, and then what we are talking about is the distance of that setback to the edge of the path, so that is the offset from the setback to the path. Chair Keawe: Do you have further questions, Ms. Regush? Ms. Regush: Thank you, I do. One of your exhibits recently carne in from NOAA; it is Exhibit Z. Doug, the staff that wrote that letter, did they visit the site? Mr. Haigh: I cannot answer for them. Ms. Regush: Did any NOAA staff visit the site to prepare that letter? Did they see the coastline there? Mr. Haigh: I cannot answer for them. Ms. Regush: You were speaking about the Section 106 consultation process. Do you recollect my participation during that year or two, attending all of the meetings except for one? Mr. Haigh: I remember you having been in attendance. I didn't count which meetings. Ms. Regush: Thank you. Let's see. You talked about cultural resources, and is it true that in the final Environmental Assessment there is a letter from OHA expressing concern about the impact of the path and about cumulative impacts due to development along the coastline? Mr. Haigh: I have not memorized that letter. 25 Ms. Regush. Point of clarification. Is this an opportunity for me to quote from that letter? Or that would be later? Mr. Tumbaga: Department of Public Works would object to her attempting to use a letter or quote at this point in time. Ms. Regush: A quote from one of your exhibits. Ms. Tumbaga: If she is going to give the exact exhibit, page number, and then cite from it, that is different. Ms. Higuchi Sayegusa: The exhibits are in evidence. Chair Keawe: The exhibits are already in evidence. Ms. Regush: Yes, it is in the final Environmental Assessment. Chair Keawe: Right. Your point in doing this, Ms. Regush, is what? Ms. Regush: Well, I would be glad to address that at a later time. Chair Keawe: Alright. Well then we can address it at a later time. Ms. Regush. Thank you. You spoke about SHPD being supportive of the project, and we talked about no adverse effect provided the mitigation measures are implemented. One of those mitigation commitments — No. 2 — was avoidance of known historic sites whenever possible. So with regards to the Coconut Plantation parcel, do you believe that you have sited the path sufficiently mauka to avoid the Historic Site No. 1801? Mr. Haigh: We have avoided the historic site with a vertical separation rather than a horizontal separation, and that was done in full knowledge of the people involved. This isn't something we hid. It was agreed upon that it was acceptable for us to do the vertical separation to assure we weren't going through non -burial cultural deposits. Ms. Regush: Could you define what a vertical separation is? Mr. Haigh: Vertical means we are going over rather than to the side. Ms. Rem Ah, so you are going over the cultural deposits of State Historic Property No. 1801 as opposed to going around or mauka of them? Mr. Haigh: Portions of that, yes. Ms. Regush: Thank you. Chair Keawe: Ms. Regush, do you have any more questions? Ms. Regush: Yes. My questions— Chair Keawe: The reason is the Commissioners would like to take a break. Ms. Regush: I have just one last— Chair Keawe: One last question? Ms. Regush: Thank you. Chair Keawe: Go ahead, please. Ms. Regush: You stated that the shoreline setback line goes through existing buildings, but is that true as well for Coconut Plantation? Mr. Haigh: I don't believe so. Ms. Regush: And Coconut Plantation is the undeveloped parcel, correct? Mr. Haigh: It has an SMA Permit for the future development. Ms. Regush: But there are no existing buildings there, correct? Mr. Haigh: That is correct. Ms. Regush: Thank you. I'm done with my questions there. Thank you. Chair Keawe: Okay, thank you. Let's go ahead and take a break, and then we will give the Commission an opportunity to address the presenter. The Commission recessed this portion of the meeting at 2:39 p.m. The Commission reconvened this portion of the meeting at 2:48 p.m. Chair Keawe: Let's go ahead and reconvene. I think we are at the point where it is the Department's presentation. Ms. Tumbaga: Chair, the Public Works Department has a second witness. Chair Keawe: You have a second witness? Ms. Tumbaga: Yes. Chair Keawe: Oh, okay. I'm sorry. Yes, go ahead, call your witness. Ms. Higuchi Sayegnsa: So sorry. I know that there were a few Commissioners that wanted to have an opportunity to question Mr. Haigh. 27 Chair Keawe: Okay. Go ahead, Commissioner Streufert. Ms. Nogaini Streufert: Yes. Excuse me; I just have one (1) question. You said earlier that there were some public hearings or public meetings that you went to where you presented this, and I presume ... like every time we open this up here, we have comments that come in. Could you remember some of the comments that came in and how you might have incorporated it into the planning? Mr. Haigh: In the final Environmental Assessment, there is a detailed section on the meetings and comments on the meetings. It has been quite some time since those actual public meetings; I mean, we did a final EA in 2014. I don't remember specific comments, but we would always document the comments. And then certainly during the draft Environmental Assessment stage, any written comments we would respond to. Typically, when we first start the project, we do a session where we have people come put marks on maps and, you know, try to get the input. We try to get as much public input as we can. Ms. Nogami Streufert: Okay, so there were public comments and public input into this plan as you were developing it. Mr. Haigh: That is correct. Ms. Nog;ami Streufert: Thank you. Chair Keawe: Okay. Commissioners, you have an opportunity to ask questions of Mr. Haigh. Ms. Ahuna: I have a question. Mr. Haigh, just in reference to the Section 106 and the Office of Hawaiian Affairs letter dated March 3, 2014, your guys' response was in reference to the two (2) burial sites, as well as possible other forthcoming burials that might be discovered. It was recommended that you don't go more than 1 foot down, as well as keep it as high mauka as possible. So what would your response be in reference to "high mauka"? Mr. Haigh: We have done that in coordination with the resorts. We are trying to go as far mauka as we can without interfering with the resort operations. Because we are acquiring private property, we are taking consideration of their needs and trying to make sure that we have a friendly, cooperative process with the landowner. Ms. Ahuna: So I know there are two (2) really apparent burials. Are we able to look at it on a snap at all, and where the path is in reference to that? Mr. Haigh: The next witness prepared the burial treatment plan, which we have a presentation tomorrow to the Burial Council. Both those burials are located along the vertical accesses along the path; one on the south side, one on the north side. The one on the north side — we rerouted the path to go around the burial, and the one on the south side — fortunately, and unfortunately, well fortunately the burial wasn't in the aligmnent where the path was going to be, so both burials we have avoided horizontally. im Ms. Ahuna: Okay, so you guys are going around them— Mr. Haigh: That is correct. Ms. Ahuna: So the one closest south, I guess makai, would be between Kauai Shores and Islander on the Beach? Is that correct? Mr. Haigh: They are actually both kind of the same distance from the ocean; both the burials, I think. But the one on the south end is the one between Kauai Sands and Islander on the Beach. Ms. Ahuna: And then there was some talk in the community that there would be ... I guess you guys were going to put backfill over some of the cultural deposits. Can you try to explain that? Mr. Haigh: That is a commitment to avoid the cultural... these are the non -burial cultural deposits. In areas where we cannot avoid, we will go over them. So rather than excavating those areas and potentially disturbing them, we will go over them. Ms. Ahuna: Meaning you will put more fill on it and then— Mr. Haigh: Well, as I explained earlier, what we are probably going to do is remove the grass and then put the path right on the sand there because we don't want to— Ms. Ahuna: Disturb. Mr. Haigh: And then the fill is going to be on the side because you don't want a steep drop-off on the edge of the 6 -foot concrete, so the fill would be on the side of the path about 5 inches high and tapering off; that would be the (inaudible). Mr. Lord: So it would be the top elevation of the path down to the grade. Mr. Haigh: That is correct because we don't want a steep drop-off on the edge of the path; that is an unsafe condition. Ms. Ahuna: My other question was ... you guys have identified the cultural preserve area and that looks like it is more on the Coconut Beach Resort and Courtyard, so— Mr. Haigh: Actually, the— Ms. Ahuna: What is that? Mr. Haigh: The next witness will talk more about it. The known established cultural preserves with the State Historic Preservation Division — there is one on the Kauai Sands property. Ms. Ahuna: Okay. Mr. Haigh: And that's - 29 Ms. Ahuna: That has already been identified and committed to— Mr. Haigh: That has already been identified and established by State Historic Preservation Division as a cultural preserve, and then on the Waipouli Beach Resort there is an established cultural preserve. I don't believe there is any other established cultural preserves in the area. Now, there are internment sites that have been established. Ms. Ahuna: Yes, that was my next question. Mr. Haigh: And those ... there aren't any near the path. I think it is the Coconut Beach Resort — the two (2) vacant lots — I believe they have an internment site. Mike, the next witness, is much more knowledgeable on those issues than me. Ms. Ahuna: Okay. So would they be in the 106 report? Mr. Haigh: I don't think they were because they weren't being affected by the path. They weren't in the A.P.E, Area of Potential Effect, so we probably didn't identify them specifically in the report. Ms. Ahuna: I just ask these questions because I know it is a high area of iwi burial sites. Mr. Haigh: It is. It's a tough area. Ms. Ahuna: Very sensitive to that. Yes. Chair Keawe: Okay, thank you. Any other questions for this witness? Commissioner Apisa. Ms. Apisa: I know the existing path is, like, 4 miles. How much does this add to the path? Mr. Haigh: This adds approximately 1.1 miles, but it really connects, so now you have a safe beach lateral access all the way from Lydgate Park to Kuna Bay. Ms. Apisa: On the map, I see Waipouli Beach Resort. Does it go beyond that? Mr. Haigh: We, as part of Lydgate-Kapa`a Phase B, picked up ... when they built Waipouli Beach Resort, they put in the 10 -foot wide path in front of their property and then we connected with Phase B on the north end of the Waipouli Beach Resort, and that is one area where we were not able to stay along the coastline. But then once we got to Ala Road, we came back, then it went up Niulani Road, then once we got past there, we were able to get back to the ocean. Ms. Apisa: Because I know right next door is Kauai Kailani and they are having some issues with surf. Where does it go? Mr. Haigh: We are on the mauka side of Kailani. Ms. Apisa: Oh, you are on the mauka side there. 30 Mr. Haigh: Yes. Ms. Apisa: Okay, thank you. Chair Keawe: Any other questions? Mr. Ho. Mr. Ho: This path, Doug, the County is going to acquire it, actually own it, or are you going to buy it from the property owner? Mr. Haigh- We are acquiring the path by easement, so we are acquiring the property by easement. Mr. Ho: And the maintenance of the path? Mr. Haigh: Will be County of Kauai. In some areas, we get agreements with the resort owners, property owners, where they maintain some of the landscaping, especially if they are going to want a higher degree of landscaping. Along Papaloa Road, you can see there that the landscaping has been maintained really nice where we put the path along Papaloa Road, and we have gotten the resorts along Papaloa Road to provide that landscaping. Mr. Ho: If the path is pushed more mauka as people are suggesting, if you are using the path and you step off the path on either side, you would be on private property, won't you? Mr. Haim That is correct. Mr. Ho: So to get to access the beach, you would have to have another right-of-way to the beach? Mr. Haigh: I will let the attorneys answer that. Mr. Ho: So your preference would be to push it as close to the beach as you can? Mr. Haigh: Well, as mentioned before, in our process there are a lot of issues weighing on where we put the path. There are issues to go as far mauka as we can, and part of that is the coastal environment. We do want to, you know ... in fact, even when I was meeting with the Wailua- Kapa`a Neighborhood Association Board, one of their board members mentioned, well I would rather have the path closer to the beach so I could see it. So, you know, there are different points of views, but it is all a compromise; trying to find the best place to put it. Chair Keawe: Commissioner Streufert. Ms. Nogami Streufert: You said that part of this is being paid for with Federal funds. Is there any time urgency that these funds will expire or that— Mr. Haigh: The time urgency is my life. I am trying to get this done while I am still alive. 31 Ms. Nogami Streufert: So this money does not expire at any point? Mr. Haigh: Well, what happens is we get on an annual funding program and if we miss the cut- offs for that funding program — and this year we missed our cut-off for some funding — then you got to jump on the next year's program, so you lose opportunities. The more you can keep on the path — no pun intended — the better you can obtain the fiinds. Ms. Ahuna: One more question. Chair Keawe: Commissioner Ahuna. Ms. Ahuna: I know that there is a Burial Council meeting tomorrow and there were some things on the agenda in reference to the path, so how will that be incorporated if and when we move forward with today's... Mr. Haigh: Okay. On the agenda, specifically for us, is the burial treatment of the two (2) burials, and pretty much whatever they ... well, whatever they tell us to do, we will do. Ms. Ahuna: Okay. Mr. Haigh: So if we have to move it farther or whatever, we will do our best to do that. Ms. Ahuna: So it would be in reference to their outcome. Mr. Haigh: That is correct. Ms. Ahuna: Not the outcome of today. Mr. Haigh: No, they— Ms. Ahuna: They will dictate what happens in reference to that. Mr. Haigh: Yes, just like State Historic Preservation Division dictates to us cultural, archaeological issues. Ms. Ahuna: Okay. Mr. Haigh: We comply. Ms. Ahuna: Okay. Chair Keawe: Any more questions for this witness? If not, call your next witness. Ms. Reg sh: Based on the conversation that we've just had, a question has been raised in my mind. 32 Chair Keawe: I think you've already had your opportunity to— Ms. Regush: Well, based on this discussion, if I may, I just would like to clarify how ... may I, Chair? Chair Keawe: Let's hear the question. Ms. Regush: Clarify, Doug, how Public Works ... and your timeline to acquire the easements, and how that impacts or affects this permit. Mr. Haigh: Just let me say, when the SMA Permit is issued, at that point we would probably... there was a time condition in the Director's Report and we will want to address that when it is appropriate because timing for us is difficult. So the timing issue, typically in the Director's Report, I believe there was a time constraint and we would want to address that when it is time to address that. Chair Keawe: Okay. Let me get some procedural things done here. We want to make sure that we don't have a back and forth that goes for the next hour; you said something, somebody else wants to say something. So we would ask you to make sure that you take good notes of what you want to ask questions about of the witnesses and leave it at that. I don't want to keep going back and forth between ... well, he said something, can I have the ability to respond. Please, so we can move this forward, we would appreciate that. Alright. Call your next witness. Ms. Tumbaga: The Department of Public Works calls Michael Dega. Chair Keawe: Alright, sir, can you raise your right hand, please? Do you swear and affirm to tell the truth? Mr. Michael Dega: Yes, I do. Chair Keawe: Now that you have been sworn in, can you state your name and address? Mr. Dega: Michael Dega; Honolulu, Hawaii. Chair Keawe: Thank you. Go ahead, Teresa. Ms. Tumbaga: Okay. Please state your name. Mr. Dega: My name is Michael Dega. Ms. Tumbaga: And what is your occupation? Mr. Dega: I am an archaeologist. 33 Ms. Tumbaga: And is Exhibit V, which has already been admitted into evidence, is that your CV? Mr. Dega: Yes. Ms. Tumbaga: Can you describe your educational background? Mr. Dega: Let's see — I will just fast -forward to the good stuff — a MA in Archaeology from UH Manoa and a PhD in Archaeology from UH Manoa. Ms. Tumbaga: Okay. What degrees, certificates, or licenses do you have? Mr. Dega: I have a PhD in Archaeology. I also have a license to practice archaeology in the State of Hawaii through the State Historic Preservation Division. Ms. Tumbaga: Have you published any articles or other publications in your field? Mr. Dega: Yes. One thing we really like to do is the academic side and publish what we find beyond the gray literature that goes into the SHPO office which no one sees. I published a lot on Hawaiian archaeology over the last twenty-five (25) years; also Cambodia, some work in Vietnam, and India, also. Ms. Tumbaga: So about how many articles or other publications do you think you have published? Mr. Dega: Articles — 20 or so, and two (2) books. Ms. Tumbaga: Okay, and how many years have you worked in this field? Mr. Dega: Twenty-five (25) years. Ms. Tumbaga: Have you prepared cultural resource management and archaeological reports within the Hawaiian Islands before? Mr. Dega: Yes. Ms. Tumbaga: What types of reports have you prepared? Mr. Dega: I have prepared Archaeological Inventory Surveys, data recoveries, preservation plans, and burial treatment plans. Ms. Tumbaga: And about how many have you prepared? Mr. Dega: Too many; over five hundred (500) maybe. 34 Ms. Tumbaga: You said burial treatment plans. About how many burial treatment plans have you prepared? Mr. Dega: I would say probably one hundred (100) to one hundred fifty (150). Ms. Tumbaga: Thank you. At this time I am going to ask the Commission to accept Michael Dega as an expert witness in the field of archaeology and cultural resource management. Chair Keawe: Alright. Commissioners, can we have a motion to— Ms. Higuchi Sayegusa: Sorry. If we could seek the positions of the other parties first. Chair Keawe: Okay. Mr. Roversi— Mr. Roversi: No objections from the Planning Department. Chair Keawe: —do you have any objection to Mr. Dega serving as an expert witness? Mr. Roversi: No objection, Mr. Chair. Chair Keawe: Okay. Ms. Regush? Ms. Regush: No objection to this witness. Chair Keawe: Alright, thank you. Commissioners, can I have a motion to accept Mr. Dega as an expert witness? Ms. Ahuna: I would like to make a motion to accept Mr. Dega as a witness. Chair Keawe: Expert witness. Ms. Ahuna: Expert witness. Chair Keawe: And a second? Mr. Lord: Second. Chair Keawe: Alright. It has been moved and seconded to accept him as an expert witness. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carries 7:0. Thank you. Mr. Dega, proceed. Mr. Dega: Thank you. Ms. Tumbaga: What documents have you reviewed in preparation for today's hearing? W Mr. Dega: I reviewed Archaeological Inventory Surveys and Cultural Impact Assessments for the area of potential effect — C and D of the pathway — and also quite a few background documents for the Waipouli/Olohena area. Ms. Tumb q Okay. Did you also review the Intervenor's Petition to Intervene? Mr. Dega: Yes, I did. Ms. Tumbaga: And her proposed exhibits? Mr. Dega: Yes. Ms. Tumbaga: Did you rely on any other sources of information? Mr. Dega: I guess I relied a lot on our own reports as well. We have done quite a few archaeological projects just outside of the area of potential effect, so I reviewed some of our own work, as well as earlier work from 1970s and 80s that occurred in this area. Ms. Tumbagq And did you personally study the area where the path will be located? Mr. Dega: Yes. Ms. Tumbaga: When and how many times? Mr. Dega: I would say probably a hundred (100) times in the last ten (10) years because we have been working at the Coconut Development, also at Kauai Shores, and also at Lot 6; so three (3) of the lots. I would say 75% of the project area we have worked on projects that are throughout time, so it is kind of fortunate. Ms. Tumbaga: And when you would work on projects, what did your study or work entail? Mr. Dega: Inventory survey, data recovery, and burial treatment. Ms. Tumbaga: Okay. I am going to bring your attention to the Cultural Impact Assessment. Did you review this document? Mr. Dega: Yes. Ms. Tumbaga: And who prepared the Cultural Impact Assessment? Mr. Dega: Cultural Surveys Hawaii did. Ms. Tumbaga: And when was it completed? Mr. Dega: 2012, I believe. 36 Ms. Tumbaga: What area was covered in ... I am going to call it the CIA. What area was covered in the CIA? Mr. Dega: They covered the area from south Olohena to north Olohena and Waipouli ahupua`a; basically, Kauai Shores towards Waipouli. Ms. Tumbaga: Can you explain the purpose of a Cultural Impact Assessment? Mr. Dega: It is based on Act 50 from 2000, which requires the proposed project to take into account community cultural, I guess, practices during any environmental reviews; that would be like the EIS or an EA. As you know, recently Act 50 has been sort of tossed to the side because of pa`akai, which has really gained a lot of steam and gives more importance to the Hawaiian culture. Pa`akai is always in CIAs now; that includes identification of cultural, historical, natural resources in a project area and the extent to which traditional and customary rights are practiced, the extent to which practices occur, and then if they do occur, what mitigation in relation to the project occurs. The CIA addresses all those things. Ms. Tumbaga: Is any agency's approval required for a CIA? Mr. Dega: No. Ms. Tumbaga: Did any government agencies provide comment in the CIA for this project? Mr. Dega: As I recall, Office of Hawaiian Affairs was the only one who gave comment as a government organization. Ms. Tumbaga: Are Cultural Impact Assessments specific to a project? In other words, do they take into account the type of project being constructed? Mr. Dega: Absolutely. They take into account the project area, what is being proposed for the project, and also the general environment around a project. Ms. Tumbaga: Okay, so for this project, what was done to complete this CIA? Mr. Dega: Several steps. They do background research, archival research, they look at old maps, go into the Historical Society to look at old records, they review the results of previous archaeology in a project area, and then they interview knowledgeable individuals either from the area or have descendancy to the area and find out if traditional and customary practices are still occurring there. Ms. Tumbaga: Okay, so was there consultation done in this CIA? Mr. Dega: Yes, there was. I think it was done in conjunction with the Section 106 consultation. Ms. Tumbaga: How extensive was this CIA for this project? 37 Mr. Dega: It was thorough; it covered all the bases. Ms. Tumbaga: And can you summarize the findings of the CIA, including the extent to which traditional and customary Native Hawaiian rights are exercised in the area? Mr. Dega: Yes. In the project area, the mauka side, there weren't many traditional/customary practices, but everyone related everything to the coastline; that is access to surfing, the reef, offshore fishing areas, and the need for continual access to coastal resources for their traditional and ceremonial practices. Ms. Tumbaga: Can you explain the recommendations contained in the CIA? Mr. Dega: Yes. Several that were quite interesting — one discussed a cumulative impact of all the projects, not just the bike path along the eastern coast of Kauai; two and three were access to the water and marine resources for family recreation and also for ceremonial pursuits. The fourth one was to continue to protect Kukui Heiau on the south end of the project area. No. 5 was an archaeological mitigation; they recommended monitoring due to the presence of iwi in the area. No. 6 was continue consultation with the kupuna of the area, continue the conversation; it does not stop here, it continues through time. Ms. Tumbaga: Does this path affect the Kukui Heiau that you mentioned? Mr. Dega: No. The path is 300 feet away from the heiau. Ms. Tumbaga: Okay, so I am going to move on to the Archaeological Inventory Study; that is Exhibit D, the final. We are going to call that the AIS. Did you review this document? Mr. Dega: Yes. Ms. Tumbaga: And who prepared the AIS for this project? Mr. Dega: That was Burke and Hammatt of Cultural Surveys. Ms. Tuinbaga: Okay, and when was it accepted? Mr. Dega: October 16, 2014. Ms. Tumbaga: So, generally speaking, what is the purpose of an AIS? Mr. Dega: An AIS is a baseline study under State Historic Preservation Division where you assess the presence or absence of historic properties in a project area. Historic property is anything over fifty (50) years old, not including us here — if you are over 50, you don't count — its structures, artifacts, things like that. Ms. Tumbaga: How extensive was this AIS for this project? 38 Mr. Dega: It was fairly extensive. As you know, the surface of the area has nothing on it; it is all grass and sand and a few trees. They did a lot of subsurface testing. They put in fifty-eight (58) test units — that's backhoe and manual units through the entire A.P.E. — so it was a pretty high percentage of testing. Ms. Tumbaga: Can you just explain for the Commission what "A.P.E." refers to? Mr. Delta: Oh, that is the Area of Potential Effect; basically the project area. Ms. Tumbaga: Okay, so again, what was done to complete this AIS? Mr. Dega: It was the archaeological testing; fifty-eight (58) trenches. I think they fully excavated the proposed comfort station. It was, like, 16 by 27 feet and they dug the whole thing; 100% of it, which is pretty rare to do. After you do the testing, then we go into the lab, put our lab coats on and see what we find, and analyze the finds, send off samples for carbon dating, you get the dates, then we write up the results, we write up significance of the sites, and then recommendations for the sites. Ms. Tumbaga: Okay. So can you explain the findings of the AIS? Mr. Delta: Yes. Two (2) burials were found; one in the north side of the project area and one on the south side. I think you guys have gone over this already. The northern burial was an intact juvenile buried about 4 feet below the surface; completely intact. The second burial was on the Kauai Shores property buried about 30 centimeters below the surface. It had been previously disturbed for utility work; probably in the late 70s, early 80s. They just put the utilities through it and it disturbed the burial. Besides the two (2) burials, they found cultural deposits related to several sites; 791, 1800, and 1801. These were previously designated — geez — thirty (30) years ago and we are still finding features and things related to the sites. Ms. Tumbaga: Can you explain what a cultural deposit is? Mr. Dega: Yes. A cultural deposit is basically where people lived before and it got buried through time. It is under the surface and it consists of where they lived, what they ate, and any artifacts that they used. We find a lot of stone tools. We find shell and bone; probably from food consumption. We find (inaudible), how they cooked the food through time; these are the charcoal layers. We also find postholes; these are long, thin, narrow things about, maybe, 3 or 4 feet long where it shows that they used to have a post, so a house was built on top of it. So we find a lot of subsurface features and that is a cultural deposit. Ms. Tumbaga: Okay. Can you explain, in the A.P.E., where the cultural deposits generally occurred? Where did you find them? Mr. Dega: In the entire A.P.E.? Ms. Tumbaga: Or ... was there a continuous cultural deposit? Can you explain— KTX Mr. Dega: Oh, do you want to put (up) the map? Ms. Tumbaga: Sure. Mr. Dega: Maybe that is more helpful. I like visuals. Ms. Tumbaga: We are looking at Exhibit B, page 59. Mr. Dega: Mr. Chainnan, do you mind if I come up and point on the wall? Chair Keawe: Yes, come on up. Mr. Dega: Okay, thank you. Okay, pardon me. There are three (3) sites. They were talking about cultural deposits. I'll point to them. It basically goes from the top of the A.P.E., Site 1801, all the way down to 791, which is by Kauai Shores. What we are talking about is a non -continuous cultural area. This means that it doesn't go in a completely linear fashion and is totally whole. There are many breaks in between the cultural deposit. This means that you will have some cultural material and then you might have a break of cultural material and have just sterile sand for, say, 20, 30, 40 meters. You might pick up the cultural deposit again in places and then you might get it again; and this continues all the way down the eastern coast of Kauai. As far as the horizontal extent, in the northern parcel, No. 1801, it goes from the shoreline to about 600 feet inland. When you are at the two (2) parcels here, the Coconut Development, it goes in about 1,600 feet. There is a presence of cultural material all the way in and probably extends pretty close to Kiihio Highway. Down here at Kauai Shores, it goes in at least 800 to 900 feet. So you have a non -continuous cultural deposit that goes quite a distance inland from the ocean. Ms. Tumbagq Thank you. Because it is a non -continuous cultural deposit that extends inland, would it be avoided by moving the path further inland? Mr. Dega: No. Well, it depends where you are, but you would have to move it really, really far inland; like, if you are in the Coconut Development, it would have to be, probably, right next to Ktuhio Highway to avoid cultural deposits. If you are a little bit north, a little bit more towards the shore, but still 600, or so, feet. Ms. Tumbaga: Okay, so what mitigation recommendations were contained in the AIS regarding both the cultural deposits and the burials? Mr. Dega: Two (2) recommendations — for the burials, it was to author a burial treatment plan and take it to the Kauai & Ni`ihau Island Burial Council for determination. Second, for the cultural deposit, was to have full-time archaeological monitoring during any ground -altering activity during the project. Ms. Tumbaga: Okay, and was there a project effect determination? .m Mr. Dega: The determination was those two (2) mitigative things; the monitoring and the burial treatment. Ms. Tumbaga: Is government approval required for an AIS? Mr. Dega: Yes. State Historic Preservation Division has to approve an AIS before you can move to the next steps. Ms. Tumbaga: Okay, and did they approve the AIS for this project? Mr. Dega: Yes. October 16, 2014 was the approval. Ms. Tumbaga: Okay, and is that the - Exhibit C — approval letter? Mr. Dega: Yes. Ms. Tumbaga: What did that letter state regarding the mitigation measures? Mr. Dega: I just repeated what it said. It said archaeological monitoring during ground -altering activity and then offer a burial treatment plan and take it to the Burial Council for approval. Ms. Tumbaga: So how would the path affect the cultural deposits? Mr. Dega: Well, the path is actually ... I was listening to Doug. They are actually building up, over the cultural deposits and not going into them, so we call that preservation. If you are digging it, you lose the site. But if you are building over the top of it and you are not touching it, that is called preservation, basically. If they don't go deep or below the surface, it won't affect the cultural deposit. Ms. Tumbaga: Is there such a term as "a preserve"? Mr. Dega: Yes. Ms. Tumbaga: And does the path go through any "preserves"? Mr. Dega: Not that I know of. It doesn't go through any preservation areas. Ms. Tumbaga: Is that a separate term from just the tenn "preservation" regarding cultural deposits versus an area that is actually designated "a preserve"? Mr. Dega: Yes, that is a good question. To be designated a preservation area, it has to have a preservation plan or a burial treatment plan that has to be approved by the State Historic Preservation Division. We have one for the Kauai Shores for burials that are reinterred on the parcel. We also have one for the Coconut Development. You may have seen a crypt down there in the corner of the parcel; that required a burial treatment plan. And I know there is one up in Waipouli. 41 Ms. Tumbaga: Okay, but again, this path is not going through any "preserves". Mr. Dega: Correct. Ms. Tumbaga: Did you prepare the burial treatment plan for this project, which is Exhibit E? Mr. Dega: Yes. Ms. Tumbaga: When did you prepare this burial treatment plan? Mr. Dega: Last November/December perhaps. Ms. Tu nbaga: What is the purpose of a burial treatment plan? Mr. Dega: The purpose is to mitigate the findings of human remains. In this case, we have two (2) traditional Native Hawaiian remains and we take a proposal for mitigation to the Burial Council and discuss with them mitigation. Ms. Tuinbaga: Okay, so can you explain what you did to create this burial treatment plan? Mr. Dega: For this one, I read the inventory survey that was done by another company, Cultural Surveys. I understood the burial descriptive data, talked with the County — Doug, as well as the planners — and we came up with a proposal for mitigation; how we want to treat these burials and give a proposal to the Burial Council. Ms. Tumbaga: Again, did you consult with anyone else for the burial treatment plan? Mr. Dega: With the Burial Council and SHPD, State Historic Preservation Division, also. Ms. Tumbaga: Okay, so can you explain what is contained in the burial treatment plan? Mr. Dega: It provides a background history to the area; real brief. It describes the two (2) burials; what position they were found in, how deep, what condition they are in; etc. It proposes mitigation, which is either relocation or preserve in place, and then it discusses how close the path would be to both burials. Ms. Tumbaga: Okay, so what is the proposed treatment for the two (2) burials? Mr. Dega: The County stepped up; both preserved in place. One burial to the north being 7 feet from the proposed bike path. The one in the south that was disturbed —about 3'/z feet from the proposed bike path. Ms. Tumbaga: So will the path avoid the burials? Mr. Dega: Yes. They actively avoided the burials and went around both of them. is Ms. Tumbaga: Does the burial treatment plan address mitigation for any inadvertent discoveries? Mr. Dega: Yes, inadvertence under the scope of SHPD who only gets recommendations from the Burial Council, and that was basically if an inadvertent discovery is made, you have to stop work in the area. You need to call the SHPD, have them come down, and they will decide, along with a few of the Burial Council members, to relocate or to preserve in place. Ms. Tumbaga: Okay, so is any government approval required for the burial treatment plan? Mr. Dega: Yes, the State Historic Preservation Division has to approve it. Ms. Tumbaga: Okay, so how does that approval process work? Mr. Dega. We write a burial treatment plan and ask to be on the agenda for the Burial Council. Once we get on the agenda, we ask for a determination. This means that the Council reads our burial treatment plan and says okay, we agree that you want to preserve in place or relocate; our determination is we accept this burial treatment plan. It goes to the State who writes a letter; it says at such and such meeting, the Burial Council voted to approve this burial treatment plan. From that point, you have to enact the burial treatment plan; that's interim and long-term measures to protect the iwi. Ms. Tumbaga: So has any version of this burial treatment plan been presented to the Kaua'i & Niihau Island Burial Council? Mr. Dega: Yes. We were there in August. We gave a presentation for information only, just to talk to the Council about the plan. We are actually ... I am flying back tomorrow for a determination with the Council. Ms. Tumbaga: Okay. Are you on the agenda for tomorrow's Burial Council meeting? Mr. Dega: 9 a.m. Ms. Tumbaga: Can you explain what happened at the Burial Council meeting in August? Mr. Dega: Yes. I went over the burial treatment plan. We went over the proposal, which was to preserve both in place. We talked about the distances between the bike path and the two (2) burials, and then asked for some comments from the Council. The Council had one (1) major comment, which was show us pictures of where the bike path will be aligned versus where the burials are located because we want to decide if we want to put a plaque or any type of marker on the surface denoting where the burials are located or not. Ms. Tumbaga: Did they express any other comments or concerns with the burial treatment plan? Mr. Dega: They were happy that the County decided to move the path and preserve in place. 43 Ms. TumbqM Was anyone from the public present at that meeting? Mr. Dega: There were three (3) or four (4) people; a handful, I guess. Ms. Tumbaga: Was the Chairperson of the Wailua-Kapa`a Neighborhood Association, Ms. Regush, present at that meeting? Mr. Dega: Yes, she was. Ms. Tumbaga: Do you remember what ... did she testify at that meeting? Mr. Dega: She did. She made several comments to the Council. I think they were more directed to the cultural deposits in the area and preserving those. Ms. Tumbaga: And what was the Burial Council members' or chairperson's response to her comments? Mr. Dega: The Chair said they were the Burial Council, not the Cultural Deposit Council basically, so they only deal with questions on burials at that point. Ms. Tumbaga: Is the burial treatment plan up for approval on tomorrow's agenda? Mr. Dega: It is up for determination, correct. Ms. Tumbaga: Okay. If the Commission would like to see the photos of the path avoiding the burials, we can display them at this time, or I can direct you to where they are. Ms. Ahuna: If you want to show them, that's fine. Chair Keawe: What's your pleasure? Ms. Ahuna: It would be good so that other people would be able to see it. Ms. Tumbaga: Okay, so we are going to look at Exhibit E, pages 11 and 13. Okay, if you just want to explain this first page. Mr. Dega: The burial location is on the left side. The path, as you can see, is the yellow brick road thing there on the right side. This is the— Chair Keawe: Is this it right here? Mr. Dega: That is correct, yes. And that is the northern burial; the buffer zone between the green and the yellow path extent being 7 linear feet. This is the one near Kauai Shores. The burial would be on the right side, with the path on the left side, with a 3'/z -foot buffer zone. Ms. Tumbaga: Okay, thank you. Based on your review of the various documents, your previous studies of the area, and your preparation of the burial treatment plan, what impact will this path have on cultural and historical resources in the area? Mr. Dega: I would agree that there is no adverse impact. Ms. Tumbaga: Okay, and when you say "agree", who are you agreeing— Mr. Dega: With State Historic Preservation Division. As long as there is archaeological monitoring during ground -altering activity, there should be no adverse impact. Ms. Tumbaga. Okay. What effect will the path have on any traditional and customary Native Hawaiian rights being exercised in the area? Mr. Dega: The paramount thing is access, so that they can do traditional/customary practices along the shoreline and ceremonial, and I think there is open access, so I don't think the path should have any effect on it. I think the path actually increases access in some manners. Ms. Tumbaga: Okay. Just to summarize, what are the mitigation measures that are being taken to protect these resources? Mr. Delta. That is the archaeological monitoring for the cultural deposits, and also continued consultation with the kupuna in the area. Ms. Tumbaga: Okay, thank you. Just a last question, you reviewed the Intervenor's Petition to Intervene? Mr. Dega: Yes. Ms. Tumbaga: She made a comment on page 3, "Locating the Path within the shoreline setback area instead of mauka of the setback line will encroach into the extensive area of cultural deposits (Hawai`i State Archaeological Site No. 50-30-08-1801) identified in TMK 4-3- 007:027", which is Coconut Plantation Resort. Can you address that comment? Mr. Dega. So she is saying, basically, if you move the path mauka, it won't encroach on the deposits on the shoreline. Is that correct? Ms. Tumbaga: That's what her comment states. Mr. Delta: Yes. When I was up dragging my finger around on the screen up there, you could see the deposits from the shoreline go 600 feet to 1,600 feet inland. So it is kind of...wherever you put the path, you have the possibility of finding cultural deposits below the path in that area. Ms. Tumbaga: Okay. I don't have any further questions at this time for this witness. Chair Keawe: Okay. Mr. Roversi, (your) cross, please. 45 Mr. Roversi: No questions from the Department for the witness. Thank you. Chair Keawe: Okay. Ms. Regush. Ms. Regush: Thank you, Chair. Mr. Dega: Hi Rayne. Ms. Regush: So I am looking at the map that we showed everyone that was up there, and in the legend, it has — in cross -hatched — the area of concentrated cultural deposits, and it doesn't stretch to Kuhio Highway. It is maybe within 100 feet of the shoreline, so I just wanted to clarify if you were exaggerating with that, or if you could be more specific and— Mr. Dega: Sure. Can I see the map and what part you are talking about? Ms. Turnbaga: And can we just have the Intervenor let us know what exhibit and what page number she is— Chair Keawe: I can't hear you, Teresa. Ms. Tumbaga: Can we have the Intervenor explain what exhibit and what page number she is on? Chair Keawe: Right. Ms. Regush: The map that you had up there. Chair Keawe: Okay, can you explain the number? Ms. Higuchi Sayegusa: One second. We are trying to get everybody on the same page. Mr. Dega: I only exaggerate when I am fishing, Rayne, not when I do archaeology. These cross -hatched areas are from the Cultural Surveys report. We actually did testing in all these areas as well, and if you read our reports from 2013 and 2014, you can see the cultural deposits that's spreading all the way out to the loop. We suspect they are going to continue out even in that middle area towards Kuhio Highway. Ms. Regush. Thank you for the clarification. I know you have also read Rosendahl and Kai's report from 1990 as well, which a lot of your work and Hal Hammatt's work revisits, and that has made its way onto these current maps. Mr. Dega: Correct. Ms. Regush: So, again, the concentrated cultural deposits are the cross -hatched area along that coastal area, correct? Mr. Dega: They are part of the concentrated area. Rosendahl in 1988 and 1990 actually ... here is an example: they excavated all the way down to the loop area and they had all negative findings. When Jim and I went back in 2012/2013, in this area alone we found 3,500 stone tools; three thousand five hundred in an area that they previously excavated and found nothing. So we've ... I mean, archaeology is a cumulative science. We redefine it through time with more work and that is what we have done here. So the shaded areas only show a really small part of the picture of the deposit. Ms. Regush: ish: Thank you. Maybe stay up there for a moment. My next question has to do with the A.P.E., or the Area of Potential Effect. Can you describe the width of that? Mr. Dega: I think Doug is better to answer this than I am. Ms. Regush: I can help you out. Mr. Dega: Okay, go ahead. Ms. Regush: So the width, as I understand from the exhibits and the SMA Pennit, was 50 feet, which meant 25 feet on both sides of the center line. Would you think that that's a bit insufficient to only consider such a small 25 feet mauka of the path? Mr. Dega: It is not up to me. Ms. Regush: Alright. Mr. Dega: Again, I think my point I was trying to make was, you know, it is 50 feet — it could be 100, but it is only 50 — and no matter where you put it from the shoreline inland at least 600 to 1,000 feet, there is a potential for the cultural deposit. If the bike path is 50 feet or 100 (feet), there is a chance you might encounter it. Ms. Regush: So another question — you did say that you looked at my exhibits as well and did background research. It was interesting that information from Rosendahl and Kai didn't come forward in some subsequent CIAs and AISs where those archaeologists designated those areas as a preserve. I wondered if you can comment how something like that falls through the cracks. Mr. Dega: I am not sure the question, but there is no preserve out there, except for the two (2) burial preserves I mentioned and the one in Waipouli. Ms. Regush: Yes, so this is, in fact, the shoreline deposits, the cultural deposits, within the 100 - foot shoreline zone have been designated "as a preserve" and that language shows up several times in that documentation. Mr. Dega: Right. Yes, that's an unfortunate use of the word— Ms. Tumbaga. I am going to object at this point because the Intervenor is reading from a report. She should be asking questions at this time. She will have her opportunity to present evidence. 47 Chair Keawe: Objection sustained. Ms. Regush: Duly noted. Thank you. Alright, my questions have concluded. Thank you. Oh, question, do I get to reserve the right to question the witnesses later in the process? Process question. Ms. Higuchi Sayegusa: I believe it is up to the Chair, but there is an opportunity for rebuttal witnesses if that is what you are asking for. Ms. Regush: What does that mean? Ms. Higuchi Sayegusa: So after the presentations are done with ... so first the Petitioner will be able to go and give the rest of their presentation, then the Planning Department, and then you will be able to have an opportunity to present your witnesses and ask the witnesses some questions, and offer— Ms. Regush: These witnesses? Ms. Higuchi Sayegusa: Actually, I am not sure if you ... did you submit witness— Ms. Regush: I did not submit witnesses at this time. Ms. Higuchi Sayegusa: Okay. Ms. Regush: Perhaps I should reserve the right to do so. Ms. Higuchi Sayegusa: I believe that opportunity passed. There were deadlines for witness and exhibit lists. Chair Keawe: Yes. Okay, Teresa. Basically, we are at the point where we have any questions from the Commissioners of this witness. Mr. Lord: I have a question. Chair Keawe: Yes, Commissioner Lord. Mr. Lord: Thank you. Michael, thank you for coming today. Quick question. The concept of vertical separation, is that a common practice? Mr. Dega: Yes. Mr. Lord: For preservation, right? Mr. Dega: Yes. W. Mr. Lord: Okay. Is there an organization that reviews and approves that? Like SHPD or someone else (inaudible). Mr. Delta: Unless you are doing a formal preservation plan, nobody reviews it. Mr. Lord: Okay, thank you. Chair Keawe: Mr. Ho. Mr. Ho: I guess we have been talking about the dead, but I would like to ask you a question. Would you feel comfortable to comment to what degree you think Hawaiians hold their reverence for their dead, for their ancestors? Mr. Dega: I would say very high, and right now, very high. Mr. Ho: Very high? Mr. Delta: Yes. Mr. Ho: So anything found along this path should be treated reverently? Mr. Dega: Absolutely. Mr. Ho: Great respect? Mr. Dega: Absolutely. Mr. Ho: Thank you. Chair Keawe: Commissioner Apisa. Ms. Apisa: Is this the only time to question the witness? Chair Keawe: Yes. Ms. Apisa: I mean, the expert witness. Chair Keawe: Just the witness. Ms. Apisa: Okay, no questions. Chair Keawe: Alright. Anymore questions at this point? Okay, Ms. Tumbaga, do you have any more witnesses? Ms. Tumbaga: No, Chair that was ... reserving the opportunity for rebuttal if necessary. 49 Chair Keawe: Reserve for rebuttal, I understand; granted. Ms. Tumbaga: But no further witnesses at this time. Chair Keawe: No further witness at this time? Alright. Mr. Roversi, you are up. Mr. Roversi: I would like to call Jody Galinato from the Planning Department. Chair Keawe: Thank you, Mr. Dega. Mr. Dega: Thank you very much, everyone. Chair Keawe: Alright. Please raise your right hand. Do you swear and affirm that you will tell the truth? Ms. Jodv Galinato: I do. Chair Keawe: Now that you have been sworn in, could you say your name and address for the record, please? Ms. Galinato: Jody Galinato; 1922 Hokulei Place, Uhu`e. Chair Keawe: Thank you. Ms. Tumbaga, your witness. Mr. Roversi: Sorry, over here. Chair Keawe: Oh, I'm sorry. I'm losing track of who's up. Mr. Roversi: No problem. Chair Keawe: Go ahead, Adam. Mr. Roversi: For the record, Jody, could you describe your position at the Planning Department? Ms. Galinato: I am a Planner V with the Kauai County Planning Department. Mr. Roversi: And what is your educational background with regard to planning in particular? Ms. Galinato: I have worked twenty-three (23) years as a planner or in land development. Mr. Roversi: Okay. Are you generally familiar, through your work and educational experience, with the requirements of the Coastal Zone Management Act? Ms. Galinato: Yes, I am. 011 Mr. Roversi: And the subparts of the Coastal Zone Management Act relating to the Special Management Area? Ms. Galinato: Yes, I am. Mr. Roversi: And shoreline setback requirements under the Coastal Zone Management Act? Ms. Galinato: Yes, I am. Mr. Roversi: Okay. For context, Mr. Chair, rather than have Jody read through the entire Director's Report, since the Department of Public Works has covered the scope of the project, I would like to just touch on the legal requirements and have Jody focus on only those parts of the Director's Report, and with your permission, I would like to just read out the sections of the statute and then I will ask Ms. Galinato to address the specific sections of the Director's Report that deal with those various statutory sections. Chair Keawe: Proceed. Mr. Roversi: Okay. Jody, did you review the Department of Public Works' application for the two (2) permits before the Commission today? Ms. Galinato: Yes, I did. Mr. Roversi: And in connection with the application, did you also review the Enviromnental Assessment prepared for the project? Ms. Galinato: Yes. Mr. Roversi: And the Cultural Impact Assessment? Ms. Galinato: Yes. Mr. Roversi: And the Archaeological Inventory Survey? Ms. Galinato: Yes. Mr. Roversi: And the Section 106 National Historic Preservation Act affects determination from the Federal Highway Administration? Ms. Galinato: Yes. Mr. Roversi: And did you also review the subsequent amendments to the application that were presented to the Planning Department? Ms. Galinato: I did. 51 Mr. Roversi: Okay. Following your review of the application, did you draft the Director's Report? Ms. Galinato: Yes. Mr. Roversi: And did you draft the subsequent supplement to the Director's Report? Ms. Galinato: Yes. Mr. Roversi: Okay. Was this report reviewed and approved by the Planning Director and/or the Deputy Planning Director? Ms. Galinato: Yes, it was. Mr. Roversi: Okay. Again, for context, we are dealing with two (2) separate pen -nit applications today; the SMA Pen -nit and the shoreline setback. I would like to address them separately, so first, I will talk about the Special Management Area application and the pen -nit requirements. So again, for context, the Planning Department's exhibits were presented to you. They all start with a preface "P". I will just refer to the exhibits for reference as I address each one. Section 205A-21 of the Hawaii Revised Statutes that sets out the findings and purpose of Special Management Areas in the State of Hawaii states, "The legislature finds that, special controls on developments within an area along the shoreline are necessary to avoid pennanent losses of valuable resources and the foreclosure of management options, and to ensure that adequate access, by dedication or other means, to public owned or used beaches, recreation areas, and natural reserves is provided. The legislature finds and declares that it is the state policy to preserve, protect, and where possible, to restore the natural resources of the coastal zone of Hawai`i." Jody, in your own words, taking into consideration the findings and purpose of the Special Management Area statute, what are the primary purposes of Special Management Area? Ms. Galinato: It is to give special consideration to recreational opportunities, cultural and historic resources, scenic qualities and open space, coastal ecosystems, and coastal hazards. Mr. Roversi: Is access to coastal resources one of the primary purposes of the Special Management Area? Ms. Galinato: Yes, it is. Mr. Roversi: So when considering an application for a Special Management Area Use Permit, are you required to consider special criteria? Ms. Galinato: Yes, I am. Mr. Roversi: And where do you look for those criteria? 52 Ms. Galinato: In HRS and in the Special Management Area Rules and Regulations. Mr. Roversi: Okay. Again, this is Planning's Exhibit P-4. I am reading Section 3.0 of the Planning Department's Rules and Regulations, Special Management Area Rules and Regulations; the objectives and policies of the coastal zone management program are those set out in Section 205A-22 — that is referring to Hawaii Revised Statutes — as amended. These objectives and policies shall serve as guidelines to the implementation of the rules of this Chapter. If you could turn, Jody, please, to page 6 of the Director's Report, which is P-1 in Planning's exhibits. Beginning on page 6, you consider a series of itemized categories of criteria. I am going to read from Section 205A-2 to state the statutory definition of these specific criteria and then ask you to read to the Commission your findings in regard to each of those criteria from your Director's Report beginning on page 6. Again, for reference for the Commission, 205A-2 is provided in Exhibit P-5. So the first item addressed in the Director's Report is public access and coastal recreation. Section 205A-2 provides generally that the objectives and policies in this section shall apply to all parts of this chapter, being the Coastal Zone Management Act. The objectives are enumerated I through 10. Item No. I is recreational resources. Item La. states that the criteria is to provide coastal recreational opportunities accessible to the public. If you could, please read from the Director's Report the section dealing with public access and coastal recreation. Ms. Galinato: The goal of the proposed project is to provide public access and enhance coastal recreation. The path will be designed in compliance with guidelines established under the Americans with Disabilities Act. The portion of the path will implement a key phase of the County's pathway that is expected to extend along the east side of Kaua'i from Ndwiliwili to Anahola. The Department anticipates a public benefit to both the economic and social welfare of the community. Mr. Roversi: Okay. So in your estimation, does the proposed project provide both vertical and lateral access to the coastline in the area of the proposed project? Ms. Galinato: It does. Mr. Roversi: Moving on to the next item, cultural and historic resources. Under 205A -2(b) Subsection 2 titled "Historic resources" states that projects shall protect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture. If you could, read the section in the Director's Report relating to cultural and historic resources. Ms. Galinato: The subject property has been disturbed by previous activities in some areas. The applicant has conducted an Archaeological Impact Study, Cultural Impact Assessment, Environmental Assessment, and Section 106 Review. The applicant has completed a burial treatment plan and monitoring plan, and any inadvertent findings will be subject to follow State Historic Preservation Division guidelines. The applicant has implemented mitigative measures 53 to minimize potential adverse effects to avoid, as much as possible, three (3) sites identified in the AIS. Mr. Roversi: Okay. The next item addressed in the Director's Report relates to coastal hazards. Section 205A -2(b)(6), coastal hazards, provides that development shall, to the extent possible, reduce hazard to life and property from tsunami, storm waves, stream flooding, erosion, subsidence, and pollution. Could you read the part of the Director's Report relating to coastal hazards? Ms. Galinato: Yes. The property is located in the flood zone and tsunami zone. Areas within these areas have the potential for flooding. The proposed project will be designed to be unreinforced concrete slabs saw -cut at 5 -foot intervals. This will allow for easy removal or replacement of any damaged portions and could accommodate minor shifts in the path alignment where erosion may begin to interfere with the stability of the path. The project is not expected to create or enhance tsunami hazards within this area. Mr. Roversi: Okay. To reiterate, in your analysis of the proposed project, it will not create any coastal hazards? Ms. Galinato: No, it should not. Mr. Roversi: To the extent that the path, in the future, may possibly be undermined by future erosion, does the proposal contemplate that the path will be removed or relocated? Ms. Galinato: Yes, it does. Mr. Roversi: The next item relates to the coastal ecosystem. 205A-2 provides that the project shall protect valuable coastal ecosystems, including reefs, from disruption and minimize adverse impacts on all coastal ecosystems. If you could read the part of the Director's Report relating to coastal ecosystems, please. Ms. Galinato: Yes. The subject property is located along the shoreline. When the development is completed, it is anticipated that it will not cause any erosion or increased runoff toward the coastline. The applicant has signed a Memorandum of Agreement pursuant to the Section 106 Federal review process and will comply with all mitigation and conditions imposed. Any proposed lighting will utilize relatively low -intensity LED lights and be downcast to mitigate the potential effect on both fledging seabirds and green sea turtles. This project does not cause the destruction of any critical habitat for any species. Temporary activities may have the potential to disturb endangered species habitat. In particular, vegetation clearing and earth -disturbing activities during construction may have the potential to adversely impact nesting areas. To avoid any potential adverse impacts on this critical habitat, no major grading is being proposed as part of the project. The project will involve small areas of land disturbance for the installation of the bike path. Construction areas will be kept to a minimum, and then will be backfilled with native soils so that the soil characteristics at the project site are not disturbed. 54 Mr. Roversi: Okay. And lastly, there is criteria relating to scenic and open space resources. Under 205A-2, an objective of the Special Management Area is to protect, preserve, and, where desirable, restore or improve the quality of coastal scenic and open space resources. If you could, read your analysis from the Director's Report of that provision. Ms. Galinato: The proposed bike path and amenities will not encroach into the undeveloped sand beach area and will not impede views toward the shoreline. The path will ensure more convenient access to the shoreline area and encourage enjoyment of seaward views by its users. The view of the shoreline from Kuhib Highway will not be obstructed by the proposed single - story comfort station as there are already multiple buildings that obstruct the view from the scenic roadway corridor. Mr. Roversi: And in your analysis, will the proposed project also allow for ADA access along this section of the coastline? Ms. Galinato: Yes, it will. Mr. Roversi: Okay. I am going to ask you to jump to page 9 of the Director's Report and read your preliminary conclusions, specifically with regard to the SMA Permit application; we will come back to the shoreline setback. Ms. Galinato: Okay. Based on the foregoing findings and evaluation, it is hereby concluded that the proposed development complies with the policies and guidelines of the Special Management Area Rules and Regulations in that the proposal will not have any substantial adverse environmental or ecological effect. Any adverse environmental or ecological effect that may result will be minimized to the extent practicable. And furthermore, the proposal does not involve dredging, filling, or otherwise altering any bay, estuary, salt marsh, river mouth, slough, or lagoon; reduce the size of any beach or any other area usable for public recreation; reduce or impose restrictions upon public access to tidal and submerged lands, beaches, rivers, or streams within the Special Management Area; and adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, estuarine sanctuaries, or existing agricultural uses of land. Mr. Roversi: Would it be fair to say that those last bullet -pointed items in your analysis do not apply to this project, are items under statute in the rules that are prohibited in the Special Management Area? Ms. Galinato: They do not apply. Mr. Roversi: Those are things that cannot take place in the Special Management Area? Ms. Galinato: Oh, yes, I'm sorry. Mr. Roversi: And this project doesn't include any of those items? Ms. Galinato: No, it does not. 55 Mr. Roversi: Okay. Now I am going to ask you to turn to the Shoreline Setback Variance application. Kauai County Code Section 8-27, the County's Shoreline Setback Ordinance, provides that the purpose of this article is to protect life (and) property, ensure the longevity and integrity of Kaua`i's coastal (and) beach resources along Kaua`i's shoreline. If you could, in your own words, just to describe how the Shoreline Setback Ordinance operates, generally. Ms. Galinato: Okay. It is a tough ordinance. Kauai County has the most restrictive Shoreline Setback Ordinance in the State and probably in the Country. What it is designed to do is to reduce risk and exposure in areas of coastal hazards. Mr. Roversi: If you could, what are the respective State and County bare minimum shoreline setbacks for the project area? Ms. Galinato: The State would be 20 (feet) and the County would be 60 (feet). Mr. Roversi: Okay. Amendment No. 2 that was passed out to the Commission as an exhibit at the beginning of the hearing — the very second page contains Table 1, which was referred to previously during the Department of Public Works' presentation. Did you review this table in the process of reviewing the application? Ms. Galinato: I have. Mr. Roversi: Okay. The proposed distance of the pathway to the shoreline throughout this table are...let me rephrase. At every transect measurement point along the proposed path, is the State's minimum setback requirement satisfied? Ms. Galinato: It is. Mr. Roversi: But except in parts of the vertical pathway going from the shoreline to the public roadway, the County's minimum setback requirement is not satisfied. Is that correct? Ms. Galinato: That is correct. Mr. Roversi: Okay. But the County Code provides for exceptions to this setback requirement by variance, yes? Ms. Galinato: Yes, the ordinance does. Mr. Roversi: So Section 8-27.10(a) —this is Exhibit P-9 to the Planning Department's exhibits — provides a shoreline setback area variance may be considered for a structure otherwise prohibited by this article, if the Commission finds in writing, based on the record presented, that the proposed structure meets those standards established under Section 8-3.3 and is necessary for or ancillary to, and then the statute sets out a series of categories of projects that would qualify for a shoreline setback variance. So, Jody, in your analysis of Section 8-27, in order to qualify for a variance, do you agree that a project would need to meet the general criteria for a variance under Section 8-3.3? Ms. Galinato: Yes. Mr. Roversi: And it would also need to fall under a specific category set out in 8-27.10(a)? Ms. Galinato: Yes. Mr. Roversi: Okay. If you could look at page 8 of the Director's Report, you identified two (2) subcategories from Section 8-27.10(a) that would describe the proposed project. Could you turn to that section in the Director's Report and read those? Ms. Galinato: No. 7 is private and public structures that are clearly in the public interest and No. 8 is private and public structures which will neither adversely affect beach processes nor artificially fix the shoreline, provided that the Commission also finds that hardship will result to the applicant if the facilities or improvements are not allowed within the shoreline setback area. Mr. Roversi: And in your analysis, the proposed project falls under those two (2) categories? Ms. Galinato: It does. Mr. Roversi: Okay, so falling under one of the categories in Section 8-27.10, the shoreline setback variance also needs to satisfy the general requirements of Section 8-3.3. If you could turn to the bottom of page 8 in the Director's Report, you addressed the requirements of 8-3.3, and if you could read that for the Commission, please. Ms. Galinato: Surely. Section 8-3.3 provides that "Variances from the terms of this Chapter shall be granted only if it is found that because of special circumstances applicable to the property, including size, shape, topography, location or surroundings, the strict application of the regulations deprives the property of privileges enjoyed by other property in the vicinity and within the same District, and the applicant shows that he cannot make a reasonable use of the property if the regulations are applied. Where these conditions are found, the variance pennitted shall be the minimum departure from existing regulations necessary to avoid the deprivation of privileges enjoyed by other property and to facilitate a reasonable use, and which will not create significant probabilities of harm to property and improvements in the neighborhood or of substantial harmful environmental consequences. Financial hardship to the applicant is not a permissible basis for the granting of a variance. In no case may a variance be granted that will provide the applicant with any special privileges not enjoyed by other properties in the vicinity. The Planning Commission shall indicate the particular evidences that support the granting of the variance." Mr. Roversi: And continuing on to the next page. Ms. Galinato: Yes. "The Commission must also find that the Applicant's proposal is a reasonable use of the land. The Commission shall consider factors such as coastal hazards, 57 shoreline conditions, erosion, surf inundation, flood conditions and the geography of the lot in determining whether the proposal is a reasonable use of the Applicant's land. Consideration shall also be given to the long-tenn average annual rate of coastal erosion and any amendments thereto, or Section 4.1 of the Hawaii Coastal Hazard Mitigation Guidebook and any subsequent amendments thereto." Mr. Roversi: And then if you could skip down to the middle of the following paragraph. Ms. Galinato: Okay. "However, the Applicant should attempt to set the path as far as possible from the certified shoreline. Additionally, the minimum shoreline setback required under the new ordinance exceeds the depth of the Applicant's property and will be placed on property not owned by the Applicant subject to approval of the location by the property owners. The approval of a variance would allow the Applicant the same privileges enjoyed by property owners along the previously approved bike path. The variance could be considered to be a minimum departure from the requirements." And then see my Exhibit B of the Director's Report for further justification submitted by the applicant. Mr. Roversi: Okay. So if you could now turn to page 10 of the Director's Report, I would like you to read your preliminary conclusion relating to the Shoreline Setback Variance. Ms. Galinato: Okay. "In regards to the Shoreline Setback Variance Section 8-27.10(e), "No variance shall be granted unless appropriate conditions are imposed. No. 1, to maintain and require safe lateral access to and along the shoreline for public use or adequately compensate for its loss; (2) to minimize and mitigate risk of adverse impacts on beach processes; (3) to minimize and mitigate risk of structures failing and becoming loose rocks or rubble on public property; and (4) to minimize adverse impacts on public views to, from, and along the shoreline; and (5) to comply with County Code provisions relating to flood plain management, Chapter 15, Article 1, Kauai County Code 1987, as amended, and Drainage, Chapter 22, Article 16, Kauai County Code 1987, as amended, respectively." The propose shared -use path and amenities could be considered to be a reasonable use of the land provided that mitigative measures as outlined in the application are included in the project. The development will not have any substantial adverse environmental or ecological effect as evidenced by the FONSI determination. The Applicant shall maintain safe lateral access to and along the shoreline and shall minimize and mitigate risk of adverse impacts and structure failure. The Applicant states that should the proposed shared - use path be impacted by coastal processes, the concrete slabs could be removed or replaced and realignment would also be considered. Alternatives to the concrete path may include other materials such as boardwalks that could be easily removed or relocated. The continuation of the shared -use path will align with the existing path and enhance the public views to, from, and along the shoreline. The project will comply with the provisions relating to flood plain management and drainage. Additionally, the Applicant shall execute a unilateral agreement pursuant to Section 8-27.10(f). However, the department cannot support any variance to allow fences, retaining walls or landscaping within the forty (40) foot setback. The department feels that this would be a bad precedent to set as walls can become "de -facto" seawalls and irrigated landscaping can alter the natural shoreline processes. The Applicant has stated that they can comply with this condition." Lastly, "The Applicant should institute the "Best Management 58 Practices" to insure that the operation of this facility does not generate impacts that may affect the health, safety, and welfare of those in the surrounding area of the proposal." Chair Keawe: Mr. Roversi, how many more questions? Mr. Roversi: We are on the last one. Chair Keawe: Okay. We are going to take a break after your last question before we get to cross. Mr. Roversi: Okay. So my last question or point is just to have Ms. Galinato read out her preliminary recommendation to the Commission. It has fifteen (15) items and I would ask her to ... this is over two (2) pages ... I would like her to go over it, but to paraphrase the longer sections as appropriate. Ms. Galinato: Sure. Mr. Roversi: If you would like to come back to that and take a break first, it is up to the Chair. Chair Keawe: Go ahead. Ms. Galinato: Okay. I will do it like I did this morning. Mr. Roversi: Yes, feel free to paraphrase the long paragraphs to just hit the main point. Ms. Galinato: Based on the foregoing conclusion, it is recommended that Special Management Area Use Permit SMA(U)-2018-3 — and I should have put the Shoreline Setback Variance application number, SSV -2018-1, in there — that they be approved with the following conditions: No. 1, the proposed improvements shall be completed as outlined in the application and its amendments. Any changes are subject to review by the Planning Director. Should the path be impacted from coastal processes, the Applicant shall submit those revisions to the Planning Director for review. The Director reserves the right to forward requests to alter or change the proposed development to the Planning Commission should there be any potential design or visual impacts that could not be mitigated, or because of anticipated impacts that may adversely impact the environment or the safety and welfare of the community. No. 2, the applicant agrees that no fencing or landscaping will be allowed within 40 feet of the setback and that no portion of the bike path would be closer than the 20 feet. No. 3 is a standard condition for Shearwaters and seabirds about the lighting; that it be shielded and down facing. No. 4 is regarding Leadership in Energy and Environmental Design standards; that they be incorporated. No. 5 is that the applicant shall comply with all the standards and conditions and requirements set forth by the other agencies that were consulted. No. 6, the applicant is advised that should any archaeological or historical resources be discovered that they contact SHPD immediately and the Planning Department. No. 7, the applicant shall use the BMPs, the Best Management Practices. No. 8, the applicant shall obtain the necessary building permit and commence construction within one (1) year from the date of approval of the SMA Permit, and complete construction within two (2) years from the date of approval of the building permit. No. 9, the applicant is 59 advised that prior to construction, additional government agency conditions may be unposed. No. 10, the Planning Commission reserves the right to add and delete conditions or mitigate should unforeseen things happen. No. 11, the applicant shall comply with conditions and mitigations as outlined in the Memorandum of Agreement pursuant to the Section 106 State Historic Preservation Review. No. 12, the applicant shall execute the Unilateral Agreement prior to permitting, and no shoreline hardening will be allowed to protect this structure. No. 13, no other improvements or structures, such as comfort stations, rest pavilions, or picnic areas, are authorized by the approval of these subject pen -nits. No. 14, a work plan showing the location of areas where they are going to be staging or storing materials, where the employees are going to park, and where any supplemental beach parking will be during the construction, along with the construction schedule should be submitted to us prior to the issue of building and zoning permit. Lastly, No. 15 is we would prefer that they hire Kauai contractors unless they cannot find someone on -island to do the work. Mr. Roversi: If I may, two (2) quick follow-ups to that long bullet list and then I will be through. Chair Keawe: Okay. Mr. Roversi: So I just want to reiterate that you are recommending approval of the two (2) pennits subject to compliance with other agency requirements, including SHPD or any requirements instituted by the Kauai & Ni`ihau Island Burial Council. Ms. Galinato: Yes. Mr. Roversi: And last item, specifically relevant to the setback from the shoreline, if this pathway is subject to erosion, the proposed project proposes that if erosion were to undermine the pathway, it would be removed or relocated. Ms. Galinato: Yes; that would be Condition No. 1 where they would let us know. Mr. Roversi: Okay. No further questions. Thank you, Chair. Chair Keawe: Okay. We will take a break before we do cross. The Commission recessed this portion of the meeting at 4:13 p.m. Commissioner Ahuna left the meeting at 4:22 p.m. The Commission reconvened this portion of the meeting at 4:26 p.m. Chair Keawe: We are waiting for Wade, but we will go ahead and reconvene the meeting. I think, Adam, you just finished. Anything further? Mr. Roversi: One (1) procedural item to wrap up. The Planning Department would request to move Plaintiff's Exhibits P-1, P-2, and P -I 1 into evidence. Chair Keawe: To move it into evidence? Mr. Roversi: To be accepted into evidence. Chair Keawe: To be accepted into evidence. It was not on your original list to be accepted? Mr. Roversi: It was, but to just have the Commission formally accept it into evidence. Chair Keawe: Okay. Mr. Roversi: It wasn't stipulated among the parties that that would be— Chair Keawe: Okay. It was not part of the stipulation we went over this morning? Mr. Roversi: Correct. Ms. Tumbaga: Department of Public Works has no objection. Chair Keawe: Okay. Rayne? He wants to add three (3) more documents. Is that right, Adam? Mr. Roversi: No. Those were documents identified on our exhibit list. Chair Keawe: They were on there, but they weren't accepted as ... yes. Mr. Roversi: Correct. Ms. Regush: One moment. Mr. Roversi: And just for reference, those are the Director's Report Part I, Director's Report Part II, and Supplement to the Director's Report. Chair Keawe: So they were all Director's Reports? Mr. Roversi: Correct. Chair Keawe: Okay. Any objection? Ms. Regush: Well, I have no objection to Supplement No. 1, Supplement No. 2, but I do have a comment on Supplement No. 3. Chair Keawe: Comment is different from— Ms. Higuchi Saye sa: Sorry, just to clarify, I think it was Director's Report Part I, Director's Report Part II, and then Supplemental Director's Report. Ms. Regush: Supplemental No. 3 to the Planning Director's Report. 61 Chair Keawe: So are you objecting to that being put into evidence? Ms. Rem I apologize. No. Chair Keawe: Okay, thank you. Moving forward. Ms. Higuchi Sayegusa: I'm sorry. Just to— Chair Keawe: Go ahead. Ms. Higuchi Sayegusa: Just to clarify, will you be accepting those as evidence? Chair Keawe: Right, so do we need a motion to accept that into evidence? Ms. Higuchi Sayegusa: Doesn't hurt. Chair Keawe: Doesn't hurt. Ms. Nogami Streufert: I move that we accept those three (3) documents for evidence. Chair Keawe: Okay. Do I have a second? Mr. Mahoney: Second. Chair Keawe: It has been moved and seconded to accept the documents into evidence. Any discussion? No. All those in favor? (Unanimous voice vote) Any opposed? No. Motion carried 5:0. Okay, Adam, go ahead. Mr. Roversi: Mr. Chair, I have no further questions for the witness. Chair Keawe: Alright. We are into cross. Teresa? Ms. Tumbaga: Department of Public Works has no questions for this witness. Commissioner Lord entered the meeting at 4:30 p.m. Chair Keawe: Okay. Rayne, we are into cross-examination. Ms. Regush: Yes, I will. But first, if you please, the Deputy County Attorney included only portions of HRS 205A and the Kauai County Code, which were Exhibits P -(inaudible) through 10, and I would just like to request that judicial notice be taken of HRS 205A Part I, Part II, and Part III; Part I — Coastal Zone Management in its entirety, Part II — the Special Management Area in entirety, and Part III — the shoreline setback in its entirety. So that would be 205A -I through 205A-49. M Chair Keawe: Okay. Do we have any objection to that? Mr. Roversi: Mr. Chair, I didn't seek to move those into evidence because those are statutes of public record. They are automatically considered by the court. Chair Keawe: So they are public record statutes and it doesn't need to be specifically put into evidence. Mr. Roversi: That was my position. Chair Keawe: Okay. Ms. Regush: And that is why I am just requesting that judicial notice be given because they are statutes. Chair Keawe: It's statutes though. Okay. Teresa, do you have any— Ms. Regush: Does the attorney want to comment on that? Ms. Hi icgl hi Sayegusa: I think what Ms. Regush is alluding to is under the rules, an official notice may be taken of such matters as may be judicially noticed of the courts of the State of Hawaii and also for generally recognized technical or scientific facts, etc. It is a law and it is (inaudible). Chair Keawe: Is there a reason, Ms. Regush, you want it accepted? Ms. Regush: Well, yes, because if the exhibits submitted were only, say, a portion of the Kauai County Code, the CZO, only a portion of our Shoreline Setback and Coastal Protections Ordinance, I would like to make sure that judicial notice is taken of that ordinance in its entirety because I will probably speak to that later, so I would like that to be on the table. Chair Keawe: Okay. Do you guys agree or object? Mr. Roversi: I have no objection. I think it is an unnecessary request, but I have no objection. Chair Keawe: That is what you mentioned. Teresa? Ms. Tumbaga: Department of Public Works agrees the laws exist, the Commission is required to follow them, but there is no objection. Chair Keawe: Alright, fine. We will admit it. Do we need to do a motion? Ms. Higuchi Sayegisa: Just for consistency sake, that's fine. Chair Keawe: What was that? 63 Ms. Hi ig1 chi Sayegusa: To take judicial notice of HRS 205A-1 through 205A-49. Chair Keawe: Alright. Ms. Regush: ish: And in addition, Kauai County Code, Chapter 8, Article 27 in its entirety, which is Shoreline Setback and Coastal Protection. Chair Keawe: Okay. Adam? Mr. Roversi: No objection. Chair Keawe: Teresa? Ms. Tumbaga: No objection. Chair Keawe: Alright. Ms. Regush: I'm obviously not talking fast enough. Chapter 8, Article 9 of the CZO, which is Open District. Chair Keawe: Anything else? Ms. Reg sh: No. Thank you, Chair. Chair Keawe: Okay. Adam, any objection to those two? Mr. Roversi: The Planning Department would agree to the stipulation of every statute and County ordinance that exists in the record. Chair Keawe: I think that covers it all. Teresa, do you agree? Ms. Tumbaga: Yes. Chair Keawe: Alright, thank you. Let's move on. We are at cross, I believe. Ms. Hi ucg hi Sayegusa: Just for continuity, if you wanted to take a motion. Ms. Nogami Streufert: I move to accept all government statutes. Chair Keawe: All pertinent government statutes to this particular action, yes. Ms. Nogami Streufert: And impertinent. Chair Keawe: Alright. Do I have a second? Ms. Apisa: Second. Chair Keawe: Alright. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carried 6:0. Thank you. Now, we were at cross, I believe. Teresa, you didn't have any questions. Ms. Tumbaga: That is correct. Chair Keawe: Alright. Ms. Regush. Ms. Regush: Thank you, Chair. Aloha, Jody. Ms. Galinato: Aloha. Ms. Regush: I heard you earlier speak about the Endangered Species Act and the protections that will be afforded by setting the path back a minimum of 16.5 feet, which is the 5 -meter NOAA requirement. Would you recommend a condition that would— Mr. Roversi: I would object to the extent that the proposal does not provide for the path being 16 feet. The amended application is a minimum of 20.6 feet. Chair Keawe: Objection sustained. Ms. Regush: He is correct. Because we are aware of endangered species in that corridor, would you recommend a condition where the County partners with NOAA in data collection to determine whether or not there are less monk seal haul outs along that corridor? Ms. Galinato: That would be something that would be addressed in the Section 106 or the Environmental Assessment, not from the Planning Department. Ms. Regush: So you wouldn't be proactive and engage in partnership with the NOAA volunteers to do data counts once the bike path is established there? To see if there are potential decreases in numbers. Ms. Galinato: I don't have any regulations where I would come up with a condition like that; that would come from an outside agency, like NOAA. Ms. Regush: Thank you. Chair Keawe: Any further questions? Ms. Repush: So with regards to Coconut Plantation, the undeveloped parcel at the north end of this corridor, why would you exempt the County from their own shoreline setback rules? For example, 60 feet for the path. Why seek a variance if there is sufficient land mauka to move within that 100 -foot Open district corridor? Ms. Galinato: Just on the Coconut Plantation? 65 Ms. Regush. Yes, because it is an undeveloped parcel. There are no constraints with existing buildings, so there need not be a variance application for that corridor. There is ample room to go 60 feet mauka. Ms. Galinato: That SMA Use Permit was approved through a court ruling and what this path application would be, it would all be in line and, I guess, consistent. I don't know. I just don't see the need to have to move that back. Ms. Regjj Thank you. Could the Department bring into evidence of which you speak, which is their SMA Pen -nit and the bike path? Whether or not... Ms. Galinato: I don't understand what you are saying. Ms. Regush: ish: You mentioned Coconut Plantation's SMA Permit, but this SMA Permit is for the bike path; theirs was for their development. Why is the County seeking a variance on that parcel when their buildings are setback 100 feet from the shoreline? Ms. Galinato: That would be a question— Mr. Roversi: If I could object— Chair Keawe: Adam. Mr. Roversi: The Planning Department isn't seeking a variance. The Planning Department is simply analyzing the proposal that has been presented to them. Chair Keawe: Right. Mr. Roversi: This is an improper question for the Planning Department. Chair Keawe: I agree. It is an improper question for the Planner. Ms. Rem Alright, because it is the Building Department [sic] requesting it, not the Planning. Chair Keawe: I don't think it is a proper venue for that. Ms. Regush: Alright. With regards to Supplement No. 3 — which I understand you drafted Supplement No. 3 to the Planning Director's Report — on the first page, near the bottom of the first page, you've written, "Additionally, the paragraph on page nine (9) under Hawaii Revised Statutes 205A should be amended as follows" and you are making a change from a previous Planning Director report, but I want to ask ... let me read that. Let's see. I would like to read that, where it's a 60 -foot minimum setback is required for Ordinance 979. Hawaii Revised Statutes 205A -43(a) states, "Setbacks along shorelines are established of not less than twenty feet." And you end your quote of that citation, which actually goes on to say, "and not more than 40 feet inland from the shoreline." So I guess my question is why ... well, is it true that the County has more than 20 feet leeway based on 205A? Mo Ms. Galinato: I was just addressing the minimums. Ms. Regush: So 40 feet is ... it's true that it is between 20, the minimum, and 40. Is that true? Ms. Galinato: 40 for where? Ms. Regush: Hawaii Revised Statutes — the quote — I am just pointing out or wanting to know why we did not get a complete citation of 205A -43(a). The portion left out says "and not more than 40 feet from the shoreline", so we are not just limited to 20 feet. I am not sure why that was omitted. Ms. Galinato: No, because in my Director's Report, I address minimum setbacks. Ms. Regush: ish: Thank you. That's all the questions for now. Chair Keawe: Thank you. We are at the point now where I ask any of the Parties, do they expect to introduce any rebuttal evidence? Teresa. Ms. Tumbaga: Chair, we don't have any rebuttal evidence for this witness, but we don't know what is coming from the Intervenor. So after the Intervenor's case— Chair Keawe: Alright. Ms. Tumbaga: Would be when we would— Chair Keawe: Alright. Ms. Tumbaga: If necessary. Chair Keawe: Adam. Mr. Roversi: I would have the same answer. Chair Keawe: Alright. Mr. Roversi: I can't answer that until we've heard the Intervenor's position. Chair Keawe: Okay. Ms. Regush. Ms. Regush: I do not have any witnesses at this time. Chair Keawe: Alright, thank you. At this point, we can take public testimony based on our Commission rules, 1-6-10(c). We closed the public hearing on 9/26/17; however, we are still engaged in the public contested case so public testimony should be entered into evidence if we have any. I think we will look at the sign-up sheet. MA Ms. Higuchi Say gtg lsa: Chair, we have two (2) (people) signed up to testify on this matter. First is Randall C. Blake. Chair Keawe: He is not here. Ms. Higuchi Sam ig isa: Okay. The second is Tommy Noyes. Chair Keawe: Mr. Noyes, we have a microphone right here, behind this desk. Could you state your name, please, sir? Mr. Tommy Noyes: My name is Tommy Noyes. I am the Executive Director of Kauai Path, Incorporated, a 501(c)(3) non-profit working for more walkable and bikeable communities. Thank you for the opportunity to have a few comments (inaudible). Chair Keawe: Thank you for being patient. You were here at 8 o'clock this morning. Mr. Nom Yes, sir. Well, this is a very dear project to my heart and I appreciate everybody being so thorough in their analysis of all the considerations going into this. This is a public benefit/amenity that is proposed for an area that is prone to natural forces of nature events that could include flooding, high-water incidents. In studying similar installations in communities around the country, it is not uncommon to put walking/bicycling pathways in areas that are subject to high-water events. Most notable in my experience is the Cherry Creek pathway through the center of Denver's urban district, which was the result of responding to a devastating flood. Now, the people use that pathway alongside a drainage area that, from time to time, is fully inundated with floodwaters raging through the center of the city, and when the waters recede, the path is cleaned up, and once again it is available for public use. So that is not uncommon and should not be disregarded as ... or the path should be designed to be back in service following a natural occurrence like that. Having safe public access in a resort area in perpetuity for people of all abilities is hugely important. We run the risk of losing access to the coastline for the benefit of our general population in a resort area, so I think it is very important to fulfill Mayor Baptiste's important criteria of coastal access in perpetuity for all of us, and that it certainly includes people with mobility concerns; those of us that use walkers, wheelchairs, mothers that are out with their baby strollers. These are the types of people that we see all the time that would not be able to access that coast under current conditions. There was some discussion about alternate alignments; perhaps along Aleka Loop or Kuhio Highway. Ms. Higuchi Sayegusa: Three (3) minutes, Mr. Chair. Mr. Nom It would be highly preferable to follow the recommended alignment there at the coast. Thank you very much. Chair Keawe: Okay. Thank you, sir. Do we have anyone else to testify about this particular pen -nit or issue? If not, I will entertain a motion to close the public hearing. Ms. Apisa: I move to close the public hearing. Ms. Nogami Streufert: Second. Chair Keawe: Moved and seconded to close the hearing. All those in favor? (Unanimous voice vote) Motion carried 6:0. Alright. Next is to close the case hearing and then we have some post -hearing procedures we need to talk about. If there is nothing further from any of the Parties, we will go ahead and close the hearing if I have a motion to close the case hearing. Ms. Apisa: Move to close the case hearing. Chair Keawe: Do I have a second? Mr. Mahoney: Second. Chair Keawe: It has been moved and seconded to close the case hearing. All those in favor? (Unanimous voice vote) Any opposed? (None) Motion carried 6:0. Thank you. Alright. Some post -hearing procedures — each party may submit proposed or stipulated Findings of Fact, Conclusions of Law, and Decision and Order. Each proposal must be served to each other party and shall be made within thirty (30) days as of today at the close of the contested case hearing. We would like to schedule the final arguments and decision on the contested case on January 9, 2018. Preliminarily, as far as schedules, is that something we can look at? I believe that's— Ms. Regush: Point of order here. In the Commission rules for this contested case, presentation of evidence, is that not an opportunity that is given to me in addition to the witnesses that we've just heard from? Ms. Hi ug chi Sayegusa. I believe you were allowed the opportunity to do so. Ms. Regush: When did that happen? Ms. Hi uchi Sayegusa: Well, I think it was a preliminary matter. When we initially scheduled the contested case hearing for today, there were set deadlines for witness and exhibit lists, and that is to, sort of, provide notice to the Parties of who you expect to call as witnesses and what types of exhibits you are going to try to provide as evidence. Ms. Regush: Right. Ms. Higuchi Say_egusa: Along with the case. m Ms. Regush: So where was my opportunity to have my exhibits accepted by the Body? And, am I considered a witness? Do I need to introduce myself as a witness? In other words, where is my opportunity for my presentation as opposed to just a cross -exam? Ms. Higuchi Sayegusa: Right. So what is going to happen for the next meeting is the final argument and also, you are given an opportunity to submit proposed Findings of Fact, Conclusions of Law, and Decision and Order, and that will be your opportunities to incorporate your arguments based on the evidence that was submitted and accepted as evidence today, any testimonies, any exhibits that were entered into evidence. Ms. Regjj Yes. I am sorry. I am looking at the rules for the Commission on page 19 and the order of an agency hearing and the procedures. The presentation of evidence would have occurred right before the public testimony that we just heard from. Ms. Higuchi Sayegusa: Right, and that is what we went through; each presentation. So the Petitioner was able to give their presentation, the Planning Department was able to, and since you didn't provide any witness lists with any witnesses that you expected to call during your presentation, you were given the opportunity for a rebuttal witness. Ms. Regush: When do I have the opportunity to give a presentation? Ms. Higuchi Sayegusa: Did you have any rebuttal? That is the opportunity for you at this point because you didn't provide a witness list. Ms. Regush: ish: So bear with me. You arc defining rebuttal. I perhaps misunderstood that rebuttal was the opportunity to question the other witnesses. I am looking at "Presentation of Evidence". Ms. Higuchi Sawgusa: Right. And if you look at— Ms. Regush: ish: If I may read, the Petitioner may then make a presentation and be subject to questioning by all Parties and the Commission. Ms. Higuchi Sayegusa: Right. Ms. Regush: So somehow I have missed that opportunity and I don't— Ms. Higuchi Sayegusa: Just to clarify— Ms. Regush: Please. Ms. Higuchi Sayegusa: So we are all on the same page. Looking at Commission Rules 1-6-I1, and that sort of dictates the order of the agency hearing, so Chair read the anticipated procedures for the Contested Case at the outset of the Contested Case, and then we already went through intervention — you were admitted as an intervenor — then we went through to (b), Order of Presentation. Petitioner's presentation is first, followed by the Department, and then the Intervenors. 70 Ms. Regush: Yes, I did not do a presentation at that point. Public Works, the applicant, did a presentation, followed by the County's presentation— Ms. Higuchi Sayegusa: Right. Ms. Regush: The Intervenor goes last. I did not have that opportunity yet. Ms. Higuchi Sayegusa: Okay. So the rules are sort of setting, I guess, rules of fair play for all of the Parties, right? So it's here and it's sort of the duty of each party to sort of get familiar with the rules of engagement, but at the end of the day, it is the Chair's discretion. If you can identify any witnesses or any particular piece of evidence that you wish to attempt to introduce, then that's— Ms. Regush: In my presentation, not with experts. Chair Keawe: So I think what Jodi was trying to explain is you will have that opportunity during the January 9tr' meeting to make your arguments and your presentation at that time. Ms. Rem What I heard is that you are calling it "Decision and Order". Ms. Higuchi Sayegusa: Right, yes. Chair Keawe: It's the Conclusions of Law based on what was presented today and you have an opportunity (inaudible), also, to write up your Conclusions of Law and Decision and Order. Ms. Regush: So the Conclusions of Law — we heard you say earlier in the proceeding that we may ask you to do that. I was actually going to ... one does not have to do that according to the rules, so I was—the expectation was that I would get the opportunity, as both these parties did, to provide my evidence. And I would probably waive the Findings of Fact and Conclusions of Law. Ms. Higuchi Sayegusa: Today's purpose is purely just to receive the evidence, so that is the basis of what will form any Findings of Fact or any Conclusions of Law that each party can argue. Today was just the evidentiary portion, so you will still have an opportunity to formulate your arguments, and that is either through the Findings of Fact, Conclusions of Law, Decision and Order, or through your final arguments, and that is what we are scheduling for January 9th. Ms. Regush: But I did not have the opportunity to present evidence, as this party did and this party did. Chair Keawe: Teresa. Ms. Tumbaga. Teresa Tumbaga for the DPW. I think the portion was when the Chair said, "Ms. Regush, any witnesses?" I believe that was the point in time when he had been directing... now that Mr. Roversi's case was done, he asked any witnesses; that was the portion, I believe. 71 Chair Keawe: Right. Ms. Regush: Was I, in fact, a witness? That I should have called myself as a witness to present evidence? I would think not, but that was obviously a missed opportunity to present. The rules say three (3) people; Intervenor presents last. I did not have any witnesses. I would like to get my exhibits accepted by the Body and present. Chair Keawe: I thought we accepted all of the exhibits. No? Ms. Higuchi Sayegusa: No. Chair Keawe: Okay. Why don't we take a short recess? Maybe five (5) minutes or so. The Commission recessed this portion of the meeting at 4:53 p.m. The Commission reconvened this portion of the meeting at 5:02 p.m. Chair Keawe: Why don't we try to bring this to a conclusion? I am inclined ... and it would be subject to the Petitioner and also the Department's counsel. I am inclined to give Ms. Regush fifteen (15) minutes, twenty (20) minutes to make her presentation subject to an objection by each of you or any of that kind of stuff. I think she feels she didn't have an opportunity, maybe she didn't understand what was going on, but fifteen (15) minutes, I think, to make her points and that is it; no questions, that is it, just the presentation. Mr. Roversi: Mr. Chair, the Planning Department doesn't have an objection to the presentation of the Intervenor's exhibits. I would just like to ... as a comment, because she is proceeding pro se, that there be a clear understanding of the difference between the presentation of an exhibit as evidence and entering into a long narrative of argument, which would be more properly preserved for closing arguments or a written submission on the evidence, but we don't object to the submission of specific exhibits, an explanation of what they are, an opportunity to object to the nature of the exhibit, and then go through each one— Chair Keawe: And then she can do what we have asked all of you to do, which is come in with a Conclusion of Law and everything else; that will give her an equal opportunity. Teresa. Ms. Tumbaga: Department of Public Works has the same position subject to our ability to obj ect. Chair Keawe: Okay. Rayne, do you understand? We will give you fifteen (15) minutes to make your presentation and then you will have the same opportunity as each of the other... Applicant/Petitioner and the Department, which would be to make your presentation and then put together your Conclusions of Law and Decision and Order based on what you are going to be presenting. So if you could go ahead and keep it at that, and we are going to keep it tight. We want to be able to have you go through and give us your main points. 72 Ms. Regush: So is this an opportunity as well, for clarification, to ask the Body to accept our ten (10) exhibits? Chair Keawe: Can we do that? Mr. Roversi: Three (3), I believe, were already stipulated into evidence earlier, if I understand. Chair Keawe: Yes, no problem. Ms. Tumbaga: We haven't actually stipulated them yet, but we didn't have an objection, so we can list those. Chair Keawe: Okay, so we can go ahead and accept all of her documents. Ms. Re tg ish: Thank you. Ms. Tumbaga: I'm sorry, but for the record, the Department of Public Works is only stipulating to Nos. 3, 4, and 10. Chair Keawe: Okay. Ms. Tumbaga: The remainder we have objections. Chair Keawe: So you have objections to the others? Ms. Tumbaga: Yes. (No.) 1 and (No.) 2 are not relevant; they are Cultural Impact Assessments specifically to a development on one of the parcels, not specific to this project (and) outdated — they are from 2005 and 2004. I don't know if you want me to go through my objections now or at the ... for each one. Chair Keawe: Well— Ms. Regush: ish: Or if I can clarify as she does each one would be helpful. Chair Keawe: Well, I want to get it settled now, so go ahead, go through it and let's get it done quickly because I will rule on the objection. Ms. Regush: ish: Alright, thank you, because I believe my exhibits have merit and for clarity, I would like that opportunity to address the objections. Exhibit 1 is the Cultural Impact Assessment and it is of the parcel known as Coconut Plantation, which is the northern parcel of this bike path corridor, so I don't... Ms. Tumbaga: The Department of Public Works' objection is it is not relevant. It is irrelevant in material under Rule 1-5-17. It is not done for this project; it is done to build a condominium project with one hundred ninety-two (192) timeshare units, six (6) hotel units on 9.73 acres. It has a different visual impact and it didn't consider the impacts of this particular project. 73 Chair Keawe: Alright. So your objection was based on that, your objection sustained. Move on, Rayne. The next one. Ms. Regush: Similarly, we have an archaeological literature review and field check that was done for Coconut Plantation, which is a part of this path corridor, and it brings in evidence done by a variety of experts in archaeology that are relevant to this decision-making. In addition, these were ... both documents, Exhibits 1 and 2, were omitted during the Section 106 process. References to them were also omitted in the final EA. Ms. Tumbaga: Our objection is that, again, irrelevant in material, it is not done for this project, it is simply historical in archaeological research for the same Coconut Plantation parcel prepared for Construction Management Development Hawaii in 2004. We have our own Cultural Impact Assessments particular to this project that have already been admitted. Chair Keawe: Right. Ms. Tumbaga: I'm sorry, an Archaeological Inventory Survey as well. Chair Keawe: Right. Ms. Regush: ush: And just for clarity and historically, these were the documents that precisely stated that those areas of significant cultural deposits were a preserve. Chair Keawe: Understand. Your objection sustained. Ms. Higuchi Sae usa: I'm sorry. I don't want to interject, but I have the started the fifteen (15) minutes, just to be clear. This is similar to what the other parties were able to do, which was to attempt to get in the exhibits at this point. Ms. Regush: Yes, my opportunity to get the exhibits in— Ms. Higuchi Save tg usa: Okay. And then, again, you will have an opportunity for argument at the next hearing. In addition, you will also have an opportunity to submit your Findings of Fact, Conclusions of Law. Ms. Regush: Does argument mean present more evidence? Ms. Higuchi Sayegusa: No. Chair Keawe: No. Ms. Higuchi Sayegusa: This is the evidence. Chair Keawe: This is it here. Ms. Regush: Well, I thought we said we were just going through my exhibits. My exhibits are not all inclusive of my— Chair Keawe: Your exhibits are evidence. Ms. Regush: They are not all inclusive of my evidence. Ms. Higuchi Savegusa: That's why ... I paused it, just to be clear. Ms. Regush: Yes, to clarify. Thank you. Ms. Higuchi Sayegusa: Just to clarify. No, and that is the reason why the Parties were requested to provide your witness and exhibit lists prior to because it really— Ms. Regush: I did. Ms. Higuchi Sayegusa: If this is not all of your evidence that you are saying you wanted to present— Ms. Regush: It is the evidence. I guess it is not the argument. Ms. Higuchi Sayegusa: Yes. Ms. Regush: That speaks to the evidence. Ms. HiguchiSayegusa: Yes, your argument will be next time. Ms. Regush: I'm getting there. I'm learning. Ms. Higuchi Sayegusa: Okay, thank you. I am going to resume. Chair Keawe: So your two (2) objections were sustained, Teresa. Next. Ms. Tumbaga: We don't have an objection to Exhibits 3 and 4. Chair Keawe: Alright, that's admitted. Ms. Regush: So Exhibit 5 has to do with the cultural considerations. Let's see. Just to point out that cumulatively, Hawaii has really seen development processes along our coastline, you know— Chair Keawe: We don't ... this is all part of your fifteen (15) minutes, Rayne. Ms. Regush: I understand, so if you folks can— Chair Keawe: Okay, fine, go ahead. 75 Ms. Regush. Yes, if you folks will follow along with Exhibit 5, just so you can see what has merit here in my evidence, and it has to do with culturally how siting the path without sufficient buffers, especially in the parcels where you have room for a 60 -foot setback would really be an imposition on the coastal users. Their experience of the ocean will be diminished and, you know, people's connection to nature is really a core value. We support the path, but only if it's sited with a greater buffer from those users. Chair Keawe: Alright. Teresa, the other document that you had an objection (on)? Ms. Tumbaga: For Exhibits 5 through 9, it is a little difficult because they are photographs that she may have taken, along with text, which the wording appears to be more argument or testimony, so if that was considered her testimony, we don't have an objection, but we do have to object to it actually being evidence because it appears to be her arguments against the bike path and her arguments about erosion and historic resources. She also uses yellow arrows to point to things like the certified shoreline, and we don't know what the certified shoreline really is. She is a layperson claiming that that's the certified shoreline. So— Ms. Regush: The certified shorelines are in your exhibits. They are in the final EA. Ms. Tumbaga: I am referring to the photographs with the yellow arrows. Ms. Regush: Oh, correct. Ms. Tumbaga: Those are scattered throughout 5 through 9, so again, if this is her testimony that she is putting in, we don't have an objection to that. But as far as it being actual evidence— Chair Keawe: So as testimony, it is fine, but actual evidence, you object. Ms. Tuinbaga: If 5 through 9 are considered her testimony that she is putting in as a lay witness, we are still objecting to the placement of the arrows in the photographs as not being verified. But the text, again, it appears to be her argument. So if that is going to be her testimony, we won't object. Chair Keawe: Alright. Sustained. Ms. Regush. Just for clarity, in other words, you can accept these exhibits as my testimony, not exclusively, but it would serve as testimony; that is what I am hearing you say. Ms. Tumbaga: The Department doesn't have an objection to that because it is basically— Chair Keawe: It is basically testimony. Alright. Ms. Tumbaga: —argument straight from the— Chair Keawe: Move on. 76 Ms. Tumbaga: We don't have an objection to 10. Chair Keawe: Okay. Ms. Regush: ish: Do I continue to provide my testimony on these exhibits that— Chair Keawe: What is her time? Ms. Higuchi Sayegusa: 9 minutes and 38 seconds. Chair Keawe: Yes. Ms. Regush: So in Exhibit 6, again, you will see a significant event that happened just in July with the king tide, and this was 20 feet; 20 feet with a king tide event that brought it beyond the certified shoreline. I have been going out to the certified shorelines on the east side since 2004. I have lived on the east side of Kauai since 1999. This is a passion of mine. This is what I do. hang out with the guys from DLNR when we do these shorelines along the coastline so that we can ensure the beach is not diminished by development. Chair Keawe: Do we have an objection to that? Ms. Tumbaga: Again, is this Exhibit 6 that we are talking about? Ms. Regush: Correct. Ms. Tumbaga: Again, if this is her testimony, it is just subject to cross-examination. Chair Keawe: So we will leave it as testimony and not part of the evidence. Ms. Tumbaga: Right. I would be objecting if it was evidence, but as testimony, she is free to speak. Chair Keawe: It's testimony. Okay. Ms. Regush: In the evidence in my testimony, there are actually photographs submitted by the developer's surveyor to DLNR on which they based the certified shoreline. So, to me, I thought that was evidence. Chair Keawe: Okay. Next. Ms. Regush: Thank you. Exhibit 7 shows impacts from nearby properties. Waipouli Beach Resort, which is maybe 400 feet from the northern edge of the bike path parcel, and those photographs in Exhibit 7 ... have you turned to those? Again, that was from 2006 in September, Tropical Depression passing by more than 500 miles offshore and we see how close the ocean debris has come to the sidewalk there. Similarly, at Pono Kai Resort, where we do have the multi -use path, the erosion now is approaching 10 feet from the path. 77 If you will, turn to Exhibit 8 as well, and this addresses the parcel (for) Beachboy Resort, which has one of the higher erosion rates. In this exhibit, I've shown various pictures of a Heliotrope tree and evidence of where the high wash of the waves has nun up. So really, it's a changing coastline. My concern is that this SMA Permit has expired shorelines; some of them are over a year old. My question that I didn't ask earlier would be, does the Department— Chair Keawe: You can't— Ms. Regush: I would like to have the ... the question is, is the Department going to do new certified shorelines? Because these have expired. Chair Keawe: Move on. Ms. Regush. With regards to Exhibit 9, again, this information focuses on Theresa Donham and her concerns. She is the Archaeology Branch Chief of SHPD and she does say — and I agree — that historic properties that have cultural value are impacted by these indirect effects, such as changes in the setting, feel, use, and character of the site. So again, if we can nudge back the bike path so that it is not abutting the resources right along the coastline and not jeopardizing these high-water events that happen with sea -level rise and climate change, I would beg that you agree and move the path. Chair Keawe: Okay, next. Ms. Regush: Particularly, in the parcel at Coconut Plantation, the northern parcel that is as of yet undeveloped but permitted, with that king tide event bringing the debris 20 feet, as I mentioned to Jody, it is odd that the County is asking for a variance when you have 60 feet to meet the shoreline setback. Chair Keawe: Okay, move on. Ms. Regush. Thank you. I think I'm spent for now. Chair Keawe: Alright. You've had your opportunity. Again, I will reiterate, we are looking forward to a January 91h meeting where you can present your Conclusions of Law and D&O. Yes, Donna. Ms. Apisa: Could I ask one (1) question? Earlier, you stated that you support the path, but you want it altered, or ... I'm just not clear. Ms. Regush: We are supporters of the path, but there are portions that we would like to have moved back 20 feet — for example, here, where the king tides show that the path will be covered with sand and debris — and 60 feet in the Coconut Plantation parcel. So just, again, a realignment so that the setback or the offset... because we can't make the setback in most places. They are just pinched by existing buildings. But where they are not, the Body has jurisdiction to make those changes. W. Ms. Apisa: Okay, thank you. Chair Keawe: Okay. For clarification, Rayne, in the future, if you are involved with further cases that you are going to be an intervenor in, please make sure that you understand what the opportunities are. I will leave it at that. So if there is nothing further, we will take a motion to adjourn this case and again— Ms. Tumbaga: Chair — I apologize — we would just ask that the Commission close the evidentiary portion of the hearing. Chair Keawe: Okay. Ms. Higuchi Sayegusa: I think we— Ms. Tumbaga: Or I am not sure— Chair Keawe: Did we? Ms. Higuchi Sayegusa: We closed the contested case. Chair Keawe: I thought we did. I think we did. Ms. Higuchi Sayegusa: I'm sorry. Yes, right, okay. Because we entertained additional testimonies by Ms. Regush— Chair Keawe: Yes, alright. We have to redo it because we entertained more evidence, so I need a motion to close the evidentiary portion. Ms. Nogami Streufert: Move to close the evidentiary hearing. Chair Keawe: And a second? Ms. Apisa: Second. Chair Keawe: Okay. It has been moved and seconded. All those in favor? (Unanimous voice vote) Motion carried 6:0. Now I need a motion to adjourn this case. Ms. Regush: Point of order, please. The post hearing procedure — I have a question about transcripts. Are transcripts going to be provided of this session? Ms. Higuchi Sayer Transcripts — that is something very specific and so if you wanted official transcripts, then that should have been requested prior to the contested case. Ms. Regush: Well, I am just going in the order of the Planning Commission's procedures. VU Ms. Higuchi Sayegusa: Right. Since no party requested official transcripts, we are just on to the Decision and Order, and the deadline for that is within thirty (30) days after today, which was the close of the contested case. Chair Keawe: That's the 14th of December. Okay. Ms. Higuchi Sayegusa: January 9th— Chair Keawe: No, no, January 9th is the meeting. Ms. Higuchi Sayegusa: —is the hearing. Chair Keawe: But thirty (30) days from today is the 10h of December, yes. Alright, can I have a motion to close this case? Ms. Higuchi Sayegusa: No need a motion at this point. Chair Keawe: Really? We are going to leave it open? Ms. Higuchi Sayegusa: I think it would just be a ... if you wanted to— Chair Keawe: Just defer to January 9th? Ms. Higuchi Sayegusa: Well, you folks made clear that the hearing will continue on the 9t" of January. Chair Keawe: Alright. We will just continue the hearing on January 9th. Is that it? Do we need to make any further motions? No? Alright, thank you. We are done. Ms. Tumbaga: Thank you. Ms. Apisa: Thank you. Chair Keawe: We will recess for maybe ten (10) minutes. The Commission recessed this portion of the meeting at 5:21 p.m. Deputy County Attorney Jodi Higuchi Sayegusa left the meeting at 5:21 p.m. Deputy County Attorney Peter Morimoto entered the meeting at 5:35 p.m. The Commission reconvened this portion of the meeting at 5:35 p.m. Chair Keawe: We will call this meeting to order. .E Decision Making on the Motion to Recuse Hearings Officer on the following matters on the Planning Commission Contested Case Calendar of 12/13/16 and 2/28/17; deferred on 12/13/16, 2/28/17, 5/9/17, deferred on 7/25/17 for decision making on 9/12/17, deferred 9/12/17, hearing on objection to county attorneygal advisor to Planning Commission 10/10/17. Chair Keawe: This is the Contested Case Calendar, and this is decision-making on the motion to recuse Hearings Officer on the following matters on the Planning Commission Contested Case Calendar of 12/13/16 (and) 2/28/17; deferred on 12/13/16, 2/28/17, 5/9/17; deferred on 7/25/17 for decision-making on 9/12/17; deferred on 9/12/17; hearing on objection to County Attorney as legal advisor to Planning Commission on 10/10/17. Alright, so we are here again. Just for the record, real quick, we will ask all of the counsels to introduce themselves and who you represent. Mr. Jonathan Chun: Jonathan Chun on behalf of some of the petitioners. Chair Keawe: Okay. Ms. Joanna Zeigler: Good evening, Joanna Zeigler on behalf of Greg Allen Jr., Greg Allen Sr., and Anthony Bardin. Chair Keawe: Alright. Deputy County Attorney Sinclair Salas-Ferguson: Deputy County Attorney Sinclair Salas- Ferguson for Items 3, 4, 5, 6, 7, 9, 12, and 14. Chair Keawe: Okay. First Deputy County Attorney Matt Bracken: Matt Bracken in the cases of the Hoff case, the Allen case, and making a special appearance for Mauna Kea Trask in the Guyer/Searles case as well. Chair Keawe: Alright. Deputy Attorney Mark Bradbur: Mark Bradbury on No. 8, Kaiser. Chair Keawe: Okay. We are this juncture now. We actually had the hearing on May 91h, I believe, on the case. We have deferred it and now we are at the point where we have received each of your D&Os based on ... I think it was June 30 when they were dated. I will give each of you an opportunity to have closing arguments or whatever you want to say with regard to each of those. What was that? Mr. Chun: Five... minutes. 81 Chair Keawe: Oh, he said minutes; five (5) minutes. Five (5) minutes with regard to each of your positions on the D&Os, and then we will ask the Commissioners if they have any questions. I mean, all the evidence was presented and now it is a question of making a decision. Mr. Chun, go ahead as the applicant. Mr. Chun: If I may, just procedurally to begin with, I thought at the last hearing, the Commission's decision was they were going to accept the Prosecutor's Office as being their legal advisor because I thought that was the fon-nal position of the County Attorney. I note that the Prosecutor's Office is not present today. Chair Keawe: Right. Mr. Chun: Also, I'd just note under HRS Chapter 91, the decision of the Commission, which was made at the last meeting, to replace the County Attorney's Office with the Prosecutor's Office should be put in writing. I don't think I have ever had a written order on that yet, but I'm still waiting for it. Chair Keawe: Okay. Mr. Chun: But I just want to make a note for the record that the Prosecuting Office is not here and that a deputy county attorney is present. Chair Keawe: Alright. You have the floor. Mr. Chun: Okay. I'm just ... yes. Chair Keawe: You got it. Go ahead. Mr. Chun: So without going into the Findings of Fact, Conclusions of Law, I just want to note that there are a couple facts that are really not contested in all the hearings and the evidence that you went through. These are the facts that are not contested: one, the Commission itself does not know anything about the Hearings Officer; nothing. The Planning Department knows nothing about the Hearings Officer. The Planning Department representative admitted that there was no resume filed with the Planning Department, or any other department that he knows of. The Planning Department representative also said that they didn't evaluate; they had no evaluation of the Hearings Officer that he knows of. And the Planning Department representative also said that there was no ranking of this person that they know of. And that is uncontested; nobody contested that evidence. In addition, the Planning Department representative and the Finance Department representative all testified that they have no idea how this name came up. No one was able to identify — at all — how the name of this Hearings Officer came up. All of a sudden it was in a contract, and that is all they know. Based upon that, the question that we asked the Commission to really ask themselves is, do you know for a fact that this person can be a qualified and fair Hearings Officer with no information regarding him? Nothing in the record. And all opportunity was given to the Planning Department and the Finance Department and the County Attorney's Office to provide that information in these hearings, and nothing came out. Nothing came out. The right of our client is based upon due process. Due process is basic fairness. Is it a fair process where the County has, in their possession, every (bit of) information about this person but has not disclosed it to anything [sic]? We have no idea whether Mr. Kimura is a relative of anybody. We have no idea whether Mr. Kimura is related in any way to any party or any witnesses. We do know Mr. Kimura is an attorney, but we have no idea whether Mr. Kimura's current clients are clients that are adverse to any of my clients. No disclosures have been made by Mr. Kimura, by anybody, or to anybody, including the Commission. You guys have no idea; no evidence at all. If you want to take a note, I want to note that in the TMT process involving the Mauna Kea telescope, the Hearings Officer, Judge Riki Mae Amano, made extensive disclosures in that case regarding her associations, not only personal associations, but professional associations, also, and gave all the Parties every chance to object and they did in fact object, but at least that process was going through; no process with this at all. So the question I keep on asking — is it a fair process? Was it a fair selection? You heard from the Planning Department that well, all your objections don't really matter because it has to do with the selection and you don't have standing to object to the selection process. In other words to say, yes, even though he might not have been selected properly, under the procurement law, you can't do anything about it. But yes, you can. Yes, you can. You were the Body that appointed Mr. Kimura to be the Hearings Officer. You didn't enter into the contract; that's true. You didn't contract out. We are not asking you to do away with the contract. That is not your contract; you didn't sign it. What we are asking you is whether or not you should be appointing him because you have no knowledge of him, no information of him, no background of him; and all the people that you relied on have not provided that to you at all. Is it fair? Again, I keep on coming back ... it is due process, it is fairness. We are not talking about a conceptual right. We are talking about the rights of residents of the County of Kauai who calve in front of you, either applicants for a permit or have already received a permit, and as residents of the County of Kauai, they have the right to a fair hearing from the County. Chair Keawe: One (1) minute left, Mr. Chun. Mr. Chun: Thank you. The last thing I want to just emphasize is the issue of due process is already in the focus of other cases that the County of Kauai has brought in front of the Circuit Court in this case and in other cases in front of the Circuit Court, the court has made it clear that the County cannot avoid due process rights and have ruled, in fact, in favor of the applicants. This is not something that we are thinking up ourselves. This is something that the courts have recognized and that we have brought in front of the court numerous times and have prevailed. Chair Keawe: Alright, thank you. Ms. Zeigler: Thank you. Joanna Zeigler. I would like to join in on Mr. Chun's comments. I would agree that this case rests on due process and it is just about fairness to the applicants. And then I would also just like to reiterate the continued objection of the Deputy County Attorney here advising the Commission despite our previous objections. I think that is all. Thank you. Chair Keawe: Thank you. Alright, guys, who is going first? 83 Mr. Salas-Ferguson: I will go first, Chair; Deputy County Attorney Sinclair Salas-Ferguson. Mr. Chun said a lot of things and a lot of things have been said and presented throughout this hearing, but this case comes down to the four (4) lines I am going to tell you right now. The Petitioners have not shown that the Hearings Officer, Harlan Kimura, is biased towards either party or that his participation in these cases creates an appearance of impropriety. That's all. Chair Keawe: Okay. Next. Anything further? Mr. Bracken: No, I will adopt his statements, and nothing further. Chair Keawe: Okay. Mr. Bradbury. Mr. Bradbury: Yes, I just want to point out one (1) thing. A Hearings Officer is like a judge; there is a presumption that that Hearings Officer is impartial. Now, to overcome that presumption, it is the burden upon the Petitioners to show this bias and that he is partial to one side as opposed to another. In this particular matter, we have seen no evidence of that. They mentioned fines earlier on in the proceeding; however, we have seen no evidence that a fine was ever imposed by the Hearings Officer, let alone collected and then paid to the Hearings Officer. We have seen no bias. All we've heard is procedural defects in the way that the Hearings Officer was procured. As we indicated in our moving papers, this is not the forum to bring that up. With that, I will rest, your Honor. Chair Keawe: Okay. Commissioners, anybody have any questions for any of the attorneys? We don't want to drag up what was in the actual 5/9 transcript, but do you have any specific questions for any of them at this point? Ms. Apisa: Not at this time. Chair Keawe: Okay. Alright, so thank you, counsels. At this point, we need to make a decision. I think all of you got copies of each of their — I call them D&Os — Decisions and Orders and their Conclusions of Law, so our decision has to be based on one or the other; either we accept the findings of the County or we accept the findings of the Applicant, Mr. Chun and his clients. I think that is where we are at this point. Do we have any questions from the Commissioners? Mr. Chun: If I may, Intervenors — are they still here? Technically, they should— Chair Keawe: Okay. Anything? Yes, okay. (Are) you guys good back there? Ms. Caren Diamond: Aloha. Caren Diamond speaking for Barbara Robeson. Chair Keawe: Okay. Ms. Diamond: We are fine with the proceedings. Chair Keawe: Alright. 84 Ms. Diamond: Thank you. Chair Keawe: Thank you very much. Okay. I think we are down to the decision at this point, so I assume all of you had an opportunity to look at each of those documents, then we have to decide on one of them. I know it has been a long day — it is ten (10) minutes to six — and we are pretty tired, but it deserves our attention for this part. It has been a long process for this particular case, so we need to snake a decision. Mr. Morimoto, do you have any comments? No? Alright. Mr. Ho, Commissioner Streufert, any comments? Ms. Nogami Streufert: Looking on all of this, it appears that ... these are some of the arguments that I think that I've heard or that I've been reading: that there may be an appearance of bias and impropriety because some of the funds for the fines may have come from money that may be seen as favoring one side or the other because of where it comes from, and he can expect to be appointed in other cases. But everything that I have seen so far, which includes the affidavits from Ann Wooten and from Ernie Barreira, seem to indicate that that in fact is not the case; that there is no impropriety in that. And the idea that the Commission doesn't know who this person is, except to say that he or she — in this particular case, "he" — has been judged to be qualified by the Planning Department, I think speaks to the fact that we have no bias in this case and therefore, it is probably the best possible case for no prejudice from this Commission which way we would want to go. It appears that all the cases are just about the same ... have the same arguments. If that is incorrect, if my assessment of the arguments is incorrect, I would like to have them clarified now so that my decision is more rational, or is as rational as it can be. Chair Keawe: Okay. Commissioner Apisa, any comments? Ms.AApisa: No, nothing new to add. Chair Keawe: Okay. Commissioner Lord. Mr. Lord: I think this Body relies upon the Planning Department and the County Attorney to make those contract decisions; those are not in our purview. When a Contested Case Hearings Officer is assigned cases, it is under the assumption that they are qualified and that they have been vetted. If the ordinances provide for the assignment of cases to be assigned to other attorneys, those are rules that were written by someone over my pay grade. So regardless of what I may personally think of that, I am not here to change ordinance; only to follow what I think is right and fair. That is my take on that issue. Chair Keawe: Okay. Commissioner Mahoney. Mr. Mahoney: I think what this Commission tried to do was ... our job is appointing a Hearings Officer that was presented to us. We didn't hire, we didn't contract him, but I don't see any bias and I kind of agree that the Petitioners can't meet the burden that the Hearings Officer should be disqualified. So I think we did our job with what we had; an attorney that we didn't know RR personally and I don't think anybody knew him personally. But I think he was a qualified attorney and I think we did our job. (Inaudible) Chair Keawe: Okay. Mr. Ho. Commissioner Streufert, do you have anything further to add? I think we heard from you. Mr. Ho: When Mr. Unebasami — I hope I don't murder his name any more than it is — testified, he stated when Mr. Kimura was given the contract, it wasn't the cleanest form of selection, but there was no wrong in it; and that was good enough for me to say that yes, let's proceed. That is the way I see it now; no bias by us. Let's go ahead and proceed and do what we have to do. Chair Keawe: Alright. So at this point, let me see if I can lay this out. The motions were to deny and to disqualify the Hearings Officer, or the motion from the Applicant was to grant the motion for disqualification of Harlan Kimura. From Planning's standpoint, the motion is to deny and from the Applicant's standpoint, the motion is to grant the disqualification. Do we understand which one is which? Mr. Mahoney: Repeat that one again. Chair Keawe: Okay. So if we agree that the appointment of Harlan Kimura was qualified to handle all of these cases, then we will deny the Applicant's motion to disqualify him. And if we agree with the Applicant, then we will grant the Applicant's motion to disqualify Mr. Kimura. So if we agree with the County, we are denying the motion to disqualify. If we agree with the Applicant, we are granting the motion to disqualify. Is that right? Deputy County Attorney Peter Morimoto: Yes. Chair Keawe: So basically we either deny the motion and adopt the D&O because we've got the documents that they provided to us, or we grant the motion for disqualification and ... or we deny the motion for disqualification and adopt— So we have to adopt one or the other. We either grant or we deny and adopt which one we do. I think that's the point. Okay. Are we ready to snake a decision? I need a motion. Mr. Mahoney: I will make a motion to deny the Applicant and adopt the County's Decision and Order. Mr. Lord: I will second that. Chair Keawe: Second the motion to deny and... Any further discussion on this issue? If not— Mr. Ho: One more time; can you state the motion, please? Chair Keawe: Okay. What we are stating is that we are denying the motion to disqualify the Hearings Officer and adopt their Decision and Order. E01 Mr. Morimoto: The County's Decision and Order. Chair Keawe: Yes. Okay? One more time? Mr. Ho: No. Chair Keawe: Do you want to do roll call? Mr. Lord: Just to be clear, if we voted in favor of the motion, that is to deny the Applicant's motion? Chair Keawe: Yes. Mr. Lord: Thank you. Chair Keawe: Yes, that is the tricky part. Mr. Lord: Yes. Ms. Apisa: Double negative, yes. Chair Keawe: Alright, so we will do a roll call vote. We have a motion on the floor and ready to call ... yes, go ahead. Mr. Morimoto: Commissioner Streufert. Ms. Nogami Streufert: Aye. Mr. Morimoto: Commissioner Ho. Mr. Ho: Aye. Mr. Morimoto: Commissioner Mahoney. Mr. Mahoney: Aye. Mr. Morimoto: Commissioner Apisa. Ms. Apisa- Aye. Mr. Morimoto: Commissioner Lord. Mr. Lord: Aye. Mr. Morimoto: Chair Keawe. 61FA Chair Keawe: Aye. Motion is carried 6:0; denied and accepted. Mr. Chun: Thank you, Mr. Chair. Could I ask and just inquire when the written decision will be issued? Chair Keawe: We will have to check with Planning and find out how quickly we can get that out. I don't know. I couldn't tell you. Mr. Chun: I am just inquiring. Chair Keawe: You need a written copy of our decision? Mr. Chun: Yes. Chair Keawe: I understand. Mr. Chun: Also, do you believe the Commission or the Department will be preparing a written order from the last meeting we had about the advisor to the Planning Commission? Chair Keawe: I don't think we need to do a written order for that. It was just part of the business of that day to deny that. Mr. Chun: Okay. I'm not arguing. I just want to inquire. Chair Keawe: But this one for sure. Mr. Chun: Okay. Chair Keawe: Alright. Is there anything further before the Body? ADJOURNMENT Chair Keawe: If not, I will entertain a motion to adjourn. Ms. Nogami Streufert: Move to adjourn. Chair Keawe: Do I have a second? Mr. Ho: Second. Chair Keawe: Moved and seconded to adjourn. All those in favor? (Unanimous voice vote) Motion carried 6:0. Thank you. Chair Keawe adjourned this Contested Case Calendar at 5:59 p.m. Respectfully submitted by: &rcie Agaran, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of meeting.