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HomeMy WebLinkAbout2021-10-12 AMENDED Planning Commission Agenda Packet1 KAUA‘I PLANNING COMMISSION REGULAR MEETING February 09, 2021 Draft The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Donna Apisa at 9:03 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 115 848 0234# The following Commissioners were present: Ms. Donna Apisa Ms. Glenda Nogami Streufert Mr. Melvin Chiba Ms. Helen Cox Mr. Francis DeGracia Ms. Lori Otsuka Absent/Excused Roy Ho The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Dale Cua, Romeo Idica, Kenneth Estes, and Planning Commission Secretary Shanlee Jimenez; Office of the County Attorney – Deputy County Attorney Laura Barzilai; Office of Boards and Commissions – Administrator Ellen Ching, Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Ms. Donna Apisa: Called the meeting to order at 9:03 a.m. ROLL CALL Chair Apisa: I will call the meeting to order. Roll call please. Planning Director Kaaina Hull: Roll call, Madame Chair. Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Here. 2 Mr. Hull: Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Apisa. Chair Apisa: Here. Mr. Hull: Madame Chair, Commissioner Ho is excused from the meeting, you have a quorum. Six present. APPROVAL OF AGENDA Chair Apisa: Thank you. Approval of the agenda. Do we have the motion to approve the agenda as submitted? There are no changes, Kaaina? Mr. Hull: The Department has no recommended changes. Ms. Nogami Streufert: I to approve move the agenda as presented. Ms. Cox: I second the motion. Chair Apisa: All in favor. Aye. (Unanimous Voice Vote). Ms. Cox: Aye. Ms. Nogami Streufert: Aye. Mr. Chiba: Aye. Ms. Otsuka: Aye Mr. DeGracia: Aye. Chair Apisa: Any opposed? None. Motion carries. 6:0. Kaaina, any receipt of items or hearings? MINUTES of the meeting(s) of the Planning Commission Mr. Hull: Next on the Agenda, there are no Minutes for the record. 4 Chair Apisa: Any discussion on that? All in favor? Aye. (Unanimous voice vote). Ms. Otsuka: Aye. Mr. Chiba: Aye. Ms. Nogami Streufert: Aye. M. DeGracia: Aye. Ms. Cox: Aye. Chair Apisa: Any opposed? None. Motion carried. 6:0. We will move General Business Matter I.1., to preceding the executive session. Continued Agency Hearing New Agency Hearing GEBERAL BUSINESS MATTERS Petition to Appeal of the Decision of the Planning Director; Exhibits “1”-“2”; Certificate of Service by Maun kea Kea Trask of Cades Schutte, Attorney for Appellants Charles M. Somers Trust and West Sunset Phase 1 LLC, in the matter of the Application of Charles M. Somers Trust and West Sunset Phase 1 LLC appealing Notice of Violation & Order to Pay Fines executed on December 7, 2020 for properties located at 1957 Kahili Quarry Road, Kilauea, Hi, Tax Map Key No(s).:(4) 5-2-012:035 & 047, Hanalei District Kahili, Kilauea, Kauai, Hawaii. a. Clerk of the Commission’s Recommendation to Refer an Appeal of the Planning Director’s Decision Related to the Planning Director’s Notice of Violation & Order to Pay Fines for the illegal development within the Special Management Area of Kilauea, Charles M. Somers Trust and West Sunset Phase 1 LLC, Tax Map Key (4) 5-2-012:35 and 47, Hanalei District Kahili, Kilauea, Kauai, Received on December 28, 2020, for referral to Board and Commissions as Contested Case no. CC-2021-1. Mr. Hull: Okay, with that, Amendment I.1., Petition to Appeal the Decision of the Planning Director Exhibits “1” – “12”; Certificate of Service by Mauna Kea Trask of Cades Schutte, Attorney for Appellants, Charles M. Summers, trust and West Sunset Phase 1, LLC in the matter of the application of Charles M. Summers trust and West Sunset Phase 1, LLC appealing notice of violation and order to pay fine as executed on December 7, 2020, for properties located at 1957 Kahili Quarry Road, Kilauea, Tax Map Key 5-2-012:035 and 47, Hanalei District Kahili, Kilauea, Kauai, Hawaii. Ultimately, there is appeal of one of our violation notices. The Department is ultimately recommending that this matter be referred to a hearings officer. The applicant, or appellant, has representative on line if you would like to have any discussion with him. 5 Chair Apisa: I guess would you want to offer any comment or discussion. Mauna Kea, do you want to offer comment on this as the appellant? Mr. Mauna Kea Trask: Yes, thank you. Sorry, I was having a little connection problem. So as the Director correctly noted, we have filed this appeal pursuant to the notice of violation ordered to pay fines dated December 7, 2020. We note that petition to appeal was filed pursuant to Chapter 6 and 9, of the rules of practicing Planning Commission, and Section 13.0, of the SMA rules of the County of Kauai, and further notice of violation itself. However, I did want to raise, in order to preserve the record an objection. It appears that although the appeal was properly filed, or the petition to appeal does follow the rules of the Planning Commission and SMA rules, the Kauai County Charter was amended… Chair Apisa: Mauna Kea. Mr. Trask: …2016 to create the Zoning Board of Appeals. And pursuant to Section 14.13(b) of the Charter, the Zoning Board of Appeals and not the Planning Commission, has the jurisdiction to hear and determine appeals of the Planning Director. So, we just make that note for the record. Object to the jurisdiction of the Commission. But, nonetheless, we do want to appeal. And so, I just wanted to make that note. Does that make sense? Chair Apisa: Thank you. And there seems to be some background noise. Again, Kaaina, maybe we could just, or I will ask everyone to please mute thier phones, if you are not speaking. There is a lot of background noise. Deputy County Attorney Laura Barzilai: Madam Chair? Chair Apisa: Yes? Ms. Barzilai: Excuse me if I may. May I ask a question of Mr. Trask? Chair Apisa: Yes, please. Ms. Barzilai: Mr. Trask, are you intending to withdraw your petition to appeal? Mr. Trask: No. I actually, we do want to appeal. I just want to note that it appears that under the Commission, I mean, the Charter, I am sorry, the Zoning Board of Appeals has jurisdiction to hear this appeal. However, it is my understanding that there is no zoning board of appeals. And so the rules of the SMA rules and the rules of the Planning Commission provide that the Commission appeals for the Planning Director go to the Commission. So I wanted to note the discrepancy just to preserve the issue should it be, an issue later in any subsequent Circuit Court appeal or thereafter. Or even in the hearing itself. Because as you know jurisdiction is always in question. It’s a relatively new Charter provision and that’s all. Ms. Barzilai: Thank you, Mr. Trask. Thank you, Madam Chair. Chair Apisa: Commissioners, does anyone have any questions? We I have the petition to appeal 6 in our packet, and I think we’ve all read through it. I am not hearing any questions. The recommendation has been to refer it to a hearings officer. Any comments or a motion to that effect? Ms. Barzilai: Madam Chair, if I may, the appeal is timely, and the form is proper. So you may entertain a motion at this time to accept the Director’s recommendation to refer it to a hearings officer. Chair Apisa: So without a motion I will just… Ms. Cox: I make a motion to accept the recommendation and move it to the hearings officer. Ms. Nogami Streufert: I second. Chair Apisa: Thank you. Any discussion on this? All in favor? Aye. (Unanimous voice vote). Ms. Otsuka: Aye. Ms. Nogami Streufert: Aye. Mr. DeGracia: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Chair Apisa: Any opposed? None. Hearing none. The motion passed. 6:0. It will be referred to a hearings officer. Man: Thank you all very much. Chair Apisa: Thank you. Continued Public Hearing New Public Hearing All remaining public testimony pursuant to HRS 92 (Sunshine Law) CONSENT CALENDAR Status Reports Director’s Report(s) for Project(s) Scheduled for Agency Hearing. 7 COMMITTEE REPORTS Subdivision Mr. Hull: Thank you, Madame Chair and members of the Commission. I apologize; I am a little bit off today. Recognizing that some of the people that are have called in are actually waiting to see if there are actions or questions on the Subdivision Report, if you would indulge me one additional amendment to Agenda. I would request the motion for the agenda to be amended so that Agenda Item K., Subdivision Committee Reports, be moved to be heard prior to the executive session. Chair Apisa: I will entertain a motion to that affect. Ms. Cox: Aye. I move that we move Item K., before the executive session. Ms. Otsuka: I second. Chair Apisa: All in favor? Aye. (Unanimous voice vote). Ms. Otsuka: Aye. Mr. DeGracia: Aye. Ms. Cox: Aye. Ms. Nogami Streufert: Aye. Mr. Chiba: Aye. Chair Donna Apisa: Hearing none. None. The Agenda is further amended to move Committee Reports to precede the executive session, which we will go into now. Committee Report. Chair, do you have that report? Mr. DeGracia: Yes, Madam Chair. Today’s, Subdivision Committee was attended myself, and Vice Chair Chiba. There were four items. Item one was tentative subdivision map approval, Application Number S-20-21-3. Allan and & Karen Nesbitt, Trust, this was approved and passed. There was also tentative subdivision extension request. Subdivision application S-2019- 8, Stephanie Fernandes, that was approved and passed. Final subdivision map approval for subdivision application S-2019-1 Alexander &Vivian Youn, Trust, that was approved and passed. Finally, recertification of final map approval, subdivision application number S-2007-1, State of Hawaii Department of Transportation, that was approved and passed as well. That concludes my Report. Chair Apisa: Thank you very much. Thank you. Do we have a motion to accept the Committee Report? Ms. Cox: I move we accept the Committee Report. 8 Mr. Chiba: I second. Ms. Otsuka: I second. Chair Apisa: Thank you. All in favor? Aye. (Unanimous voice vote). Ms. Otsuka: Aye. Mr. DeGracia: Aye. Ms. Cox: Aye. Ms. Nogami Streufert: Aye. Mr. Chiba: Aye. Chair Apisa: Any opposed? None. Motion carried. Thank you very much, Chair DeGracia. Then do we move into, is there, Kaaina? EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-5(a)(2 and 4), the purpose of this executive session is to discuss matters pertaining to the annual evaluation of the Planning Director. This session pertains to the evaluation of the Planning Director’s work performance where consideration of matters affecting privacy will be involved. Further, to consult with legal counsel regarding powers, duties, privileges, and/or liabilities of the Planning Commission as it relates to the evaluation of the Planning Director. Mr. Hull: Chair, there is no further agenda items with the exception of the Executive Session. So I can turn it over to you, Chair, to read the actual language as Laura as kind of recommending earlier. Then if a motion could be made to ultimately go into executive session with adjournment thereafter, that way, we will not have to come back into the main Planning Commission line. Ms. Barzilai: Excuse me. Chair Apisa: Okay. Ms. Barzilai: Excuse me, Madam Chair. I believe that it would be proper at this time for Madam Chair to consider a motion to move into executive session and state the purpose. And if this motion passes then I will read the notice. Mr. Hull: Sorry, okay. Ms. Barzilai: No problem. Then, Madam Chair, also, you may entertain a motion to invite Director Hull into this executive session as a resource regarding his evaluation. So two motions. 9 Chair Apisa: So how specific does the purpose? Ms. Barzilai: Just as stated in the agenda item H.1, would be appropriate. Chair Apisa: Okay, thank you. Ms. Barzilai: Thank you, Madam Chair. Chair Apisa: Thank you. Pursuant to Hawaii Revised Statute Section 95-5(a) (2 and 4), the purpose of this executive session is to discuss matters pertaining to the annual evaluation of the Planning Director. This session pertains to the evaluation of the Planning Director’s work performance or consideration of matters affecting privacy will be involved. Further, to consult with legal counsel regarding powers, duties, privileges and/or liabilities of the Planning Commission as it relates to evaluation of the Planning Director. Do we have a motion to move in to executive session? Ms. Cox: I move that we move in to executive session with that stated purpose. Ms. Otsuka: Second. Chair Apisa: All in favor? Aye. (Unanimous voice vote). Ms. Nogami Streufert: Aye. Ms. Otsuka: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Chair Apisa: Any opposed? None. Motion carried. 6:0. I would like a second motion to invite Planning Director Hull to join us in executive session. Ms. Cox: I will make a motion to invite Planning Director Hull into our executive session. Chair Apisa: Do we have a second? Ms. Otsuka: Second. Ms. Nogami Streufert: Second. Chair Apisa: All in favor? Aye. (Unanimous voice vote). 10 Ms. Cox: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Ms. Nogami Streufert: Aye. Ms. Otsuka: Aye. Chair Apisa: Motion carries. 6:0. We will move in to executive session with Director Hull joining us. So we log out and then log in to executive session, correct? Correct? Ms. Barzilai: Yes that is correct, Madam Chair. Ms. Cox: Do we have to do something if we are not going to come back? Like, say, we are not coming back officially. Chair Apisa: I thought we do have to officially, come back after executive sessions. Ms. Cox: I thought Kaaina was suggested you do not have to. If we have to that is fine. Ms. Barzilai: If I may, I believe that we should return to open meeting to properly adjourn. Chair Apisa: Okay. We will… Ms. Barzilai: Thank you, Madam Chair. Chair Apisa: …leave this meeting and adjourn to executive session. Thank you all for attending. The Commission moved into Executive Session at 9:21 a.m. The Commission returned to Open Session at 10:05 a.m. Chair Apisa: Call the meeting back to order after Executive Session. Kaaina, do you want to go on thorough, there is no Unfinished Business? UNFINISIHED BUSINESS ( For Action) Mr. Hull: Moving on, there is no Unfinished Business. NEW BUSINESS Mr. Hull: We have no New Business as we handled the New Business; we took the action on New Business. 11 For Action - See Agenda F for Project Descriptions ANNOUNCEMENTS Topics for Future Meetings The following regularly scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter on March 09, 2021. The Planning Commission anticipates meeting via teleconference but will announce its intended meeting method via agenda electronically posted at least six days prior to the meeting date. Mr. Hull: Moving on to Topics for Future Meetings. Coming next month, we have an application for housing in Koloa Town. We also have some administrative rules coming your folks’ way concerning guesthouses and housing. We also have the Hanalei Bay Resort appeal or declaratory action request, which could be lengthy. So that is coming up as well as in the next proceeding months we’ve got a couple housing applications. A series of administrative rules that will be agenized. If there is anything else that any Commissioners would like put on the agenda, the (unintelligible) is all yours. Chair Apisa: All right. Kaaina, next month is there was one I think reference Kilauea. Next month? Mr. Hull: Correct. There is a Kilauea, the Old Mill application. Mr. Apisa: Okay. Thank you. Vice Chair Cox, that Kilauea Old Mill and the HBR are the two agenda items that, I will be turning the meeting over to you. Ms. Cox: Okay. ADJOURNMENT Mr. Apisa: So, I guess that is it. I cannot think of anything else. Anyone else have anything to add? Otherwise, we could have a motion for adjournment. Ms. Cox: I have a question for Kaaina. I definitely am going to want to meet with Laura, before the meeting. However, how far in advance do you think that would make sense? I mean, how soon do we, because we usually get, the packet on about a Wednesday for the following Tuesday. So would it make sense that Laura and I get together sometime between those two dates? Mr. Hull: We can get the packet comes a week before. On any agenda items, you want to discuss with Laura or myself, please feel free to give us a call. With the HBR one, of course, because of the litigious nature of it and because of the potential of the contested case, indeed, we should not meet. However, you and the attorney, whether you want to meet before that time, or during that week period completely I’d have to leave it to you folks to kind of work out. Ms. Cox: Okay. There is nothing, no reason that we would have to wait ‘til right before. 12 Mr. Hull: No. Ms. Cox: Okay. Mr. Hull: But then… Ms. Barzilai: I do not think so. I think we can meet anytime. Ms. Cox: Laura, I will probably get in touch with you, and see what makes sense for both of us. Ms. Barzilai: Sure, that sounds fine, Commissioner Cox. And I don’t think we’ll be receiving any additional documents on this. So, really, the file is complete, and we could meet any time. Ms. Cox: Okay. Thank you. Ms. Barzilai: Thank you. Ms. Cox: I will be in touch. Thank you. Chair Apisa: Great prep work there. Helen, I am sure it will be fine. No, you are doing all the right things. Anyone else have any comments or questions? Otherwise, I’ll entertain a motion for adjournment. Ms. Nogami Streufert: I move to adjourn. Ms. Cox: I second. Chair Apisa: All in favor? Aye. (Unanimous voice vote). Ms. Otsuka: Aye. Ms. Nogami Streufert: Aye. Mr. DeGracia: Aye. Ms. Cox: Aye. Mr. Chiba: Aye. Chair Apisa: Any opposed? None. Meeting is adjourned. 6:0. Thank you. Chair Apisa adjourned the meeting at 10:11 p.m. 13 Respectfully submitted by: _________________________ Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of __________ meeting. 1 , ` KAUA‘I PLANNING COMMISSION REGULAR MEETING March 09, 2021 The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Vice Chair Helen Cox at 9:03 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 444 715 279# The following Commissioners were present: Ms. Helen Cox Ms. Glenda Nogami Streufert Mr. Melvin Chiba Mr. Francis DeGracia Mr. Ho Absent and Excused: Ms. Donna Apisa Lori Otsuka The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Mike Laureta, Dale Cua, Romeo Idica, and Planning Commission Secretary Leslie Takasaki; Office of the County Attorney – Deputy County Attorney Laura Barzilai; Office of Boards and Commissions – Administrator Ellen Ching, Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Vice Chair Cox: Called the meeting to order at 9:03 a.m. ROLL CALL Vice Chair Cox: So I think everybody is - okay so, I am going to call this meeting to order, welcome everyone. I will be chairing the meeting because Donna Apisa is not - our normal Chair is not able to get on this morning, maybe she will join us as soon as she can, but for now I am chairing the meeting. Kaaina, could you do a roll call, please? Planning Director Mr. Kaaina Mr. Hull: Before we start, everybody's that called in, please mute your phones. If you have not mute your phone, we are getting a considerable amount of feedback. If you would like to testify and speak at a later time, in the agenda, the code is *62 to unmute your phone. But, again, everybody that's called in, please mute your phone or video conference capabilities, thank you. So Madam Chair, roll call - Commissioner Chiba? 2 Mr. Chiba: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Otsuka is excused. Commissioner Streufert? Ms. Nogami Streufert: Here. Mr. Hull: Commissioner Apisa is excused. Chair Apisa: That's actually - Kaaina, I'm on the phone, I just can't my video going, but I'm present on the phone and I defer, Helen, Vice Chair Cox to run the meeting today. Mr. Hull: Hold on, just hold on, let me just okay, Commissioner Apisa's present. Vice Chair Cox? Vice Chair. Cox: Here. Mr. Hull: I sorry, I'm going to ask for a two-minute recess Madam Chair to defer with the County Attorney's on Commissioner - on Chair Apisa's presence on the meeting, yet unable to chair it may create an issue as far as she's supposed to chair it. So let me sidebar, if we could have a two-minute break there, Madam Chair. Vice Chair Cox: All right, two-minute break, thank you Kaaina. The Commission recessed this portion of the meeting at 9:06 a.m. The Commission reconvened this portion of the meeting at 9:08 a.m. Mr. Hull: We clarified that issued, if you want to call the meeting back into session. Vice Chair Cox: Okay, I would like to call the meeting to order and back into session at 9:08. We already had the roll call, so I do not believe we need to repeat that do we, Kaaina? Mr. Hull: No Madam Chair. We have five present. Just for the clarification for the Commission members as well as any of those who are calling into witness or testify in the meeting. Commissioner, Chair Apisa, is having technical issues, and so she is actually calling in as a member of the public to monitor but will not be participating in the meeting as a Commission member. So technically, she is excused as a Commissioner. Vice Chair Cox will be chairing this meeting. So moving on Madam Chair, sorry, were there any questions for any of 3 the Commissioners pertaining to that little hiccough? Okay hearing none. Thank you for your patience folks. APPROVAL OF AGENDA Mr. Hull: Next Madam Chair is the approval of the Agenda, The Department has one recommended change, it's a standard recommendation we make during the teleconferencing system and that's that Agenda Item F., excuse me, Agenda Item…sorry, Agenda Item - excuse me, we're recommending that Agenda Item M., be moved so that each of the New Agency Hearings be immediately followed by the review of the New Business pertaining to that particular matter, and that's the one amendment we will recommend. Chair Cox: We need to have - can we have a motion to approve that change? Ms. Nogami Streufert: I move to approve the Agenda as amended. Chair Cox: Is there a second? Mr. Ho: Second. Mr. DeGracia: Second. Chair Cox: Okay, I think this is an easy vote so, I will accept here - none of you is visuals so I guess, if there are any objections please state so now. Okay, hearing none. The change in the Agenda is approved. Motion carried. 5:0. MINUTES of the meeting(s) of the Planning Commission Chair Cox: So I believe we do not have Minutes. RECEIPT OF ITEMS FOR THE RECORD (None) Chair Cox: Do we have receipt of items for the record, Kaaina? Mr. Hull: No, there are no additional Receipt of Items for the Record, Madam Chair. HEARINGS AND PUBLIC COMMENT Chair Cox: Okay, in that case we are moving right to the Hearing and Public Comments. Mr. Hull: Oh, no go ahead. Chair Cox: Okay. Mr. Hull: No problem... 5 the god of Kahekili II and (inaudible) III. Kiha is the husband of Kamakahele and the father of Keawe. Kawelomakualua is from the Kawelo lineage that is well known. (inaudible) is from the (inaudible) lineage, and (inaudible) is the father of (inaudible) and they are buried in this area. I have submitted what's called a burial registration and a lineal descendants list, so this is what we called a new finding in hopes that SHPD can pick this up and do the permitting for the project in protection of these burials. Also I would like to let the general public know with further development you're going to find a lots encroaching on our burial systems, especially here. I would like to make it known that there is no drainage plan for the Koloa ahupua’a for the development that are upcoming upcoming. Um, there also is not a traffic evaluation plan as far as I know , or an evacuation place. So please let the general public be provided with these plans, and take care - Aloha and God Bless. Chair Cox: Aloha, thank you for your testimony. Mr. Hull: Thank you for your testimony. Next we have area c- or area code , would you like to provide testimony on any Agenda Item? Ms. Allison Shaw: This is for Bruno—? Mr. Hull: Okay, if... Ms. Shaw: Call - yeah. Mr. Hull: All right, are you a representative for the applicant of an Item¸ or would you like to testify as a member of the public? Ms. Shaw: This is for Bruno text (inaudible), yeah; did you get the text from him? Well, he said to call in this - this particular call this morning to apply - to submit a testimony on an approval of (inaudible)… Mr. Hull: Yeah ma'am, so if you would like to testify on the Kilauea Old Mill application, now would be your time to do so. You have - you can state your name a- and you have three minutes for testimony, ma'am. Ms. Shaw: Are you talking to me? Mr. Hull: Yes. Ms. Shaw: Oh, my name's Allison Shaw, I am sorry, I did not (inaudible), me. My name's Allison Shaw and yes, I want to support the Kilauea, Old Mill application. Our family chose - our family has been involved with the Jujitsu Dojo and we our children have been going there for a few years - a couple years, and it supports so many families and such an incredible experience for all the children that go there. And we definitely support that it continues as it has been, um, it is vital for our community and so many lives are positively affected by the opportunity that, that has provided for this community and it's highly needed and an incredible experience for all these children f or years - and adults. And we believe that is the absolute best use for that space - 10 Woman: Yes. Mr. Hull: Please state your name and you have three minutes for testimony. Woman: Hi, my name is (inaudible), I would like to testify as a member of the public to support approval of the Kilauea Old Mill application and to support the Longman Jujitsu school. Um, my son attends Jujitsu with - Jujitsu with Professor Bruno twice a week and his recently turned 4-year old brother will hopefully begin attending class soon too. Um, we hold Professor Bruno, my husband and I do, in the highest regards. His is Jujitsu school is a positive aspect to the community in Kilauea and beyond. To lose it would be truly detrimental to our youth who rely on it every week as a way to boost self-confidence - learn to help others become physically fit, learn discipline and self-control, and also learn how not to be a target for bullies, and try to perfect the life of Jujitsu. There is so much to (inaudible) and we are in full support of this continuing and value it very highly, thank you. Mr. Hull: Thank you for your testimony, ma'am. Moving onto area code 808-977-0109, would you like to provide testimony? Kelly Sasaki: Yes, I would. My name is Kelly Sasaki, I am in community and I also live here in Kilauea - I also own a business here. We are in full support, my husband and I of the Kilauea Old Mill application. Our child attends Jujitsu class there consistently and has done so for over two years. (Inaudible) and our (inaudible) I (inaudible) Bruno just does not teach the Jujitsu classes, he teaches these children how to become (inaudible) leaders in the community, which is essential. A lot of these kids are buildings friendships (inaudible) come together and having a sense of community just (inaudible) so we are in full support and that's it, thank you so much for your time. Mr. Hull: Thank you for your testimony. Moving onto area code , would you like to provide testimony on any Planning Commission Agenda Item? Again, area code would you like to provide testimony on any Agenda Item at this time? Mr. Peter Morimoto: Yes, I would. Mr. Hull: Please state your name. You have three minutes. Mr. Morimoto: My name's Peter... Mr. Hull: Well sorry. Go ahead. Mr. Morimoto: My name's Peter Morimoto, I am an attorney and I represent Jim and Shelly Spencer. The Spencer's have a real problem with the Public Hearing Notice provided to them. It conflicts with the Planning Commission's rules, specifically Rule 1-4-3, which states that, "The, uh, petitions for intervention be filed seven days prior to the Agency Hearing, uh, for which notice to the public had been published pursuant to law." There is no notice of an Agency Hearing and that's problem number one. 12 Mr. Rex: Okay, thank you. My name is Steve Rex, I am a Pastor in the community of Kilauea, I live right across the street from the Old Mill, and I am calling as support to Longman Jujitsu. Bruno is a great man, loves the community - loves to help the children and families. We have a number of people in our congregation that attends this program, and are benefitting from it. I think it would be a tragedy to remove something like this where the kids needs someone who's actually teaching good morals, good values, help the elderly, be a blessing to the community, and not a problem. So I am in full favor of this continuing here. I live right across the street, there is no inconvenience by this group being there is nothing that gets in the way. It's a blessing to see all the kids riding their bikes down the street to come to class - um, it's been a real blessing to the community and we need more things like this for the community, thank you. Mr. Hull: Thank you for testimony. Area code , would you like to provide testimony on any Agenda Item for the Planning Commission today? Mr. John Johnson: Yes, this is John Johnson taxpayer, house homeowner in Kilauea. My family used the Old Mill - prior to Jujitsu, it was a restaurant, a motorcycle, repair shop - um, my kids go to Jujitsu, we also use - next to that we use the pharmacy, the doctor's office - I use the lumberyard - everything in this community I use and - and I'm all for the community, thank you. Mr. Hull: Thank you for your testimony, sir. Moving onto , would you like to provide testimony on any Agenda Item today? Mr. Brian Hoshide: Yes, I would. Mr. Hull: Please give your name (inaudible)... Mr. Hoshide: Yes, my name is Brian Hoshide. I lived on Kauai my whole life. I have trained martial arts in Kilauea when I was a kid - I trained with Bruno here at the Longman studio. I don't see any reason why they should change, I don't see any inconvenience to the community, it's a very positive outlet - my son trains with me, I think it's a great opportunity for the community to connect. I do not see the benefit in changing this to residential, I do not even personally - I am a contractor and I do not even really feel like this building is all suited for residential. Mr. Hull: Is that all your testimony Mr. Hoshide? Mr. Hoshide: Yes, yes that is all. Mr. Hull: Okay, thank you for your testimony, sir. Next, we have area code would you like to provide testimony on any Planning Commission Agenda Item today? Mr. Waren Doi: Yes, I would. Mr. Hull: Please go ahead and state your name and you have three minutes, sir. Mr. Doi: My name is Warren Doi and I strongly support Bruno, and I would like to highlight the incredible work he does for our community. The Longman Jujitsu Academy at the Kilauea Old Mill has been the foundation of support for our keikei throughout the years. It is really hard to 13 describe just how much of an impact Bruno has made, he's instilled confidence, self-reliance, personal growth throughout our youth. He is also combatted bullying, drug abuse, and depression. Several years ago, Micah Kane, from the Hawaii Community Foundation brought us all together to focus our attention on the drastic increase in teen suicide, and since that point we've been doing' everything we can to combat that and we just simply cannot do this work without Bruno and the constructive environment that he's created. His Dojo and the Longman, jujitsu Academy is the highest and best use for our community period. Thank you. Mr. Hull: Thank you for you testimony, sir. Area code , would you like to provide testimony on any of the Agenda Items for the Planning Commission today? Mr.Van Skoubis: Yes, I would. Mr. Hull: Please, go ahead state your name and proceed, sir. Mr. Skoubis: My Van S koubis. I am a HVAC Contractor on the island as well as a part-time Youth Pastor at a church. I would like to testify of the Old Mill, Project in Kilauea as well as Longman jujitsu. Just being here and working here with our youth here on this island, I can guarantee that these kinds of programs are absolutely vital to their health and survival. If we do not provide things like this for our youth to do, they will find other things and they are not productive, and they are very detrimental to the growth, both you know, physically and mentally. We do - we talked about suicide as well as drug use. These are - programs like this are directly affecting those numbers to go down, so we want to continue to support programs like this - (inaudible). So, yeah, I'm strongly in favor in support of that, thank you. Mr. Hull: Thank you for your testimony. Next, we have , would you like to provide testimony on any of the Agenda Items today? Mr. Mike Thornton: Yes, I would. Mr. Hull: Please, go ahead state your name and proceed. Mr. Thornton: My name is Mike Thornton, born and raised on the north shore of Kauai, which my kids are attending jujitsu at Bruno's academy for the last two years. I am in full support of this and for the other patrons that use this facility for its commercial use. There is not a lot of commercial space on the north shore and it is hard enough to do - and keep a business running in these hard times, so full support of the way the entire structure is used. Thank you that is it. Mr. Hull: Thank you for your testimony. Next, we have , would you like to provide testimony on any of the Planning Commission Agenda Items today? Mr. Raffa Wood: Yeah, I would, I would like to, (inaudible) - oh yeah, my name's Raffa Wood and I would love to testify in - in support of Longman jujitsu. I've been doing jujitsu since I was, like, three years old - I was raised in Kilauea and I just think that it's such a good outlet for the kids, you know, kids it’s something better to do because there's so many ways that they go down the wrong path. I think that jujitsu does not only keep kids out of trouble but it teaches respect, and it teaches so many just great values that you should learn and it teaches you, um, how to be very humble and disciplined. I think that every kid needs jujitsu in their life, and same thing with adults, I think Jujitsu is a great outlet for a lot of adults who've wanted to change their lives 14 for the better, and I just think that it's a great thing for the community and there's no reason why it shouldn't - why it should change, thank you. Mr. Hull: Thank you for your testimony. Next we have area code , would you like to provide testimony on any of the Agenda Items for the Planning Commission today? Dr. Richard Blair: Yes, I would, sir. Mr. Hull: Please go ahead and state your name, please? Dr. Blair: My name is Dr. Richard Blair. I am a 50 years plus resident, I am an essential healthcare professional and I am calling to give my full support to Bruno. I have been training (inaudible) with Bruno for the last 15 plus years and not only has it been a positive experience in my health and well-being but even more important, I guess in a positive in all the children and young adults that have trained with Bruno. They are kinder, they are gentler, they have a better rapport and more respect for their parents and teachers. They are less apt to get in trouble and will grow up to be better citizens. Overall Bruno has been a great influence on our community and for that stop - for that to stop, that would be a bad thing, thank you so much. Mr. Hull: Thank you for your testimony. Again, for all those who have called in or on tele- video system, please mute your system - please mute your phones. We're getting some feedback, somebody's playing a television right now and quite honestly they're 80 some odd people on this phone conference so that is being somewhat disruptive, so please mute your phones if you're not speaking. Moving onto area , would you like to provide testimony on any of the Agenda Items for the Planning Commission today? Ms. Ana Mo Des: Yes, thank you - okay, can you hear me okay? Mr. Hull: Oh, yeah go ahead state your name and proceed, ma'am - you have three minutes for testimony. Ms. Mo Des: Okay thank you, good morning Kaaina and members of the Planning Commission. My name is Ana Mo Des and I am calling in support of the 40-unit increase in Koloa Village. There is as you are well aware, a huge problem on this island with housing that is attainable for local families. This developer is intending to do that, provide what can be attainable for local families. Everything that is a project right now is luxury and catering towards the visitor destination area and that I am extremely opposed to. Uh, this development has taken into landscape and history of this town Koloa and its people and created a space where small business and local families may thrive and prosper. In my opinion, it should only be developments like this that should have permission to construct their projects, only those developers that have a stake in the population they are building for should be allowed the privilege to develop on this island, and especially in this special town of Koloa. Honoring its history and bringing everyone together towards a bright future instead of appealing to just a visitor and luxury market. This developer has done just that, and in listening to communities need for attainable housing has changed the plan from 34 expensive units to 74 affordable units. Please grant the 40-unit increase so more local families can attain their feasible homes. I would ask the community to look at the project to what is happening in Koloa Village because this is who - what we need to target. Um, the commercial side of this project is only for local businesses, mom and pop stores that are dying right now. Every other commercial outlet is big dog stores and that does not serve 15 a local artistic community that wants to have an opportunity to thrive. And the affordable housing model itself doesn't work because for every 20% of, "Affordable housing," that has to be subsidized in perpetuity, there's 80% that has to be up-marked to an extreme degree, and that's the housing that goes on the market, and it does get sold and it always gets sold by someone on the mainland coming in. So we should only allow projects that are going to allow families to attain their homes, feasible - have a vested interest and be able to use equity to provide a future for their children - be able to go to college and use home equity as a possibility to get out from under the thumb of what's been happening on this island for so long. So this simple change can start to alleviate a big issue that we have, and have more attainable p- priced homes at $300 thousand or so, on the market abused as price comparable, so that we can start to manage this huge influx of (inaudible) homes that always get (inaudible)... Mr. Hull: There is three minutes (inaudible)… Ms. Mo Des: Okay, m y time is up, I appreciate, uh, being able to testify this morning, thank you so much. Mr. Hull: Thank you for your testimony Ms. Mo Des. Uh, next is area code would you like to testify on any of the Agenda Items for the Planning Commission today? Ms. Shawn Nakaielua Villatora: Yes, I would, my name is can you hear me? Mr. Hull: We can, ma'am, please proceed. Ms. Shawn Nakaielua Villatora: My name is Shawn Villatora, also known by my Hawaiian name Nakaielua. I am a culture practitioner from Maui and I wanted to testify, um, primarily against, the Development project use permit U-2008-10, um, for actually Bill - the one for the Koloa Village, LLC, that is allowing 40 additional multifamily residential units between the Weliweli Road and Waikomo Road intersection. For me, I just, um, coming to knowledge that I am a lineal descendent of burial grounds located in that parcel, and with my, understanding of the Wailua of the Koloa aqueduct system and filtration system, all of Koloa - like, many people know that on top Kauai is one of the - is the youngest spot in our island chain and it is very famously known for their tube systems under - underground. For me personally - I mean, I'm not a resident of Koloa but my heart and my understanding that, that place definitely doesn't have the (inaudible) the representatives of actual Kanaka’s letting people be aware that with all these additional developments coming into Koloa, which I believe is plans to be 22 in the next 10 to 15 - 20 years. The system itself - that the underground system itself is not able to sustain all of those, um, developments that require a drainage plan, which I believe is not even provided for most of those developments there in Koloa, and evacuation plan. I mean, during 2018 there was a huge flooding of because of, um, (inaudible) reservoir and we're not guaranteeing our people, you know, nothing - even our residents that their safety being upheld if there is going to be an ad- additional, affordable housing for our people. So me for me I'm testifying against it because I don't even believe that there - there should be a drainage plan provided to the public so that we understand that any more developments are not going to be affecting or ocean, our reef systems. And most of us know that Southside of Kauai water is - is incredibly contaminated and we - I 16 feel like the best way is just not to add to the problem but that's just what I feel. And I just wanted to be able to testify this money against that permit, uh, have a great day, Aloha. Mr. Hull: Thank you for your testimony. Next, we have area code ; would you like to testify on any of the planning commission agenda items today? Mr. Gary Pacheco: Yes. I would like... Mr. Hull: Go ahead and state your name, you have three minutes for testimony. Mr. Pacheco: Yeah, my name is Jared Pacheco from Kilauea, a lifetime resident here and I have known Bruno from when he first started. He started his business here in my garage with my son. My son has excelled in his life learning the good things about Bruno and his team. So I strongly support that Bruno's, business continues in his location. I had a business located in the same area a couple of years ago, and we were welcomed by the community. And Bruno is welcomed in the community because of the good things that he's done to the children who are our future leaders in the island and especially on the north shore. I strongly support Bruno and I hope you do to, mahalo for your time. Mr. Hull: Thank you for your testimony Mr. Pacheco. Next we have area code would you like to provide testimony on any of the Agenda Items for the Planning Commission today? Again, area code , would you like to provide testimony on any of the agenda items today? Ms. Donna Apilado-Schumacher: Yes, I do. Mr. Hull: Please state your name, ma'am, and you have three minutes for testimony. Ms. Apilado-Schumacher: My name is Donna Apilado-Schumacher, I am a resident of Kilauea for 50 years, I was raised here. I am also a business owner located in Kilauea. I am in support of the Kilauea Old Mill and Longman jujitsu. My son is a student of the Longman jujitsu; he has been there for three years. And these are the reasons why Longman jujitsu is vital to our community, it provides this family atmosphere promoting a sense of belonging - it's fun for students learning not only self-defense but discipline and self-respect and respect for others while making you friends. It teaches life, discipline, life skills, social skills, and moral values. Its empowering students to present themselves with confidence. It is fostering community- oriented students; it is also fostering leadership and cooperation through students, teaching students jujitsu. It has a very strong emphasis on anti-drugs, it is also discouraging drugs through the presence of adult jujitsu athletes as role models and caretakers of the neighborhoods. It has an anti-bullying theme addressed within and outside of the dojo. It is building self-esteem, which not only prevents the future drug use, but also provides a solid foundation for better success for our youth. For these reasons, I strongly support Bruno and I hope you do as well, mahalo. Mr. Hull: Okay, thank you for your testimony. Next we have area code , would you like to provide testimony on any of the Planning Commission Agenda Items today? Man: Not today, thank you. 18 Ms. Spencer: Hi, my na me is Shelly Spencer, and Peter sent in the letter for us. I would like to point out to everyone that we are not against Bruno, Bruno does wonderful things. We are responding to the restaurant, the juice bar, they want to open that no one has spoken about. I think Bruno's thing is great - I am sad that he was spent paying rent and having been (inaudible), that is not his problem. So I'm sorry that this has become about Bruno - I support Bruno, never complained about his name. I am against that expansion of the use permits, which would put another thing into the building, that's (inaudible) one business. So just so we're clear, we are against the expansion of the use permits with the restaurant. And Bruno can be legal in there - we're supportive of him. I do not want more expansion of the area, so just to be clear on that for everyone, I feel the same way - everyone does about Bruno, but I don't want it to be just about Bruno. I want it to be about the fact of the use permit being expanded, and no one has spoken about the juice bar. And in our letter, we were informed who was (inaudible) the juice bar, but I am totally against the expansion of the juice bar, just to be clear, thank you. Mr. Hull: Thank you for your testimony. Uh, again, is there anyone that has called into the meeting today that would like to testify that has not spoken on any Agenda Item that would still like to speak? Ms. Elizabeth Okinaka: Yes, I would like to. Mr. Hull: Well please go ahead and state your name, and you have three minutes. Ms. Okinaka: Aloha, my name is Elizabeth Okinaka, so, this is for me expansion for the Koloa Village. I am not against affordable housing, but what I am against is the impact that this will have on the area. I would like to know if there has actually been a proper EIF study because of - this potential case and burials on the land and for a lot of these developments in Koloa. These EIF reports are for a huge general area and very vague - again, we have no proper drainage, no proper evacuation and direct - apart from this development, uh, more investors have just bought all of the other affordable housing units for $4.5 million. So if you really care about the character of the local town, this will have a huge impact on it. So just be aware that, you know there is a huge development happening right now (inaudible), um, our waters are polluted and it's because a lot of these developments have not had the proper, you know, drainage traffic studies done. So thank you for letting me give testimony. Mr. Hull: Thank you for your testimony. Again, is there anybody that has called in that has not testified that would like to testify on any of the Agenda Items listed for the Planning Commission today? Okay, again, is there anyone who would like to testify on any of the Agenda Items that has not testified, uh, at this point? If you like to testify, please state your name? Continued Agency Hearing Mr. Hull: We have no Continued Agency Hearing. New Agency Hearing Amendment to Project Development Use Permit PDU-2008-11, Use Permit U-2008-10, and Class IV Zoning Permit Z-IV-2008-12 to allow forty (40) additional multi-family residential units from 34 to 74 on a parcel situated at the Weliweli Road/Waikomo Road 19 intersection in Koloa Town, further identified as 5469 Koloa Road, Tax Map Key: 2-8- 008:001, and containing a total area of 5.381 acres= Koloa Village, LLC. Mr. Hull: Madam Chair, I think we can move onto Agenda Item F. 2. New Agency Hearing. So New Agency Hearing for a. Amendment to Project Development Use Permit PDU 2008-11, Use Permit 2008-10, a Class IV Zoning Permit Z-IV-2008-12, to allow 40 additional multifamily residential units from 34 to 74 on a parcel situated at the Weliweli Road - Waikomo Road intersection in Koloa Town, 56- excuse me, 5469 Koloa Road, Tax Map Key: 2-8-008:001, and containing a total area of 5.381 acres, Koloa Village, LLC. At this point, there is the Agency Hearing. Is there anybody that is called in that has not testified that would like to speak on the agency hearing specifically for Koloa Village? Ms. Shawn Villatora: If we testified earlier, could I give testimony again? Mr. Hull: If you would like to know the Planning Commission received the testimony when you testified - if you testified earlier. If you would like to testify specifically for this Agency Hearing, you could do so, it is this Agency Hearing dedicated specifically for Koloa Village or you can reserve the testimony you gave previously, either one is your right to do, ma'am. Ms. Shawn Villatora: Yeah, so I would like to give additional testimony for that, because I know there's a few of us that have been working together (inaudible)... Mr. Hull: Sorry ma'am, if you can give your name again, and then you do have three minutes for this Agency Hearing portion. Ms. Villatora: Okay, so aloha, my name is Shawn Villatora, I am apart of (inaudible), a nonprofit, um, I am able - so I have a group of us that we do a lot of work studies in Koloa. And like, I said, in my testimony before there's not a proper drainage plan or a - an evacuation plan for most of Koloa's development. We're just trying to make sure that any additional development an agricultural aqueduct system will be in compliance to giving - um, having the public be able to have information about whether or not they have had a proper drainage plat at - or evacuation plan for their residents. Or for the plan to have these affordable housing. There is burials located on that property - or on that parcel that we are aware of - um, there is a lineal descendancy form going out to (inaudible) right now, um, I believe today or yesterday was submitted and, just to let the Commission know that there is lineal descendancy out living to this day like me and a few others, um, that are aware of it that, um, us - right under our - part of it that are direct there is lava tubes that connect most of Hawaii together. And to be able to understand that if they're planning on putting their septic systems or their waste management systems straight into the lava tube, like most of the developments in Koloa. They will continue to add to the high amount of fecal matter in the ocean shores in the south side. And for me being, um - (inaudible) of this land, it's kind of just a continuation of a cycle of bad cycles continuously projected markets the Southside (inaudible) that the luxury high places for people to visit and then realizing that, you know, there's - there's (inaudible) wellbeing is not being upheld. And then that pretty much will cover, uh, my testimony for today. 20 Mr. Hull: Thank you for your testimony, ma'am. Is there anyone else who was called in though has not testified or would like to testify on the Agency Hearing for Koloa Village? Alex Dotter: Yes, I would like to testify. Mr. Hull: Please state your name and you have three minutes, ma'am. Alex Dotter: My name is Alex Dotter, my testimony regarding the Koloa Village and what I do not understand is how they are able to market this as family-oriented, fee-simple units. When what I have seen on the video and on the website looks to be just a few one-bedroom and some two-bedroom units. So to me there is a disconnect between affordable housing and what we would actually be getting with this particular project, and I think throughout Koloa, there is an issue talking about the same thing. Thank you. Mr. Hull: Thank you for your testimony. Is there anyone else would like to testify specifically the Agency Hearing for Koloa Village, LLC? Again, is there anyone on the line that has called in that would like to testify specifically on the Agency Hearing for Koloa Village, LLC? Seeing no further testimony, Madam Chair, the Department would recommend closing the Agency Hearing and moving directly into the Director's Report by the planner but that is at the discretion of the Commission. The Department would recommend closing the agency hearing. Deputy County Attorney Laura Barzilai: Excuse me, Madam Chair. Chair Cox: I am muted, sorry. So may I ask for a motion to close the Agency Hearing so that we can move onto hearing the Director's Report? Ms. Nogami Streufert: I moved to close the Agency Hearing. Chair Cox: Thank you is there a second. Mr. Chiba: Second. Chair Cox: Thank you. Should we have a roll call, Kaaina? Mr. Hull: Certainly Madam Chair, uh, roll call, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. 21 Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0. Madam Chair. At this point with the Amended Agenda, we move directly into the Director's Report and presentation. I will turn the Director's Report over to Dale for this particular matter. Dale, you want to provide the report. Staff Planner Dale Cua: Sure, good morning. Madam Chair and members of the Planning Commission. I will summarize my Director's Report knowing we have a full agenda. So, I am required by the Planning Commission, consideration of applicant's request to amend Project Development Use Permit Class IV Zoning Permit and Use Permit to 40 additional multifamily residential units to the residential aspect of the project. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: Our recent improvements related to the commercial phase of the development were made to both Waikomo and Weliweli Roads to accommodate sidewalks as well as on-street parking stalls. At this time, this concludes the Director’s Report. Chair Cox: Thank you, do we have any questions from the Commissioners for Dale? Woman: Um, I had a question. Chair Cox: Are you a Commissioner? Woman: Oh no, I (inaudible) testimony... Chair Cox: Public testimony, we have closed and so now, we are actually having the Commission be able to ask questions. Woman: All right. Chair Cox: Thanks. Any Commissioners have questions for Dale. Ms. Nogami Streufert: Helen, this is Glenda. 22 Chair Cox: Hi Glenda. Ms. Nogami Streufert: Dale, good morning. Mr. Cua: Good morning. Ms. Nogami Streufert: There have been several comments that have come in this morning about, uh, the (inaudible) underneath this area. Is there anything to justify that one or is there anything like that in the records? Mr. Cua: In researching the file and dating back to 2008, when the project was initially, being evaluated the applicant or the representative at the time did consult with the state historic preservation division and did complete an AIS and archeological inventory survey. And based on the report that was submitted at the time, their conclusion was that there was no effect on archeology or historic properties. Ms. Nogami Streufert: Okay, and then Condition 22 in the original approval, which says, "If historic cultural remains such as archeological artifacts, charcoal deposits or human burials are found during construction, the applicant shall stop work in the immediate area and shall contact the state's Historical Historic Preservation Division and the Planning Department to determine appropriate action." That is still - that still stands, is that correct? Mr. Cua: Yes, absolutely. Ms. Nogami Streufert: Okay, thank you. Chair Cox: Thanks Glenda. Any other questions for Dale? Mr. Ho: Madam Chair, please. Chair Cox: Yes. Mr. Ho: Dale, this is Roy, good morning. How does the new density fit in with the zoning and that - of the properties? Mr. Cua: As I have mentioned in the Director's Report with the adoption of the South Kauai Community Plan, the development policies contained in that plan actually allows more units to be allocated to the property. While you know, the subject property does have residential zoning, you know, the development policies contained in the South Kauai Community Plan kind of work hand in hand with the CZO in a way such that, you know, it provides for more development, you know, in many residential zoned properties, so it's not just specifically to this property. Mr. Ho: So would this - would this be considered a lack of a better word, would this be spot zoning, just targeting? Just certain... 23 Mr. Cua: No, not at all, actually, you know, currently, as I noted in the Director's Report, you know, the property is split-zoned. You know, currently is zoned commercial district and residential district for - so a- and of course there are surrounding properties in the area that are similarly zoned - or allow for more density because of the residential density, so those same development policies would apply to them as well. Mr. Ho: Yeah, and I get that, surrounding properties can take advantage of the residential upgrades of this project, just as this project took advantage of now? Mr. Cua: Yes. Mr. Hull: Yeah, Commissioner Ho, I will just add a bit to Dale's statement in that it's actually the reverse of spot zoning. Spot zoning is where you go into say an agricultural district or a non- urban district, and just give a specific urban zoning for a particular property. This is in the reverse in going through the South Kauai Community Plans; there was a desire to provide for more housing opportunities, in so far they be met within the forming character of the building types that have historically existed in Koloa Town. So the South Kauai Community Plan makes a conscientious effort, you know, after years of working with that community to get that plan done, to allow for more infield development in the town core area, in so far again, as it meets the historical building as it has - have always existed in the past there. So it's recognizing and up zone of this entire area. Mr. Ho: Thank you. Chair Cox: Any other questions for Dale? Ms. Nogami Streufert: Yeah, I do one more. I realized that Koloa is not considered a TVR approved area, and none of these units should be used that way. Should that not be a condition that is in there for - to ensure that this is not used that way? Right now, we have a letter that states that it is not an approved use. But there was no condition in there and it might be cleaner to have it as a condition, but none of these can be used as a TVR, that's something that can be done. Mr. Hull: Yeah, Commissioner Streufert, I will just jump in real quick. So there is automatically an ordinance level prohibition as vacation rentals outside of the visitor destination area, and this particular area is not locating the visitor destination area. So, you know, we feel that the ordinance is adequate. However, at the same time, if the Commission would like to exercise in the abundance of caution to have that specific prohibition placed as a condition of approval. The Department would welcome a friendly amendment should there be a desire to take action on this to prohibit all residential units proposed at the site from being used as vacation rentals. Ms. Nogami Streufert: I think I would be more comfortable with having something like that that is codified and in that - is publicized and codified in there. Mr. Hull: But... 24 Ms. Nogami Streufert: But I will defer it to the other Commissioners also. Mr. Hull: Okay, thank you. Mr. Ho: Commissioner Cox, please. Chair Cox: Yes? Mr. Ho: A questions. Chair Cox: Yes. Mr. Ho: Kaaina, when we make it a condition for approval on this permit, does that also get attached to the deed of the property. Mr. Ian Jung Kaaina, hey, it's Ian, I think maybe if I could just present on the project, I can address that issue before we spend more time on that, just because there is not as many of, you know, this particular... Mr. Hull: Hi Ian, Ian, Ian, hold on one second, Ian we will defer that question, Commissioner Ho to the applicant. Are there any other questions that the Commission has of the Department at this time? Chair Cox: I actually have two but I am not sure therefore that they may be for the applicant rather than the, um, the Department, so I will wait. Mr. Hull: Okay. Chair Cox: Okay, are we ready to move to hear the applicant, any other questions before we move to the applicant? Mr. Hull: Sorry, if there are not any, I just like the follow-up to the initial question that Commissioner Streufert had for Dale concerning some of the testimony that was just received. As Dale mentioned, this project and this site has done an archeological inventory survey that specifically addresses the archeological resources on the site. I can say as far as once has been submitted, as far as the lineal descendant and the location of burial specific on this property, we haven't been able to verify that in the short amount of time we'd gotten that list. So, you know, the applicant may be able to address it with their intimacy with them project, being it is their project, but at the same time if that cannot be addressed. The Department has no problem, you know, asking for deferrals so that we can further research to ensure that burials or archeological resources are not going to be negatively impacted. Chair Cox: Thanks, Kaaina. 25 Mr. Hull: But again, you know, I would also defer to the applicant being that they have commissioned many of these studies so they may have a - have a bit more intimate knowledge, they may be able to address them here today, but I just wanted to open that up. Chair Cox: Okay. Ms. Nogami Streufert: Thank you. Chair Cox: And Glenda, are you okay with us moving to the applicant before we also talk about your, friendly amendment for that? Ms. Nogami Streufert: Absolutely. Chair Cox: Okay. Ms. Nogami Streufert: The question to Dale with that possibility. Chair Cox: Okay, Ian, go ahead. Mr. Jung: Okay, good morning Vice-Chair, and members of the Planning Commission. This is Ian Jung on behalf of the applicant of Koloa Village. Just right off the bat here, I will try to settle one issue, um, as - as many of you know, this was an old permit entitlement that we are asking for an amendment to. So a lot of the conditions that were imposed back in 2008 have been met and, um, recorded agreements have been executed with the County to achieve compliance with those conditions. Including one that is a non-occupancy agreement, which has a specific restriction on transportation rental use, by virtue of law; it is, you know, you cannot do TVRS outside of EDA. So I think at the time when this permit was being approved in 2008, they realized that there could be an ongoing issue so they required it as part of the condition from the original permit. And that agreement was recorded with the Bureau of Advances in 2015 so that's been satisfied and put to rest. So I think that will stave up that issue, if you want, I can email, Dale a copy of that just for his files. Getting back to the project itself, so the location has been identified. With the recent amendments, the South Kauai Community Plan, as well as the form-based code, the new transect zones for which it allows an intensified use of the area and actually allow multifamily structures now. So the whole concept of doing this particular amendment, and I think as one of the speakers and testifiers had indicated is we can get to smaller units that are spread more across the property to allow for an increase of unit count. Which would lead to the additional 40 units, because right now, as many of you remember we did an amendment in 2020, put 14 of the smaller units into the phase one commercial mixed use component. So those were going to be kind of studio units, so that kind of ate up 14 of those original 34 dwelling units that were going to be allowed. So we have 20 left in her asking for the additional density be spread out into quad-flex buildings which would be - nature of what's the commercial context is from an architectural style. So those particular buildings would be four units in each building, two on each side, and the two bedrooms would be about 1100 square feet of living space - or of total space, and then the one bedrooms would be about 800 square feet of total space. And if you 26 want those plans, we can certainly show those on the exhibits. But our architect, you know, has been sensitive to the historic nature of Koloa Town and they aren't designed to take an approach as the old plantation style that was once there. The more historical data that was identified in our archeological inventory survey, as well as the phase one environmental site assessment detailed some of the old plantation homes as residential use on this lot. So the architect designed these homes to try to match that plantation style which I think the commercial, as many of you have seen the commercial side of it, you know, it does have that plantation style, uh, look to it. So I am getting to the question of the archeological information, this is the first we have heard that there may be, iwi or potential burial sites on the property. You know, I know these issues are popping up more and more frequently now. The archeological report we did have back in 2004 as a part of the original permit process, and did not identify any of those sites. But as indicated, there is a condition that if any of those sites are found that we have a responsibility to contact SHPD (State Historic Preservation Division). Another thing to note is a lot of the grating, for the subject property has already occurred as is as a part of the phase one commercial side. So most of the grating work is done, there is a grating plan and a storm water management plan, that has been approved. The Department of Public Works required us to enter into a storm water management agreement, and a lot of that infrastructure is already in the ground out there. So the storm water management agreement will require us to - um, and I do not know the details on that - and Mr. Serpa of Koloa Village is with me so he can answer those questions. Those units have been installed and the drainage plan has been approved, but obviously as you folks know, when you do a site plan assessment – or an amendment, we're going to have to go back in and amend those grating plans to reflect the new siting layout for those new structures. So there's a little more grating work that will be required. So with that, I'll turn it over to Mike Serpa and he can… I think there was one more question, actually, that the condo issue that - you know, there was a question of how these are going to be fee simple that one of the testifiers indicated. It is a condominium project and with the condominium, you can have a portion of the lab itself broken up into a condominium property using which those can be sold as fee simple interest, so that's how, you know, the hope for local families to be able to acquire some of these units will - will be achieved. So there will be your own separate unit within the building that can be bought and sold and can be recognized as a separate TMK as well as can be separately mortgaged and taxed from a real property standpoint. So with that we'll turn over for questions or if Mike is on, he can answer any questions as well. Chair Cox: Mike? Mr. Michael Serpa: Hi (inaudible) Commissioners, so hopefully, you can see me. I think I am on. Thank you very much for taking the time to go through this, there is so much work. I was looking at the Agenda packet. I think it was 928 pages. And I did, I don't know how - Kaaina, I don't know how you guys do that stuff, but I appreciate it, it's thorough and I welcome any and all questions that you guys have. I closed on this property in December of 2014, and when I closed on it, I was told the plans are done and ready to go and the project was ready to build, and it was not quite like that. When we went through it, essentially drainage came up because that was one of the issues in the set of plans - the civil plans, and this was a Honolulu civil engineer, 27 that had done the plans. But when we looked at the plans, we were not satisfied with the drainage plan in particular. So, we redid the entire civil engineering plan, Esaki Engineering, from Kauai did the plan and not only does this site absorb all of its own storm water, it also handles all of the storm water above it from the eastern side of all those property owners, the water that comes down from there. In addition to that, the County Engineer asked that we - off our property, on old Koloa Town, there was a puddling at Koloa Road and Weliweli Road that happened there, would we - uh, we weren't required to do it, but would we install, more drainage there. So drainage has been discussed at - over and over, over many years. The commercial side of the site, the entire parking lot, there is a retention basin under that, that is nine feet deep on the residential side that has been graded you know, there is a similar retention basin underneath of that site. So the drainage is very substantial for this project. I am a 28-year; home developer and drainage and storm water management typically drive the design of your projects. So, when I came in to do my due diligence back in 2014, I spent two years, 2013 and '14 studying the former developers that had had this site, the State, studies, the EIS that was done - in particularly, and I have a long history in State and Federal resource agency permitting, so Army Corps of Engineers, United States Fish and Wildlife Service, you know, I'm - I'm very well versed at that. So, in 2004, there was an archaeological study that was done, there was a developer that had his '07 - um, in '08, the EIS was approved. In '14, late '14, I bought it - in 2016, out of an abundance of caution, I had the State locate again, I have a State concurrence letter, when it comes to the archaeological remains. Then in 2019, of course, we did all the grating, and as I mentioned, we went down some nine feet, on the commercial side - the residential side, we have (inaudible) all the utilities, and we did not come across any artifacts or remains, or burials or caves or anything like that. Now that doesn't mean that when we go to construct a residential side of this, that we wouldn't come across something, and if we did, we would follow a protocol and we would immediately stop, and we would - and we'd follow the law, um, with respect to the state historic preservation. So, um, aspect - that's our professional approach, um, it is responsible. We think we have covered our basis on everything that we had to do, uh, the in County and state and involves along. Quickly, with respect to the vacation destination. Koloa Village was re-planned, and the reason why we are here talking about this is because the prior plans that we are ready to build and all of that, those - when I did my homework on those, those would have to sell in the $900,000 to be able to pay for all the site. Because this is a small site and there is a lot of off site construction that was required. Roads needed to be rebuilt and all those things. And I didn't think there was much of an on-island market for $900,000 houses Koloa Town, I just didn't. And if we were truly going to be economically viable, we would have to have owner-occupied houses, not lock and leave. So in working with the County and talking with the community, we've done many community meetings in a (inaudible), it seemed like they get sold in the housing market that is half of that or less and smaller homes, so smaller homes, smaller prices. So that's where this whole idea came from, one-bedroom, one bath, and two-bedroom, two bath homes, um, that are designed to be in the center of a town with residents that will walk they could walk to their job in the shops - they could dine there, they can shop there without ever getting in a car. 28 And so I'm an infill developer, that's, you know, over my career, if you look at all the projects that I've done, it's infill, and, you know, I don't - I'm not interested in expanding the boundaries of a city or a town. But I go in the middle where the infrastructure is already there and you always have to improve and mitigate for your impacts with that. But that was the design of Koloa Village, and it didn't make sense to me to have these larger, more expensive homes that were going to be mainland buyers. Here we have homes that are attainable and I think it's the right thing to do in terms of development and I think, you know, it’s a need that needs to be served. And I think that the south, Kauai Community Plan was well-done and well-conceived and it contemplated this sort of - this sort of drop, and so we're just - you know, we're trying to follow suit with that. So if, you know, and that if you guys have questions about anything that I've said or any of the public testimony, or what Ian said, you know, I'd be happy to do my best to respond. Chair Cox: Questions from any of the Commissioners for either Mike or Ian, and thank you Ian and Mike. Mr. Ho: A question Madam? Chair Cox: Yeah. Mr. Ho: There was a timeline given for completion of about June, 2022 with the building approved - or could be approved, are you still on that timeline, June 2022? Mr. Serpa: Oh boy, that is a good question, but yeah, I would say we would take all of 2022. What - what's happening now - I mean, quite frankly I have to make sure I have my engineer with his pencil ready, you know, to design the plans, but I had to make sure that we get approved before we go do that. If we are approved here today and we start the improvement plans, Esaki’s starts, those, those will take, oh two or three months. I would think we can - we could probably start this project toward the end of this year, this residential side. Um, Shio Construction is my general contractor, they are phenomenal - I think we could - the majority of this is done in 2022 but, I will definitely use all of 2022. Mr. Jung: Now Commissioner Ho, we requested an extension just in case to 2024 just given the pandemic and whatnot but we can certainly work to adjust that if need be. Mr. Serpa: Yeah - well thanks Ian for sayin' that because we just - you know, we do not know what we do not know at this point. So I always like to have a little extra time because we don't know. Chair Cox: Other questions - okay, thank you Ian and Mike. Oh yeah, there is a question - Glenda, was that a question? Ms. Nogami Streufert: Yes, it may be stating the obvious that we would put something in there about no TVR's because there was a letter and it is not in the visitor destination area, but would you have any objections if we were to put that in there and that would be a part of the land use? 29 Mr. Serpa: Me responding, no - I, zero because my - my whole objective for this community is that it'd be owner occupied and if I'm living in one of these, I would not want transients coming in weekly next door, that's not what this project, this whole village is intended to be. So, we do currently our public report is filed, as Ian mentioned with the State in our disclosure that we filed with the state does clearly state that, you know, this is not going to be vacation destination - rental sort of stuff. So I'm totally comfortable with that if there's a phrase or there's something that you all feel more comfortable with, happy with that, that's fine. Ms. Nogami Streufert: Thank you, appreciate (inaudible). Chair Cox: Anything else? Mr. Jung: Yeah, we are fine; yeah we are fine with such a condition because the recorded declaration of restrictive covenants already prohibits it, so it would just be dovetailing on that. Ms. Nogami Streufert: Great. And I understand that it is - and it's really stating the obvious because there are many different documents, but I would like you to state (inaudible) one more time just to be absolutely abundantly clear for all future. Mr. Jung: Sure. Chair Cox: Okay, any other questions? All right, Commissioners, I think we're ready to - weave the Directors Report that is recommending approval, so we need a motion either to approve or approve with an amendment - uh, defer or, uh, disapprove, I guess, uh, so is there a motion? Ms. Nogami Streufert: But, before we do that, could we get that amendment or get that that, additional condition into the condition of - uh, the TVR conditioned into the conditions please. Chair Cox: So make it two different motions, so one motion puts the amendment in - that friendly amendment in, and then a motion to approve or disapprove. Mr. Hull: So Madam Chair, I can actually do it because - because it is the Director's Report, I hereby would amend on the floor orally that we are adding additional recommended Condition, Number 31, which would state, "All residential units shall be prohibited from operating as a transient vacation rental," and that would just be an amendment to our report. Chair Cox: Okay, are there any objections that from any of the commissioners? Great - okay, so that is that, good. Mr. Hull: And that's so Madam Chair, just as you, so succinctly put the Commission can either vote to approve as recommended by the Department, vote to approve as, you know, subject to additional amendments, vote to deny, or to defer. I think, you know, tentatively, the Department still holds by a recommended approval. However, like I stated earlier, I think, you know, our familiarity with the AIS, the archeological inventory survey for this property says that there is not an archeological feature that - or burial that will be impacted by the proposal, and then the 30 footprint is pretty much the exact same footprint as the 2008 proposal. But if the Commission would like additional time for the Department to further assess the AIS, the archeological inventory survey, as well as to dialogue with State Historic Preservation, or Review Division, um, we are open to a deferral as well. Chair Cox: Okay, thank you. Any discussion about the possibility of a deferral as opposed to not a deferral? Then are we ready to have a motion to either approve, deny, or defer - or approval with additional amendments? Someone like to make a motion? Ms. Nogami Streufert: I move to, I'll do it, I move to approve the modification of the site plan and the amended conditions for the Class IV Zoning Permit Z-IV-2008, 12 Project Development Use Permit PDU-2008-11, and Use Permit U-2008-10 as amended on the floor. Chair Cox: Thank you, Glenda. A second? Mr. DeGracia: I second. Chair Cox: Yes, a second. Great, any further discussion. I guess I would like to say the - as, regarding the archaeological issue, because there was an additional look in 2016 and because substantial grating has already been done and the law would require us the - the builder to stop anyway, if they found something, I am comfortable without the deferment. If there is no further discussion, let us do a roll call vote. Mr. Hull: Roll call Madam Chair, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0, Madam Chair. Chair Cox: Thank you. 31 Mr. Jung: Great, thank you so much. Class IV Zoning Permit Z-IV-2021-7 and Use Permit U-2021-6 to allow operation of an athletic health club within an existing warehouse building and operation of a commercial kitchen & retail business within the existing Old Mill building on a parcel situated at the Oka Street/Aalona Street intersection in Kilauea Town, further identified as 2430-A Oka Street, Tax Map Key: 5-2-014:049, and containing a total area of 20,389 sq. ft. = Kilauea Old Mill, LLC Mr. Hull: Moving on to the next Agenda Item would be F. b. Agency Hearing for Class IV Zoning Permit Z-IV-2021-7 and Use Permit U-2021-6 to allow operation of an athletic health club within an existing warehouse building and operation of a course and retail business within the existing Old Mill building on a parcel situated the Oka Street along the street intersection to Kilauea Town further identified as 2430-A Oka Street, Tax Map Key: 5-2-014:049, and containing a total area of 20,389 square feet = Kilauea Old Mill, LLC. is the applicant. This is the agency hearing, so a lot of testimony was provided during the initial part of the agenda. Is there anybody that has called in that would like to testify specifically on the Kilauea Old Mill application at this time, and if so please speak—? Mr. Dustin Barca: Yes. Mr. Hull: And state your name. Mr. Barca: You ready. Mr. Hull: Yes, you have three minutes; please state your name, sir. Mr. Barca: Okay thank you, my name is Dustin Barca. I am a resident of Kilauea; I help Bruno Ewald teach Jujitsu at Longman Jiujutsu. I also have lived in Kilauea my whole life, and you know, the whole (inaudible) and everything has been a designated, commercial state for a long time, and you know, in Kilauea, there's a big problem with drugs and there's not too much positive outlets in our community for the next generation. And you know, the space that is there for the Jujitsu school has become one of the only positive outlets for our community for our next generation. We have a lot of kids in there, we are guiding them to - to secure them away from drugs, away from trouble - we are teaching them to be honest, good, respectful community leaders. We have a lot of people who are ex-drug addicts, who we've saved. And you know, that space has always been a commercial space. What are they going to do, they are going to build one or two houses that are going to be too expensive for a local person to even afford? I mean, this is, like, um, a very important piece of our community as far as, like, positive outlets for our youth. I'm just - I'm asking you all to please take it into consideration that this is you know, it's nothing new they're asking for - asking for everything (inaudible) legal with (inaudible) school there. It 32 is just a really positive thing for our community and I'm just asking you guys to please, approve that to go through, that's all I have to say. Mr. Hull: Thank you for your testimony. Is there anyone else that has called in that would like to testify specifically on the Agency Hearing for the Kilauea Old Mill, LLC, application? Mr. Adam Roversi: Aloha Kaaina, this is Adam Roversi yeah, I would like to testify. Mr. Hull: You can speak now Mr. Roversi; you have three minutes for you testimony. Mr. Roversi: Aloha, Planning Commissioners, Chair, my name's Adam Roversi, I live within a 300-foot radius of the subject property on Oca Place in Kilauea. I have lived there for well more than a decade; generally, I support the petition and the proposed uses of the property. I know that there may be concerns about traffic issues, but as a local resident of that area whose well familiar with the current use as Longman Jujitsu, and the historic use of the Old Mill building for restaurants the potential traffic concerns are not a concern of mine as a resident of the area. So thank you for the opportunity to testify, I support the petition. Mr. Hull: Thank you for your testimony, Mr. Roversi. Is there anyone else that has called in, that would also like to testify specifically for the Agency Hearing for the Kilauea Old Mill, LLC? Ms. Felicia Cowden: This is Felicia Cowden, and I will just very simply say I stand on my written testimony that is in support of that building complex that has been not only, the Jujitsu Longman, which is less impactful than what it's been in the past. But there's also been a good provision over there since, I don't know, maybe 40 years has been in, uh, the - the building that used to have generator in it, and I support his position, thank you. Mr. Hull: Thank you for your testimony councilmember. Again, is there anyone else who has called in, who would like to testify on the Agency Hearing specifically for the Kilauea Old Mill, LLC, application? Mr. Peter Morimoto: Hi Kaaina, this is Peter Morimoto. Mr. Hull: Hi Peter, I know we're going to have a discussion with your concerns if you can stand by, Peter, to see if there's still anybody else that would like to testify, are you okay with that? Mr. Morimoto: Sure. Mr. Hull: Thank you. Again, is there anyone else that w- has called and they would like to submit oral testimony at this time for the Kilauea Old Mill, LLC. Agency Hearing? Hearing none. So Mr. Morimoto's on the line, the Planning Commission is in receipt of a letter from Mr. Morimoto on behalf of his clients objecting to a publication and notification issue, this was essentially that it was published, and the property owners are notified that this would be a public 33 hearing when in fact it's an agency hearing. It is a small caveat, but there is potentially some legal issues. So I'd ask if the Commissioners and the Chair's okay with it, if things that were not talking with a specific impact but on an actual procedural issue. Madam Chair, is it okay if you folks suspend the rules to allow Mr. Morimoto, to provide additional insight into his letter, as well as possible questions from either the attorney, any Commission numbers or myself? Chair Cox: Are there objections from any of the Commissioners to allowing this? Hearing none, go ahead. Mr. Hull: Thank you. Madam Chair. So Mr. Morimoto, um, a question we had earlier for you was given the nature of your letter if we defer this Agenda Item so no action is taken and properly notice both in the newspaper, as well as the abutting properties within 300 feet, that it is an Agency Hearing that is being held, will that address your concern? Mr. Morimoto: One of them, I'm also concerned about the manner in which the public hearing is held, when I look at the commission rules know specifies that, uh, public testimony is taken on a specific item. The way you have it set up, you know, the testimonies mixed up between several Agenda Items and the rules say that the record is supposed to be clear. No, I think it would be much clearer if you have testimony specific to an Agenda Item and then recess that item and then go onto the next item, and then take testimony about that specific item. Another issue that I have with the process is that the - there seems to be some kind of prejudgment here by the Department. Before any public input's given they make a recommendation and I'm not saying that you know, the recommendation is wrong, but I think the better procedure would be to hear from the public, hear your concerns and take that into consideration before rendering an advisory opinion or recommendation. Finally, with regard to this specific project, you know, the problem that my client and I have is that you have a Chair of the Planning Commission owning this site. You know, and there are existing use permits, and, it's (inaudible) you know, since you entered into this lease with Bruno, and I have nothing bad to say about Bruno. You know, Bruno once, made me whole when another client stiffed me, so he's an honorable guy - you know. The lease violated the permit and people became accustomed to that illegal use, you know, and now the Chair of the Planning Commission is using those people to pressure you know, her fellow Commissioners to basically, give her an after the fact permit. You know, the - the question I have is why wasn't she told to stop the use? Why there was not some kind of notice of violation sent, or cease and desist order, and I am not saying that there is anything wrong, but it surely does not look right. And if we have a contested case, I intend to delve into that issue fully to determine whether or not the impropriety was merely in appearance or there was actual impropriety, and that's all I have to say. Mr. Hull: Okay, thank you Mr. Morimoto. Commissioners, did you guys have any questions with Mr. Morimoto's clarification on his letter and submittal of testimony to you folks? Hearing 34 none. So the issue at hand is - is again, you know, I can state that, you know, the Commission Chair is not attending this meeting at all as a Commissioner and the fact if she had, she did tend to recuse herself. So on that note, you know, people run their everyday businesses and there are recusals. Secondly, you know, there have often been somewhat, you know, levying of the Department, casting prejudgment over - we're required by law to issue a report prior to the public hearing and that our agency hearing, if you will, and that, that report includes an analysis as well as a recommendation to the Commission. So our reports are tentative recommendations. They can also of course be altered and amended concerning public testimony or additional agency comments or as well as, you know, Planning Commissions overall, dialogue and discussion over the issue. But what I think is a concern in particular for the Department, is there, is that particular issue of the publication notice stating public hearing as opposed to agency hearing. And while this is seems like a relatively benign issue, should the landowner and the attorney decide that they do want to to appeal this action, or take litigative action to the courts. You know, the Department would hate all the work that the Commission has done - the applicant has done, whichever action the Commission may take, that a year from now, litigation could essentially unravel this whole thing based on the notion of the term, "Public hearing," being used instead of, "Agency hearing." So with that the Department is actually going to ask that the Commission defer this Item to the May 11 Planning Commission Hearing – Meeting. And during that time we will amend and update our public notification to the newspapers, as well as to the surrounding property owners that are titled to a notification and then we can pick this Agenda Item up after it's been properly noticed in that manner. I want hold off on - or without any objections and give, this…I want to hold off on our Department staff from giving the report at this time. I think if the applicant has any statements that they want to make or any presentations, they are afforded that right. But once the Commission has done with the discussion, if there is any discussion - ultimately the Department is asking for a deferral to May 11th, to re notice and re-published in the newspaper. Ms. Barzilai: Madam Chair, County attorneys (inaudible) I think you should take some take (inaudible) opportunity to thoroughly review the procedural legal issues here before, uh, the Commission renders a decision. Chair Cox: Okay, but we are still - we are still going to hear from the applicant if the applicant has something to say, correct? Okay, so and first of all, any objections from the Commissioners about this approach or concerns? Ms. Nogami Streufert: I... Chair Cox: Yes? 35 Ms. Nogami Streufert: Helen, I do have a concern. If we defer this, does it -does the, if they have the (inaudible) have the capability of operating until we hear the deferral, until the May 11 meeting? Chair Cox: (Inaudible) question (inaudible)? Mr. Hull: (Inaudible) could you repeat that question again, Commissioner? Ms. Nogami Streufert: If we defer this until the May 11 meeting, does the Jujitsu or the health club, have the capability or the legal right to continue operating until that meeting? Mr. Hull: So that is a good question. We did put the notice out in, landowner applicant on notice, you know, a year or two ago. That when were made aware through various application processes, that, they were operating the jujitsu at the site, that they needed a use permit for it. The Regulatory Division and the Enforcement Divisions are two separate divisions, and particularly the Enforcement Division has very limited resources. We have, as many of you know, a vacation rental crew that proactively is out there searching for illegal vacation rentals and proactively issues cease and desist notices of zoning violation notices. That is not the case for our zoning enforcement side that checks on everything else, in fact, aside from vacation rentals, we have one zoning inspector for the entire island. So he functions on a complaint-base notice basis. We have not received a single complaint against this operation, and with those parameters of we function off a complaint based for the zoning violations he - his site has not - the - the zoning compliance notice. And then we intend to do that in so far as - as long as no complaints are received. Should a particular member of the public want to issue a formal complaint to us, then, you know, our investigation could officially spin off from the enforcement side, which has its own litigated and due process rate processes. But again, we have not officially investigated from the enforcement sides, and it's you know, it's not in our interest to go out there and start enforcement actions against things that are not generating, you know, negative impacts on the community. But if a complaint comes in, technically Commissioner Streufert, we would have to investigate and issue that zoning compliance notice which would instruct the applicant to cease and desist. Ms. Nogami Streufert: Okay, thank you. Chair Cox: Are there any other questions or concerns before we move to the applicant? We will come back after the applicant to make a formal motion about the deferral, so - okay, moving to the applicant. Johnathan Chun: Hi, good morning, Vice Chair Cox and members of the Commission. Johnathan Chun on behalf of the applicant. I would just like to, you know, reiterate that this application is two parts - one is for the allowance of the Longman Jujitsu operation to continue. And also, for a small juice bar in a small portion of building that is being used for medical clinic. 36 I mean, I know that there was some testimony earlier this morning that they were objecting to the fact, that they didn't want to have any further expansion in the commercial use of this property, in particular, that comment was not made against Longman Jujitsu - Jujitsu, operation, but he against the juice bar. I just wanted to note for the Commission and for the Department's edification, and for the public that, has always been commercial, for one thing, it is pointed out. Also, the prior permit in nearly for the medical center encompassed that area also. So we are not asking for an expansion of the commercial use, it already is allowed for commercial use under the medical clinic permit. Unfortunately, the medical clinic decided not to use that portion of the building that we were looking for to for the commercial kitchen, and that's why it (inaudible) the prior permit were required not to come back and say it's okay, because it's another use other than that, we need to go back and ask for permission for that use, and that's what we're doing. But there's no expansion of commercial use because it's always been commercial use as pointed out in the prior permit of the medical clinic, covered that as a commercial use. On the issue of the arrival (inaudible) the notices, I am sitting here and it is just kind of interesting, technical legal arguments, but I want to just point out that this is not an unusual situation - I mean, as the Director will point out, or we will discuss with you guys later on. This is not unusual situation what the Commission did - what the Department did, is what it's always been doing for the past years, and has never been a problem until now, it was never brought up. In fact, I want to bring up that there was a case from the City and County of Honolulu that almost rather mirrors what is happening here. It was the case of (inaudible) of operating in the County of Honolulu and that case, the applicant argued that the notices were not correct because the Liquor Commission now sent out the public notice hearing, and they said it had to be an agency hearing notice. And in that case, the Supreme Court reversed that case and said, "No, you know, hey, the hearing notices were fine, it was supposed to be a public hearing because under the Liquor laws in that particular case, that's what it's supposed to be done. You’re supposed to have a public hearing," and just because it did not say…converted later on to an agency hearing, they did not make that public notice, wrong. Hearing these same things, is a waste in your rules, in fact, it (inaudible) your ordinance specifically states for applications like ours, you have to have a public hearing, and that's what the Commission did, they sent out a public hearing notice. Just because it can converts later on or could convert to an agency hearing, does not make the first notice required of - in your ordinance be wrong. So I would just be aware that, that is not an unusual situation, it has happened in other counties, it happens in Honolulu, it happens in other agencies and there has been guidance from the courts on what kind of notice should be required in the given time. Now, I found it interesting also that one of the members of the public that did testify against this very clearly said that she was not against Bruno's operations at all. In fact, that she supports Bruno's operations. Yet, I hear from another representative, from that person saying, well, they might want to look about illegal operations of Bruno's, whether or not he can legally operate. I 37 find it interesting that now we're expanding or if there is going to be an ex- there is going to be an intervention filed by that person, are we expanding the hearing or the issues on that from just whether or not the hearing Bruno's operation can continue versus whether or not you should be fine for prior use of that property. And again, I ask the Commission if there is going to be an intervention or a petition to look at one of the criteria is that it does not expand the issues decided by the courts. So lastly, as far as my client's position regarding the recommendation of the Department defer. We basically will defer to whatever the Department wants. We do not take the position that we know more than what the County attorneys the Department or the Planning Department knows. We will defer to their judgment and their wisdom in whatever they decide to do in this matter, (inaudible). All we can say is I leave from the applicant's point of view, the merits of this proposal stand for itself and we do not have to have technical issues that can confuse the merits of this issue. We stand on the merits, we stand on what we have presented, and we stand on the history of this property. We believe at the end of the day, the merits of this proposals will speak for itself, and we just encourage the Commission to keep your eyes - eyes and on the merits. We will follow whatever the Department and the County attorneys have to say regarding the process to get these merits in (inaudible) before the Commission. That is all I have for (inaudible), thank you for (inaudible) Ms. Chair and Mr. Chairman and Mr. Director. Chair Cox: Thank you, Johnathan. Mr. Morimoto: May I respond to Mr.… this is Peter Morimoto. Ms. Barzilai: I would interject; this is County attorney's office, that this would not be an appropriate venue through legal arguments on this matter. What I am advising the Commissioners do is to take this under consideration, after we've had time to digest this filing that was submitted last night, March 8. When the public notice came out on February 5, there was not sufficient time for the Commissioners to digest this or for me to brief them on this matter. So I at this time I would advise that legal arguments are not appropriate. Mr. Morimoto: Well, it is not a legal argument, it is the fact that we do not want Bruno investigated. Bruno is a victim in this thing as much as the Commission is, anyway, that is all I have to say. My client’s intent is not to shut Bruno's down and I want to make that perfectly clear. Ms. Barzilai: Well, I think Director Hull stated that, that would have to result from a complaint that was filed in the neighborhood and none has been filed thus far. Chair Cox: Thank you. Mr. Bruno Ewald: If I may speak at any time, I - um, this is Bruno, I am listening in. Chair Cox: Is it appropriate to hear from Bruno? I think it is, it’s part of the application. 38 Mr. Hull: Yeah, I would say its part of the application. Chair Cox: Go ahead. Mr. Bruno Ewald: Okay, hello everyone. Thank you for doing this, so I have been in operation in this location for 10 years now, and prior to Ms. Apisa owning the property. So, I believe her intention is to be in protocol with the County and the State, that's the reason why the application for the academy needs to be legal. And, as far as the athletic club you know, (inaudible) athletic club, the athletic clubs, they open all day and have customers in and out all day. It will be a big difference in what we do. Tuesdays and Thursdays, we have one class a day which is 9:00am to 11:00am and the whole day this class the place is empty, there's no traffic - there's no dropping off, there's no - there's no problem. And Monday, Wednesday, Friday, we have three classes only, they start at 3:30pm and end by 7:30pm. So people get dropped off - most kids coming with their bikes and the majority of the kids that attend the class kids from the neighborhood got - not only benefit, but they have become part of the Kilauea, you know, just making Kilauea a better community together with the teaching that I do here. And for 10 years I have never gotten any complaints from neighbors or anyone else, instead I've - I've gotten opposite, I've got a lot of compliments and people have been grateful and thankful that when we here there's drug dealers, and drug deals happening in the parking lot, no more empty bags and syringes in the parking lot, no more homeless sleeping in the parking lot because we watch the because I watch the place. I get phone calls to come over at night because someone will be here and they are suspicious I come and chase 'them off. I keep people driving slow in the streets nearby - in fact, I am the free security for the streets in the neighborhood and I do that because that is what I am called to do. I just urge the committee, the Planning Department, and I urge also any witnesses and neighborhood people, like, Shelly and (inaudible) Spencer, who are very dear to me, I've known them almost 30 years. They understand what I do and I find a little bit of (inaudible) mislead to what we are doing, like we are doing something new or we are affecting the neighborhood in any negative way. I just wanted to clarify what we do. Our schedules and how it's… I do not see anybody being opposed to it. I hope - I hope that nobody will complain after this or there's not going to be any discouragement from Peter Morimoto or anybody else calling people to complain for their benefit when I have a 100 little kids that will or I will have to tell them that I'm not going to have a place to teach. And lastly, but not least, the new shopping center I mentioned by Peter Morimoto on Facebook posts there's been, uh, a large discussion him and people in the community that are actually in favor in what I do, um, suggesting that Jujitsu would move to that shopping center which is 95% empty. Not only due to COVID, because it was empty prior to COVID, it's because it's $10 a square foot for rental, it's focused and targeted towards rich wealthy people that are moving here that will be able to afford rent and charge that type of money that only rich people can afford. My focus and my goals My focus and my goal is to reach the average the local people in the community that cannot afford to pay the rich prices and I am subject to or will be subject to rent that nobody can afford. Like Foodland I tried to rent a place over there by (inaudible) to keep fixing my place here - I have other friends who have tried everybody (inaudible) because the rent is too expensive. I am saying, like, a lot of them, I bet - I 39 can get testimonies from all of those people. and instead the community to actually approved something that were not for the local people - it's isn’t for the local people. Nobody that has a normal job will be able to afford a store in that shopping center and it is sad, and it's sad that anybody would be opposed to Jujitsu. I am very happy that Shelly and Uncle Jim - I am not opposed to it. I am happy to hear people like Gary Pacheco, (inaudible), Felicia and the people in the community that are in favor of it. I want to thank you guys for listening to me and everybody else. I hope you understand my point and I hope you understand that I am here, and I think I should remain here to protect the local community and keep the future. To restore the future of the people here, they will have housing, like, by education, by being able to get good jobs, become good people like the majority of my students for the last 30 years have been able to achieve. In becoming, you know good citizens and being able to be successful in their lives through my teaching. So thank you very much for listening to me, thank you, and goodbye. Chair Cox: Thank you Mr. Ewald: Thank you. Chair Cox: Thank you very much. Okay, so now I believe we are back to deciding what we want to do. The Department is recommending that we defer until May 11, but we have the option of course, of not deferring. Do we have a motion? Mr. Ho: I move that we follow the Planning Department recommendation to defer to May 11. Chair Cox: Okay, do we have a second? Ms. Nogami Streufert: I second. Mr. Chiba: I second. Chair Cox: Okay, is there any further discussion? Okay. Ms. Nogami Streufert: I think what is important... Chair Cox: Yep, yes... Ms. Nogami Streufert: Just I think what is important in this is that by deferring it does not mean that the health club has to close during that time period, so that to me is very important. So knowing that that is not going to be a problem, it is not going to be a problem for the community then I can support a deferral. Chair Cox: Thank you Glenda. Ms. Nogami Streufert: Yeah. Chair Cox: Any other discussion be we take a vote. Okay, can we have a roll call vote then, Kaaina? 40 Mr. Hull: Yes Madam Chair. Roll call, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0, Madam Chair. With that, it has been a bit of a morning, I request could we possibly take a 10 minutes recess, Madam Chair, so it's 11:23, returning at let's say 11:35? Chair Cox: I was going to suggest the same thing so yes, absolutely, uh, let us take a 10-minute recess. Mr. Hull: Thank you, all. And then so for the Commissioners in particular, as well as those who are called in to testify or you're part of or want - or listening on other Agenda Items, you don't need to hang up your phone or log out, you can just mute your phones or tele video systems, and we'll be returning at 11:35, thank you. The Commission recessed this portion of the meeting at 11:23 a.m. The Commission reconvened this portion of the meeting at 11:35 a.m. Chair Cox: Call the meeting back to order after the recess. Yes, I would like to call the meeting back into order and we will do a roll call to see if everyone's back. Mr. Hull: Yes Madam Chair. Roll call, Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner DeGracia? 41 Mr. DeGracia: Here. Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Here. Mr. Hull: Chair Cox? Chair Cox: I am here. Mr. Hull: You have a quorum, five present Madam Chair, and everybody that was attending previously is present now. Chair Cox: Thank you. So I believe we are on Item F.4, New Public Hearing. Continued Public Hearing New Public Hearing Proposed Amendments to the “Interpretive Administration Zoning Rules and Regulations (2014) of the Kauai Planning Commission, “Relating to Chapter 8, 9, and 10 of the Kauai County Code (1987), Relating to Development Standards for Guest Houses = County of Kauai, Planning Department. Mr. Hull: Okay, we are on - on F. 4. a. New Public Hearing for Proposed Amendments excuse me, to the "Interpretive Administrative Zoning Rules and Regulations of the Kauai Planning Commission," Relating to Chapters 8, 9 and 10 of the Kauai County Code, Relating to Development Standards for Guest Houses = the County of Kauai, Planning Department is the applicant. Just some background before we, oh you know what, before this, it is probably appropriate to call for public testimony, so is there anybody that has called in to this meeting that would like to testify on the public hearing for the guest house definition rules being proposed, if so, please state your name. Again, has anyone called in that would like to testify on the guest house rule Public Hearing for the guest house rule is being proposed, please if so, please state your name? Hearing none, Madam Chair. I will just launch into some of the background on this proposed amendment to our administrative rules. So the ability for a residential unit to have a guest house has been around for some time and a guest house for decades under definition, "Is proceeded to be used for habitation purposes or guests purposes non-commercial on a residential unit, that is 500 square feet and without a kitchen unit that would make it a full-time habitable structure." Last year the County Council ultimately made an amendment and it was signed by the Mayor to allow for kitchens in guesthouses. So they could be fully habitable. One issue that has always been somewhat percolating, but has definitely risen to the top is how do you interpret the 500 42 square feet? There has been previous interpretations to say anything under roof is 500 square feet and we constitute the guesthouse. But since the guest house definition was established after that you had additional entitlements being proposed on residence units, including but not limited to, additional rental units in the residential zoning districts, and farm worker housing units in the agriculture district. All of which specifically state that anything that is enclosed in roof shall come to their maximum square footage, so they are use of 800 square feet and the farm worker housing 1200 square feet, so anything that's not enclosed. So that would discount unenclosed lanais or carports. Um, and so there have been some disconnect and some confusion as to whether the guests houses should be interpreted in the same manner or not. And that's just because there is no specific language specificity sorry, there are no specifications in the ordinance and there's no administrative rules. So to lend clarity to the interpreting and processing of guests houses and the guesthouse applications, we have drafted these draft rules for you folks to review. I will turn it over to Britni Ludington-Braun, whose one of our main techs that handles these issues on a daily basis. She has spun up this report so I will turn it over to Britni, if you want to read the report and - and draft rules into the record? Staff Planner Britni Ludignton-Bruan: Madam Chair and Commissioners, today I am here to present to you the definitions of a guesthouse pertaining to the comprehensive zoning ordinance under the authority of Article 14, Section 14.03.8 of the Kauai County Charter. The Planning Commission of the County of Kauai adopts the following administrative rules pertaining to the responsibility of the Department to implement and enforce Chapter 8, Section 8-1.5 of the Kauai County Code (1987) as amended concerning the definition of guesthouse. Per Section 8-1.5, the Kauai County Code (1987) as amended defines guest's house to mean, "A building with a floor area of no more than 500 square feet may contain a kitchen and is used for dwelling purposes by guests, tenants, or owners. A guest house shall not be used for transient vacation rental also known as TVR or wholesale operation within or outside of the visitor destination area, also known as the VDA." Our findings show a need to clarify the implementation of the definition of guesthouse. There is a need to clarify whether or not the structure may be attached to a single family residence, detached from a single family residence within a multifamily residence, or accompanied b y an accessory structure, such as a garage. I respectfully present developmental standards in which the Department sees fit to determine the means of a guesthouse. The maximum floor area of a guesthouse is 500 square feet. The total floor area of a guesthouse shall be the sum of the horizontal areas of each floor of a building measured from the interior faces of exterior walls. The total floor area shall include enclosed and attached accessory structures, such as garages or storage areas. Unenclosed attached accessory structures such as breezeways lanais or porches shall be excluded. The guest's house may be detached from a single-family residence or multifamily residence. The guesthouse may be attached to a single-family dwelling unit or multifamily dwelling units. When the guesthouse is attached to a single family dwelling unit or multifamily dwelling units, the enclosed and unenclosed floor area of the dwellings, the dwelling units shall not be counted in the calculation of the maximum 500 square feet of floor area for the respective guesthouse. When attached to another dwelling unit, the guesthouse shall have its own separate exterior access. When proposed with a kitchen in a state - state line, use agriculture, the guest's house applicant - application shall require an executed farm dwelling agreement. Thank you. 43 Chair Cox: Thank you. Do we have any questions from the Commissioners? Mr. Ho: I have one question for Brittany. Brittany, what is a farm dwelling agreement? Ms. Ludington-Braun: A farm dwelling agreement is an application that gets sent to the Planning Department from the applicants that allows the applicant to build a farm dwelling on their agriculture open zoned properties. The application goes from the Planning Department and does an internal, route through the attorney's office and then comes back down to get signed by our Director and notarized. The applicant then must bring the application to the Bureau of Conveyance on Oahu and get it documented and then submit a - the recorded document to the Planning Department prior to approval. Mr. Hull: So for clarification Commissioner Ho, the farm dealing agreement is something that we are required to have all dwelling units being proposed in the agricultural districts signed to ensure that they are adhering to the farm standards that farmed dwelling are permissible permitted under Hawaii Section 205. It's a very minimal standard as we all know, because it could be just a couple of papaya trees to qualify for a farm, but it's up as a process that they have to go through formally in order to get their farm building approved. And so the draft proposal was saying if you come in for a guest house prior - with a kitchen prior to the farm dwelling agreement, for prior - excuse me, prior to the resident farm dwelling itself being proposed, then you still sign off on this agreement. Chair Cox: Does that answer your question, right? Mr. Ho: Yes. Chair Cox: Okay, thanks. Mr. Ho: Yes. Chair Cox: Glenda? Ms. Nogami Streufert: Britni yeah, could you describe what the difference would be between a guesthouse versus an ADU or an ARU? Ms. Ludington-Braun: Sure, so a guesthouse is outright given two lots, and it is max 500 square feet as stated. Um, and additional dwelling unit is given to lots that outright only qualify for one dwelling unit and need - would've needed to come in prior to the Sunshine date in 2017 if they wanted to acquire an additional dwelling unit on ag and open lots. An ARU is given to only lots that are zoned residential and has a max floor area of 800 square feet. Mr. Hull: Yeah, I did, to further add you know, not all the guests houses can have kitchens, right. There is definitely some issues - some attempt by the policymakers, including the Department because we were involved in the discussion and Planning Commission to allow for habitation to occur in these units. Some of that is to address the housing prices to a certain 44 degree - a lot of it was just to address the fact that this isn't an enforcement issue that if somebody has a guest house, more than likely they've already illegally altered it with a kitchen unit in it and the ship has kind of sailed on that. But it can be used for habitat, habitation purposes. If you count on a gradation level Commissioner Streufert, you look at 80 uses, there is no square footage requirement, you can build it as large as you want, and you can CPR it off and sell it to another buyer. An ARU has a maximum square footage of 800 square feet, you will have a kitchen in there, and you cannot CPR an ARU off and sell it off to another buyer. A guesthouse is maximum square feet of 500 square feet - you may or may not have a kitchen in it and like ARUs, you cannot CPR them off and sell it another buyer. Ms. Nogami Streufert: Okay - all right, thanks. Mr. Hull: We have a little pamphlet that we are hoping to get together for the public that kind of goes over those specific entitlements; we anticipate having that pamphlet ready in about a week or so. Ms. Nogami Streufert: Oh, okay. Mr. Ho: (Inaudible) is this - have a combination of these houses, you could - you could have an ADU and a guesthouse? Ms. Ludington-Braun: No, you are…you cannot have an ADU and a guesthouse, lots are either, or. If you build out a guesthouse, you lose that additional dwelling unit, right. However, lots that have multiple dwelling units on it can qualify for a guesthouse. But as I said, um, lots of outright only qualify for one dwelling unit, that's when they get the additional dwelling unit application can be applied for. Mr. Ho: Okay. Mr. Hull: And the accommodation Commissioner Ho, though would be like, Brittany is getting into, the guesthouse or ADU, it has an either or scenario. But for ARU's, it is not an either or scenario. You may have a dwelling unit, a guesthouse and one ARU; you qualify for one ARU for each dwelling unit you qualify for. So if your property say qualifies for three dwelling units there are not many out, but say it does, and then you would also qualify for three additional rental units and the guesthouse, so you cannot accommodate (inaudible). Chair Cox: Are there any other questions? Are we ready to - thank you, Britni that was, and Kaaina and - that was confusing, so thank you for clarifying, um… Ms. Ludington-Braun: Thank you. Mr. Hull: Oh Madam - Madam Chair, I'll just state that adopting administrative rules it is a bit lengthier process, than reviewing, say, Use Permit applications, it's a quasi-legislative process that ultimately Britni and I h ave to take to the Small Business Regulatory Review Board prior to you folks taking action on this and get it scheduled for the hearing, which is happening today. But we'd ask for a deferral to April, because we anticipate getting additional comments in April 45 but then we're still in the process of trying to get it before the Regulatory Review Board. So this this item, as much as we want action relatively quick on it to resolve the issues happening on the front counter, the procedural process of having to take it to the State, folks, at the Small Regulatory Review Board is going to necessitate this somewhat remaining on the Agenda for the next three or four months. Chair Cox: So do we take any action today - I mean, do have a motion about deferring it to April or do we not do anything? Mr. Hull: Yeah, the Department would request that whenever you guys are done with deliberations - if you have more deliberations and discussions but whenever you're done to defer this to the April - excuse me, while - the April 13th Panning Commission. Chair Cox: Okay - all right, is there further discussion? Okay, are we ready to make a motion then? Ms. Nogami Streufert: I will move to defer this to the April Planning Commission meeting. Chair Cox: Is there a second? Mr. Ho: Yep. Chair Cox: Okay, it has been moved and seconded, any further discussion? Uh, so I guess we should do a roll call vote since I cannot see anyone, so they cannot even put their thumbs up. Mr. Hull: Roll call Madam Chair, with the motion to defer, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox - oh, excuse me, sorry, Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox Chair Cox: Aye. 46 Mr. Hull: Motion passes 5:0, Madam Chair. Chair Cox: Great. All remaining public testimony pursuant to HRS 92 (Sunshine Law) CONSENT CALENDAR Mr. Hull: We have no Consent Calendar Status Reports Mr. Hull: We have no Status Reports or Director’s Reports for projects scheduled for Agency Hearing. Director’s Report(s) for Project(s) Scheduled for Agency Hearing. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session I to consult with County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to the matter of Petition for a Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11, HBR Enterprises, LLC. Mr. Hull: This is playing around to Item H. Executive Session, so Madame Chair; I will turn it over to you to read the language. Chair Cox: Yes, thank you. So this is Item H. 1. Pursuant to Hawaii Revised Statute Sections 92-4 and 92-5(a) (4), the purpose of this executive session is to consult with County's legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers duties with just immunities and, or liabilities of the Commission and the County as they relate to the matter of Petition for a Declaratory Order regarding Noncompliance with the Comprehensive Zoning orient - Ordinance and Variance Application Permit V-72-11 = HBR Enterprises, LLC. I will defer a vote on entry into Executive Session until we reach the substantive General Business Matter. GENERAL BUSINESS MATTERS Hearing officer’s Report and Recommendation of Contested Case re Appeal of Planning Director’s Decision Regarding Denial of 2019 Renewal Application Packet for Non- Conforming Use Certificate TVNCU#5023, Haloko Kai, located at 5111 Hoona Road, Koloa, Kauai, Hawaii, TMK: 2-6-006:4, and containing 6,035 sq. ft., Rosa Giem, Petitioner, Contest Case File CC-2019-18. 47 Chair Cox: Yes, thank you. So this is Item H. 1. Pursuant to Hawaii Revised Statute Sections 92-4 and 92-5(a) (4), the purpose of this executive session is to consult with County's legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers duties with just immunities and, or liabilities of the Commission and the County as they relate to the matter of Petition for a Declaratory order regarding noncompliance with the Comprehensive Zoning orient - Ordinance and variance application permit V-72-11 = HBR Enterprises, LLC. Um, I - uh, I will defer a vote on entry into Executive Session until we reach the substantive general business matter. We can now proceed to, uh on matter I. 1. Which the, um, Contested Hearing about Reappeal of Planning and Director's Decision Regarding Denial of 2019 Renewal Application Packet for Nonconforming Use Certificate TVNCU- #5023. Ms. Barzilai: Excuse me, Madam Chair; we have Deputy County Attorney Chris Donahoe on the line to answer any questions you may have about this contested case. Chair Cox: Oh great, thank you. Chris, go ahead. Deputy County Attorney Chris Donahoe: Good morning Chair, good morning Commissioners, Deputy County Attorney, Chris Donahoe for the respondent, the Planning Department in this matter. We are seeking that the Commission adopt the Hearing Officer's Report and Recommendation that was received January 27, 2021, which would affirm the decision of the Planning Director to deny the petitioner's renewal application. Based on this is situation where the petitioner's property owner which is located outside of the visitor destination area and but in accordance with the requirements of the CZO in 2009, the County granted a nonconforming use by issuing, #5023 to the petitioner and the annual renewal date was July 31st of every year for the petitioners NCUC. And from 2009 through 2019, the petitioner hired a property management agency to take care of the management take care of the— Man: (Inaudible)... Ms. Nogami Streufert: Huh? Oh no, I have something, something came in, sorry. Chair Cox: Go ahead, Chris. Mr. Donahoe: Oh sorry, okay, so hired the property management company who was who would manage the property as well as send in the renewal application every year by July 31st. So, that continued until July through July 18. So on July 18, 2018, the Planning Department timely received the renewal application for the NCUC #5023, to continue to run it as a TVR. In that - so then the Planning Department sent out a letter, which specifically stated, "It's renewed until July 31st, 2019. Should you renewal be one day late, than you'll be served with a notice of cease and desist notice and notice of forfeiture, and it will not be accepted after that date of July, 31st, 2019." So, July 31, 2019 comes and goes, there is a - the application, the renewal application is not received. It is not received until August 6, 2019, and so the Planning Department sent out a notice of cease and desist and then a notice of forfeiture, as well as sent back the application as denied. Then the petitioner filed for a contested case to challenge it. And at that contested case, 48 one of the arguments was that the petitioner hired the Pacific Elite, which was the agency responsible for property. However, the hearing officer's recommendation is it is the County's position that it is up to the owner to renew the certificate, and it's not up to the agent. And so the owner's ultimately on the hook and pursuant to a KCC-8-17.21.0, which was the County counsel's attempt to address TVR proliferation issues and problems regarding Ordinance 8-64, substantial deference should be accorded to that action. And since it was six days late, the Planning Department had no, had no choice other than to enforce that and issue the notice of forfeiture. It provides that the H-17-10.0, H provide the release lessee who has attained the NCUC shall apply. It is the owner it does not say anything about an exception to some agency property management group or otherwise to renew annually on the date of issue, which is in this case, was July 31. Also the interpreter rule K-8-19-1 Rule B, says, "It's the certificate holder's responsibility to submit applications to renew the NCUC by the expiration date." And so since - since she failed to timely submit the application by January - July 31st, 2019, and submitted it six days late, the Planning Department had no discretion and couldn't accept the renewal application. And so once that happened under Section 1 - uh, H-17.10, the failure to meet that condition resulted in the automatic denial of the application for renewal for that nonconforming use certificate. And under section C of K par, of the interpretive rule failure to submit that application results in the automatic denial as well, the application, and it specifically states, and this was adopted November 23rd, 2017, "No applications were - can be submitted, uh, shall not accept any applications by the Planning Department after the expiration date." So once that's not accepted then #5023 - NCUC #5023 has basically lapsed, and so therefore this rendered the nonconforming use as an unlawful use because the subject property at that point lacked a nonconforming use certificate pursuant to KCC H-17.10 H. And that code section or that that County enforcement section is not in conflict with the overall ability under HRS 46 4, for enforcement powers by the Counties because they're liberally construed in favor of the County exercising them. And so, the regulations like 8-17.10 and K par 8 19.1 are not they’re not regulations that limit or repeal any pro-powers or property rights. What HRS 46-4 prevents counties from doing is simply, um, setting forth some Ordinance or some law or some statute that will repeal or limit your property rights. In this case, the County did not prohibit the nonconforming use for the tran- for - for Ms. Kim's transient vacation rental after the VDA, it regulated it. So it was the petitioner's own neglect and failing to timely submit it, that caused the forfeiture, not the result of any government action ordinance or statute. And so the forfeiture of the, uh, TVR #5023 is valid and not in violation of any statute or County Ordinance and that's, and that was affirmed in the hearing officer's report and recommendation. And so that's why the - it's the Planning Department's position that it's requesting that the Planning Commission adopt the Hearing Officer's report and recommendation, that the contest - that the contested, and affirmed the decision to deny petitioner's renewal application because the petitioner has not met her burden of proof. 49 Chair Cox: Thank you, Chris. Any questions for Chris? Okay, do we have a motion - we have been asked - recommended to affirm the decision of the Planning Director to deny the petitioner's renewal application, which was the Hearing Officer's Report recommendations. Ms. Barzilai: Excuse me, Madam Chair. Chair Cox: Yeah? Ms. Barzilai: I have a question, just to confirm that the petitioner is not on the line. Chair Cox: Oh okay, is the petitioner on the line? Ms. Barzilai: It looks like not. Chair Cox: Okay. Mr. Donahoe: And I'm the Deputy County Attorney Chris Donahoe again, and just for the record the petitioner appeared at the contested case hearing pro se, so, they're - at that time there were no re- there was no representative representing her at the contested case hearing either. Ms. Barzilai: So Madam Chair, at this time you can entertain a motion to either reverse, modify or adopt the Hearing Officer's Report and recommendations of contested case, the appropriate action. Chair Cox: Okay, thank you. Do we have, uh, a motion to adopt, reverse or modify the hearing officer's recommendation? Mr. Ho: I moved to accept the Hearing Officer's Recommendation and report to deny the petitioner's request for renewal application TVNCU #5203, Rosa Giem. Ms. Nogami Streufert: I second. Mr. Donahoe: I am - I am sorry Commission, it's Deputy County Attorney, Chris Donahoe again. I believe the TVNCU is #5023. Chair Cox: Yeah, it was - it is. Mr. Ho: I am sorry. Chair Cox: Yeah. Mr. Ho: Let me state that again, motion to accept Hearing Officer's Recommendation and Report to deny petitioner's request for renewal application TVNCU #5023. Ms. Nogami Streufert: I second. 50 Chair Cox: Any further discussion. Okay, may we have a roll call vote, Kaaina? Mr. Hull: Roll call Madam Chair, motion to accept – oh motion to accept Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0, Madam Chair. Notice of Appeal and Demand for Contested Case Hearing from Notice of Violation & Order to Pay Fines for 4-1194 Kuhio Hwy #1, Kapaa, Kauai, Hawaii, TMK: (4) 4-5- 006:005, Michael and Paula Hulme. Clerk of the Commission’s Recommendation to Refer and Appeal of the Planning Director’s Decision Related to the Planning Director’s Notice of Violation & Order to Pay Fines for the unpermitted transient vacation rental use outside of the Visitor Destination Area, Michael and Paula Hulme, 4-1194 Kuhio Highway #1, Kapaa Hawaii, Tax Map Key (4) 4-5-006:005, received on February 22,2021 via email, for referral to Board and Commissions as Contested Case File No. CC-2021-2. Chair Cox: So thank you. So now, we move to General Business Matters, number 2, matter 2— Ms. Barzilai: Madam Chair, excuse me, is— Chair Cox: Yes? Ms. Barzilai: Is it okay to excuse Deputy County Attorney Donahoe at this time? Chair Cox: Oh, yes please - thank you - thank you, Chris, you are excused. Mr. Donahoe: Thank you Commissioners, have a good day. 51 Ms. Barzilai: Aloha. Chair Cox: Thank you. Okay, so Matter 2, I do n ot know if you read this or I read this, Kaaina, does it matter? Mr. Hull: Being that it is an appeal action. It may be appropriate that you read this and I officially step down from my clerk position. Chair Cox: Okay, Notice of Appeal and Demand for Contested Case Hearing from Notice of Violation and Order to Pay Fines for 4-1194 Kuhio Highway #1, Kapaa, Hawaii, TMK (4) 4 5- 006:005 = Michael and Paula Hume. And the Clerk of the Commission's Recommendation to Refer an Appeal to the Planning Director's Decision Related to the Planning Director's Notice of Violation an Order to Pay Fines for the unpermitted transient vacation rental use outside of the Visitor Destination area, Michael and Paula Hume and we already said the address. This is Tax Map Key (4) 4-5-006:005, received on February 22, 2021 via email for referral to the Board and Commissions as Contested Case File number CC-2021-2. Mr. Hull: Yeah, so Madam Chair, Kaaina Hull on behalf of the Planning Department. So we issued a violation notice and they are appealing it. We are recommending that the Commission, ultimately refer this to a Hearings Officer. Chair Cox: Do we have any discussion from the Commissioners? Hearing none. Would somebody like to make a motion? Mr. Hull: Madam Chair, just... Chair Cox: Yeah. Mr. Hull: It may be appropriate to ask if there is a representative for the applicant if they have called in that they may speak. Chair Cox: Okay, sorry. So I apologize to those that of you in the public, this is the first time that I'm Chairing this and it was a last minute decision because the Chair could not make it. So I apologize. Is there anybody who would like to speak on of the petitioner? Okay, hearing. I will go back to my request, is anyone ready to make a motion or have questions or concerns, any of the Commissioners? We have been asked to send this to a Hearing Officer. Mr. Ho: Motion to remand to a Hearing Officer, Michal and Paula Hulme for Contested Case Hearing File number CC-2021-2. Ms. Nogami Streufert: I second. Mr. DeGracia: Second. Chair Cox: Thank you, it’s been moved and seconded, is there any further discussion? Okay, can we have a roll call vote? 52 Mr. Hull: Roll call Madam Chair, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0, Madam Chair. Petition for Declaratory Order regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application V-72-11, Memorandum in Support, Verification of Petition, Declaration of Mauna Kea Trask, Exhibits “1-20,” Certificate of Service (10/22/20) from Mauna Kea Trask, Cades Schutte LLP, Attorneys for Petitioner HBR Enterprises, LLC. (Deferred 12/08/20.) Association of Apartment Owners Of Hanalei Bay Resort’s Memorandum in Opposition to HBR Enterprises, LLC’s Petition for a Declaratory Oder Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-7-11; Exhibits 1-6: Certificate of Service (12/7/20) from Ian K. Jung, Michael C. Carroll, and Sharon Paris, Attorneys for Interested Party Hanalei Bay Resort. (Deferred 12/18/20.) Petitioner’s Reply to Association of apartment Owners of Hanalei Bay Resort’s Memorandum in Opposition to HBR Enterprises LLC’s Petition for a Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinances and Variance Application Permit V-72-11; Declarations of Mauna Kea Trask; Exhibits “21-72”; Certificate of Service (01/22/21) from Mauna Kea Trask, Cades Schutte, LLP, Attorney for Petitioner Dennis R. Sciotto and Carol Ann Sciotto as Trustees of the Dennis R. Sciotto and Carl Ann Sciotto Community Property Trust, Edward E. Colson, III and Karen Jeanne Colson as Trustees of the Colson Family Trust owners of Unit 16A and HBR Enterprises, LLC. Association of Apartment Owners Of Hanalei Bay Resort’s Surreply to HBR Enterprises LLC’s Petition for a Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11; Exhibit 7; Certificate of Service (02/05/210 from Ian K. Jung, Michael C. Carroll, and Sharon Paris, 53 Attorneys for Interested party Association of Apartment Owners of Hanalei Bay Resort. Chair Cox: Thank you. So we are now on Item I. General Matters - Business Matters number 3. Matter 3. Hanalei's Bay Resort. Ms. Barzilai: Madam Chair, as there is no current conflict of interest, it is appropriate for Director Hull to clerk this item and he can do so. Chair Cox: Thank you. Mr. Hull: Thank you, Laura and Madam Chair. So moving back into Item I. 3. Petition for Declaratory Order regarding Noncompliance with Comprehensive Zoning Ordinance and Variance Application V-72-11, Memorandum in Support Verification of Petition, Declaration of Mauna Kea Trask, Exhibits, "1-20," Certificate of Service dated 10/22/20, from Mauna Kea Trask, Cades Schutte LLP, Attorneys for Petitioner, HBR Enterprises, LLC. Additional documents that have been provided, uh, three, Association of Apartment Owners of Hanalei Bay Resort's Memorandum in Opposition to HBR Enterprises, LLC'’s. Petition for Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-7-11, Exhibits 1-6; Certificate of Service, dated 12/7/20, from Ian K. Jung, Michael C. Carroll, and Sharon Paris, Attorneys for Interested Party - Interested Party, Hanalei Bay Resort. You also have Petitioner's Reply - I'm sorry, Item 3. b. Petitioners Reply to Association of apartment Owners of Hanalei Bay Resort's Memorandum in Opposition to HBR Enterprises LLC's Petition for a Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11; Declaration of Mauna Kea Trask; Exhibits, "21-72"; Certificate of Service dated 01/22/21 from Mauna Kea Trask, Cades Schutte, LLP, Attorneys for Petitioner Dennis R. Sciotto and Carol Ann Sciotto as Trustees of the Dennis R. Sciotto and Carol Ann Sciotto Community Property Trust, Edward E. Colson, III and Karen Jeanne Colson as Trustees of the Colson Family Trust owners of Unit 16A and HBR Enterprises, LLC. And Item I. 3.c. Association of Apartment Owners of Hanalei Bay Resort's reply to HBR Enterprises LLC's Petition for a Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11; Exhibit 7; Certificate of Service dated 02 /05 /21 from Ian K. Jung, Michael C. Carroll, and Sharon Paris, Attorneys for Interested Party Association of Apartment Owners of Hanalei Bay Resort. Chair Cox: If any Commissioner wishes to enter into an executive session on this matter, I would like to receive a motion at this time. Ms. Nogami Streufert: I move that we go into executive session on the matter of the, let's see, , involving the consideration of the powers, duties, privileges, immunities, and or liabilities of the Commission of a County as they relate to the matter of Petition for Declaratory Order regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application for Application V-72-11. Chair Cox: Thank you. Mr. Ho: I second. 54 Chair Cox: Is there a second? Mr. Ho: I second that (inaudible). Chair Cox: Okay, thank you Roy. We need to have a roll call, Kaaina, I guess? Mr. Hull: Roll Call, Madam Chair, on the motion to go into Executive Session pursuant to this Agenda Item, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. So the purpose of this Executive— Mr. Hull: Motion passes 5:0, Madame Chair. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session I to consult with County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to the matter of Petition for a Declaratory Order Regarding Noncompliance with the Comprehensive Zoning Ordinance and Variance Application Permit V-72-11, HBR Enterprises, LLC. Chair Cox: Session is to discuss the General Business Matter 3, and it has now passed and approved. So we'll leave this and go to the Executive Session, but I'm wondering given the hour, or do we want to also take a lunch break before we come back? And if so, we outta tell everybody, what is the Commissioners' pleasure? Sorry, this is new to me so if you have an idea of what we should do, let me know, it's 12:14 pm now. We're going to be in Executive Session we could come back here and then not take a lunch break at this point and continue? Mr. Ho: Madam Chair, this Roy. 55 Chair Cox: Yes? Mr. Ho: I think we are near the end here; could we just move to Executive Session and continue our Business? Chair Cox: It's okay with me - okay, so that's what we're going to do, we'll go into Executive Session. Laura, how long would you suggest we say we are going to be an Executive Session just so we can let the public know? Ms. Barzilai: I would say we can advise the public that we should return in about 30 minutes. Chair Cox: Okay, so we will be back in about 30 minutes and we will see all the Commissioners in the Executive Session, thank you. The Commission moved into Executive Session at 12:13 pm. The Commission returned to Open Session at 12:58 pm. Chair Cox: Call the meeting back to order after Executive Session. Okay, so everyone is here with us? Mr. Hull: Yep. Roll call, Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here Mr. Hull: Commissioner Ho? Mr. Ho: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Here. Mr. Hull: Chair Cox? Chair Cox: Here, thank you, Kaaina. Mr. Hull: Welcome, you have a quorum 5 present, Madam Chair. Chair Cox: So the Commission has received and reviewed all the filings and exhibited - exhibits, sorry, submitted by HBR Enterprises and the AOAL. And would now like to open the 56 floor for three-minute public statements from anyone who would like to speak on this matter, including the attorneys for the purposes of a final statement. At this time, the Commission is satisfied with all legal arguments that were previously made on the record on December 8, 2020, and will not take additional arguments, nor rebuttal from the petition - petitioner or the party in opposition. However, the commission will accept the three minutes public statement. Is there anyone who would like to make a public statement? Mr. Michael Carroll: Good afternoon, this is Mike Carroll; I am on behalf of the Association of Apartment Owners of the Hanalei Bay Resort. I would like to make a public statement. Chair Cox: You have three minutes, thank you very much. Mr. Mike Carroll: Sure. Members of the Commission, this, is now the sixth time the petitioners have brought this claim. Each time they made the same arguments in lost, there is no question that lockouts were part of the original approval 50 years ago, and the units were approved with the design and have been used continuously for 50 years. There is also no question that the petitioners same arguments have failed countless times before. There are six independent grounds that I have raised in our papers and if the Commission agrees with any one of those grounds, the Commission should deny it. One, the statute and the rules do not permit them to bring this petition. Two, the petitioner lacks standing. Three, the petitioner's barred by issue of preclusion based on the five times they previously as asserted this claim. Five, excuse me, four, the petitioner has failed to provide proper notice to the 134 owners that would be affected. Five, the petitioner has failed to establish that lockouts are not the preexisting legal use. And six, the petition is barred by equitable estoppel and vested rights. Now, I have raised all this in my briefs. I am not going to rehash that here. I do want to just point out that what petition is seeking to accomplish here is to override the decision of the Planning Director, override multiple prior decisions rejecting the petitioner's arguments, and override 50 years of use on this property, all without any input from any of the owners. For the reasons that we have put forth in our papers, we hope that the Commission will entertain a motion to deny this petition, thank you. Chair Cox: Thank you. Do we have any other statements? Mr. Mauna Kea Trask: Yeah, can you hear me? Chair Cox: Yes. Mr. Mauna Kea Trask: Okay, thank you Chair, you know, Mauna Kea Trask, on behalf of the petitioners. First off, we would object to this procedure today. This is not how petitions for Declaratory Orders are supposed to be received and processed. What happens is a petition is filed and then it is reviewed by form for the Directors, it can be rejected at that time. It was not. It it’s been provided to the Commission. The Commission can review it and issue a decision within 45 days, which they h ave not, and that has not been done. Then you can setup for hearing which we requested it to be done - we requested a hearing so that we could fully look at the record, we could ask Mr. Hull questions and we could have the hear- you know, a full contested case on this matter. And at that time, interventions would be entertained and ruled upon. What 57 this Commission is allowed to do as the AOAL solely to enter this proceeding prematurely, without an intervention to the derivation of everybody else. So we note for the record that there were 16 public testimonies that weren't received as part of this Agenda Item, that they were emailed to the Department on March 5th, 2021. There - the other testimony that was received show this is a matter of significant importance to the principal community. You know, we were getting, we are not being allowed to make our case in this in this proceeding, and this is not how this is supposed to proceed. What the Commission has done is granted almost, like, a half-hearing; they will allow one person to come in without any Agency Notice and plead their case and give us only three minutes to respond our entire cases in response. We'd asked this Commission do exactly what it did in the Previous Agenda item, this is 1.b. and set a Public Hearing for this - I mean, set a hearing for this matter, allow everyone else to come in. We would have provided notice at the appropriate time, had a hearing been issued, we want to provide notice. This use and…so going into the substance of it, this use has not been allowed for 50 years, it's been explicitly prohibited, you cannot rent out the lockout portions. You can rent out the apartment portions, but not the lockout. This issue has not been resolved in the past. Then it's arbitration ordered and left the County out, they did not rule on the Zoning because County wasn't involved. Same thing with the subsequent arbitration pursuant to the Federal court. The 1980, timeshare issue had nothing to do with this, that's timeshare. And the issue of sub-occupancy - the whole thing with the issue of sub occupancy under the building code regards to the building itself, it's a building official determination, it's not a zoning determination. If you look at the IVC, and this is section which the County has adopted, "Issuance of certificate of occupancy shall not be construed as an approval of a violation of the provisions of this code or of other concordances of the jurisdiction,” so it's a separate matter. But what we would like this to be, and what this Commission has a responsibility to do is have a full hearing, allow witnesses to testify. Let Mr. Hall explain how this is different from every single Planning Director before going back to 1976. I mean, even Mr. Mike Dahilig, has a declaration in here saying he agrees with the (inaudible) who said, "You can rent out the entire apartment unit as a hotel unit, not the individual lockouts that would exceed the density." Mr. Hull: I am sorry 3 m inutes, Chair. Mr. Trask: Okay, again, we strenuously object to the procedure in this manner, this is not how it's supposed to be, this will be appealed. And like Mr. Hull said previously, it would be a shame after a year of litigation, okay, to have this overturned and come back just to set hearing and have a hearing. Chair Cox: Thank you, thanks for - thank you. Is there anyone else who would like to make a statement related to this? Mr. Trask: Your Honor, I believe my client would also like to make a statement. Chair Cox: Okay. 58 Jimmet Mehta: Good afternoon, honorable Commission members. My name is Jimmet Mehta. I am the restaurant operator at Hanalei Bay resort. I stand to gain from these lockouts if they were to have been operated, but I am against them for various reasons. The community has not had a chance to about them as well. They are against the principal association, bylaws and declarations. They create a greater density for which there is not enough parking at that resort; this is how it all began. And as a restaurant operator, I've been asked, "Well, why don't you, you know, you - you should be loving the fact that we have lockouts here?" No, there is not enough parking and it is not fair to this community. It is not fair to the people that buy on that street to have an additional 146 units added as hotel rooms. I will stand to make money off them; I do not want it this way. I am not going to sellout for that community. Please allow the proper procedures and let us take this in a very open manner to show the evidence. We have testimony again from (inaudible) wall from, Brian (inaudible) every unit, these are all former Planning Directors and even our current Planning Director issued a notice of violation against these lockouts. Why the change is all we are asking let us put it out in the open and then argue the merits from that that is it. Chair Cox: Thank you very much. Any further statements? Okay, hearing none. The Commission is now ready to act on this matter; I would like to entertain a motion. Is there any Commissioner who would like to make a motion regarding this matter? Ms. Nogami Streufert: I will do that, there appear to be two issues and I move to deny the Petition for a declaratory order regarding noncompliance with the Comprehensive Zoning Ordinance and variance application permit V-72-11, on procedural grounds. Chair Cox: Is there a second? Mr. DeGracia: Second. Mr. Trask: I am sorry, what are those procedural grounds? Chair Cox: After the vote, we will give a written order of the Commission. It will be issued in a few days for distribution to the petitioner and the opposing party if this vote passes but we have not even passed it yet. So we have a motion is there any further discussion? If not, I would call for a roll call vote. Kaaina, can you do a roll call vote? Mr. Hull: My apologies - roll call vote, Madam Chair, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. 59 Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0, Madame Chair. Chair Cox: And as I mentioned before there will be a written order of the Commission that will be issued within in several days and which will be distributed to the petitioner and the opposing party. So the Agenda Item is now closed and we can proceed to the next item. Mr. Trask: Yeah, one quick question, Chair? Please. Chair Cox: Yes? Mr. Trask: Was Mr. Hull in the Executive Session? Chair Cox: Yes, he was. Mr. Hull: No, I... Chair Cox: No, no... Ms. Barzilai: Mr. Hull was not present. Laura Barzilai County Attorney's Office. Director Hull was not present in the Executive Session. Chair Cox: Oh, sorry, I thought you meant Ho - I thought you said Roy Ho, I am sorry. Mr. Trask: (Inaudible) Hull. Chair Cox: Oh, no, he absolutely was not. Ms. Barzilai: (Inaudible)... Mr. Trask: And Madam... Chair Cox: No, it was just the Commissioners and our attorney. Mr. Trask: Thank you, and again Chair, we object to motion on the floor, we're again state that the justification for the grounds for which it was asked, and again, we object to the procedure today, as violates of the rules of the Planning Commission, specifically Chapter 6, 4 and 10, and 9, thank you. 60 Chair Cox: Thank you for your statement. COMMUNICATIONS (For Action) Mr. Hull: Next on the Agenda, moving right along, we have no Communications for Actions for Agenda Item J. COMMITTEE REPORTS Subdivision Mr. Hull: We will move onto Agenda Item K. Committee Reports, we have K. 1. Subdivision Action matters listed in the Subdivision Committee Agenda - I will turn it over to Commissioner DeGracia for the Subdivision report. Mr. DeGracia: Today Subdivision Committee all of us in attendance - all the Commissioners, and we had one item and it was in approval for a tentative division extension requests, Application No. S-2005-41 for Visionary LLC and that concludes my report. Chair Cox: Thank you. Mr. Hull: We need a motion to adopt to the Subdivision Committee Report. Chair Cox: Sorry, may I have a motion to accept the Subdivision Report? Mr. Ho: I move to accept the Subdivision Report. Ms. Nogami Streufert: Second. Chair Cox: Are there any discussion? Okay, can we have a roll call vote then? Mr. Hull: Roll call, Madam Chair, motion to adopt the Subdivision Committee Report, uh, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Ho? Mr. Ho: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. 61 Mr. Hull: Chair Cox? Chair Cox: Aye. Mr. Hull: Motion passes 5:0, Madam Chair. UNFINISIHED BUSINESS ( For Action) Mr. Hull: Moving on, there is no Unfinished Business. NEW BUSINESS Mr. Hull: We have no New Business as we handled the New Business; we took the action on New Business. For Action - See Agenda F for Project Descriptions ANNOUNCEMENTS Topics for Future Meetings The following regularly scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter on April 13, 2021. The Planning Commission anticipates meeting via teleconference but will announce its intended meeting method via agenda electronically posted at least six days prior to the meeting date. Mr. Hull: Madam Chair. Next, we have up Announcements for Topics for Future Meetings. We will be looking at still the guesthouse proposal, as well as the Kilauea proposal that we folks still have to review it today. We have a couple other use permits oh sorry, SMA permits for single-family dwellings on the horizon, but relatively light agenda thereafter. If there is any agenda items that Commissioners would want, we can certainly entertain and discuss that with the Chair. Chair Cox: Anybody have any items they want added? Okay, if not? Ms. Nogami Streufert: Oh wait, on the Announcements, it says that the next, (inaudible) that the regularly scheduled Planning Commission meeting will be in April. Did we not say that the Kilauea Old Mill was going to be in March? Wait a minute. This is March, sorry. Chair Cox: Oh, it is in May, I wane - it was something we deliver, we actually something was going to May 11. Mr. Hull: Yeah. So the Department has requested and the Commission acted upon the May 11 date for the Kilauea Old Mill and the reason for that push it because we need a bit more than 30 days to do the publication notice in the Garden island newspaper pursuant to our own ordinance rules for public notification and then subsequent property and notification. So within that timeline, it would have to go to the May 11th meeting. 62 Chair Cox: Okay. Anything else? Mr. Hull: Well the Department does not have anything else, I would just like to, you know, we are still in the television system, I want to thank all the Commissioners for their patience. I wish that we were not saying goodbye to one of our Commissioners in this environment but today is Commissioner Ho's last day. So I'd just like to thank Commissioner Ho for all his service and time that he spent with the Planning Commission as Chair, Subdivision Committee Chair and representing the Labor Seat well- extremely well, I think. You know, there was some testimony today, I think you know, someone had this notion of the Planning Commission acting too quickly on certain issues. I think it's anything but, like, there's so much work goes in from the Departments level - from a Commissioner's level, from Agency Reviewing Levels and public testimony, and so much work that goes into it, and I think Commissioner Ho embodied it. And how much he went off and dedicated his own time, having conversations with the Department and others to really get background and understanding of what was before him. His research and analytic viewpoint I think was a real strong point and will be sorely missed but thank you - thank you so much for all your service Roy. Chair Cox: Yes, thank you Roy. Thank you, Roy; we are going to miss you. Mr. Ho: (Inaudible)... Ms. Nogami Streufert: Yeah, I can I just (inaudible) it's great to have him as a colleague... Chair Cox: Yeah. Ms. Nogami Streufert: And just, always prepared and always pleasant to work with, that is a combination that is sometimes hard to come up with, so thank you very much, Roy, and we'll be seeing you around. Mr. Chiba: And thank you very much, I learned a lot from you. Mr. DeGracia: Thanks Roy. Mr. Ho: Yeah, guys , it's been a pleasure to work with all of you…all the Commissioners before you, the Planning Department, I've met a lot of nice people there. So, I wish you all the very best in your personal and your professional lives, thank you. ADJOURNMENT Mr. Ho: Motion to adjourn. Chair Cox: Great Roy, thank you too, is there a second. Ms. Nogami Streufert: Second. 63 Chair Cox: All those in favor, say - well, I guess you can say aye, because you'd go on mute - just say aye. Ms. Nogami Streufert: Aye. Mr. Chiba: Aye. Mr. DeGracia: Aye. Mr. Ho: Aye. Chair Cox: Okay, Motion passes 5:0. Thank you. Mr. Ho: Okay, thank you all. Chair Cox: And thanks for your patience. Ms. Barzilai: Thank you. Mr. Ho: Good - good job, Helen. Chair Cox: Okay, aye. Mr. Hull: All right. Chair Cox adjourned the meeting at 1:17 p.m. Respectfully submitted by: _________________________ Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of __________ meeting. 1 KAUA‘I PLANNING COMMISSION REGULAR MEETING April 13, 2021 Draft The regular meeting of the Planning Commission of the County of Kaua‘i was called to order by Chair Donna Apisa at 9:13 a.m., - Microsoft Teams Audio +1 469-848-0234, Conference ID: 509 186 918# The following Commissioners were present: Ms. Glenda Nogami Streufert Ms. Donna Apisa Mr. Melvin Chiba Ms. Helen Cox Mr. Francis DeGracia Ms. Lori Otsuka The following staff members were present: Planning Department – Director Kaaina Hull, Deputy Director Jodi Higuchi Sayegusa, Myles Hironaka, Dale Cua, Romeo Idica, Britini Ludington-Braun and Planning Commission Secretary Shanlee Jimenez; Office of the County Attorney – Deputy County Attorney Laura Barzilai; Office of Boards and Commissions – Support Clerk Arleen Kuwamura Discussion of the meeting, in effect, ensued: CALL TO ORDER Chair Apisa: Called the meeting to order at 9:13 a.m. ROLL CALL Planning Director Mr. Kaaina Mr. Hull: Madam Chair, it is April 13. It is 9:13 a.m. All the call-in applicant folks have been admitted through the lobby. I think it would be appropriate at your discretion to commence the meeting. Chair Apisa: I am ready. We will call the meeting. The meeting is called to order. Roll call please. Mr. Hull: Roll call, Madame Chair. Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? 2 Mr. DeGracia: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Here. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Apisa. Chair Apisa: Here. Mr. Hull: You have a quorum, Madame Chair. Six present. APPROVAL OF AGENDA Mr. Hull: You have the quorum, Madam Chair. Next is approval of the agenda. The Department would request – one, there is a correction to the agenda. There were Director’s Reports listed after the agency hearing for (inaudible) matters and for Michael A. Kaplan respectively 2.A.1 and 2.B.1. Those are not actually specifically supposed to be listed, as they were received by the Planning Commission previously, so we would ask that the Commission amend the agenda to remove those. They are part of the packet and part of the record but they have already been received. So the Department will ask that the Commission remove – amend the agenda to remove those specific citations as well as amend the agenda, in keeping with past agendas, to immediately hear the new business for action directly after the respective agency hearing listing. and I would request that an amendment to the agenda be made. Chair Apisa: We have motion to amend the agenda. Ms. Nogami Streufert: I would move the agenda, yes, as – as previously (Inaudible). Ms. Otsuka: I seconded. Chair Apisa: All in favor? Ms. Cox: Aye. Ms. Otsuka: Aye Chair Apisa: All those who oppose? Motion carried. 6:0. The Agenda is so amended. MINUTES of the meeting(s) of the Planning Commission 3 Mr. Hull: Next, Madam Chair, we have, uh, Agenda Item B, minutes of the Planning Commission meeting for July 14, 2020. Chair Apisa: I have a motion to accept the minutes. Ms. Nogami Streufert: I move to accept the meeting of July 14, 2020. Ms. Cox: I second that motion. Chair Apisa: Any discussion? All in favor? Aye. (Unanimous voice vote). Any opposed? Motion carried. 6:0. Minutes are approved. Mr. Hull: Thank you, Madam Chair, and just as an FYI for the Commissioners themselves, the Boards and Commission staff has been for the past year as much with the Planning Commission staff working over the Kauai emergency management operations in response to the COVID-19 pandemic. So there’s been some delays in the minutes being spun out but they’ve been essentially working to get those minutes. So over the next course of – in the course of the next several months you will be seeing somewhat of a catchup in those previous minutes dating back to over the past few months. RECEIPT OF ITEMS FOR THE RECORD (None) Mr. Hull: Next on the Agenda, there are no Receipt of Items for the record. HEARINGS AND PUBLIC COMMENT Mr. Hull: Hearings and Public Comment is next on the agenda. So for those members of the public that have called in and would like to testify, I’ll be calling out your respective phone numbers. If you would like to testify, please state your name when I call on your phone number, and you have three minutes for testimony. This is the portion of the agenda – for the members of the public that are calling in, this is the portion of the agenda for you to testify on any agenda item. So, again, if you’d like to testify – I’ll be calling out each individual phone number if you’d like to testify, just state your name and you have three minutes for testimony. So starting at the top of the list. Area code , would you like to testify on agenda item for the Planning Commission today? Again, area code would you like to testify on any agenda item today? Hearing none. Area code would you like to testify on any agenda item for the Planning Commission today? Ms. Maka`ala Ka`aumoana: Yes. This is Maka`ala Ka`aumoana. Mr. Hull: Go ahead, Maka`ala, you have three minutes for testimony please. Ms. Maka`ala Ka`aumoana: Mahalo. I am testifying on Class IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7. I testify today in support of the request for intervention and your 4 consideration of this permit application. I provided testimony regarding development of this property on 9/28/2010. At that time, my concerns included preservation of more than nine historic Lo`i Kalo, some of more than 69 known to be in the area, and water quality monitoring before, during, and after any construction. I am unaware of any water quality testing or analyses having been conducted since 2010 and I am also unaware of any site inspections having been conducted on this property since that time. In addition, the currently proposed wastewater system will bleach into the historic Lo`i Kalo. Is that pono? Do we allow that? Do we permit that? Further, the estimated expansion granted to this developer in 2019 with no public hearings was for an already lapsed SMA and no substantial progress had been made on the original permit. This is a very dangerous procedure in such a sensitive place. This is not just any property. It is specifically designated as special treatment because of its unique features and the SMA Law is intended for these kinds of lands and this application is for a substantial development. What has happened on this land in the past 11 years? Apparently, what was permitted as a post-and-beam structure is now being described as an on-grade foundation constructed in the Lo`i Kalo. Would that have been permitted in 2010, given the extent of this historical feature of this land and its location? Intervention is the remedy here because there is no evidence that the Planning Department has the information it requires (inaudible) application. Interveners can provide them and this application deserves that. (Inaudible) I suspect intervention would have been (inaudible). Any consideration of this application must be updated (inaudible). At the very least, what is there now (inaudible) to each and full and fair process. (inaudible). Mr. Hull: Thank you, Maka`ala. Next, we have area code 808-781-4033. Would you like to testify on any agenda item at this time? Mr. George Mr. Buren: Yes, thank you. This is George Van Buren, on behalf – on behalf of Moloa’a Farms. Mr. Hull: Oh, sorry. Sorry, Mr. Van Buren? Mr. Mr. Buren: Yeah? Mr. Hull: Sorry, I should have made this announcement, during the actual applications, both the applicant as well as any of those representing intervention requests will be given specific time, um, designated by the Chair to speak to your intervention requests. Mr. Mr. Buren: Okay, so I’m not – you don’t want me to speak now then? Mr. Hull: Yeah, this is just for general members of the public to testify. Mr. Mr. Buren: Okay. 6 property is open special treatment resource. Over the years, I have gotten to know Mr. Somers, and he has now realized just what that zoning means. When he bought the property, he really was not familiar with it at all. And, you know, it’s zoned open special treatment resource because it is a preserves special treatment and it is a resource for the island. And once Mr. Somers knew what was going on he dedicated 150 of the 161 acres of property into a conservation easement. He also gave up 30 units of his 33 units allowable density because he feels as though that his property needs to be a resource and needs to be protected. Just recently, with Mr. Kaplan building in the valley there, I have seen a map that has 19 Lo`i on it and which – it was kind of a shocker to me when I saw that. And at this present point Mr. Somers, I believe is due…if anybody else is due to have intervener status and standing in such a matter. It would be Mr. Somers because of his now putting his prop- that large chunk of property into an easement – conservation easement and and also giving up that density not precluding the fact that he is the neighboring property. If he doesn’t have standing, who does? Thank you for letting me testify. Mr. Hull: Thank you for your testimony. Next, we have area code . Would you like to testify on any agenda item at this time? Ms. Felicia Cowden: Uh, yes, and asking for clarification. This is Felicia. Is the Moloa’a green waste facility still on the agenda? Or has that been removed? Mr. Hull: No. Ms. Cowden: Can I speak to that? Mr. Hull: Council (inaudible). Absolutely. Ms. Cowden: Okay. Okay so regarding the Green Earth Matters, Inc. Class IV Zoning Permit and neither testifying in support nor opposition. I am voicing concern for consistency. The County just passed our updated agricultural bill and through that public process, there have been observations and complaints that the County (inaudible) different layers of compliance for favored landowners. If applicants committed to having no building in their 2017 planning application, this property that fronts Kuhio Highway now has a solid new building, perhaps 2000 square feet, and the property looks like a small light industrial park with roughly 4 acres of identical shade woodchip piles. In contrast, the adjacent green waste facility has 19 acres of all layers of composting underway with high customer activity requiring only a small office and a half-sized container. The ownership of Green Earth Matters also holds other businesses with County contracts. The perception is that Green Earth Matters is running multiple non-ag businesses that are light industrial and this application is to expand that non-permitted use. So I’m just asking, you know, if we please look carefully at this property use. If a non-ag-use is permitted here, there will be an expectation of equally vague interpretations of other ag-uses that may in fact be in industrial – light or industrial. So I neither support nor oppose this but I want to make sure that we’re using care and really looking at what is the already existing large 7 building there for, will we have un- undercover composting occurring, and that a true look is made as there’s concern about that coming to me. Thank you. Mr. Hull: Thank you, Council Member for your testimony. Moving on to the next call-in number, area code . Would you like to testify on any agenda item at this time? Ms. Sarah Sloan: Hi, my name is Sarah Sloan and I am just waiting if there are any questions for SSB-2021-1 (inaudible). Mr. Hull: Oh, yeah. Yeah, if – okay, yeah, Ms. Sloan, for the actual applications, the applicants themselves will have a specific designated time during the application. Ms. Sloan: Okay. Mr. Hull: Thank you. Ms. Sloan: Thank you. Mr. Hull: Area code would you like to testify on any agenda item at this time? Woman: No. Mr. Hull: Thank you for your response. Area code , would you like to testify on any agenda item at this time? Woman: No thank you. Mr. Hull: Thank you. Area code would you like to testify on any agenda item at this time? Woman 3: No. Mr. Hull: Thank you. Area code , would you like to testify on any agenda item at this time? Man: No. Mr. Hull: Thank you. Area code , would you like to testify on any agenda item at this time? Mr. Bruce Layman: Yes, I would. Mr. Hull: Okay. Please state your name and you have three minutes of testimony, sir. Mr. Bruce Layman: My name is Bruce Layman. I am a resident of Kauai and I would like to testify in support of this Use Permit U-2021-7. And I do support the request for intervention in in consideration for this permit. I really appreciated Maka`ala’s testimony because I think she hit 8 all the main important points and factual points. But I personally would like to appeal to all of you Commissioners. I know you view your role as a privilege and a responsibility. I graduated from Kilauea Elementary School, a class of 11 of us and that was my playground. I remember my grandparents of my mom and many of the kupuna’s telling us when we walk through these areas to treat it with respect and don’t disturb things. So when we walked to go fishing down at the river to catch prawns you know, we’d get chicken skin walking through these places. I realized when I got older the significance of what they meant and how important that area is. I think, your decision is an important one. The precedent that you may set moving forward and how that is going to affect our island. Right now we’re all, you know, temporary caretakers of the land, right, but the land is going to remain there and there’s no harm in doing the right thing for the `āaina and allowing this process to go in sunlight. And Maka`ala brought out this point and I believe that for us to – to be good caretakers of the land, especially in a sensitive area like this, that it should go through a process. And I know Charles Somers personally and I asked him for a meeting to discuss this. I wanted to know where his heart was and why he was doing this. And I know Charles is a good man and I know it’s easy to mischaracterize people, even demonize people when they come from here and maybe they have a lot of money but Charles has done really good things in the community. He has donated to the farmers up there, he’s donated generators, he’s donated computers to the elementary school. He even supported the state championship senior (inaudible) league that represented Kauai in the national finals and world finals on the mainland. So he’s gone really good things. He’s a good partner in the community but I was more important on – it was more important to me to know why he was doing this. And when he told me that this is a special place and it should be treated like that, as a local person, I couldn’t believe that was coming out of the mouth of someone that is a so-called rich person from the mainland. And I really believe that and I sincerely – I know he’s going to be a good partner in our community moving ahead in the future. And for me as a resident – there are five generations in my family (inaudible) my grandparents worked in a (inaudible) sugar company, please, Commissioners, there’s nothing wrong with having good oversight and responsible management of this area and everything should take place in sunlight. The owner that owns it now should welcome this, you know, he should welcome this and be a good partner in the community also, not just say I am going to do this, I’m going to do that. Let the process take place in the way it should under this SMA process. Please, Commissioners, I appeal to you to please support this request for intervention as I do. Thank you very much and have a nice day. Mr. Hull: Thank you for your testimony, Mr. Layman. Area code would you like to testify on any agenda item at this time? Again, area code , would you like to testify on any agenda item at this time? Man: No thank you. Mr. Hull: Thank you. Moving on to area code , would you like to testify on any agenda item at this time? Again, area code would you like to testify on any agenda item at this time? Hearing none, that is the list of all those who called in. I’ll make one 9 last call, is there anybody that has called in as a member of the public, not a representative of the applicant or a petition to intervene. Is there any member of the public that has called in that would like to testify on any agenda item at this time? If so, please speak. Hearing none, Madam Chair, we can move on to the next agenda item. Continued Agency Hearing Mr. Hull: We have no Continued Agency Hearing. New Agency Hearing AMENDMENT TO CLASS IV ZONING PERMIT (Z-IV-2017-12), USE PERMIT (u- 2017-10), and SPECIAL PERMIT (SP-2017-5) to allow construction of an office facility and two (2) storage buildings for the green waste composing operation involving Units 69 & 70 of the Moloa’a Hui 1 Condominium, on a parcel situated along the makai side of Kuhio Highway in Moloa’a, approximately 1,000 feet east of the Ko’olau Road/Kuhio Highway intersection, further identified as Tax Mao Key: (4) 4-9-009:012 (Por.), and affecting a portion of a larger parcel containing 281+acres= Green Earth Matters, LLC. [Director’s Report received, 3/29/2021.] Mr. Hull: We’re moving on to F.2, New Agency Hearing, Amendment to Class IV Zoning Permit Z-IV-2017-12, and Use Permit U-2017-10, and Special Permit SP-2017-5 to allow construction of an office facility and two storage build- buildings for the green waste composting operation involving Units 69 and 70 of the Moloa’a Hui 1 Condominium, on a parcel situated along the Makai side of Kuhio Highway and Moloa’a, approximately 1,000 feet east of Koolau Road and Kuhio Highway intersection, further identified as Tax Map Key: 4-9-009:012 and affecting a portion of a larger parcel containing 281-plus acres. The applicant is Green Earth Matters, Incorporated. The clerk of the Commissioners received a Director’s Report, previously on behalf of the Commission. Before going into specifically the Director’s Report on this, we do have a petition for intervention by George W. Van Buren, attorney for petitioners Moloaa Farms, LLC and Jeffrey S. Lindner. Also, sorry. We have a memorandum of opposition to Moloaa Farms, LLC and Jeffrey Lindner’s petition to intervene. We also have a letter from Linda Newman dates 4-6- 2021, as well as a letter from Kanoi Ahuna) dated April 12, 2021. At this time it would be appropriate to entertain the petition for intervention as well as the parties who have raised opposition to the intervention. Chair Apisa: Is this the point where we may want to go into executive session or hear from the applicant? Deputy County Attorney Laura Barzilai: Madam Chair, Laura, County Attorney’s Office. I think it is appropriate for you now to take argument from the parties. Chair Apisa: Is the applicant present? 10 Mr. Ian Jung: Good morning, Madam Chair and Members of the Commission, this is Ian Jung on behalf of the applicant, Green Earth Matters, Incorporated. This is in regards to Unit 69 and 70 of Moloa’a Hui. Chair Apisa: Would you like to ahead— Ms. Barzilai: Madam Chair? Chair Apisa: Yeah? Ms. Barzilai: Excuse me, Madam Chair, I think that the petitioner might present their argument first and then the opposition and, perhaps, you would like to set a time limit. Chair Apisa: I would entertain 10 minutes for the petition and then10 minutes on the other side and then maybe 5 minutes to sum it up. Mr. Jung: Okay thank you, Chair. Chair Apisa: Is that adequate time for you? Mr. Jung: Uh, yes, Chair, that is for the applicant. I believe Mr. Van Buren is on the phone but I am not sure if he is present on the screen. Mr. Buren: Yes, that is plenty – plenty of time. Thank you. Chair Apisa: You do not have to use it all but you know, that is up to you. Mr. Buren: Yes. Chair Apisa: Oh, please go ahead. Mr. Buren: Oh, okay. Thank you. This is George Van Buren for the petitioner and we we set forth our points in the petition, so I think that I will use a few moments just to address the point made by Green Earth Matters. And Green Earth Matters asserts that we’re claiming an ownership in Unit No. – Unit No. 69 and 70. That is not correct. We are asserting an ownership in the land and the land is a common interest. There can be no – absolutely no doubt about that. This is not subdivided land. There were two condominiums created on one – on one parcel and no master association has ever been created so you have one condominium association in which Green Earth Matters is in do- doing whatever they want with the land without consultation, uh, with any of the other owners. There is absolutely no doubt that the land in a condominium must be held in common and it is otherwise it would be subdivided land. The Green Earth Matters is essentially arguing that we have no interest in the land, which would mean the land is solely his, which would mean the land was subdivided, which would be clearly a violation of the law. So we assert that they’ve got the camel’s nose in the tent and they’re – and they’re doing more and 11 more without any consultation with any of the other owners of the land. I respectfully ask that the petition be granted. Thank you. Chair Apisa: You are muted, Ian (inaudible). Mr. Jung: Here we go. Sorry about that. Okay, well, good morning again, Commissioners, Ian Jung on behalf of the applicant Green Earth Matters. As you read from the papers submitted in this, this singular issue of the CPR and what authority there is to grant the application for the permits, um, it’s a sole issue which clearly, I think, under the rules would overly burden what the Commission is here to do. The Commission is here to look at what the use is associated with the project as well as the type of structure that goes up and what type of (inaudible) mitigation elements there should be and how the structure is involved itself with the existing use. Mr. Van Buren has asserted that they have an interest in what is coded as the common element, but under condominium law, it defines what common elements are and limited common elements as well as units. In this particular case, Mr. Miranda who is with me on the screen, he owns, through his entities, Units 69 and 70 Moloa’a Hui 1. Mr. Lindner and Moloa’a Hui, LLC, they own Unit 34 of Moloaa Hui 2. Mr. Van Buren is correct with the fact that it is a larger lot that has three condominiums. But what he fails to recognize is clearly in the condominium documents who provides as the gatekeeper for (inaudible) applications. In this particular case, we attached as Exhibit A and – A.1 and A.2, an authorization from the president. And if you read through our exhibit C, the CPR declaration – that’s the second restated CPR declaration for the particular CPR for which Mr. Miranda owns his properties under – it clearly finds that it is the president who signs the authority for CPR documents and applications before the Planning Commission. So where this is heading I think will clearly overly broaden the Commission’s review on the use because the use is established. It is just a matter of allowing two structures for storage capabilities for equipment and for agroforestry operations that for which they receive wood for the use on the property and that would store the – the wood and material that is cut into slabs. The CPR issue, I think, that Mr. Van Buren asserts to is a civil issue. He – if his client did not appreciate Mr. Huber as the president signing off then he could take that matter to arbitration, and not waste this particular Commission’s time on this application. And, again, you know, we’re not trying to change the use. What we are trying to do is just allow for additional structures to be out there to engage in the operation. And as you’ve seen from the letters of support from the Kunana Dairy Farm, the Growing Strong Farm, and the Tulane’s Farm the material that’s processed out of Mr. Miranda’s operation clearly goes to benefit the farmers out there in Moloa’a Hui. And you’ve seen from Dr. Kumas’s (inaudible) letter of support, it also goes to support local schools and their small but subsidized agricultural operations for the schooling activities. So with that, Commissioners, we request that this particular intervention request be denied on the sole grounds (inaudible) before the Commission. I think Mr. Lindner’s and Moloa’a Farms, LLC – their fight is with the association and not with Mr. Miranda on the sole issue of a CPR and we would ask that you allow this application to proceed. 12 Chair Apisa: Thank you. Anything further from you, Mr. Van Buren? Mr. Buren: Yes, thank you. Just briefly, Moloa’a Farms is not even a member of that other condo. They are a co-owner of the land. They own a common interest in the land, so I do not know what he’s referring to with the arbitration. Also, if you look at Page 9 of his exhibit, the declaration, it says very clearly under common elements, one free- one freehold state is hereby designated of all the reigning portions of the pro- project herein referred to as common elements, including specifically but non- not limited to A, the land in fee simple. So, I think that the Commission should be reluctant to treat this condominium and this applicant as the sole owner of the land. If Moloa’a Farms has no interest in the land, then the land is exclusively owned by the by the applicant which means the land has been subdivided. Thank you. Ms. Barzilai: Madam Chair, Laura, County Attorney. Perhaps, you would like a very brief rebuttal from Mr. Jung on that last point. Chair Apisa: Yes, that is where I’m about to go. Mr. Jung, any rebuttal on that? Mr. Jung: Yeah, common element is defined in 5.14.(a) – HRS 5.14.(a) describes condominiums that were pre-2006, which this was, but, uh, recently the legislature abolished 5.14.(a) to create 5.14.(b), and now all condos are governed by those specific restrictions. The common element is the shared interest of the commonly held areas. The land is held in co-tenancy but the problem with declaration is in when you have (inaudible) or unreasonable owners who do not necessarily subscribe to declaration. Those issues should be brought up civilly within the condominium (inaudible) rather than played out before this Commission. Clearly, the declaration from Moloaa Hui 1 allows for the president to sign-off on the application. In this application, the use is, as described by the farmers, it deals with Ag-uses and provides composting green waste to the farmers so it is an ancillary agricultural activity. He does not own an interest in the (inaudible), he owns an interest in the lot, per se, as it relates to a co-tenancy involving CPR. But each unit owner has the right to follow through with a declaration to control who – you know, those who may try and assert too much power within a declaration of a CPR. And I think it’s an abuse of power by Moloa’a Farms and Mr. Lindner to try and claim that they have a property interest in this particular unit. Chair Apisa: Does any – uh, I guess does that wrap up or anything – anything further of that? Mr. Buren: Well, this is George Van Buren again. Thank you. That part of the problem in addition to the common-element issue is that there they have established two condominiums on – on one piece of land. And nowhere did the president of Hui 2, sign off on this application so the whole thing is, it’s not right and they’re treating it – they’re treating it as, I mean, almost like double subdivided land. I think the Commission should be (inaudible) in this matter. Thank you. Chair Apisa: Final, just to wrap it up Mr. Jung? Anything final to wrap it up? 13 Mr. Jung: I will leave it at the fact that it is the declaration that speaks to who is the gatekeeper and not Mr. Lindner or Moloa’a Farms. Chair Apisa: Any questions from the Commissioners. Ms. Otsuka: I did have some questions but I am not sure if this is the appropriate time so shall I just ask it (inaudible). Ms. Barzilai: Commissioner Otsuka, Laura, County Attorney. Ms. Otsuka: Yes. Ms. Barzilai: If you have questions for the petitioner and the opposition in connection with their arguments or their papers, now would be the appropriate time to ask. Ms. Otsuka: Thank you. I had a question. Ms. Barzilai: Thank you. Ms. Otsuka: With the applicant. The original zoning permit application dated March 16, 2017, states no structures will be constructed, parcel will be used as a green waste composting facility. I was wondering why at that time, an office building was not considered. Mr. Jung: Yeah, I think I can address that. Mr. Hull: Hold on. Hold on, Mr. Jung. Hold on one second. Commissioner Otsuka, so right now the deliberations and discussions should be primarily focused on the request for intervention status. I think once that is resolved— Ms. Otsuka: Okay I apologize. Mr. Hull: Then we can get into the, I think it’s a very valid question considering the application, Commissioner Otsuka, but for right now for the purposes of the agenda, the questions and deliberations should really be focused on, again, the intervention request. Ms. Otsuka: I am sorry. Thank you. Ms. Barzilai: If you have any questions in that regard, Commissioner Otsuka, you may ask them now. Ms. Otsuka: I do not have any questions at this time. 14 EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session I to consult with County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate to the matter of an application by Green Earth Matters, Inc. for an amendment to Class IV Zoning Permit (Z-IV-2017-12), Use Permit (U2017-10), and Special Permit ( SP-2017-5) for the real property identified as Tax Map Key: (4) 4-9-009:012 (Por.) and Petition for Intervention (4/5/2021) by George W. Van Buren, Attorney for Petitioners, Moloa`a Farms LLC. and Jeffrey S. Lindner. Chair Apisa: Any other commissioners have any questions, uh, regarding the intervention. Would the commissioners like to go into executive session? Ms. Otsuka: I move to go into— Ms. Cox: I second. Ms. Nogami Streufert: I second. Ms. Barzilai: Excuse me, Madam Chair. Would you please read the Notice of Executive Session and then call – state the purpose and call the vote? Chair Apisa: Yes, I wanted to get agreement that they do want to but – Executive Session, pursuant to Hawaii revised statute Section 92-4 and 92-5(a)(4), the purpose of this executive session is to consult with the County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, and entities and/or liabilities of the Commission and the County as they relate to the matters of an application regarding, Zoning Class IV Zoning Permit Z-IV-2017-12, Use Permit U-2017-10, and Special Permit, SP-2017-5 to allow construction of its office facility and two storage buildings for the green waste composting operation on Units 69 and 70 of the Moloa’a Hui 1 Condominium. Laura, is that sufficient? Ms. Barzilai: Yes. Now if you would please, uh, call for a motion. Chair Apisa: Call for the motion please. Ms. Nogami Streufert: I move that we go into executive session. Ms. Cox: I second. Ms. Otsuka: I second. Chair Apisa: All in favor? (Unanimous voice vote). 15 Mr. Chiba: Aye. Mr. DeGracia: Aye. Ms. Nogami Streufert: Aye Ms. Otsuka: Aye. Ms. [Cox: Aye. Chair Apisa: Okay, any opposed? Nay. The motion is approved 6:0. We will adjourn to executive session, just to give the public – I don’t know, do we – it’s hard to give a time limit for that but to let the public know – do we— Ms. Barzilai: Approximately 30 minutes? Chair Apisa: That sounds reasonable. So, we will – the Commissioners will log off and log into the executive session. The Commission moved into Executive Session at 9:53 a.m. The Commission returned to Open Session at 10:19 a.m. Chair Apisa Call the meeting back to order after Executive Session. Mr. Hull: Roll call Madame Chair. Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Streufert? Commissioner Streufert? I see Commissioner Streufert’s on but, Commissioner Streufert, I do not know if your mic is picking up. Ms. Nogami Streufert: I am here. Mr. Hull: Oh, okay. Thank you, Commissioner Streufert. Commissioner Otsuka? Ms. Otsuka: Here. Mr. Hull: Chair Apisa? 16 Chair Apisa: Here. Mr. Hull: You have the quorum and all six members participating, Madam Chair. Chair Apisa: All right. Thank you. So, does any of the Commissioners have any further questions they would like to ask? I guess I have one for Ian Jung. Is the Moloa’a Hui 1 Association, I mean, still active and the president is still actively – um, is the organization still active I guess? Mr. Jung: Yeah, the organ— Chair Apisa: Because that is where the authority came from so I am just wanting to confirm that that is still an active organization. Mr. Jung: Yeah, from what I understand, the Moloa’a Hui 1 Condominium Association is active. They are active in review- reviewing the actual permit applications ‘cause as you would imagine, you know, in Moloa’a Hui 1, there is 44 units and in Moloa’a Hui 2, there are 18 units. So if it – it’d be fairly unreasonable if each time someone had to go before and get signatures of every single unit owner. It would be, you know, a pretty complex and cumbersome problem, and so the authority that was delegated to the president is where it resides now. And as you can see from our exhibits, A.1 and A.2, the acting president did sign off on our permit request. Chair Apisa: All right, yes, we saw that. I just wanted to verify that it is still active so that that is still valid. Commissioners, any other questions? Ms. Nogami Streufert: Just one. When –the – when this large property was divided or CPR’d into 1, 2, and 3, was it at that time was one of the Hui’s at that point CPR’d into different units? Mr. Jung: Yeah, so Moloa’a Hui 1 was controlled by the condominium government’s documents through its own declaration, which that declaration has been updated through and created under the second restated declaration. And then Moloa’a Hui 1 – or sorry – Moloaa Hui 2, which is the exhibit 1.2, Mr. Van Buren’s petition refers to the original declaration and I haven’t looked up whether or not that has been actively updated or amended as a declaration. But the two are separate and operating under their respective declarations. What – what is – what Mr. Van Buren pointed out in his opposition or – I mean – sorry – in his petition was that there’s no master association that coalesces between the two associations. And apparently they’re trying to work on that and I have feeling this is why – one of the reasons there is this intervention now to try and get various unit owners to get there and try and create the master association. So I think what collateral damage so to speak. Ms. Cox: Thank you. 17 Chair Apisa: If there are no other questions of – is there – you know, is petition ready to make a motion on this petition to approve, deny, or I guess we don’t amend this but do we have any kind of motion? Ms. Cox: I will make a motion to deny the memorandum of opposition to Moloa’a Farms, LLC, and Jeffrey Lindner’s petition to intervene for Class 4 Zoning Permit Z42017-12, Use Permit 2017-10, Special Permit SP2017-5. Chair Apisa: Do we have a second? Ms. Otsuka: I second. Ms. Barzilai: Excuse me, Madam Chair, could we have a clarification on Commissioner Cox’s motion? Commissioner Cox, would you please restate your motion? Chair Apisa: Yes. Ms. Ms. Cox: My motion is to deny the intervention – the petition intervention. Ms. Barzilai: Mahalo, Commissioner. I do believe you need a second. Chair Apisa: And I think we were just – uh, who – who seconded it? Ms. Otsuka: Lori. Chair Apisa: Okay so we have a second. Is there any discussion on the motion? Motion is to deny the plea for intervention – the petition. Hearing none. I’ll take the vote. All in favor? Mr. Hull: Madam Chair, it may be appropriate to do a roll call. Chair Apisa: Roll call, yes, please. Thank you. Roll call, please, on the vote. Mr. Hull: Roll call, Madam Chair. Commissioner- and, again, this is for a motion to deny the intervention request. Roll call, Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Abstain. 18 Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Mr. Hull: Motion passes 5: 1 abstain, Madam Chair. Mr. Hull: With the denial of the petition to intervene, we will move directly back into the Agency Hearing. We heard all testimony during the opening public comment portion as well as you have number of communications of written testimony. The Department would recommend closing the agency hearing. Chair Apisa: We have a motion to close the Agency Hearing. Mr. Nogami Ms. Nogami Streufert: I move to close the agency hearing. Ms. Cox: I second that motion. Chair Apisa: All in favor? (Unanimous voice vote). Ms. Cox: Aye. Mr. DeGracia: Aye. Mr. Chiba: Aye. Ms. Otsuka: Aye. Chair Apisa: Is there any opposed? The motion is approved 6:0. Chair Apisa announced the close the Agency Hearing. New Business For Action AMENDMENT TO CLASS IV ZONING PERMIT (Z-IV-2017-12), USE PERMIT (u- 2017-10), and SPECIAL PERMIT (SP-2017-5) to allow construction of an office facility and two (2) storage buildings for the green waste composing operation involving Units 69 & 70 of the Moloa’a Hui 1 Condominium, on a parcel situated along the makai side of Kuhio Highway in Moloa’a, approximately 1,000 feet east of the Ko’olau Road/Kuhio Highway intersection, further identified as Tax Mao Key: (4) 4-9-009:012 (Por.), and affecting a portion of a larger parcel containing 281+acres= Green Earth Matters, LLC. [Director’s Report received, 3/29/2021.] 19 Mr. Hull: Okay moving directly from the Agency Hearing for Green Earth Matters, we move directly into the For-Action Items. So, again, this is amendment to Class IV Zoning Permit Z- IV-2017-12, Use Permit 2017-10, and Special Permit SP-2017-5, to allow construction of an office facility and two storage buildings for the green waste composting operation involving Units 69 and 70 of the Moloa’a Hui 1 Condominium, parcel situation on the makai side of Kuhio Highway in Moloa’a, approximately 1,000 feet of the Koolau Road/Kuhio Highway intersection further identified as Tax Map Key: 4-9-009:012 and affecting a parcel of a larger parcel containing 281-plus acres. The applicant is Green Earth Matters, Incorporated. As previously stated, the Commission did receive the Director’s Report via the clerk’s receipt of it. I will hand this over to Dale Cua who is our planner for this agenda item. Staff Planner Dale Cua: Good morning, Madam Chair and members of the Planning Commission. Um, moving on to the Director’s Report, I will briefly summarize the Director’s Report. It action required by Planning Commission, uh, consideration of applicant’s request to amend Class IV Zoning Permit, Use Permit, and Special Permit to allow construction of an office facility and two storage buildings. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: The project is located approximately 1,400 feet east of the Koolau Road/Kuhio Highway intersection. At this time, this concludes the Director’s Report of Findings. If you have any questions for me, I would be happy to answer them. Chair Apisa: Thank you Dale. So can we hear from the applicant now? Mr. Ian Jung: Yeah, sure. Good morning. Again, this is Ian Jung on the behalf of the applicant Green Earth Matters. Thank you for allowing us to continue this hearing today. I know it is a very complex issue with CPRs. But just from the outside, I know there are concerns risen from some of the testimony that was received regarding industrialization on the use out there but I do want – I do have Brandon Miranda with me who’s the principal for Green Earth Matters and he can kind of dive further into the actual use of the facility. But, as you know from the staff report, the project was permitted in 2017 to allow for a green waste composting facility so the end-user project that’s – or product that’s derived from these uses actually do go toward agricultural uses and I think our letters of support do speak to that. So I would consider this as an agricultural- type use. The two proposed structures that are going up, one is a three-sided equipment shelter so that’s to store some of the large equipment that moves the material around the site to create the windrows as they call it, and to rotate the material so it can get properly composted. The second structure that is proposed, that is a storeroom. One of the uses that has been established out there is Kelly Franklin runs a wood slabbing machine. So some of the green waste that gets taken are large 20 trees from – as we all know from what happened with Wailua River, some of those Albizia trees can get moved over to the site – or other type of large trees and those trees would get slabbed out and create lumber for local carpenters and woodworkers and whatnot. So it kind of aids in this idea of agroforestry where it provides an opportunity for those who do cut trees or need to remove trees for whatever reason, a resource to actually use that wood rather than just grinding it up. The issue that I think was brought up with regards to the office building, if you take a look at Condition No. 1, historically prior to what we refer to as the Somers and Kaplan drama, the Planning Director had an interpretation that you could amend site plans for certain projects provided there is the authority from the Commission. So in Condition No. 1, there’s a provision that allows for the Planning Director to make an interpretive call on whether or not the – the use remains the same and if any additional structures could go on that wouldn’t further impact the project itself. So it appears prior to Director Hull’s tenure that the Planning Director at the time, approved of the office building to go on the site. And so what we kind of worked through with, the – the staff planner is we needed to reconcile that approval through the building permit process on this massive site plan. So, that’s why it’s there on the proposed site plan now to be labeled as the existing office building. So I think there was confusion there from the use standpoint, because the use will remain the same. The office structure does facilitate for the green waste composting facility because there are scaling and material I’m sorry – and, um, machinery that goes into properly doing the scaling and it needs to be housed inside that area with office space and whatnot for the – for the employees that are there. so with that, I’ll answer any questions and, again, with me is Brandon Miranda who’s, the principal in – in both entities, Green Earth Matters and the owner and he can address any questions you folks may have. Ms. Otsuka: I have a question. Mr. Jung: Sure. Ms. Otsuka: The petition to modify states that approximately two employees are on site on a consistent basis during, uh, operational hours and that the construction of an office is for management. I was wondering why a 3,240 square-foot office building was necessary for such a small employee count. Mr. Jung: Okay, Brandon, do you want to speak to Commissioner Otsuka on the parameters of the operation out there? Mr. Brandon Miranda: The recommendation was having minimal of two operators, on site and we’ve expanded the size of the amount of material coming in, amount of equipment that needs to be managed, and the in and out does take more than one operation – or one person. We have a scale house, which runs the actual scale and then also do the – the management of you know, the 21 bookkeeping, paperwork, and everything else is within – within the facility. So as far as why it was built bigger there was specific reason why other than the fact that – you know, to be more comfortable and having the flexibility of having more people as the facility grows. Chair Apisa: Thank you. Ms. Nogami Streufert: If I could ask a question. If the it’s – my understanding is that the office building was approved (inaudible) building department (inaudible). Mr. Jung: Yes, I looked up Commissioner Streufert, I looked up the building permit notes on this particular application and it appears planning staff did appear this – or approve this permit as well. The way the system works, it goes through electronic plan review and during that plan review process, and it was approved by the Planning Department Staff. Ms. Nogami Streufert: Okay it was approved. Mr. Jung: Yes. Ms. Cox: So I have a question. Was the current request for the – the new tow buildings, was that also approved by the Farm Review Committee as suggested as required by the second amended declaration for Moloa’a 2? Mr. Jung: The Farm Review Committee, I believe, looks at the Declaration and (inaudible) as it relates to the private covenants, but the buildings, because they’re associated with agriculture – I’m sorry, I have a siren going by – related to agriculture, I’m not sure if Mr. Huber took that through them or not. But, he did sign the – as the president, the approval of the (inaudible). Chair Apisa: So it would be up to him to decide whether it has to go to the Farm Review Committee. Mr. Jung: I am not familiar with their internal workings, but if that is something we need to look into, we certainly can, uh, but he – you know, it is a private covenant issue. But I think if there is a dispute, then that would be with the actual CPR owners versus the Planning Commission. Chair Apisa: Thank you. Commissioners, any other questions or comments? Do we have anything further from our Planning Director – I mean from our planner? Ms. Nogami Streufert: (Inaudible) one of the Conditions, I share the concern about the size of the office building and the (inaudible) amount of current operations that are ongoing. Would it be possible to put a Condition in there that states that the office building cannot be used for overnight – for residents for overnight or for TVR or for any purpose other than office management or management of the property? I guess that is a question for Dale and for the (inaudible). 22 Mr. Cua: In regards to the overnight accommodations. We can definitely include a Condition. Just noting that the project is situated outside of the visitor destination area so, utilizing this facility as a TVR would be you know, it would be in violation against current laws that exist today. Ms. Nogami Streufert: Well (inaudible) in time be identified as a farm dwelling and thereby get around the whole process of farm (inaudible). Chair Apisa: My understanding that, there is no farm dwelling allowed on these two CPRs and that it is strictly agricultural use. There is – there is no farm dwelling allowed on either 69 or 70, is that correct, Ian? Mr. Jung: Yeah, if I could, Commissioners, interject on this, yes, so that’s correct. The CPR documents in particular, the second restated declaration, does spell out which units do have density associated, uh, with – with the condo project. So these particular units do not have density. So the – the office building could never be used as a farm dwelling unit. Ms. Nogami Streufert: Could it be used overnight for – or a – a short-term accommodation for farm – not a – not a dwelling meaning that they have to live there but that they stay for a period of time that does not include a (inaudible). Mr. Jung: No, because it is outside the BDA so, you know, there’s no special permits (inaudible) rental use on these two units so it would never be allowed to be used as vacation rental. Further, the – the operating hours have been controlled by the prior commission ac- or action of 7 a.m. to 5 p.m., there may be an instance where— Ms. Nogami Streufert: Business hours – yeah, but it does not state that the office hours (inaudible) operations. I would assume that people who are working there may stay longer or (inaudible) be there, you know, on time so it’s – it’s a question. Mr. Jung: Yeah. Ms. Nogami Streufert: It is a very large build- building; it has everything that you need in order to make it a residence, that – therefore, we are just precluding it as opposed to (inaudible). Mr. Hull: If I might interject, Commissioner Streufert, given your concern, the Department would be open to amending our recommendation to include Condition No. 23 which would state, “At no time shall this facility be used for overnight accommodations or habitation or dwelling purposes.” Would that meet your concern, Commissioner Streufert? Ms. Nogami Streufert: That would meet my – yeah. Ms. Mr. Hull: Mr. Jung and Mr. Miranda, any objection? 23 Mr. Jung: The applicant – yeah, the applicant would have – we have no objection to that recommendation. Mr. Hull: Okay so with that, Commissioner Streufert and members of the Commission, the Department would amend our recommendation for approval to include the previously established Condition 21 and 22 and now this new Condition 23 into our report. Chair Apisa: Good resolution there. Any other questions? Thank you, Glenda. Any other questions? Ms. Otsuka: Thank you, Glenda, because I was questioning that also. I feel this is a very large (inaudible). Woman: Hi, good morning, (inaudible). I wonder if (inaudible). Mr. Hull: Sorry, can the members of the public please mute your phones, please. Or I will mute all of the phones on our behalf. Thank you. Sorry, Commissioners, go ahead. Ms. Otsuka: I appreciate the – Commissioner Streufert mentioning that cause I had doubts also and concerns so thank you, Glenda. Chair Apisa: Any other Commissioner have any concerns or comments. So have we heard the final, um, recommendation? I think we have the final recommendation from our planner. Or anything to add from the planner? Mr. Cua: Not at this time. There is an introduction of two Conditions, 21 and 22. Chair Apisa: Okay. Mr. Hull: And also, again, and then 23. Chair Apisa: If there are no other questions, would anyone like to make a motion? Ms. Nogami Streufert: I will give it a shot. I move to accept the Director’s Report with amended or Director’s Report with amended Conditions for Permit Class IV Zoning Z-IV- 2017-12, Use Permit U-2017-10, and Special Permit SP-2017-5, Green Earth Matters. Chair Apisa: Is there a second? Ms. Cox: I will second. Chair Apisa: Any discussion? I will opine I think we can do a roll call on this also please. Mr. Hull: Sure thing, Madam Chair. Motion to approve as recommended, roll call. Commissioner Chiba? Mr. Chiba: Aye. 24 Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Mr. Hull: Motion passes 6:0, Madam. Chair Apisa: Motion – thank you. Mr. Jung: Thank you, Commissioners, appreciate your time. Mr. Miranda: Thank you, Commissioners. New Agency Hearing CLASS IV ZONING PERMIT (Z-IV-2021-8), and USE PERMIT (U-2021-7) for the construction of a farm dwelling unit and associated site improvements on a parcel located in Kilauea, situated approximately 1,700 feet from Kahili Makai road and 2,700 feet from the Kahili Makai Road/Kuhio Highway intersection, further identified as Tax Map Key: (4) 5-2-012:019 and containing a total area of 0.735 acre= Michael A. Kaplan Revocable Trust. [Director’s Report received, 3/29/2021.] Mr. Hull: Again, just as we move to the next Agenda It em, for those have called in or hear with teams, please mute your log in so we do not get any (inaudible) mute your call-ins. Moving on to the next agenda item, New Agency Hearing for Class IV Zoning Permit Z-IV-2021 and Use Permit 2020 – sorry – Class IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7 for the construction of a farm dwelling unit and associated site improvements on a parcel located at Kilauea situated at approximately 1,700 feet from the Kahili Makai Road and 2,700 feet from the Kahili Makai Road/Kuhio Highway intersection, further identified as Tax Map Key: 5-2-012:019 and containing a total area of .735 acres. The applicant is Michael A. Kaplan Revocable Trust. Again, we corrected this to the Director’s Report was received previously. We have a petition for intervention dated April 5, 2021, by Mauna Kea Trask, attorney for petitioners West Sunset 32 Phase 1, LLC, CS Development, LLC, and Charles Somers individually. We also have a letter from Rex Fujichaku of Bronster Fujichaku Robbins Attorneys at all. Excuse me, we also 25 have a letter from – applicant Michael Kaplan’s objection to petition for intervention and request for hearing. As happened in the previous agenda item, it would be appropriate, Madam Chair, to entertain the petitioner’s request for intervention and the applicant’s opposition at this time. Chair Apisa: Thank you very much, Kaaina. So we have the petitioner present to give a presentation? Mr. Mauna Kea Trask: Yes, Chair, Mauna Kea Trask on behalf of petitioner for intervener’s West Sunset 32 Phase 1, LLC, et cetera. May I begin? Chair Apisa: Yes, please proceed. Mr. Trask: Thank you, Madam. Mr. Hull: Madam Chair, just for my tracking purposes, are you setting a timeline for this— Chair Apisa: Yes, it could be— Mr. Hull: Intervention request and opposition as well? Chair Apisa: Yeah. Yes, thank you. I think it is reasonable to go with a 10-minute maximum for both sides and then a 5-minute, summary. But please go ahead Mauna Kea. Mr. Trask: Thank you very much, Chair. Thank you, Commissioners. Today, Mr. Somers would like to, as is his right, just participate in this proceeding. That has always been his intent ever since the initial letter application submitted by Mr. Kaplan in March 2019 I believe. Mr. Somers is a large landowner in that area, as you all know. When his permits were granted in 2010, he was required to put 80 acres, within a conservation easement, which he did. Thereafter, he voluntarily put another 60 acres, in a conservation easement. And he is obligated under his permits, obligated under contract with HILT, the Hawaiian Islands Land Trust, and with this Commission of Kauai to protect and preserve that area. And as you heard from people today testifying the members of the public, people who he knows and he’s met while he’s lived over here part time, he is a contributing member to the community and he is sincere in his concerns to protect the environment as well as any native land culture resources that may be present. So this is a very important, important piece of property that Mr. Kaplan is developing. It is the – we believe it’s the last Kuleana in existence in the outfall of Kahili. The rest were consumed by the Kilauea Sure Company from the late 1800s until the, you know, as late as 1970s perhaps when they went out of business. Initially, when Mr. Hendrikis got his after-the-fact zoning permits to permit what was an illegal development by the previous landowner Mr. Saunders, all the community and the Commission knew was that there was (inaudible). Subsequent to that in 2011, it turned out to be a 69 (inaudible) Lo’i kalo site. So, essentially, you have – the resource that is there is Limahuli Gardens right in the middle of Kilauea. That is a very important aspect and it is a differentiating aspect with regard to this development. And the – the interesting thing is because of the timeline, no one in the public had known about this. In fact, we only found out in our attempt to get involved and bring this matter back to the Commission, when the previous, 26 uh, permits’ extensions were granted. That is the SMA Use Permit, the Class IV, and the Use Permit in 2019. So in effect what you have here is, you know, Somers was put through a development process. This Planning Commission mandated that he protect the property and he does it and when he tries to do it further, he is denigrated for trying to do it. His credibility is called into question, his sincerity is called into question, and, in essence, he is not being afforded the consideration that anyone else any other neighboring landowner would in this situation. And – and we just propose that that’s wrong. Intervention in this case, it is an easy – it’s an easy grant. He’s – he’s a next- door neighbor and part of the project site is within the, conservation easement. He may not be building the house in there but they are going to be landscaping if you look at it. This is Exhibit 5 for the petition. You can see that they’re going to be planting trees in there and there’s going to be – which would – may, in fact, be a violation of the conservation easement. I know it seems kind of counterintuitive but if you look at the conservation easement – this is Exhibit 8 Page 7 Section 4.1, the following acts and uses are expressly forbidden on over or under or in connection with the conservation easement and that’s excavating, dredging, removing from the easement area any (inaudible), gravel, sand. Putting any temporary or permanent structures, and, you know, right – if you look at Exhibit I, the landscaping plan shows, not the entire easement area within that schematic – there may be temporary structures near the access easement area, uh, (unintelligible) of the driveway and/or (unintelligible) of it. Um, cutting or, uh, removing or otherwise destroying trees, grasses, or other vegetation is also prohibited in the conservation easement area. Placing, filling, storing, or dumping, uh, soil rec use – soil for rec use is not allowed, as is alteration of water courses and any unanticipated use or activity which would impair the conservation values. You know, the interesting things is and one of the things to show the sincerity of it and how far Mr. Somers has come is the testimony of Maka’ala Ka’aumoana. You know, she testified in 2010 on her own accord in Hendrikis application that water quality was a concern. That’s why Hendrikis on Condition 10 of these permits – the original permits – required water quality testing before, during, and after construction. And there’s no evidence that we’ve seen that that ever occurred, you know, similar to what Ka’aumoana testified to. So, I mean, all these issues are very important. Now, what we are asking for, to be specific, right now is to participate in the process to have all this evidence be presented to you. That is just normal course. It’s part of the development process. No one is being denied anything here. They are just being asked to follow the rules and we are being asked to be allowed to participate as is our right. And, you know, whether or not you ultimate – whatever your ultimate decision is, that decision can only be had after you review all the facts and circumstances, after you see all sides, and after you consider how this is – affects neighboring landowners and other interested persons. Now, if you look at the Director’s Report, it is really interesting. You know, it’s – it’s not – if you look at the first page, it says this report is being transmitted to the applicant and Planning Commission in order to satisfy the requirements in Section 9.0 of the County of Kauai SMA Rules and Regulations relating to the scheduling of a public hearing within 60 days. So even the Director’s Report is inconsistent on whether or not public notice is required, under the SMA Rules, whether or not this development necessitates SMA review. We submit that it does. The applicant says that it does not. That’s – and that is what the hearing is going to be for, that is what a contested case is about. And if it is, then nobody got SMA notice. There was no public 27 hearing and again, you know, similar to the last hearing, and unrelated matter in Kilauea regarding Bruno’s application, the public notice said public hearing but this is an agency hearing. So, you know, when you’re looking at the development within the SMA – and as you all know, Kilauea is very, very diligent in these matters but there is no notice that SMA is – is (inaudible) this case or notice was given. And, furthermore, if you look at the – also look at the Director’s Report, this is Exhibit A, the only agency comment for reference is for Public Works and they say BM- you know, use BMPs, it’s a very rogued standard response. But if you look specifically at the transmittal memo, it references a different TMK, it’s Parcel 10 within the Kahili area, not 19 which is the subject of this application. And if you do a property search, Parcel 10 is the (inaudible) parcel of Kolo Road, you know, Kuhio Highway. It’s nowhere near the – the SMA. Whereas this lot was right in the middle and within the Kilauea River band or you know, the Kilauea Valley. So there’s questions as to whether or not this comment from Public Works is even relevant to this development. And these are the type of issues that – you know, they – they need to get sorted out and that is the process with which we do it is you have an interested person, you have a hearing, you have the applicant, and then you make your decision ultimately. And, you know, if you look at the application and you look at the Director’s Report, they say there will be no affected interest of the property landowners, this shouldn’t affect anything. The only people that can tell you that are the interested persons. The only people that can tell you what affect this will have are the neighboring landowners. This is all very, again, important and part of the review process and it cannot be denied, it should not be denied. We are just asking for consistency, fair treatment, and the right thing, again, at this point, separate and apart from any ultimate decision. And, you know, it’s just – in reviewing the application, it’s really unfortunate that this, the discussion when it comes to Mr. Somers always veers towards his character or some kind of characterization as him as being some kind of bad person and I think Mr. Webb and Mr. Keno and Bruce Layman, they know him, they worked with him in the past couple years and they’ve seen him. They’re credible people in the community. Mr. Layman is a long-time the rancher and the cattleman and knows all the local people and Somers does what he can to support in the way he can through resources.\ Mr. Hull: 10 minutes, Madam Chair. Mr. Trask: Thank you. And just in summation, I’d just like to say that this should be a fait accompli. This is an easy grant. Intervention is proper. Mr. Somers is a neighboring landowner with interest and we can deal with all these details or- in an organized fashion appropriately in a contested case hearing. Thank you. Ms. Margery Bronster: Good morning, Commissioners. I am Margery Bronster and I, along with Laura Loo, represent Michael Kaplan as trustee of Michael Kaplan Revocable Trust, the applicant here. Hopefully, you have received our opposition to the motion for intervention at this time and I want to highlight, some of the things that we put into our papers. Essentially, Mr. Trask said that Mr. Somers is only asking for the normal course, is asking for consistency. Well, that is what we are asking for as well. Consistency would lead you to conclude that intervention should be denied and it should be denied because the application here is for a single dwelling on 28 a Kuleana lot. We are not aware of any other case in which intervention was granted when there was a single-family residence being built on a Kuleana. We believe that Mr. Somers has either misrepresented or misapprehended the application here. This application is not for a development. The entirety of the motion to intervene presupposes that Mr. Kaplan is now seeking to do the same development that he was once seeking in the prior permits but that is not the case. As we have stated in our papers, the prior permits were the subject of very extensive litigation. The court – the circuit court set those prior permits aside and we are not seeking to reinstate those prior permits. The fact that Mr. Somers is trying to litigate the prior permits on a development is simply an improper use of this process at this time, and it would invade the process of the circuit court. And Mr. Kaplan has appealed it to ICA and that’s not what this application is about. This application is a simple single-family application. So is he, Mr. Somers, eligible for intervention? And when you look at your own rules, it makes it clear that he is not. Basically, the standard is whether Mr. Somers can demonstrate that his interests are clearly distinguishable from that of the general public. But when you look at his declaration, what he is saying is that he is interested in supporting the environmental rights. Those are rights of the general public. When he talks about supporting Hawaiian rights, again, those are rights of the public, not of his own right, he is not asserting that he is a Native Hawaiian and what’s and he also talks about seeking to protect archaeological rights. Well, Mr. Kaplan has completed a preservation plan. It has been submitted to (inaudible) and it has been approved. So all of the issues that Mr. Somers seeks to vindicate are issues that are issues of the general public and, as such, it does not give him the right to intervene. But, more importantly, giving him the right to intervene will render these proceedings inefficient and unmanageable. And as your rules make clear, if it makes it inefficient or unmanageable, you have the discretion to deny his intervention. Mr. Somers has made it clear all along that what he would like to do is stop Mr. Kaplan from seeking any permit. In fact, um, not long ago, he went into circuit court and asked Judge Watanabe to prevent Mr. Kaplan from ever getting a permit for anything from the Commission and Judge Watanabe said, “No.” So what he’s attempting to do now is exactly what he attempted and failed to do in court. It would be a very dangerous precedent to allow every neighboring landowner to intervene on a simple application for a Kuleana lot. And when you look at where Mr. Somers is and how this development would impact the neighborhood, I ask you to look at the exhibits that were attached to our objection to the petition for intervention and particularly Exhibit No. 3. Exhibit No. 3 is a picture showing Mr. Somers’ property and Mr. Kaplan’s. Mr. Somers’ property down here that Mr. Trask talked about – he said that when Mr. Somers did his development, he had to go through a hearing. Well, this is not a development. The Department of Planning has already determined that this is not considered a development in contrast to what Mr. Somers did, which was literally 10 times the size of construction of what Mr. Kaplan is proposing here. This also shows that it – Mr. Kaplan’s project is in a heavily- wooded area not even visible from Mr. Somers. And Mr. Somers’ assertion that somehow Mr. Kaplan is building a building, a single-family residence within the C1 conservation easement is simply wrong. The prior permits included development on the easement but this does not. And so I think when you look at what this application is, not what Mr. Somers says it is, not what the 29 prior permits are that are currently on appeal, but when you look at this application, you will see that this application does not implicate the easement, does not implicate Mr. Somers, and Mr. Somers should not be allowed to intervene. I just raise for you the list of things that he would like to have a hearing consider. What he’s really looking for is he’s looking to supplant the Department of Planning and the Commission. The Department of Planning is tasked with looking at each of the 12 items that Somers says he’s going to look at. That’s not his job and it is, frankly, the job of the Department and the Commission to address these things, not the job of Mr. Somers who’s trying to vindicate the rights of the entire Valley and prevent Mr. Kaplan from everything. The court would not allow him to stop Mr. Kaplan from seeking this permit and you should not allow him to extend, intervene, and extend and extend and extend what should really be a very simple consideration of a single house in a Kuleana lot. Accordingly, we ask that you deny the intervention. I am happy to answer any questions. Chair Apisa: Do the commissioners have any questions? At this time I would go back and ask Mauna Kea, do you have any – any further comments and maybe limit it to five minutes each now to go back. Mr. Trask: Thank you, Chair. Thank you so much. So, first off, this is development and the specific guidance (inaudible) SMA Rule 1.4.(f) and Chapter 2 of – I mean HRS (inaudible) 822 is development does not include the following – and this is one, permit (inaudible) construction or reconstructing of a single-family residence that is less than 7,500 square feet (inaudible) and is not part of a larger development. This is part of a larger development. In fact, the Planning Director’s Report acknowledges that. If you look, it says, this is at the bottom of Page 2 – it is noted the applicant has commenced with construction of the residence through a previous application, SMA Use Permit SMA U-2011-1, Class IV Zoning Permit Z-IV-2011-1, and Use Permit 2011-1. The application involved the construction of the dwelling unit that is being proposed, as well as improvements on a neighboring parcel. The permits were invalidated court order. And as we discussed, that included construction of other illegal structures, relocation, building of a barn, solar panels, archaeological restoration, landscaping. That is a larger development, this is part of it. Ms. Bronster: is right, we are in circuit court or we did go through circuit court and Mr. Somers won his circuit appeal currently before the ICA. And so let’s let that process go through. And the court recognized that this was part of a larger development. As we noted in our petition on Page 5, the court ruled in its June 9, 2020, order of Section B Kaplan’s request for the construction of a farm dwelling unit in addition to the preexisting development on the subject property, which is still there. You know, Kaplan is saying that we are misleading the Commission. Absolutely not true. They do not discuss the previous development at all. It’s still there and the judge said an amendment – so – and add the amendment to modify the design of the previous permit of family residence, constitutes development pursuant to HRS 205-822 and Rule 1.4(f) thus requiring a SMA Use Permit. And Somers never in the circuit court asked a judge to prohibit any development. That’s – that’s false. If you look at our pleadings in that case, our reply at Page 4, it says Somers has not requested the court issue a permanent injunction prohibiting the County from approving any future permit applications, however, if Kaplan wants 30 to engage in any activities within the SMA, he has to comply with state law and the County’s SMA rules concerning the submission of assessments, SMA permit applications, and any related rules regarding notice of holding of public hearings. And, furthermore, it’s not just limited to the SMA issues. We also clearly state we want to ensure under the use permit evaluative criteria, and this is CZO 8-3.2.(e), 1 and 2 - that the Commission only grants this permit after making certain, excuse me findings including but not limited to its compatible use, it’s not detrimental to health, safety, peace, morals, comfort, and will be, not be inconsistent with the intent of the chapter of the general plan. We are going to simply bring those issues forth. We are not asking for anything. We are looking for consistency. Mr. Somers was required and was intervened in a contested case hearing. We are asking for the same thing. He built nowhere near the historical, resources on his property. Mr. Kaplan, in contrary, is building right in the middle of it. Then, if you look at the previous archaeological inventory surveys and preservation plans, those pertain to Mr. Hendrikus’s design, single-family residence, which as was stated by Ms. Ka’aumoana was post and pier. This is a concrete slab of foundation. There’s been no evaluation on how that affects, if at all, the historical resources and it should be cause of the unique character and special nature of that lot. You know, inefficient and unmanageable – it is really unfortunate that – to say that’s an interested neighbor who wants to ensure that the law is followed is making something inefficient and unmanageable. That is just the process of development in Kauai generally and specifically in this special place which is within the SMA. It is just in the open zone and it is a special treatment resource area. It is just what it is. Mr. Kaplan knew that when he bought it. And if it wasn’t an SMA development, why did he ask for an extension in March 2019 of the SMA Use Permit? Why wasn’t it exempt then? Because it wasn’t. It was part of a larger development and so these are the issues that we need to address. Um, and we submit the only reason why no one else is over here requesting intervention is because no one else knows because of the lack of public notice. I mean, did this get (inaudible). So, anyway, again, please – it is totally appropriate to grant intervention in this case, have all these issues come before you so that you can make the appropriate ultimate decision after hearing with the hearing office. Thank you so much for this opportunity (inaudible). Chair Apisa: Thank – thank you very much. Margery, I believe you get a chance to respond. Ms. Bronster: Thank you very much. I think Mr. Trask’s comments really make clear the fact that he is attempting to have, Mr. Somers is attempting to have you look at the prior permits and what went on in the court, and that is not what is currently before you. What is currently before you is Use Permit No. U-2021-7. It is not the prior permits. All of the arguments that have been made address the prior permits not the single-family residence to be built on a Kuleana lot. And what he’s try- what he’s trying to do is Mr. Somers is trying to draw you into that confusion, having you intervene in what the…what is currently before the circuit court and the ICA. That is not the task before you. The task before you is the simple task of looking at the new application. Mr. Kaplan knows he cannot develop the prior permits unless and until the ICA reverses or he goes through a different process but according to your rules, he can seek a use permit for a single-family residence and that’s what he’s doing. Mr. Somers has said through counsel that he is simply trying to make sure the law is followed. That does not give him any particularized position. That is the job of the Planning Department and you, the Commissioners. You are 31 following your rules and trying to make sure that the law is followed. You have adequate and competent counsel helping you do so. You do not need Mr. Somers and Mr. Trask, as able an attorney as he is, to tell you what – the general responsibility. It does not make Mr. Somers a special person with special provision. And he has not at all shown what his special harm is if any. With respect to whether or not this is a development, I would ask you to look at the use permit application that is before you. Exhibit M, there is a letter from the Department, the Planning Department that says that the SMA determination dated October 19, 2020, the proposed single- family dwelling – that’s this one, not the prior permits, that’s this one – the proposed single- family dwelling would not – and the not is underlined – be considered development as defined in Section 1.4(f) of the Kauai County Special Management Area Rules and Regulations. So to say that this is a development in contrast to the prior permits simply is wrong and it, again, misstates or misunderstands the record on this narrow application. Accordingly, we would ask that Mr. Somers’ application be denied – application for intervention be denied. And as Mr. Trask has said, Mr. Somers is currently litigating in the circuit court. You are not preventing him from litigating the prior permits. That is already happening but he should not be allowed to intervene here. Thank you. Mr. Trask: You know, Chair, as the petitioners for intervention, we would request the final, surrebuttal because it is our petition and we believe we should have the last (inaudible) under the rules and – and just general rules of (inaudible). Chair Apisa: Okay go ahead. Mr. Trask: Madam Chair, I will make it very brief. So, first off, it’s the same development. That is why the other permits are being discussed. We are not trying to rehash anything before this Commission. This is a new permit request but it is the same development. It is the same single-family residence that he developed under the auspices of the previous permit – same one. And if you look at the Department’s determination, it’s saying that you know, it does not discuss, again, the larger development. So these are issues that – that are serious questions, there’s – there’s (inaudible) and, um, larger policy concerns that this brings up. And even under simply the SMA Use Permit Provisions, you would have an opportunity to intervene to ensure that those are followed. And so all we’ve ever wanted, again, with petition for revocation, the other proceeding, is to be a part of this review process before you ‘cause that is true, you are the – the (inaudible) of whether or not this should be granted in the first instance and we want to participate in that and that’s simply it. Thank you. Chair Apisa: Thank you. EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session I to consult with County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Commission and the County as they relate 32 to the matter of an application by the Michael A. Kaplan Revocable Trust for a Class IV Zoning Permit ( Z-IV-2021-8) and Use Permit (U-2021-7) for the real property identified as Tax Map Key: (4)5-2-012:019 and Petition for Intervention (4/5/2021) by Mauna Kea Trask, Attorney for Petitioners, West Sunset 32 Phase 1, LLC., and Charles Somers, Individually. Chair Apisa: Commissioners, any questions or I will read the executive option here. Pursuant to Hawaii revised statute Section 92-4 and 92-5-(a) (4), the purpose of this executive session is to consult with the County’s legal counsel on questions, issues, status, and procedural matters. This consultation involves consideration of the powers, duties, privileges, and unities and/or liabilities of the Commission and the County as they relate to the matter in the application by the Michael A. Kaplan Revocable Trust for a Class IV Zoning Permit Z-IV-2021-8 and Use Permit U-2021-7 for the real property identified as Tax Map Key: 4-5-212:019 and petition for intervention dated 4-5-2021 by Mauna Kea Trask, attorney for the petitioners, West Sunset 32 Phase 1, LLC, CS Development, LLC, and Charles Somers individually. So would the Commissioners like to go into executive session pursuant to that. Ms. Cox: I make a motion that we move into executive sessionfor the reasons just stated. Ms. Nogami Streufert: I second. Ms. Otsuka: I second. Chair Apisa: Any discussion? All in favor? Aye. (Unanimous voice vote). Ms. Cox: Aye. Ms. Otsuka: Aye. Ms. Nogami Streufert: Aye. Mr. Chiba: Chair Apisa: Any opposed? Any opposed? Nay. Hearing none. Motion carries. 6:0. We will adjourn to executive session. Again, I would expect, uh, maybe 30 minutes, um, approximately. Okay thank you. The Commission moved into Executive Session at 11:23 a.m. The Commission returned to Open Session at 12:17 p.m. Chair Apisa: Call the meeting back to order after Executive Session. Mr. Hull: Madam Chair, I believe we have all the Commissioners’ back and present if you re- the roll call for commencement of the meeting— Chair Apisa: Yes, please. 33 Mr. Hull: Okay commencing the meeting. Roll call, Commissioner Chiba? Mr. Chiba: Here. Mr. Hull: Commissioner Cox? Ms. Cox: Here. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Here. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Here. Mr. Hull: Commissioner Otsuka? Commissioner Otsuka, sorry, did we not get Lori? I see Lori present but I believe she is muted. Commissioner Otsuka, are you there? Okay moving on, Chair Apisa? Chair Apisa: Here. Mr. Hull: You have a quorum, Madam Chair. Chair Apisa: Okay we will proceed. So any other questions that the Commissioners have to ask at this time. Do we then proceed to vote? I guess I would ask procedurally. Ms. Barzilai: Madam Chair, you would seek to entertain a motion at this time. Chair Apisa: Yes. Yes, is a motion; would one of the Commissioners like to make a motion on how to proceed with the petition for intervention? Ms. Nogami Streufert: Did we want to wait until Commissioner Otsuka is on? Or do we want to do this now? Ms. Barzilai: We should wait for Commissioner Otsuka. Chair Apisa: Has she come on? Ms. Otsuka: (Inaudible) so many buttons, buttons galore. I apologize. I had the wrong; I had the wrong button on. I saw your lips moving but I did not hear you. Chair Apisa: Okay we all six Commissioners are present. I would like to entertain a motion from one of the Commissioners on how to proceed with the petition for intervention. 34 Ms. Nogami Streufert: All right, I will try this; I move to deny the petition for intervention by Mauna Kea Trask, attorney for petitioners West Sunset 32 Phase 1, LLC, CS Development, LLC, and Charles Somers individually. Chair Apisa: Is there a second? Ms. Cox: I will second. Chair Apisa: Any discussion on the motion? The motion is to deny the request. Hearing none. Kaaina, I’d like to take a roll call – a roll vote. Mr. Hull: Roll call, Madam Chair. Commissioner Chiba? Mr. Chiba: No. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Nay. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Apisa? Chair Apisa: No. Mr. Hull: Motion failed. 3:3. Madam Chair. Chair Apisa: So where do we go from here? I will – to Laura, do you have guidance here? Ms. Barzilai: I would ask Director Hull if it would appropriate to ask the applicant if they would be in agreement to an extension of time so that we can come back next month. Mr. Hull: Yeah, I have a problem with that, Laura. Mr. Trask: On behalf of petitioners, I believe that if a motion fails that it would be in the alternative granted and that, is that not the process? 35 Ms. Barzilai: I would ask, Mr. Trask, if you could refer to the rules. Mr. Trask: Sure. (Inaudible). Hold on. Ms. Barzilai: We currently only have Six commissioners. Mr. Hull: Yeah, I believe – and I do not have the rules in front of me so I will defer to you Laura but I believe with a 3-3 vote, it is a no-action and I think it continues to the next meeting. Ms. Barzilai: Failing, which there shall have been no action taken, I do not read it that the matter would be granted. I am looking at 1-2-4. Mr. Trask: All right. Sorry. Sorry. Ms. Barzilai: If we look to— Chair Apisa: We have a tie on the decision on the decision. Ms. Barzilai: Yeah. Ms. Bronster: Ms. Barzilai, Madam Chair, this is— Chair Apisa: Yes. Ms. Bronster: Margery Bronster, if I may, I believe that since there are insufficient votes to deny the petition, the contra would also follow that there are insufficient votes to grant the petition, accordingly, the petition cannot be granted with a tie vote. Mr. Trask: We would – we would submit, then, if that – we do not know that and if that motion were to be made there may be another result. And— Chair Apisa: Could we grant – could we stay this for the next meeting in May? Would everybody all the (inaudible) here and maybe we would get more information or I don’t know if that would help to resolve this. Ms. Bronster: Well, we would – we would be happy to answer any additional questions that you have but I would simply suggest that Mr. Somers has been trying to delay Mr. Kaplan’s, opportunity to get a petition. I mean get a – a permit in any way that he can and, unfortunately, by postponing it, it simply grants Mr. Somers precisely what he wants, which is hamstringing Mr. Kaplan in his efforts to build and complete a single-family dwelling on his property. It, basically, takes away his ability to utilize his property and that’s why, you know, we trying to set the develop aside and simply go for a simple single-family home. We would submit that there are inadequate votes to grant the petition to intervene and, accordingly and the Commission should proceed on the hearing of the application on its merits. 36 Mr. Trask: And Chair (inaudible) Commissioners, that’s absolutely not the case. The motion to deny failed and so that does not grant their petition and furthermore, again, we – all we want to do is participate in this process. If Mr. Kaplan would stipulate we can go and get involved in this process, then we can go address this as soon as possible, we can (inaudible) and – and that’s all we want to do. You are going to make the ultimate decision so we would just object (inaudible) the mischaracterization of Somers’ motives. Mr. Kaplan does not know (inaudible). Ms. Barzilai: Madam Chair, it’s Laura, I appreciate argument of counsel but, I think at this time, you know, clearly within the rules, no valid action has been taken. You can entertain another motion on the floor at this time if you would like if someone would like to reframe, we can recess in order to allow me an opportunity to research this further. But right now we are stalemated and I do not read the rules allowing for either the granting or the denial of the petition. Would any Commissioner like to reframe the motion? Ms. Nogami Streufert: How are you anticipating reframing the motion? Ms. Barzilai: Well, I think that motion that was on the floor was— Mr. Hull: Sorry. So, Laura, if I could interject real quickly. Just for a procedural issue. So because my understanding is under 1-2-5, Continuation of a Decision Making – of Decision Making, any matter voted on by the Commission which fails to be validated by a majority concurrence of the Commission shall be continued to the next subsequent regular meeting at which time it should be made with a special order or the day. So at least my understanding from previous practice is that, being that there was no actual majority in the opposition or in the affirmative of a motion, we now have a situation to validate a majority concurrence. And, therefore, this would move into the special order of the day in the next scheduled Planning Commission meeting which is, in fact, May. Ms. Barzilai: I am in agreement. Mr. Trask: That seems to be what the rule says, I have it in front of me. Chair Apisa: Okay I will (inaudible) follow up. Is there any Commissioner who wishes to make some other formal motion or do we defer this to May? Speak up if you want to or have any questions or make any statement. Ms. Barzilai: Madam Chair, I believe that under the rule that Director Hull has cited that this shall be carried to next month. Chair Apisa: Okay. Ms. Barzilai: Did not have a vote of four. Ms. Nogami Streufert: Can we ask for additional information or when we defer— 37 Ms. Barzilai: It is not the recommendation of the County Attorney’s Office that any additional information on intervention be accepted from either party at this time. We might have another Commissioner next month. Ms. Nogami Streufert: Okay got it. Got it. Thank you. The decision has been made so we will defer until next month. Mr. Trask: Mahalo, Commissioners. Chair Apisa: Thank you. Ms. Barzilai: Mahalo, Counselors. Chair Apisa: We will see you. Mr. Hull: And just for my clarification to the deferral of the petition – or sorry – the referral by action of a majority consent pushes it to the special the first order of business on the May meeting. By virtue of the fact that this intervention request is connected to the actual Use Permit, then also the Use Permit itself, also, will be moved to the to that first May meeting as well. So just for clarification on that because the action for – the lack of majority consent was specifically for the petition request but because we can’t move further on the use permit until the petition request is resolved, both action items can move to the first meeting in May. Chair Apisa: Thank you for clarifying that. So where— SHORELINE SETBACK VARIANCE PERMIT (SSV-2021-1) to deviate from the shoreline setback requirements involving the construction of perimeter fencing for a parcel situated on the makai side of Pe’e Road in Po’ipu, further identified as 1661 Pe’e Road, Tax Map Key: (4) 2-8-020:030 and containing a total area of approximately 3.867 acres= Associate of Apartment Owners of the Makahuena at Po’ipu. Mr. Hull: Thank you, Commissioners, and Counsel. Moving on to Shoreline Setback Variance Permit – or should I say to Agenda Item F.2.C. Shoreline Setback Variance Permit SSV-2021-1 to deviate from the shoreline setback requirement involving the construction of preliminary fencing for a parcel situated on the Makai side of Pe’ee Road and Po’ipu, further identified as 1661 Pe’e Road, Tax Map Key: 2-8-020:003 in containing a total area of approximately 3.867 acres. The applicant is associated apartment owners of the Makuhuena at Po’ipu. Also, we received the Director’s Report pertaining to this matter previously via the County Commission clerk. We also have a communication from Rosalyn Cummings in an email dated April 7, 2021. The Commissioners are also in receipt of a letter from Council member Felicia Cowden, dated 3-23-2021, an email from Maka’ala Ka’aumoana, dated April 4, 2021, a letter from the Koloa Community Association dated April 7, 2021, a letter from Maka’ala Ka’aumoana again, dated April 13, 2021 – sorry not Maka’ala (inaudible), just Ka’aumoana. My apologies for that error another file plan dated submitted No. 1702 (inaudible) adjacent access, a letter undated from Sarah Sloan the general manager (inaudible), a letter, from Edward 38 Shimmelfinginik undated, also another letter from Christopher Bartlett and Lindsey Nakamura, undated. Another letter from Judy Faas, undated with receipt of April 9, 2021, and shockingly we have no intervention request for this so we can actually move directly into the director’s report. I will turn this over to Romeo Idica who is our planner for this project. Staff Planner Romeo Idica: Good afternoon, Madam Chair, and good afternoon, Commissioners. For your consideration Shoreline Setback Variance Permit SSV-2021-1 for the construction of a fence with the shoreline setback area. Mr. Idica read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Idica: That concludes my brief summary and before I read the Planning Department’s recommendations, I would like to pause at this time for any questions for myself or the applicant. Thank you. Chair Apisa: Thank you very much, Romeo. Is the applicant present? Mr. Ian Jung: Yeah, good afternoon or I think we are – yeah, in the afternoon now. Commission Chair and members of the Commission, Ian Jung on behalf of applicant, Po’ipu at Makahuena. Thank you to Romeo for the brief explanation of the project. I think what would be helpful, if I could share my screen – I don’t know if you folks have allowed this before but we could take a little journey on a photo montage of the location because I understand that there has been some questions of – of what the access is currently out there and where the fencing will be. Is that okay for whoever’s managing the sharing screen? I will just try (inaudible). Can you folks see my screen? Chair Apisa: Yes. Mr. Ian Jung: Okay so I am sorry I did not blow this up further but we did submit it as an attachment. But what we’re looking at here is the File Plan 1702 which was a part of the subdivision action, the Planning Commission back in 1981 required public access over this particular lot. So as indicated by the staff planner, we have vertical access along the boundary on the adjacent property in yellow here. Some people refer to that as the “Siri Project” but it’s referred to as the Makahuena Estates on title. So that comes along here on the western – I mean – sorry – on the eastern corridor, which then comes down to the rock bluff and Easement B highlighted in pink illustrates the existing easement that follows the rock bluff, um, just below, uh, the grassy bluff up where the project is located. So that goes along here and then on the specific Lot 1, which is the subject property, there’s Easement A, that is – comes across the subject property into another vertical easement that’s on the adjacent property which is referred to Po’ipu Makai. And so looking at this, this is the – the map that comes down with the site infrastructure and comes along the eastern corridor and comes along here. The fence will be just along these two structures as I will show in a minute, but the access will still be maintained along the fishing corridor. And so I was out there last Sunday and took some photos of the existing parking lot 39 that was required as a part of the (Siri) or Makahuena Estate so that is currently open and people are parking there. So looking – starting on the western side, if we walk down, this is that public beach access that can take you straight to the shoreline and you can either go to the right towards the point at Makahuena or go to the left along the Makahuena Estates project. So this is the project that or the access that planks our project just to the east. And then as you get down, onto the rock bluff, this is where the fence line will go. You can see the orange fencing. It’s up on top of the cliff, so it won’t be blocking the existing access corridor that’s down here. And this cliff here is relatively steep and heavily vegetated. So as we walk a little further – this is the same angle but pulled back a little bit – uh, the fisherman access comes down here along this orange fence. You can see the light pole that was a former lighthouse location. That will displace you here onto the rock bluff where people travers to go fishing in the various fishing spots along there. And, again, the orange fence illustrates where the protective fencing will go. So looking down here, this is another view of where you come down along the rock bluff. You can see from a sizing and scale perspective, those are two nine-year-old boys that were with me on the hike but they were looking down and still traversing along the public beach access noted as Easement B. So as you continue on this is one – a good illustration of where the replacement fence will be. If you can see it, if you can (inaudible), there is an existing little rock wall here. The fence will actually go a little more mauka off the shoreline, um, up on top of this little (inaudible) as it’s starting to deteriorate here. But the access continues along here and you can walk through this corridor. And then further down as you get to the end of the property, this is the western side of the boundary but this whole area remains property of the Makahuena but there’s – this is the Easement B that takes you right up to the staircase to get you onto the Poipu Makai property that will provide – that provides public beach access down on this side of the flanking west side of the property. And here’s an illustration of the, uh, staircase that goes up that’s unblocked. One of the issues that’s been raised in some of the letters is the fence that will go around the pool associated with the private residence on the property. This is the existing fence but primarily the focus is to get the fence along this corridor here, on top of this existing rock wall and for any visitors or children going and wandering into this pool. I will stop sharing my screen now and then we can get back into it. So, you know, I if you have read this testimony, this is a unique application because it is the first shoreline setback variance, uh, as it relates to a fence going in the shoreline setback area. As many of you understand now, the shoreline setback area is what we refer to as the no-build zone, however, there is the variance procedure that allows you to go through a pretty stringent process, uh, to allow for the construction of minor improvements in that area. So as indicated by the staff planner, we had to do – prepare an environmental assessment, um, publish that as a draft, and then also republish it as a final. We addressed a lot of the Planning Department’s concerns, in that environmental assessment. We addressed the height location and maintaining exist- existing access. We also did consult with; various (Inaudible) individuals out there who have practice rights to this area. There is no intent at all to block any existing pub- public access there. The primary focus of this application is to try to create a safety perimeter fence along the – the front area Makai section of the – of the bluff so nobody will fall into the cliffs you just seen illustrated on those photos. So, again, happy to answer any questions. I do have with me on a call Ms. Sarah Sloan is the property manager and she can answer any 40 questions that may be relatable to any incidents that may have happened in the past or, you know, why the project is being requested. Chair Apisa: Thank you very much, Ian. Any questions from the Commissioners? Ms. Nogami Streufert: I have a question, but not necessarily about the fence but about the application that was sent in. Mr. Jung: Yes. Ms. Nogami Streufert: It says on Page 5, that you have it is a 79-unit condominium project, 1.3 ownership. Mr. Jung: Yes. Ms. Nogami Streufert: But then on Page 7 – on Page 7, it says the existing structures – there is 77 units and one single-family dwelling. So that’s 78. Where is the 79? Mr. Jung: Okay that might have been my typo. I know that the structure was built in 1979, I am looking at— Ms. Nogami Streufert: It was established in 1981 and then the single-family residence was approved in ’82. Mr. Jung: Okay so what I see on record here it’s a 77 multi-family apartment building complex and a series of complexes and then one single-family residence which was immediately mauka of the pool I just reference on that so from my calculation, it would be 78 units. Ms. Nogami Streufert: Okay so the first – on Page 5, then, that should be ownership – it is by 78 as opposed to 79, is that correct? Mr. Jung: Yeah. Yes. Chair Apisa: Mauna Kea, there is an office. I do not know if that has a separate office number. Ms. Nogami Streufert: Or the community building? Mr. Jung: Yeah, there may be – there may be – it might be a 79-unit condo project with one of the condos being some of the community amenities related to the project. That may why the 79 number, uh, was referenced in my application but, um, Sarah Sloan are you available to comment on that. Man: I can comment as an owner. We have 78 residential condominium units and one commercial unit which is the gathering area behind the office so there’s a total of 79, one commercial, 78 residential. 41 Ms. Nogami Streufert: Got you. Thank you. Man: You are welcome. Mr. Jung: My apologies for that, that error (inaudible). Chair Apisa: Now the act- actually, 79 is the total number of condos here, 78 residential. Any other questions? A good catch there, Glena. We – uh, any other questions? You know, would you or someone like to elaborate on the request, I mean, if there had been accidents or flooding or – just to get a little history on that? Mr. Jung: Sure. Yes, so some of the – you know, the existing fence that’s there serves and sort of protects some portions of the property and as you see from the photos, it’s just deteriorating and needs to be replaced. Unfortunately, at the time when the application was going through, it’s preview and pre-consult and some of the areas for where the fencing was proposed to be new, we had to go through this process so we wanted to just capture all the new fencing in a master site plan so it can be secured moving forward as an existing location for the fencing. From what I understand, there have been no, uh, significant incidents but there is the potential for it to happen and, as you know with all condominiums, they are required to carry insurance and I’m sure the insurance carrier would appreciate the fence going up to limit the liability. Ms. Nogami Streufert: One of the (inaudible) of the public was whether it could be brown to fit better into the environment. Um, is that a possibility or to – or to plant vegetation either – on either side of it so that it – it’s not a gray fence that’s right there, is that a possibility either painting it brown or building it brown or planting vegetation so that it wouldn’t be seen as an eyesore? Mr. Jung: It is – it is prefabricated but I think if –Richard, if you’re on for – he’s been working through this for the last four years from what I understand. I am trying to – trying to work through this but I do not know the color of fencing and but if Richard, if you could chime in on that. I guess we do not have him, but that’s something we can certainly look into. You know, the vegetation, as you can see, is does crawl up so it probably would crawl into the fence. Um, one of the alternatives in the environmental assessment was for us to look into doing a rock wall, um, but obviously that comes at a greater expense and may add heavier weight onto the existing bluff so we tried to avoid going that route but if the Commission requires a certain color, we can certainly entertain that. Ms. Nogami Streufert: I am just responding to a comment that was submitted by the public. Any further questions or comments? If none, I guess we would be ready for the conclusion from our planner, Romeo. Mr. Idica: Okay, based on the foregoing evaluation and conclusion, it is hereby recommended Shoreline Setback Variance SSV-2021-1 to be approved with the conditions of approval stated within the Director’s Report. Thank you. Chair Apisa: Thank you. 42 Mr. Jung: If I could – Chair, if I could just interject real quick, I did look very closely at the Exhibit D.2 and the color is matte black, so I hope – I hope that helps. Chair Apisa: I guess that’s sort of a rock wall color. Any – any other questions or comments or would someone like to make a motion? Any – any – would someone like to make a motion? Mr. DeGracia: Yes, I move to approve Shoreline Setback Variance Permit SSV-2021-1 with the Conditions listed in the Director’s Report. Chair Apisa: Do we have a second? Ms. Nogami Streufert: Second. Ms. Cox: Second. Chair Apisa: Any other discussion on the is- on the matter? Okay all in favor, say aye. I think we can do a – just a regular vote. All in favor? (Unanimous voice vote). Ms. Cox: Aye. Ms. Nogami Streufert: Aye. Ms. Otsuka: Aye. Chair Apisa: Did everyone vote? Ms. Cox: That did not sound like all the ayes. Chair Apisa: Is everyone with us? Any – any opposed? Motion carried. 6:0. Mr. Hull: Madam Chair, I would just ask just for clarification’s sake and a clean record and not having to come back to you folks, would – would you like to do a full vote on this? Chair Apisa: Yeah, that would be – let’s do a full vote. Thank you. Mr. Hull: Okay roll call on the motion to approve Shoreline Setback Variance SSV-2021-1. Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? 43 Mr. DeGracia: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Motion carried. Mr. Hull: Motion passes 6.0, Madam Chair. Mr. Jung: All right thank you, Commissioners. Continued Public Hearing Proposed Amendments to the “Interpretive Administrative Zoning Rules and Regulations (2014) of the Kauai Planning Commission, Relating to Chapters 8, 9, and 10 of the Kauai County Code (1987), Relating to Development Standards for Guest Houses= County of Kauai Planning Department. [Director’s Report Received, hearing continued 3/9/2021.] Mr. Hull: Moving on, we have – let me just do a roll check. I believe the next two agenda items will be relatively quick but I know we are closing in on lunch. Is the Commission okay with proceeding forward or would you folks like to take a break? I will leave that at your folks’ discretion. Chair Apisa: I think we could wrap this up quickly. Is everyone okay with proceeding? Ms. Otsuka: I am okay with proceeding. Ms. Nogami Streufert: I am fine. Mr. Hull: Okay thank you all. Moving on to the next agenda item, Item 3.a, Continued Public Hearing, there’s a continued public hearing for proposed amendments to the interpreted administrative zoning rules and regulations of the Kauai County Commission relating to Chapters 8, 9, 10 of the Kauai County Code relating to development standards for guest houses, County of Kauai Planning Department. Just very briefly, this is the proposed administrative rules that we had before you folks last month concerning guesthouses. As some of you recall, the Council last adopted an ordinance that allows kitchens in guesthouses and these – and previously they were not and were a constant source of, I will say, enforcement action. These rules help clarify under what parameters the kitchens can be provided and how to interpret the 500 square feet maximum that guest houses have. We did receive one letter of testimony from 44 Kukui’ula, a letter dated April 12, 2021 from Dave Hutchinson, Vice President of (inaudible), LLC, concerning these administrative rules. The Department (inaudible) just continue the hearing; Brittany Ludington-Braun is here with us from our staff, if the Commission has any questions about the administrative rules. Chair Apisa: I just would like clarification. Like, the definition says a floor area of no more than 500 square feet because I have seen guest houses that sometimes put a loft in so that – would the loft be considered floor area? Ms. Otsuka: Yes, it does count to floor area. Chair Apisa: Okay, I expected it would but thank you for (inaudible). Mr. Hull: If there are not any other questions – administrative rules are a bit different from applications for permits. There is still a series of reviews that, we go through before the Small Business Regulatory Review Board. We are anticipating hopefully, being on their agenda in the next month or two. So until we get through the Small Business Regulatory Review Board, the Commission really cannot actually take action. So if there aren’t any further questions, the Department would request that this item be deferred to July 13th, for that Planning Commission meeting and we hope have resolved any issues with the Regulatory Review Board by then. Chair Apisa: Do we have a motion to defer this matter? Can I have a motion please? Ms. Otsuka: I make a motion to (inaudible) regarding that the Commission Comprehensive Zoning Ordinance guesthouse and deferred to, July – July— Chair Apisa: 13th. Ms. Otsuka: 13, 2021, meeting. Chair Apisa: Do we have a second? Second? Mr. Chiba: I second. Chair Apisa: Any discussion? All in favor? Aye. (Unanimous voice vote). Ms. Cox: Aye. Ms. Nogami Streufert: Aye. Ms. Otsuka: Aye. Mr. DeGracia: Aye. Mr. Chiba: Aye. 45 Chair Apisa: I think I heard a unanimous – do you want to do a roll call again, Kaaina or are we good? Mr. Hull: Absolutely, Madam Chair. Hold on one second. Sorry. Roll call on deferral. Commissioner Chiba? Mr. Chiba: Aye. Mr. Hull: Commissioner Cox? Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Commissioner, sorry, Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Mr. Hull: Motion passes 6:0, Madam Chair. Chair Apisa: Thank you. New Public Hearing All remaining public testimony pursuant to HRS 92 (Sunshine Law) CONSENT CALENDAR Status Reports Director’s Report(s) for Project(s) Scheduled for Agency Hearing. 46 GENERAL BUSINESS MATTERS AMENDMENT TO CLASS IV ZONING PERMIT (Z-IV-2020-1), AND USE PERMIT (U-2020-1) to amend Condition No. 8 to allow completion of the project to construct a new branch office building and associated site improvements on property located within Kilauea Town, situated immediately across the Kilauea Post Office facility and immediately adjacent to the Kilauea Lighthouse Shopping Center, along the northern side of the Kilauea Lighthouse Road/Keneke Road intersection, further identified as Tax Map Key: 5-2- 005:023, and affecting a portion of a larger parcel containing approx. 179.439 acres = Gather Federal Credit Union. Mr. Hull: Next we have on the agenda apologies, General Business Matters I.1, (inaudible) for Zoning Permit Z-IV-2020-1 and Use Permit U-2020-1 to amend Condition No. 8 to allow completion of the project to construct a new branch office building associated site improvement of some property located within Kilauea Town, situation immediately across the Kilauea Post Office facility and immediately adjacent to the Kilauea Lighthouse Shopping Center along the northern side of the Kilauea Lighthouse road and connecting road intersection further identified as Tax Map Key: 5-2-005: 023, affecting a portion of a larger parcel containing approximately 179.439 acres. The applicant is the Gather Federal Credit. I will turn it over to Dale who has the Director’s Report pertaining to this matter. Mr. Chiba: Madam Chair, this is Mel Chiba. I would like to declare a conflict of interest and recuse myself from any discussion. Chair Apisa: Accepted. Thank you, Mel that was (inaudible). Mr. Chiba: Thank you. Commission Chiba recused himself from the meeting. Staff Planner Dale Cua: Good afternoon, Madam Chair and members of the Planning Commission. Again, it is consideration of applicant’s request to amend Condition No. 8 of Use Permit 2020-1 and Class IV Zoning Permit Z-IV-2020-1 to allow completion of the project. Mr. Cua read the Project Description and Use, Additional Findings, and Preliminary Evaluation sections of the Director’s Report for the record (on file with the Planning Department). Mr. Cua: In order to accommodate a timing extension, it is necessary to amend to Condition 8 to allow a reasonable period to accommodate the construction activities for the proposed branch facility. The Department’s evaluation and recommendation is contained in the report that you have before you. If you have any questions for me, I would be more than happy to answer them. Chair Apisa: Are there any questions for the planner? Is the applicant here? Is the applicant, present to make a presentation? 47 Mr. Sherman Shiraishi: Madam Chair and members of the Commission, my name is (Sherman Shiraishi and I am the attorney for the applicant. I submitted two letters in support of the request for an extension and the letters are attached to your packets. And my latest letter, April 8, 2021, which gives a chronology of the timeline of which the Credit Union acted and, you know, the delays are beyond the Credit Union’s control. You know, we have to wait until final subdivision approval to get title to the lots and you know, to get the building permits, prepare it, and file it. So, I want a moment to go into the details of my letter but if the Commission has any questions, I’m I’ll be ready to answer them and if I cannot, the, CEO of the Credit Union is also I believe, involved in this meeting along with Architect, Mark Ventura. Chair Apisa: Are there any questions from the Commissioners? Ms. Nogami Streufert: I guess the question is where are you now, in this building process and what’s the status of your (inaudible)? Ms. Otsuka: Is a one-year extension enough time? Ms. Nogami Streufert: He has got a two-year ex- a three-year – well, the question (inaudible). Mr. Shiraishi: So, I am sorry, what is the question? Ms. Nogami Streufert: The question is, what is the status of the credit union building at this point. I’m just looking at your timeline that you’re saying that you would get this completed by (inaudible) where you are you in your – whether that’s enough time to actually get everything completed. Mr. Shiraishi: We ask for two years. The scheduled closing date I believe is May 1, 2021, so at that time we’ll get title to the lot and Mark Ventura has already been developing plans to submit to the to the Building Division and Public Works for approval. We anticipate delays during the approval process. You know, speaking for myself, when I built the building that I am in right now, it took me over a year to get a building permit. So once we get the building permit, the credit union is prepared to commence construction, you know, immediately. Ms. Nogami Streufert: Because I am just looking at the 2024 date that you presented and if that is sufficient, I do not have a problem with it. The question was really, you know, is that enough time based upon where you are if you have not even closed on the land yet? Mr. Shiraishi: You know, I am – I am going to defer to Mark Ventura on the construction process but I would hope that from the time that we obtain final approval for the permits, then we can – we commence construction and finish it off within, you know, maybe about a year and a half. But, Mark if you could jump ii. Mr. Mark Ventura: Hello? Hello? Can you guys hear me? Chair Apisa: Yes. 48 Ms. Nogami Streufert: Yes. Mr. Ventura: Okay. Okay this is Mark Ventura. Good afternoon Madam Chair and Commission members. We have been working with the Crichton Group, probably (inaudible) about three years on this particular project. And we have recently commenced, um, engineering. The concept has been developed and presented; we have met with the community and so on and so forth and essentially have an approved concept. We, the credit union understandably rather held us up from developing the permit plans with the subdivision not yet complete and property ownership not complete. We have in the last month or so been greenlighted to move forward with the engineering, which we are doing now. Our civil site development or our structural mechanical and electrical engineering and we are anticipating a permit set get – pulling a set together in the next couple of months to submit for the building permits. Uh, that process may take anywhere from three to, I’d say, six months but in the meantime, we are planning on, um, bidding and getting contractor bids together and, um, commencing with construction hopefully sometime this year, which I think is, um, certainly a realistic target. I anticipate we will be able to complete this project within 12 months. I think, though, with COVID and still ongoing and uncertainties, uh, that could take up to maybe a year and a half which would probably put us through mid-2023 I think, um, pretty conservatively. Um, so that to me would be sort of an accurate representation of the timeline but we are moving forward with developing the plans. The credit union is about to take a little bit of a risk just because the closing, hasn’t happened yet but after so – so much time, I think they’re reasonably confident that that – that’ll happen. So we – we’ve been contracted for probably two years, assuming that the process was going to go a little bit quicker but here we are today but now we’re actively engaging in moving forward. And, like I said, I think we’re – our plan is to get permits submitted in the next couple of months. Chair Apisa: So it sounds like two years is sufficient. Mr. Ventura: I think it should be but could you just clarify the actual date of ex- you know, when that trigger timeline starts or started. If that is a two-year, extension from now, that should be sufficient. Chair Apisa: Dale can you verify would that be two years from today? Mr. Cua: Sure, the way the Department’s recommendation is essentially to amend Condition No. 8, so essentially they need to construct, commence construction no later than August 13, 2022, and complete the project by August 13, 2024. That’s basically the— Chair Apisa: All right. Mr. Cua: Recommendation. Chair Apisa: Well, that’s, actually, yeah, over three years? Mr. Cua: Yeah. 49 Ms. Nogami Streufert: To completion but not to start so that is what the question was to (inaudible). Mr. Cua: Yeah, to so to commence construction, um, they would need to, that date would be August 13, 2022. Ms. Nogami Streufert: Right. Is that enough time I guess? Mr. Ventura: I think that is reasonable. I would think, you know, on our current track, barring no major surprises with (inaudible), yeah, there should not be – that should – that should be achievable (inaudible). Chair Apisa: So that you do not come back again, I mean, you are comfortable with those dates, correct. Mr. Ventura: As the architect, I would say yes, but I would defer back to the client, you know, assuming that they are willing to keep it all moving forward (inaudible) that should – those dates should work for us on the design team and to get construction started by August of 2023. Chair Apisa: Thank you. Mr. Ventura: I my understanding. Ms. Otsuka: You know, my – my concern was, uh, currently with COVID, the shipping – shipping for construction materials can take some time. Mr. Ventura: That is a good point, yeah. I believe I would sort of define maybe commencement or construction. We would have a contractor signed up onboard but I believe we can get our plans, permit, and we bid and execute a contract with a general contractor and then the timing of the material and the extent of that – that – that is a good point (inaudible) efficient contractor that can get on top of getting those things on – on order early. Chair Apisa: Yeah. Okay so, do we – um, any other discussion or is someone ready to make a motion? Wait, we need the conclusion from our planner I think. Mr. Cua: Sure, I can move on to the conclusion and recommendation of the report. Actually, I will just read the evaluation since (inaudible). Mr. Cua read the Recommendation and Evaluation section of the Director’s Report for the record. (On file with the Planning Department). Mr. Cua: Furthermore, the applicant is advised that all applicable Conditions of this approval shall remain in effect. And that concludes the Department’s evaluation and recommendation. Thank you. 50 Chair Apisa: Thank you very much, Dale. Any further questions or comments or would someone like to make a motion to… whatever you would like to make? Ms. Cox: I’ll make a motion that we accept the Director’s Report and recommendation to improve the extension of time for the Class IV Zoning Permit Z-IV-2020-1, Use Permit 2020-1 that will change the read commence construction no later than August 13, 2022 – 2022 and complete construction by August 13, 2024. Chair Apisa: Thank you. Do we have a second? Ms. Otsuka: I seconded. Chair Apisa: All right all in favor? Aye. Let us take a roll call again right now. Let us just do a roll call. Mr. Hull: Sounds good, Madam Chair. Roll call on motion to approve the request for Amendment to Class IV Z-IV-2020-1 and Use Permit U2020-1. Commissioner Chiba? Oh, sorry. Chair Apisa: No, he has recused himself. Mr. Hull: Commissioner Chiba is recused. I apologize for that – Commissioner Cox. Ms. Cox: Aye. Mr. Hull: Commissioner DeGracia? Mr. DeGracia: Aye. Mr. Hull: Commissioner Otsuka? Ms. Otsuka: Aye. Mr. Hull: Commissioner Streufert? Ms. Nogami Streufert: Aye. Mr. Hull: Chair Apisa? Chair Apisa: Aye. Mr. Hull: Motion passes 5:0, Madam Chair. COMMUNICATIONS (For Action) Mr. Hull: Moving right along, we have no Communications for Actions. 51 COMMITTEE REPORTS Subdivision Commission Chiba reentered the the meeting. Mr. Hull: Moving on to the next agenda item, we have no further communications so on to Item K, Committee Reports. K.1 Subdivision, I will turn it over to Subdivision Committee Chair, Commissioner DeGracia. Mr. DeGracia: Great. The Subdivision Report, Commissioner Chiba and myself attended for July 14, 2020. Received a Tentative Subdivision Extension request or a Subdivision Application No. S-2019-4 Tim Beckman & Mira Hess was approved, Subdivision Application or Tentative Subdivision Extension request also for Subdivision Application No. S-2020-9, Baird Family Limited Partnership, was also approved. That concludes my report. Ms. Nogami Streufert: I move to accept the Subdivision Report. Ms. Cox: I second the motion. Chair Apisa: I think we can do an all in favor on this one. Ms. Nogami Streufert: Aye. Mr. Cox: Aye. Mr. Otsuka: Aye. Mr. DeGracia: Aye. Mr. Chiba: Aye. Chair Apisa: Okay, Motioned passed. 6:0. (Unanimous Voice Vote) Thank you. UNFINISIHED BUSINESS ( For Action) Mr. Hull: Moving on, there is no Unfinished Business. NEW BUSINESS Mr. Hull: We have no New Business as we handled the New Business; we took the action on New Business. For Action - See Agenda F for Project Descriptions 52 ANNOUNCEMENTS Topics for Future Meetings The following regularly scheduled Planning Commission meeting will be held at 9:00 a.m., or shortly thereafter on May 11, 2021. The Planning Commission anticipates meeting via teleconference but will announce its intended meeting method via agenda electronically posted at least six days prior to the meeting date. Mr. Hull: Thank you, Madam Chair. On to Announcements. Future for Topics… Topics for Future Meetings concerning applications and petitions somewhat in the queue. Of course the special order of the day for the next Commission meeting will be the Kaplan intervention request, but we do have in addition – up on the horizon, we have a Public Works water tank, we have, again, the Kilauea Mill coming back with the gym proposal and café. We have also have, uh, a Baptist church Ele’ele Baptist church, expansion, a Waimea wastewater treatment plant. And we also have – this has gotten some attention in the news, the Glamping Ordinance proposed at Council a couple of weeks ago. So those are all kind of on the horizon. As was somewhat eluding to previously in the meeting, the County Council is also entertaining a current nomination for the next Planning Commissioner – Commission member currently, and that process is being vetted out as – as all you folks have enjoyed or endeared that previously but this prospect of a nominee is – is currently being vetted by the County Council. With that if there is any, you know, requests or inquiries from the commission members themselves that would like to see future topics, the Department is always open. ADJOURNMENT Chair Apisa: Thank you. All right thank you. Motion to adjourn? Ms. Otsuka: I move to adjourn. Ms. Nogami Streufert: I second. Chair Apisa: All in favor? Aye. (Unanimous Voice Vote) Mr. Cox: Aye. Mr. DeGracia: Aye. Ms. Nogami Streufert: Aye. Ms. Otsuka: Aye. Chair Apisa: Approved. Motion passes 6:0. The meeting is adjourned. Thank you very much Mr. Hull: Thank you all. 53 Ms. Barzilai: Thank you guys very, very much. Chair Apisa: Almighty. Thank you. Chair Apisa adjourned the meeting at 1:20 p.m. Respectfully submitted by: _________________________ Arleen Kuwamura, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of __________ meeting. BELLES GRAHAM LLP JONATHAN J.CHUN 2928-0 4334 Rice Street,Suite 202 Lihue,Kauai,Hawaii 96766-1388 Telephone:(808)245-4705 Facsimile:(808)245-3277 Attomey for Applicant KAWAILOA DEVELOPMENT,LLP BEFORB THE PLANNING COMMISSION OFTHE COUNTY OF KAUAI IntheMatteroftheApplication ) ) of ) ) KAWAILOA DEVELOPMENT,LLP,a ) Hawaii limited liability partnership,for a Use ) Pemiit,a Class IV Zoning Permit and a State ) Special Permit for real property situated at ) Koloa,Island and County ofKauai,State of ) Hawaii,and more particularly described as ) TaxMapKeyNo.:(4)2-9-001-007.) ) _) MOTION TO AMEND SPECIAL PERMIT SP-88-6;USEPERMITNO.U-88-31; SPECIAL MANAGEMENT AREA PERMIT SMA (U)-88-10;AND CLASS IV ZONING PERMITZ-IV-88-39;EXHIBITS "A" THROUGH "M" (W:/DOCS/27014/5AV0167972.DOCX )-d.'z.<» OCT 1 2 2021 I. MOTION TO AMEND SPECIAL PERMIT SP-88-6;USE PERMIT N0.U-88-31; SPECIAL MANAGEMENT AREA PERMIT SMA (U)-88-10;AND CLASS IV ZONING PERMIT Z-IV-88-39 BACKGROUND Kawailoa Development,LLP,a Hawaii limited liability partnership,by and through its attomeys,pursuant to Rule l-12-9and 1-6-16 oftheRules ofPractice and Procedures oftheKauai County Planning Commission,hereby moves to amend Special Permit SP-88-6;Use Permit U-88-31;Special Management Area Permit SMA (U)88-10;and Class IV Zoning Permit Z-IV-88-39 (hereinafter collectively referred to as "1988 Permits")in the manner set forth in this motion. The 1988 Permits approved the development ofa golfcourse and related improvements on the property described therein.The golfcourse development was intended to operate in association with the adjacent planned hotel.See 1988 Permits,Description ofProject,Paragraph 24 which states the "Applicant intends and proposes to develop an 1 8-hole championship-caliber golfcourse and proposes to operate it in association with the planned 605 -room Hyatt Regency Kauai KeoneloaBay ....Parking lots were also includedaspartoftheproposedprojectunderthe 1988 Pemiits.See Description ofProject,Paragraph 18 ofthe 1988 Permits.The 1988 Permits were approved by the Planning Commission at its August 10,1988 meeting.A true and correct copy of the 1988 Pemiits are attached hereto as Exhibit "A". ConditionNo.25 ofthe 1988 Permits provides that: 25.Concurrent with its development of the project,the Applicants shall construct three (3)unimproved parking facilities at locations as depicted on Exhibit 1 of sufficient dmiensions to park 40 cars at one site and 5 cars at the remaining frwo sites.Prior to said constmction,the Applicants shall stake the subject sites for inspection by the Planning Department.These (W:/DOCS/27014/5/W0167972.DOCX}2 facilities,together with vehicular access to the facilities,shall officially be made to available to the coastal recreational users on the date of the first public opening to the golf course. Subsequent to the 1988 Permits,parking issues have been brought up by the Planning Commission in other permits.For example,in Special Management Area Use Permit SMA(U)-2008-3 and Class IV Zoning Pennit Z-IV-2008-1,the Planning Commission added a condition to provide for employee overflow parking on the property covered by this request.The issue ofparking during events held at the adjacent Grand Hyatt Kauai Resort &Spa was also raised by the Planning Commission in the recent application to amend SMA (U)88-1 and Class IV Zoning Permit Z-IV-88-10 on December 8,2020 to add two more hotel rooms to the hotel. This request is intended to address the concems raised by the Planning Commission and the community. The Applicant incorporates herein by reference all of the files and records of the Plaruung Department pertaining to the said 1988 Pemiits. APPLICANT AND PROPERTY INFORMATION. The Applicant in this matter is KAWAILOA DEVELOPMENT,LLP,a Hawaii limited liability company (hereinafter referred to as "Applicant").The Applicant is the owner of the Subject Property identified as Kauai Tax Map Key No.(4)2-9-001-007.Attached as Exhibit "B" is a copy ofa Warranty Deed,Covenants,and Reservadon ofRights dated June 12,2009,and recorded in the Bureau of Conveyances of the State of Hawaii as Document No.2009-093592, vesting title in the real property that is the subject ofthis Application (along with other properties) to Kawailoa Development LLP.As the owner of the Subject Property covered by the 1988 (W:/DOCS/27014/SAV0167972.DOCX)3 Permits,the Applicant is considered to be the "permit holder"under Chapter 12 of the Rules of Practice and Procedure ofthe Kauai County Planning Commission. Attached as Exhibit "C"is an authorization from the Applicant authorizing its attomeys to assist it in obtaining the necessary permits sought in this Application.All communications and notices pertaining to this Application should be addressed to: Jonathan J.Chun,Esq. Belles Graham LLP 4334 Rice Street,Suite 202 Lihue,Kauai,Hawaii 96766 TelephoneNo.:(808)246-6965 Facsimile:(808)245-3277 II.LOCATION MAP IDENJ1FYINCLTHE SITE,ADJACENT ROADWAYS AND IDENTIFYING LANDMARKS. The Subject Property,the approximate location ofwhich is shown on the Map attached hereto and incorporated herein as Exhibit "D",and as more specifically shown on Exhibit E ,is located at Weliweli,District of Koloa,Island and County of Kauai,State of Hawaii,and is identified by Tax Key No.:(4)2-9-001-007 (hereinafter referred to as "Parcel 7").The entire parcel contains 44.905 acres.However,Applicant is only seeking to amend the 1988 Permits as to approximately 1.3 acres ofParcel 7 for use as a parking lot in the approximate location as shown onExhibif'E". An aerial color photograph of the area attached as Exhibit "F"shows a portion of the existing golf course and the area where the proposed parking lot will be constmcted. The only public roadway providing access to the proposed parking lot is Poipu Road. {W:/DOCS/27014/5nV0167972.DOCX } r r III.PROPERT^I.INE^AND EASEMENTS WITH DIMENSIONS AND TOTAL LAND AREA CALCULATIONS The property lines,easements and the dimensions of the proposed parking lot are shown on the drainage plan attached hereto as Exlubit "G".The parcel is subject to a drainage easement along the southern boundary adjacent to Poipu Road as well as the southem boundary of the proposed parking lot.The proposed parking lot area will be approximately 1.3 acres in size or approximately 56,628 square feet and will contain approximately 90 parking stalls. IV.COUNTY AND STATE LAND USE DISTMCT ZONING AND GENERAL PLAN DESIGNATION AREAS OF THE PROPERTY AND APPLICABLE DENSFTLES The Subject Property's classifications are as follows: •State Land Use Commission:Agricultural; •Kauai General Plan:Golf Courses; •County Zoning:Agriculture. In addition,the Subject Property is located within the South Kauai Community Plan area. V.FLOOD ZONES AND REQUIRED ELEVATIONS The Subject Property is not located within any tsunami or flood zone.Constmction on the Subject Property would not be subject to any requirements ofthe Flood Ordinance (Chapter 15, Kauai County Code)requiring minimum elevations ofany stmctures. VI.LOCATION,SIZE AND DIMENSIONS OF EXISTING AND PROPOSED STRUCTURES AND^USES The proposed parking lot is located south of the existing cart path on Hole No.1 of the Poipu Bay Golf Course.This area is covered with trees,bushes and ground cover and is not included as playable area ofHoIe No.1.This proposed parking lot will provide approximately (W:/DOCS/27014/5AV0167972.DOCX}5 90 improved parking stalls and provide landscaped berms between the proposed parking stalls and Hole No.1 and Poipu Road to screen the view of the vehicles from the public.See Site Plan attached hereto as Exhibit "H".The proposed parking lot will be illuminated with approximately 11 light poles whose lights will be downward facing and shielded. VII.BUILDING SETBACK DISTANCES TO PROPERTY LINES,BETWEEN BUILDINGS,RIGHTS^OF WAY AND PARKLNG LOTS Pursuant to CZO Section 8-8.2,the development standards for development in the Agriculture District shall follow the standards set forth in CZO Section 8-4.3 and 8-4.5. CZO Section 8-4.5(a)(8)requires that all paved parking areas be setback 5'from a public right of way line.The proposed parking lot is set back 25 feet from Po'ipu Road. VIII.OFFSTREET PARKCNG LAYOUTS AND CALCULATIONS FOR EXISTING AND PROPOSED USES This Application is submitted to address a condition imposed in Special Management Area Use Permit SMA(U)-2008-3 and Class IV Zoning Permit Z-IV-2008-1 issued to the Applicant on October 10,2007.That condition states as follows: "4.Prior to building permit application,applicant shall provide ****4: b.Pemiit application for use of TMK 2-9-1:7 for employee overflow parking purposes... In order to satisfy this pennit condition,the Applicant submitted an application to authorize parking on another nearby parcel identified as TMK (4)2-8-022-004.On June 24,2008,the PIanning Commission approved Use Permit U-2008-14,Class IV Zoning PermitZ-IV-2008-16 and a State Special Permit SP-2008-5 to allow Applicant to constmct a parking lot on Tax Key (W:/DOCS/27014/5nVOI67972.DOCX } No.:2-8-022-004.Subsequent to this approval,however,the Applicant closed the temporary parking lot on TMK (4)2-8-022-004 due to dust and noise concerns from the community.Also the license for TMK (4)2-8-022-004 was not renewed by the landowner.The Applicant is applying to amend the 1988 Pemiits to address the concems outlined in Condition No.4 as set forth above,as well as the comments recently raised by the Planning Commission in its recent decision to amend SMA (U)88-1 and Class IV Zoning Permit Z-IV-88-10 on December 8,2020. IX.TOPOGRAPHIC INFORMATION,WITH EXISTING FEATURES,CONDITIONS AND DRAINAGE PATTERNS The Subject Property is generally flat,and slopes gradually to the south towards the adjoining Poipu Road.The runofffrom the proposed parking lot will be directed towards existing drainage culverts.See Grading and Drainage PIan attached hereto as Exhibit "G". X.TQPOGRAPHIC INFORMATION,WIT1L PROPOSED GRADING AND FINISHED GRADE ELEVATIONS AND GRADING PATTERNS Limited grading is proposed to accommodate the proposed parking lot.See Exhibit "G" and the existing and parking lot profiles attached hereto as Exhibit "H". XI.LOCATION OF ENVIRONMENTALLY SENSITIVE AREAS,HABITAT AND BOTANICAL FEATURES Except for the proposed parking lot paved area,the remaining portions of Parcel 7 will continue to be a part ofthe Poipu Bay GolfCourse.There are no environmentally sensitive areas or habitat near the proposed parking lot,nor are there any unique,endangered or threatened biological features that are in close proximity to the proposed parking lot. (W:/DOCS/27014/5AVOI67972.DOCX } XII.EXISTING AND PROPOSED LANDSCAPING The proposed parking lot area is to the south ofthe cart path located on Hole No.1 ofthe Poipu Bay GolfCourse.The proposed parking lot is in an out ofbounds area ofHole No.1 and is currently covered by mature vegetation and trees.The existing vegetation in this area include trees such as Ironwood,African Tulip,Christmas Berry,White Tacoma,Java Plum,Be-still and Coconut palms.These existing trees will be removed and landscaping berms with plants will be added to shield the parking area from the golf course and from Po'ipu Road.After ttie parking lot has been constructed,the area will be landscaped with different types of vegetation,including Kou,Red Ti,Spider Lily,Be-Still,Laua'e Fern,ground cover and grass. XIII.EXISTING AND PROPOSED ROADWAYS AND ACCESSES TO THE PROJECT Ingress onto and egress from the proposed parking lot is from Poipu Road,as shown on Exhibits "G","H"and "I".Parking lot gates will be provided to control access to the parking lot. XIV.CERTIFIED SHORELINE,SHORELINE SETBACK LINES,STREAM AND OTHER SETBACK LINES The parking lot area is basically located along a portion ofthe southem boundary of Hole No.1 of the Poipu Bay Golf Course and is adjacent to the northern boundary of Poipu Road. Parcel 7 is not adjacent to any shoreline or any stream. XV.IDENTIFICATION OF ENVIRONMENTALLY SENSITIVE AREAS,HABITAT AND BOTANICAL FEATURES As noted in Section XI above,there are no environmentally sensitive areas,habitat or botanical features on or in close proximity to the Subject Property.Immediately north of the proposed parking lot is Hole No.1 of the Poipu Bay Golf Course.Immediately south of the proposed parking lot is Poipu Road and across Poipu Road is the Grand Hyatt Kauai Resort &Spa. {W:/DOCS/27014/5AV0167972.DOCX}8 XVI.EXISTING AND PROPOSED B^UILDING ELEVATIONS There are no buildings currently within the proposed parking lot area.No structures,other than the 11 light poles,electrical equipment and parking gates are proposed to be constructed within the proposed parking lot area. XVII.BUILDING HEIGHTS^MAXLMUM WALL PLATE HEIGHT,SECTIONS WHICH ARE DRAWN TO SCALE AND DEFINE THE ARCHITECTURAL CHARACTER^F THE DEVELOPMENT No buildings are proposed in this Application. XVIII.FLOQR PLANS^OF ALL BUILDINGS No buildings are proposed in this Application. XIX.PROPOSED AMENDMENT TO THE PROJECT USES,OPERATIQNS AND HOURS OF OEERATIQNS This Application proposes to amend ConditionNo.25 ofthe 1988 Permits by adding anew paragraph allowing the constmction ofa new parking lot for the Grand Hyatt Kauai Resort &Spa to be used by employees and the public for overflow parking.The Grand Hyatt Kauai Resort &Spa has sufficient parking under the Kauai County Code.Notwithstanding that the parking spaces are sufficient under the Code,it is recognized that parking demands exceed the number of parking stalls available on the hotel property,especially when special events are scheduled within the Resort's ballrooms.As a result,employees,and sometimes even guests of the hotel park along the shoulder ofPoipu Road. In earlier permits granted by the Planning Commission,the Commission determined that the Applicant needed to secure the necessary permits to use a portion of Parcel 7 for parking purposes. (W:/DOCS/27014/5AV0167972.DOCX)9 The proposed 1.3 acre portion ofParcel 7 can accommodate approximately 90 cars.This proposed new parking lot will support the Grand Hyatt Kauai Resort &Spa's current operations as well as the additional parking needs that might be generated by the recent application to amend SMA (U)88-1,Class IV Zoning Pennit Z-IV-88-10 which was approved by the Planning Commission on December 8,2020 .The parking stalls will be marked as shown on Exhibit "H". The proposed parking lot will be used on a 24-hour basis,as employees ofthe hotel work on shifis that require 24 hour coverage. As part of this Application the Applicant also proposes to increase the amount of agricultural activities on adjacent parcels owned by the Applicant that are zoned Agricultural. Applicant proposes to develop a papaya orchard,a coconut tree farm and an orgaiiic beehive operation on TMK (4)2-9-001-008 and 009 for use by the Grand Hyatt Kauai Resort &Spa as shown on Exhibit "J attached hereto.The papaya orchard will contain approximately thirty-five (35)papaya trees as shown on Exhibit "K."The Ihiits from this orchard will be used by the Grand Hyatt Kauai Resort &Spa.The coconut tree farm will occupy approximately 28,500 square feet ofland as shown on Exhibit "L".The coconuts harvested from the tree farm will also be used by the Grand Hyatt Kauai Resort &Spa in its operations.The coconut trees will also support the organic beehive operation that will adjoin the coconut tree farm as shown on Exhibit L .The bees will assist in the pollination ofthe coconut trees and the honey produced will also be used by the Grand Hyatt Kauai Resort &Spa.The papaya orchard,coconut tree farm and the organic beehive operation in total will be approximately 1 acre in size.This compares to 1 CZO Section 8-5.3(b)requu-es one parking per three hotel rooms.Applicant's subsequent application is for only two additional hotel rooms which requires less than one additional parking stall. (W:/DOCS/27014/5AV0167972,DOCX }10 the .7 acres of land that will paved for the proposed parking lot.The increase in agricultural use does not require a use pennit and is exempt as "development"by the SMA rules and regulations, but is being proposed here to support the application to use land within the SLUC agricultural and CZO agriculture district for parking purposes. XX.DETAILED LAND USE HISTORY OF THE PARCEL.INCLUDING FORMER AND EXISTING STATE AND CQUNTY LAND ^JSE DESIGNATIONS, VIOLATIONS AND USES A.Land Use Desienations.The State Land Use Commission ("SLUC"),Kauai General Plan,County of Kauai Zoning and other relevant land use designations for the Property are as follows: 1.SLUC.The Property is entirely within the SLUC Agricultural District.It has been located in the SLUC Agricultural District since the establishment ofsuch Districts. 2.Kauai General Plan.The Property is currently entirely in the Kauai General Plan Golf Course designation.Under the previous General Plan it was within the Agriculture District. 3.Zonine.Tlie Property is within the Agriculture District.The Property has been zoned as such since the adoption ofthe County's Comprehensive Zoning Ordinance in 1972. B.Development Plan Area.The Property is located in the South Kauai Community Plan Area.It is not located within any ofthe special planning areas nor is this area subject to the new form based code framework. C.Previous Uses.Parcel 7 has been previously used for agriculture purposes.Parcel 7 is currently used for golf course purposes.No land use violations have been issued for Parcel 7. (W:/DOCS/27014/5AV0167972.DOCX }11 r r XXJ.AMENDMENT TO 1988 PERMITS The 1988 Pennits included a Use Permit,a Special Permit,a Class IV Zoning Pemiit and an SMA Use Pennit,.The proposed amendment to the 1988 Permits to include the constmction ofanew parking lot on Parcel 7 is consistent with these permits as follows: A.Use Pennit.A Use Permit is being requested pursuant to Section 8-20.2,Kauai County Code,in order to allow the Applicant to have a parking lot use as an accessory to its resort use.Parcel 7 is zoned Agriculture,and parking to accommodate the employees that work at the hotel would not be considered a generally permitted use. The standards for issuance ofaUse Pennit require fmdings as follows: •that the establishment,maintenance or operation ofthe construction,development, activity or use in the particular case is a compatible use; •that the establishment,maintenance or operation ofthe construction,development, activity or use in the particular case is not detrimental to health,safety,peace, morals,comfort and general welfare of persons residing or working in the neighborhood; •that the establishment,maintenance or operation ofthe constmction,development, activity or use in the particular case is not detrimental or injurious to property and improvements in the neighborhood or to the general welfare ofthe community;and •that the establishnient,maintenance or operation ofthe construction,development, activity or use in the particular case will not be inconsistent with the intent of this Chapter ofthe General Plan. Parcel 7 has not been used for commercial agricultural purposes under the CZO since the development of the Poipu Bay Golf Course.The proposed parking lot and the areas surrounding it are currently part of the Poipu Bay Golf Course.Golf Course use,as well as other uses are allowable in the SLUC Agricultural District and within the CZO Agriculture District with a use permit.The use of the portion of Parcel 7 for agricultural purposes where the proposed parking {W:/DOCS/27014/5/W0167972.DOCX}12 lot will be located may not be appropriate or desirable in light of the difficulties any farmer or rancher may have in conducting their operations unimpeded by complaints about the suitability of such uses (herbicide and pesticide treatments,plowing and harvesting activities,dust,odors and noises),in close proximity to residential and resort uses that are right across Poipu Road from the proposed parking lot site.See Section XXII.D.infra.This area was identified in a prior permit issued by the Planning Commission as a potential site for employee and overflow parking. B.Special Permit.A Special Permit is being requested pursuant to Section 205-6, Hawaii Revised Statutes,in order to allow a use which is not otherwise peiTnissible within the State Land Use Agricultural District.Although Parcel 7 contains more than 15 acres,the proposed parking lot area is only approximately 1.5 acres,which allows this Commission to make any determination regarding the permitting of such use.Section 15-15-95[a)of the Land Use Commission Rules provides,in pertinent part,as follows: Any person who desires to use land within an agricultural or rural district for other than a pemiissible agricultural or rural use may petition the county planning commission within which the land is located for a special pennit to use the land in the manner desired.Special pemiits for areas greater than fifteen acres require approval of both the county planning commission and the [land use] commission ..." The Applicant owns Parcel 7 and operates the Poipu Bay Golf Course.The Applicant has no plans to increase the size of the proposed parking lot which may otherwise trigger Land Use Commission review. Special permits are authorized for "[c]ertain 'unusual and reasonable'uses within agricultural and rural districts other than those for which the district is classified".The applicable guidelines for determining whether a use is "unusual or reasonable"are: {W:/DOCS/27014/5/W0167972.DOCX )13 r r •that the use is not contrary to the objectives sought to be accomplished by Chapters 205 and 205A,HRS; •that the use is not contrary to the objectives sought to be accomplished by the rules ofthe Land Use Commission; •that the desired use would not adversely affect sun-ounding property; •that the use would not unreasonably burden public agencies to provide roads and streets,sewers,water drainage and school improvements,and police and fire protection; •that unusual conditions,trends and needs have arisen since the district boundaries and rules were established;and •that the land upon which the proposed use is sought is unsuited for the uses permitted within the district. C.Class IV Zonins Permit.A Class IV Zoning Permit is a procedural requirement for a Use Permit.See Secs.8-19.6(d)and 8-20.6(a),KCC. D.SMA.An SMA Use Permit is required for all development within the Special Management Area. XXII.POLICIES AND OBJECTIVES OF THE GENERAL PLAN,THE SOUTH KAUAI COMMUNITY PLAN ANDTHE APPLICABLE ZONING DISTRICT A.Kauai General Plaii GolfCourse Use Designation.The Subject Property is located in the Kauai General Plan Golf Coui'se Use Designation.Section 2 of Sector V,shared spaces,of the Kauai General Plan includes golfcourses as parks and other shared spaces.See Section 2.1 ofthe Kauai General Plan.Section 2.3 of the Kauai General Plan recognizes that parkiiig uses are an important aspect of accessibility.Parks are encouraged to be tailored to the unique needs and identities of each neighborhood.With this in mind,it is well recognized that off street parking is an issue in this neighborhood and land withm the golfcourse designation (which is included in the park (W:/DOCS/27014/5/W0167972.DOCX }14 disciission m the Kauai General Plan)can and should be used to address the unique needs of this cormnunity. B.Compliance with Kauai General Plan Policy Considerations.The current and proposed use ofthe Subject Property is consistent with the following policies to guide growth as forth in the Kauai General Plan. 1.POLICY #1:MANAGE GROWTH TO PRESERVE RURAL CHARACTER. The proposed parking lot is within the Kauai General Plan GolfCourse district.Even with the proposed parking lot most ofParcel 7 willstill be used for golfcourse purposes.The proposed parking lot will not substantially change the use or character ofthe remaining portions ofParcel 7. 2.POLICY #2.PROVIDE AFFORDABLE HOUSFNG WHILE FACILITATING A DFVERSITY OF PRIVATELY DEVELOPED HOUSING FOR LOCAL FAMILIES. The proposed parking lot for employee and overflow parkiag will not impact housing on Kauai.The remaijung portions ofParcel 7 are not intended for housing. 3.POLICY #3.RECOGNIZE THE IDENTITY OF KAUAI INDIVIDUAL TOWNS AND DISTRICTS. This area ofPoipu is recognized as a visitor destination.The proposed employee and overflow parking lot is consistent with Poipu being a "world class,sustamable resort destination servicmg residents and visitors alike."See Section 2.4.3 ofthe Kauai General Plan. 4.POLICY #4.DESIGN HEALTHY AND COMPLETE NEIGHBORHOODS. The proposed parking lot is located across Poipu Road from the Grand Hyatt Kauai Resort &Spa and within walking distance for the hotel's guests and employees.Having a parkmg lot {W:/DOCS/27014/5/W0167972.DOCX )15 available to the guests and employees ofthe hotel across the street is consistent with good design. The parking lot-wili~reduce the number ofvehicles currently parked on the mauka shoulder ofPo'ipu Road.This will improve the visual environment ofthe area and make Po'ipu Road a safer place for pedestriaiis and trafEic. 5.POLICY#5.MAKESTRATEGICINFRASTRUCTUREINVESTMENTS. The Applicant s proposed parking lot does not requu'e the making of any strategic infi'astructure investments for the Poipu area.The proposed parking lot will not require any additional inirastructure improvements by the County ofKauai. 6.POLICY#6.REDUCE THE COST OF LP/ING. The proposed parking lot is aimed towards providing paiking for the Grand Hyatt Kauai Resort &Spa guests and employees.The proposed parking lot will not directly reduce the cost ofliving,but it will make it easier for employees to find a safe place to park when they come to work, especially on days when the hotel is hosting large events.The parking lot will reduce the potential of accidents stemming &om parking along Po'ipu Road. 7.POLICY#7.BUGLDABALANCEDTRANSPORTATIONSYSTEM. Any transportation plan requires consideration of where employees and customers will be able to paik once they get to their destination.The proposed parking lot meets these needs, 8.POLICY #8.PROTECT KAUAI'S SCENIC BEAUTY. The proposed parking lot will be set back from Poipu Road and will be landscaped. The proposed parking lot will not interfere with views towards the mountain nor is it near any scenic byways,open space acquisition priorities,recognized preserve areas or wetlands. (W:/DOCS/27014/5AV0167972.DOCX }16 9.POLICY#9.UPHOT.D KAUAI AS A UNIQUE VISITOR DESTINATION. The proposed use will help Kauai's status as a unique visitor destination in that employees who are currently parking along Poipu Road will be able to park in a well-designed and landscaped paiking lot. 10.POLICY #10.HBLP BUSINESS THRIVE. The proposed parking lot will support and foster Poipu's resort area by giving Grand Hyatt Kauai Resort &Spa guests and employees a safe place to park theii vehicles as opposed to parking on the shoulder ofPo'ipu Road and other side streets.The proposed parking lot is right across Poipu Road from the hotel and withiii easy waUdng distance.Having parking available for employees will benefit employer/employee relations as well as assist in the recruitment and retention of employees. 11.POLICY#ll.HELP AGRICULTURAL LANDS BE PRODUCTIVE. The proposed parking lot will have minimal impact on the Poipu Bay Golf Course (a recognized agncultural use).As part ofthis Application,additional lands will be placed in active agricultural uses such as a papaya orchard,a coconut tree farm and an organic beehive operation. These active agricultural uses will be used by the adjoming Grand Hyatt Kauai Resort &Spa whose employees and guests will be using the new proposed parking lot.Thus the proposed parking will help agricultural lands be more productive. 12.POLICY#12.PROTECT OUR WATERSHED. The proposed parking lot will have no negative impact on any watershed areas. (W:/DOCS/27014/5AV0167972.DOCX )17 13.POLICY frl3.COMPLETE KAUAI'S SHIFT TO CLEAN ENERGY. The proposed parking lot will have no impact on Kauai's shift to clean energy. 14.POLICY#14.PREPAREFORCLIMATECHANGE. The proposed parking lot is not located on or near the coast and will not be directly impacted by the anticipated rise in the sea level. 15.POLICY #15.RESPECT HAWAIIAN RIGHTS AND WAHI PAHI. See Discussion in Section XXX.H regarding Applicant's determination that the proposed parking lot will not disturb or interfere with any native Hawaiian cultural practices or burials. 16.POLICY#16.PROTECTACCESSTOKAUAI'STREASUREDPLACES. The proposed parking lot will have no unpact on the public s access to streams,the shoreline,trails,recreational areas,or places associated with Hawaiian religious,cultural,or traditional practices. 17.POLICY#17.NURTUREOURKEIKI. The proposed parking lot will have a minimal impact on how our Keiki are nurtured. 18.POLICY#18.HONOROURKUPUNA. The proposed paiking lot will not impact the honor due our Kupuna. 19.POLICY#19.COMMUNICATEWITHALOHA. The Applicant's closing of an earlier temporary employee parking area based on concems raised by neighbors and applying for a permit in this location communicates aloha for the Applicant s neighbors and community.Based on its discussions with various community groups,the Applicant has received letters in support from Na Hui O;Kaneiolouma,and the Poipu Kai (W:/DOCS/27014/5/W0167972.DOCX}18 Association.Copies ofthe letters in support from these comniunity groups are attached hereto a,s Exhibit M .Representative Dee Morikawa has also voiced her support ofthis proposed parking use. The scheduling ofthis Application before the Planning Commission will further allow the public to participate ui the planning and decision-making process for the proposed use. C.Compliance with the South Kauai Conununitv Plan.The proposed parking lot is in compliance with the policies of the South Kauai Community Plan.The proposed parking lot is consistent with the walkable community policies in that it will promote safe,pedestrian ffiendly streets.Rather than have guests and employees park along Poipu Road,which could impact pedestrian use and safety,guests and employees will now be parking in an improved parking lot off of Poipu Road.hi addition,Section 4.3.3 ofthe South Kauai Community Plan specifically recognizes that parking is essential to support businesses,particularly in fhe transition when there is not adequate public transit service or safe pedestrian and bicycle facilities built ...." D.Compliance With the Agriculture District.Parcel 7 is zoned Agriculture by the County ofKauai.The purpose ofthe Agriculture District is set forth m Section 8-7.1,KCC,which provides as follows: (a)To protect the agriculture potential of lands within the county of Kauai to insure a resource base adequate to meet the needs and activities of the present and future. (b)To assure a reasonable relationship between the availability of agriculture lands for various agriculture uses and the feasibility ofthose uses. (c)To limit and control the dispersal of residential and urban use within agriculture lands. Although the parking use would probably be deemed to be an "urban use"of agricultural lands,the use of agriculture lands may be used for parking purposes with a use permit and a State {W:/DOCS/27014/5/W0167972.DOCX )19 special permit.Furthermore,the 1988 Permits specifically found that "the evidence is both clear and convincing that the land upon which the proposed use is sought is unsuited for the uses permitted within the Agricultural District"and "The effect ofcloud cover and high minimum and low diumal temperatures on the Pa'a area affects the economic viability and suitability ofthe area for agricultural pursuits,including sugarcane and,although diversification studies have been conducted,none have yielded a productive,successful or economically viable crop that can substitute for cane in this area."1988 Permits,G.Special Permit,Paragraphs No.155 and 159. Despite these conclusions,the Applicant proposes to increase the amount of agricultural uses on its adjacent properties to support the Grand Hyatt Kauai Resort &Spa operations.See discussion in Section XIX above. XXIH.USE PERMIT AND ZONING PERMIT CONSIDERATIONS. A.Compatibilitv with Surrounding Uses.Parking is a passive act.The nearby uses are residential and resort uses.Providing a parking area in close proximity to the Grand Hyatt Kauai Resort &Spa will encourage people to use the parking area,instead of parking their cars on the streets within the Poipu Kai development or along Poipu Road.Without this parking area to supplement the existing resort parking,hotel guests,event patrons and employees would have no option other than to use on-street parking wherever space might be found.The proposed parking lot is similar in design and landscaping to other parking lots in the area that serve their development. B.Not detrimental to the neighborhood.A use pennit may be approved by the Plarming Commission if it finds that the proposed use is "not detrimental to health,safety,peace, morals,comfort and the general welfare ofpersons residing or working in the neighborhood."The (W:/DOCS/27014/5/W0167972.DOCX)20 Applicant believes that the constmction of the proposed parking lot eiAances the safety,peace, moral,comfort and general welfare of persons residing and working in the area.Having guests and employees park in the proposed parking lot rather than on Poipu Road or other side streets in the area makes for safer roads and walking conditions within the neighborhood.Employees and residents alike would benefit ifthe proposed parking lot is allowed to be built. C.Not cause substantial harmfal environiTiental consequences.The proposed parking lot will not cause substantial harmful environmental consequences on the land of the Applicant or on other lands or waters.The parking lot will be setback and landscaped from Poipu Road and the residential areas.Drainage from the parking lot will be handled by the existing drainage culverts.There will be no wastewater or solid waste generated by this use and the proposed use does not involve the storage or use of hazardous materials. D.Consistent with General Plan and South Kauai Community Plan.As outlined in Section XXII above,fhe proposed paiking lot is consistent with the Kauai General Plan and the South Kauai Community Plan. XXIV.STATE LAND USE COMPLIANCE A.State Land Use Aericultural District.The Subject Property is designated Agricultural by the State Land Use Commission.The proposed parking lot use may be allowed if it is determined to be an unusual and reasonable use within the Agricultural District. Under the criteria set forth by the Land Use Commission,the use of a portion of Parcel 7 for employee and overflow parking is not contrary to the objective sought to be accomplished by HRS Chapter 205.The use ofthe 1.3 acre portion ofParcel 7 will not cause or hinder the continual use of the rest of Parcel 7 for golf course use,which is a recognized agricultural use imder {W:/DOCS/270I4/5nV0167972.DOCX }21 HRS Chapter 205-4.5(a)(7).The use of this 1.3 acre pOTtion will not adversely affect the surrounding property,in particular,the rest ofthe Poipu Bay GolfCourse nor the Grand Hyatt Kauai Resort &Spa which is located right across Poipu Road from the proposed parking lot.The proposed parking lot use will not unreasonably burden public agencies to provide roads,streets, sewer,drainage,school improvements,police and fire protection.Poipu Road immediately abuts the proposed parking lot and drainage will be handled by the existing drainage culverts that serve Parcel 7.Since there are no building or dwellings planned,no additional sewer connections or capacity will be required,nor will the existing schools be impacted.The new proposed parking lot will not require any additional police or fire protection. Since the district boundaries were established 46 years ago (in 1963),the trends and needs in the Poipu area have changed dramatically.Over the years the adjoining properties have developed with resort and residential uses and this area of Parcel 7 may not be suitable for full agricultural activities.See Discussion in Section XXII above.It would not be unreasonable to use Agricultural land directly across the street from these resort and resort residential uses,as an adjunct to those urban uses and activities,especially since the use is ofapassive type. As outlined in Section XII.D above,the area has been found by the Planning Commission to be unsuited for the uses pennitted within the Agricultural District and that area's attributes affect the economic viability and suitability of agricultural pursuits.Nevertheless,the Applicant proposes as part ofthis Application to increase the amount of agricultural activities on adjacent parcels owned by the Applicant.The proposed papaya orchard,coconut tree farm and organic beehive operation will increase by one acre the amount of agricultural land being used for productive agricultural.This compares with the .7 acres ofland that will actually be paved for the (W:/DOCS/27014/SW0167972.DOCX}22 proposed parking lot.The crop produced from papaya orcfaard,the coconut tree farm and the organic beehive operation will be used by the Grand Hyatt Kauai Resort &Spa.These increases in productive agriculture uses can only be made through the support ofthe adjacent hotel and resort uses. XXV.ANALYSIS OF SECONDARY^IMPACTS OFPROPOSED USE A.Propertv Values.The fair market value ofreal property,for assessment purposes, is based on the value ofthe land and physical improvements,and upon comparable sales.The use ofa portion ofParcel 7 is not expected to increase the value ofParcel 7.The Applicant does not believe that its proposal will of itself trigger increases in values of surrounding properties.The fair market value ofParcel 7 will increase due to the added value ofan improved parking lot. B.Population.No population changes are expected to result from securing permission to use a portion ofParcel 7 for parking purposes. C.Housing.No additional housing needs are reasonably expected to result from the parking use. D.Community Services and Facility Needs.Allowing parking on a portion of the Parcel 7 is not expected to generate a need to provide community services,or create a need for facilities. E.Secondary Jobs.No secondary jobs are expected to result from the issuance of permits to use a portion of Parcel 7 for parking purposes. F.Emplovment.No newjobs are expected to result from the issuance ofthe permits to use a portion of Parcel 7 for parking puqioses. (W:/DOCS/27014/5AV0167972.DOCX )23 XXVI.WATER SOURCE,SUPPLY AND DISTRIBUTION SY«TEM ANALYSIS, INCLUDING IRRIGATION A.Water Source and Supply.The Applicant's proposal to use part of Parcel 7 for parking purposes will not trigger a need to connect to additional potable water sources.Irrigation for the proposed landscaping surrounding the proposed parkuig lot will be handled through the existing water sources that currently are used to irrigate Parcel 7. B.Irrieation Water.Irrigation water is already available for Parcel 7 and will be used to irrigate the landscaping for the proposed parking lot. XXVII SEWAGE DISPOSAL ANALYSIS Sewage disposal is not required. XXVIII.SOLID WASTE DISPOSAL ANALYSIS Solid waste disposal is not required. XXIX.ENVIRONMENTALLY SENSITIVE AREAS,HABITAT AND BQTANICAL FEATURES As noted in Sections XI and XV above,there are no environmentally sensitive areas, habitat or botanical features on Parcel 7. XXX.ADDITIONAL INFORMATION A.Properties in the Vicinifry.Immediately to the south is Poipu Road and across Poipu Road is the Grand Hyatt Kauai Resort &Spa.To the north,east and west is the Poipu Bay Golf Course. B.Historical Uses.Parcel 7 was previously used for sugar cane cultivation.In 1990, an Archaeological Inventory Survey (AIS")wasdoneaspai1:ofthepennitstoconstructthePoipu Bay Golf Course.This AIS did not identify any archaeological,cultural or historical sites on or {W:/DOCS/27014/5/W0167972.DOCX;24 adjacent to the proposed parking lot area.The Applicant has submitted an HRS 6E Submittal Form to request a determination from the State of Hawaii Historic Preservation Dlvision whether additional archaeological work needs to be done for the proposed parking lot area. The Applicant is not aware of any existing archaeological,cultural or historical resources on the surface where the proposed parking lot will be constmcted. C.Noise.The primary noise sources in the area are generated by traffic.The parking lot is not expected to generate extended periods of unacceptable levels ofnoise. D.Air Ouality.The State Department ofHealth,Clean Air Branch,regularly sainples ambient air quality at monitoring stations throughout the State and publishes the information in the Hawaii Air Quality Data.The monitoring station sampling particulate matter closest to the Subject Property is located in Lihue,over 25 miles away.There are no monitoring stations for carbon monoxide on Kauai. The State ofHawaii Ambient Air Quality Standards ("AAQS")for carbon monoxide are considerably more stringent than the comparable Federal AAQS.According to Hawaii Air Quality Data,between January 1988 and December 1990,ofthe 1,013 samples taken,there was only one incident where the State standard for carbon monoxide was exceeded and there were none relating to the federal standard. F.Economic Benefits.The use of a portion of the Paicel 7 will create a short-term benefit during the constmction ofthe parking lot,but is not expected to create long-term economic benefits. (W:/DOCS/27014/5AV0167972.DOCX )25 G.Visual Resources.Parcel 7 is fronted by Poipu Road.The proposed parking lot will be setback approximately 25'from Poipu Road and earthen berms and landscaping will shield the parking lot from Poipu Road.Neither the parking lot,nor cars parked within the parking lot, will impair or significantly change any ofthe existmg mauka views along Poipu Road. H.Cultural Practices.The Applicant has checked with Sandi Puanani Quinsaat,who is the project manager and Hawaiian Cultural Advisor for the Grand Hyatt Kauai Hotel &Spa. Ms.Quinsaat sits on the Board ofDirectors for Na Hui O Kaneiolouma Heiau.Ms.Quinsaat has been working on the property since 1998 and confirmed that there are no culturally significant activities or practices that are occurring within the proposed parking lot site.Based on this input, the Applicant does not believe the proposed development will have an impact on any known cultural practices,including any traditional or customary practices of native Hawaiians.In addition,the proposed parking lot area has been developed and used continuously as part of the Poipu Bay Golf Course since at least the early 1 990s.The Applicant will continue to protect and preserve sites that have been identified by the previous AIS that are located within the Poipu Bay GolfCourse. XXIX.CONCLUSION The Applicant respectfully requests that the Plaiming Commission: 1.Find that the requested amendment to the 1988 Permit is consistent or otherwise compatible with uses in the SLUC Agricultural District,the Kauai General Plan Golf Course Use Designation,and the Agriculture District. (W:/DOCS/27014/5AV0167972.DOCX }26 2.Approve an amendment to the 1988 Permits to authorize the use of a portion of Parcel 7 for parking purposes. DATED:Lihue,Kauai,Hawaii,AUG 1 7 2021 BELLES GRAHAM LLP JONATHAN J.CHUN Attomey for Applicant KAWAILOA DEVELOPMENT,LLP (W:/DOCS/27014/5AV0167972.DOCX )27 LIST OF EXHIBITS Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J Exhibit K Exhibit L Exhibit M Special Pennit SP-88-6;Use permit U-88-31;Special Management Area Permit SMA (U)88-10;and Class IV Zoning Permit Z-IV-88-39 Deed Letter of Authorization from Kawailoa Development,LLP,to Belles Graham LLP Portion ofTax Map showing Subject Property Map showing approximate location Project Area Aerial photograph showing Proposed Parking Lot Drainage Plan Site Plan Grading Profiles Site plan for additional Agricultural Uses to be developed Papaya Orchard Site Plan Coconut Fann and Organic Beeluve Site Plan Letters in Support (W:/DOCS/27014/5AV0167972.DOCX } r-r EXHIBIT "A" r r —^l RECEfVED At^liigss E'liANNING COMMISSTOK OF 'eHE COU'NTS'QF KAUAI STATE OE'HAWAII IN RE AINAKO KBSOST ASSQCiaTBS and GROVE FAKM PSQPER-TrES,IBG <I.SaaS8/2e*3K/030SA763$0-l3. SPBCIS1 PERMIT SP-88-6^ USE EERMIT U-88-31; SPECIAI,MAHAGEMENT AREA•USE PERMIT SMA(U)-88-10; CLASS IV ZOKING PEBMIT Z-IV-88-3S E'lNDTNGS OF FACT,. CONCLUSIONS OP LAW,DECIgION AND ORDEg 'INTRODUC'CIOIS The Applicants AINAXO RBSORT ASSOC:IATES ,sgd .GROVE ^ftRM PBpPESSIES,INC.filed an applicaition (fche "Application")w3.th tlie PIanning Department of the eounfey of Kauai on April 18, 138.8 £or a Spectal Eerroi-k,SP-88-6,a Use Permit,u-88-31,a Spectal Managenient Acea Use Permit,SMA(U)-88-10 ana a Glass IV Z&ning Permit<Z-ty-88-39.Tiie Application seeks aythorizafcion to develop a golf oourse aad tci construct Gertain proposed improyements related to fetie golf course (sometiHies the"Erojscfc"),whicK are ancillary to the deyelopment of the Hyafct Segeney Kauai Hotel,OCT fchafc Ger'fcain real propgrty sa.tiiate at Pa'a,,Island ancl Couiity o^Kauai,gtate:of Hawaii,bearing tax niap key rio.2-9-1,pbrt^ion 1 consi&ting of apgroximately 210 total acres {lieEeiBa/Eter sometimes.referred to as the"Property"or "Prciject:Area"or •'projeot Site~).The Planning Commission of th6 Gounty oC iCauai (bereinafter the "eommission")actiag in accordaaGe with the Revissd Code of OEcliHances of the County of Kauai :(hereinaffeer the "RCO"),tbe Special Management Area Rule.s and Regulat'ions of fche Counfcy of Kauai {fche "SMA Rules"),the Rules of Piaetice arid Procedure of ttie Planniag Commtseion for the County of Kauai (the"CommissiQa Rules")',fche 'Hawaii I,and Use Cbtmnission Rules, Chapter 15-15,et seg,<Hawaii Administrative Rules (the "Land USe Rules"),the Administratiye Pcocedures Act of the State of Hawail (the "KPK"')and Hawaii Revised Statutes,Chapters 205 anfl 205-A,as well as oth&r applicable statutory provisions, Ilaving heard the.tesfcimony and exainined the evidence presented at the heann^s held in cprineetion with the Applicatldn,an'd haying consldered t&e total record,including the proposefl findings of fact and oonclusions o£law submitted by the parties,hereby makes the fcillowing findings Qf fact., ^l &4 2 8 5 7 EXHIBIT "AtlA " concluaio.ns of law,de.cisioii fehe "Biecision and Ocd.er"[}! ascl o'cder ("hecei.&after'sometintes S'lNDINeS OE FACT Av PARTIES 2. AISAKO IBC. tbe .deg.c.r.i.fae BESQBS,.A;SSOC;2ATE&aad .QBQVE /'aesCEa.bBd .as'.&Bp.l3:caBla 'a'riay il.l.':'tefi8reiiCB''?'fco ^^ppltoant shall bb£S Sinaiia RBs6rt:r:.Ass®oi.:ates,mact-<3:ii:tive 'Farm ^'I^.^/Itev^'appliBff ;eo!r:;:tK6;::»s^aBe:^-(lf the aubhoriza'btwns hereinbeSoEe menfcionea ^to ;Bai;ma.1s ths aewetognea:!:Of a igolf ^eourse ,and relatsd facxlifcies <lnc:lu4iacf a cIateKpuse,res.taurant,pro-shop,car-t: bafen.,fie.id inaraery and maintienancse Eflcility) ancillary to.ana asspc.iated witla the resort f.acility cyrretttiy agprBWed far :,eons;truct.i.dn on •property adj.aceat to 'tIig'lKrpject Arss. Gr.oye Parffl of fehe. Eebrua'ry -3, the authorazea^ ::the liaine f. aafl .£s:the legal Owner h^B,pursiiaafc fcff a letter,dated 1S88,a c.ogy of.whicli has beea loaged with Departme.nt o£>t&e County p£Kauai, Groye Farffl EroBei'fea.es,Inc.,to .agply in aad sfcead sf Gcove Farm Cbngaay, to tKe;Bppropriats;ageneies o£tbe esuictty :o£':Kauai and a£the State pf Hawaii for .thoae. .peE'inlts,,waci.afaces,approva.ls aiifl autho.rizations tfcafc•ttxe.SBSiiasc'iab'e,advisabile or necessaEy in oEaer to aeyie.lop:the Pro.pecty as ,a cbampioaship golf course wtfeh:;i;elated:facili.ties.Ainako.Resort Assooiates;is•ktte'prcjBOSsct lessse of ttae Pr.operty. Obaaa Q MaUa'ulepu anfl associations beeii :gcantefl tntierventioa Malama O MaKa'uIepu are who tiatfe "sciuglit and have iri corinection wifch tbis :0£tl Counfey d£Kauai ^Iiefei&af'tiaF tiie "DeBarfcmBitfc":),tS ;tfag.:CoB fcs',,aigaacy aur^uant;t®St.ate ;gteatute,ttee:'^RCO,.!.thfi^ Eiilss,ttee;eommisss'ioa Rul®s ana.ttie Xiand.'UselRulfis <•The ^laanlng DSP'9'rfeaent SSK. for Conm.issien :Commissacin permits tbe CQnmil.ssi.on's 6.E fe&e K.iQd curreiftly, ariS .for ;)»r!egarl"ng: cottsideiTatien;oianc'emi.Hg CBva.ew:::of fsefazS Kbe ,fai :-tiiia. a£ e ^N'3^,.s- .'--2'— r'r B.BROCEDBRftL MATTERS. 5.The Applicant has made ttie aec.essary Eilings a;n3 provtded the notice necessary ani3 requxrecl under fche RCO,Chapter 205-A o:f th@ Hawaii Revised Statutes (somefcimes the "Coastal Zone Man:agement Act"),the SMft Rules,the Coinmissi-on Eules and the larid Vse Kules relatea fco special pennifcs,use perinlts,speGial maaa'gement area .permits,and ciass IV zoning perinits. 6.A Babllc hsaring;ih respeet o£kbe App3.i,cation was duly:noticed',schedulad and occurred On May 25,t9i88. A transcript o.f that proceeding consists;.of fcwo yo.liunes with cOasecutive'ly numbeFed pages.References to fche transcript of tbe publxo,hearlng shall tse to volume and page whieh shall be eitea in fehe f.ollowing format:"T.,V._,Pub.Hrg.,Eg._". 7.Prior to the public hearing Malama O Mafaa'ulepu f'Malama"),OKana Q Maba'iilepu {"Qfaana:'*)aa3.tKe Kauai Wlndsurfing ^ssoca-ation .each timely filed get'itiQns to intervene In the application .process. 'B:.,Afc.ttie :publtc liearing tbe Kaual :Windsurfing Assocration ypluhtarily withdrew ifcs prpposed petition ;for intervention and Malama a:nd Ohaiia reaffirmea their reguests.Xfter cohducting a hearing conGerriing ttle basis for the ptoposed interyention of Malama and Ohan.a (heteiffafter somstiines the "IntervenoEs"),the Conuni.ssion grantea to each the status of interyenor, subjec't :to;fche regyirsmeiit that Intervenors consQlidatad.tb8ir clairos with respe&t to similax issnes raised by the InterveriQrs,in fcbeir petit.ions for intervention.T.,V.I,Pub.Hrg.,rgs.22-24. 3-.On Jufte 7,1988,the Appl,ic:ant,through its:Gouns«l, and th:e Intervenors,thrbugb thetE coynsel,tQgethex w3.th Deputy Ceunty AfctdrneY,Lorna Nishimitsu, attended a meeting chaired by Rick'rsuchiya,Hearing.s pfficer for the PIanning Cornmissiori in.connection wj.tli ths Apglieation.No transGTipt o.f that meeting is available.At tha.m&eting the parties were reguested to prepare and to submi.t fo tbs Commissionon on or tiefore June 16,1988 tlieir proposed list of witaesses and llst cif exhibits,togefcher wi.th any motions oc regiiests that the par'ties migh:t:have r&lgtlng ta the conduet of the proceediag.PursHaat to fchal:reqUest:, the parties presared and each Eiled ifcs respective witiaeSS aftd exhi6it lists.InterYenors further filed on ijuas 14,1988,a Mofcion for Declaratory Order and on iTun6 16,3;988,a Reguesfe for the Issuance of .Subpoenas.int;e,r;Ye!nor5'M.0itioh for DeclaratOEy OrdBr M 0428S9 -3- r r was opposed by written MemorariBuni in OSpositioii to Intervenor.s •Discovery Reqyest:,fj.led by Apglicanfc on June 3.6,1988...-;;:. 10.Gn aurie 1S,1988,the Comffiission,Sunstiyne Gcssfca,the Chairwomsn,and Commissiohers,Thomas Confcrades,Art Fu.jita and Rebecca Sialana,sifcting,conduqfced a pxe-hearing in advance of the contested ease po.rtion o£the proceeding.The tranBcrip.t of the pre-hearing portiQn o£tfae proceeding consists of a single voluroe and refereftces fchereto shall be eited as followa:"T.,V.i,pr81-Hrg.,Pg._." 11.The trariscEiet with respeet:fco fcbe contested case portion of the Appllcation proceeding consists bf three yolumes (6£which volume I is two patts consistiiig of consecufcively nuinibered pages)asd ie,ferences theretb shall be citea as follows:"T.,y._,ecH,pg._." 12.The tianscEipfcs rei£errea to in this Section fi have beea eerti'fied by the Plaunirig departmGnt as correct, 13;..After consi.clei'ing the Infcetveaors'Reque.st fos Issuanee o£Subpoenas and the representations and oral .argumenfc o£Batt.A.es'c&'unsel in respect of tUe same, the subpoenag requested I>y Intervenors were i.ssuea, fau-fc for the subpoena proposed to be issued to Avery Youn,tbe former Cdunty Plarining Dtrector,which the CQinraission refused to issue Eor tbs pu,rp6ses of prqyidi.ng testimony regarding tbe '•legi.slative"intent of the CQmmrssion,.the Kauai Co.unty eounBil and Mayor oE .the County In formula'ting and adopting the KQloa-Poipu-Kalaheo Development Plan,requested by Infeervenors.Intervenors'request to permit the submlssion of written testinlQny by George Cooper anfl Antliony Romo,under circumsfeahces where ttoose Individuals would not Be available Eor cross-exatn.i.natiofl by Applicant,was denied.T.,V.1, ,Pre-Hrg,.,Pgs.162.164-166.; 14.ftfter consiflered reviewof tKe Intervenors'Motloa for Deelarafcory orcler,the Merooranduin filea iri stipport thereof,the Nemoxandum Eilea by Applj.cant:iri opposition thersto,and the represeHtatiDns and arguments raade by eounsel on the .FecOEd,the .Comniss.ion granted Infceivenors'Mofeion for Declaratory OEde.r an8 directed the production o£certain aocuments t>7 Appltcant fco Intervenor in accordanee with Cominiss;ion's wrifeten Oraer Granting Motion for Dec.larafory Grder,which Order was ratified by the CommiSslo.h at its hearing conductea on June 23,19 88, M 042&60 -a- ('r and entered at that time.See T.,V.I,Pre-HFg., Pgs.148-161.See also T.,V.I,CCH,Pgs.48-51. See also,Order GraMing KIofcion for Deelaratory Order:,, 15.The taocumeats the Conmiissi.on diEected Applicanfc to produce to Intervenors were prpducea in accordanee wita the ord&r QE the Commission. 16.,Among tKe niaferials su.bniitted eifeher in conneetion wifch ttie Applicatton in respeQt o,f the Project or auring :ths co.nfeested ease portion of the proCeecling are variDus surveys an&studies prepared 6n behalf of ApBJicanfc la gupgp'rt of -tfae Project ,as well as the Elanning Departroen'fc's Sfeaff Eeport (tfie "Staff Rep.ort").The materlals Inoludea the EnyiEonmenfcal Assessmenfc,datsd April 1988 ("Environmental Assessment"or "E.A.")prepared by Belt Collins and ABSOCiate.s,a Botanical Survey,dated January 1988 (fche "Botanical Suryey''),prepared by Chac and Assoeiat;eS,Botantcal/Environmental Consultanfcs, Winona P.Char and George K.Linney,a Survey of ths Avlfayna ana Fetal Mammals at Grove .Farm PrOperties, Poipu,Kauai,aated Janyary 20,1988 (the "Fauna Survey"),pxepar.ea by Phillip L.Bruuner,Assistant Frofessor of Biology,Director of fche Museum of Natural History,BYU Hawgi'i,a letter,dated Api-il 27, :.1.988 by Pbxllip Brunner to Belt Collins and Associates UEdating the Avifauna Survey (referred,feo.eollecfcively wltb tbe Fauna Survey),a Gglf Course Detnand Study, dated Marcfa:2,1988 (tbe "Demand Study"),prepared by fiQbert E.'S'oxall,IBG.,Reoreation Gonsuitant,a fflarine tesearch report,dated Juhe 18,1988 (tfce"Marine Biolpgy Report"),prepared by Marine ResearGh Consultsnts,Steyen Dollar,Ph.D.<an Interim Report: Summary of E'indings and General gignificance Assessments ana Recommended General TrBatments, Archaeo.logical Reepnnaissance Survey,Hyatt Regency Kaual Proposed Golf GQurse Projeet Araai,dated May 1988 (the "Interim AEchaeological Suryey"),tHe Rey;rs:ed Interim Report/ArchaeoIogical 'Reconnaissance; Eurvey,dated June 1988 <fcfae "Revlsefl Archaeological Survey"):»and Metnpraii3utn Kegarding Recommended Preservafeion Measures for Identifiea Archaeological Si^gs,aated iTune 20,1988 (the "Preservatioh Measures Memo";referred to GGllecti.vsly wtth the Interim and Revised Arehaeologica.i.Surveys as the "Archaeological Surveys").each prepared by PhillipH.Kosenclahl, Ph.D..,Inc.,Consulting Archaeologist.The preparer of each o;f the fprego.ing reports (Joseph VisrTS on be&alf o£Belt Coliihs &Assoctates)testifying at the coritestea case pdr-fclon of the proceeaing were qualified as experts in tbeir respsofcive fields as M 042861 r r well as David Pratt in fclie •field of Ag.ronomy.Also DE.Wllliam Rikuchi,Archaeolpcfist,Donald Heacoek, Marihe Biologist,Davifl BQynton on ..aviEayria,and Dorothy Tao on.fiora,were each .called By the Intervenors as witnesses and so anallfied.The GoTimissipn aceepts fot the recoxd all attacbments fco tbe Applicant's Application,iHcluding the Environmental Assessinent and any sfcudies or.surveys or ist.ters or tnemoranda submitted in connection tSBerewith.Further,febe eommission accefits for libe .reeorfl AppXicant's Exhibits 1-10,inelusiye, Interyeaors'Ex&ibits B,C,D,E ;and F,the Staff, Seporfe anfl County Zoning Map No.ZM-PQ-300.Takiiig into conslaeration the availabllity of fehe authors of the reporfcs Eor cross-examinafcion during tbe contested case p.ortion of the proceeding ,tbe Geimniss.ion accepts as •written testimony eacb of the reports contained among ABPlioaat's exhibits and incorporates herein by thls refereiice the CommiBsion's written order :in respect o.E tKe intervenors'Motion £01 Declaratory Order. G.DESCRIPTiON OF PROO'EGT AND PROPERTY 17'.Tfae Project Kre.a is locateol in the PiatEiQ't .of Pa'a aitd is,iu part,CQnfciguous to tbe site of the prOBO.sed.Hyatt Eegenc-Y Kauai Hofeel,which is located in tbe State Land Use Crban Distriat:.The proposed configuration anfl boundaries bf fche Project Site are reflectea in figyre 2 of the Environmental Assessment filed in conne.etiOH wifeft .these prpceedings.E.A., Pgs.1-2,•. 1:8..Tde pt'oposea golf course will opnsist of eig&teen lioles;a drlving range,pufcting green,clubhouse, fteld tturserY and,inaintenance buildiiig.The clubhouse wtll be located nea.r the planned Hyafct Regency Kauai aa<3 wlll iricluae.parking anS aooess from the e.xtensioa of Pbipu Road vi,.a t&e:Beach accesa road.th^ clu'bUouse •will iKclude a gplf pro-shop/reBtauEant, golf c.1ub storage room arid golf cart mainteaance area.TKe butlding will arfciculate ari arehitectural style that will blend wtth the Hyatt Segerioy and the architecture oE the area.The gol£course maintenane.e buildirig .ana temporary field nyrsery will be located wifcfain the golf faa.rwaYS (aajaeent to fairways 10 and 5)as reflectec!la iEigyre 2 o£tha Enviroarne&tal AsssssEaent;.E.A.,Pg.3;T..,7.I,PuB.Hrg.,Pgs. 39-60. 19;The golf course layoufc will b.e ccinflgured to coasisfe of three hoXes mguka;of tfte Hyatt RegenCY wifcii tbe -6. 042862 r r EemainaeF of fehe courss in an area east of the clubhouse generally folloMing ths coastline,bufc mauka of the Coniservafcion DistEict.Tbe makai holes are intended to take aavanfcage o£tbe area's ses.nie amenities as well as jpreserve the shoreliae's oEen-space environment.E.A..,Pg..3. 20.The cpyrse is designed essentially as a "core course", i..&.,a cpurse :where fairways adjoin one anotheE ratfiec tfran planned resxaenfeial areas,with its fic.st tee leaving fTora the pr&posed gol'E clubhpuse and its eigfatieenth tee returning to the Glubhouse.Bo f.airways or holes o£fche course are proposed on tRe oceansi.de of fcbe State Land Use Conservation District boundary.A slioreline access trail approximatsing tfae location of the existing trail is reflected makai of the CQnservation Dlstriet bounflary and will be maintained as part o.f the (ievelopraeat of the Project. E.ft..?ig,27 T.,V.I,CCH,Pg.273. 21.The Preject Area 1s wa.thin the State Iiand Use Agricyltural District,,Ttte Prbjec-t.Area 1s also wrthih the County's zonirig Agriculture District and Open District.ft pbrtiQTi of the Project Site is within ^fae Special Management Area flefinea by the Courity of Kayai,TUe,ICauai County General Plan (•'General Eiaa")a;na the PoiBU-Koloa-Kalaheo DeYelopment Plan ;("Deyfflopnient plan")designations for fUe ^Prfljept Area are AgnGulture and Open.E.A.,Pg. 7:.:See Goynty ZQnlng Map and Staff Iteport. 22.TB.e cost ;o£the iinBcovements p.roposed to be made to tKat poriion 6£the Property witbin tlie Special Management:Area iri Gonn.eefcion with the developmenfc of the golf Goyrseexeeea $65,000.00.See Staff Report. 23.The Project Area consists priinarily of foriner sugarcane lands and aajacent areas.fippFQximat.ely,50 acres of the Slte:reinai'n glanted in sugarcane at thi,s time.T.<V.T,CCH,Pgs.408-4:1,1.. 24.The Applicant inteBds ancl propoges to deyelop an la-hple chaiBp.ipnsi'ilp-e.aXiber gOilf course and proposes to operatB it iii association vflth the Elaaaed BOS-room Hyatt Regency Kaaai at .Keqnaloa Bay.Tbe propdsed developiiient will be operated as a resort orientea fa.cility but will be opett to the public.The golf course wi.il be develop.ed also to accoiiimodat&an inoreasing aemaad for golf p.lay in the Poipu area of Kauai andKaiiai generally and to make sduth Kauai more competitive amoag other visitor destination arsas, E-A.,Pgs.7-3:;¥.,V.I,Pub.Hrg.,Pgs.39-60;T., V;I,CCH,Pgs;.l®-120. -7- M 042863 r r 23.T!»s .projecfc Slte is located 6n the easfcern perimeter Sf the resort communifcy of Poipu in south Kauai. Unlike ma.stet plannea aesfcination areas developea by single entities,Poipu is coroErised of a numteeE of inaependent resort and hotel developmepts,incluaing Xiahuna Plantafcion,Sheraton Kauai and :tbe Stoyffer Walohai.E.A.,Pgs.7-9.. 2.6.Qnly recently has Poigu hecoroe a roajor desfeinattoh area.PriQr fco 1.S60,Polpu was an isalated and remofce settlemeni:occupied by a small nuniber o.f beachfront homes wbich were primarily associated with t'he sugar planfcakion:that sfcill operafces a mill today about 1,5 niiles to the north.Today,Poipu has more than 1,800 hotel ropins ana apartfflent condominiums,together with various Cominercial facilities,resiflences anfl beach parks,E,A.,Pg.9. 27.The Pioject Site is local.ed oa coasfcal aaa former agricnlturaL l.ands.A portion of ttie EFa^scfc Area 1s leased fco acBryde sygar Conipany,Limibed (sometimes"KcBiyde":pr."McBryde Sygair"),:for planting and har'tfesfcing of sugarcane.The pox'tion o£the land 'iitKicb reinains subjeet fco the McBryds lease is subject tp wlthdrawal by GrQVB Farm under th&terms of a 1974 lease.:E.A.,.iPg..1-Q;T;.L,:V.I,CGH,Pgs.408-410. '2S.:,"BordeiCing the Pcojecfe Area on tBe west is the xeSiait community of Poipu wbicll stretcbes approximately 2.3 miles aiong KauBt's southern coast.InBiieaiately feo tHe wesfc are s.everal resoEt-residenfcial projects., iiicluding Bayvtew,:a 40 lot residential subdivision, tanai Villas MaKa:i,a 47 lot residenti.al subdivision, aad POisu Sands,a Eesort-residential condpminium. iKmiediatoly adj'acent to tbe Project Site is fehe site of the plannecl 605-roojn Hyatfc Regeacy Rauai Hotel which is seheBule.d to cbnmience cohstruotion in 1988. S.K,i pg,10;see also Sta£f Report and T.,•?.1,CGH, Egs,1DO-120. ;Z9..The oyeicall texraa.n of fche Property graclually rtses £:rciti a SO.-foot elevatioa at its.most inafcai l)ozina^ry,fco appEoxLitiafcely 125 feet .afc the site's mauka bound.ary. The average site slpge is about 4%.E.A.,,Pg.10. 30.There are no clistinguishable arainage ways o'ft the Eroperty and the topography is rslatively eyen.Sike punoff is primarily by sheet flow towards the Ocean. E,.A.,Pg.10.. M 042864 .8- /«, 31.At fche coasfeline,Qutsid&tlie project.Slt.s;,ars fpymatiQns ca'lcarebus elevatlon. Area or,:on. of lifn&stons sana .dunes d£'TJaer&''are 'nb :t!h&oceanisidia nearest Sita.] sand ••»./' Seach i.s ;Bg.10.. ate aaa litho^hxfre»'as well .as:' apgroiximatslY 30-126 ;£ee't in sand SeasHas in ^tfae Pcoj^plc of .the.'Project boundary;,;Tbs e Hyafct.Regenoy Raua,i Hotel 33 32..Acco.r^uig.bo :t:Be Sai.I,epaservat:xon;S^ryiee Qf tfae 'tJ.®. 'DeparAinsnt fff^Agricultwre'^the Projeefc Sibe con.tains pred6nn,riant:ly;Waikomd;stoiay siltsy clay.Also preseat .are Koloa sfeony silty elay,Mamala stony silty :clay loams and •jaucas loamy fi.ns sana in smaller amounts. .B.A,,Pgs.12-13. Waiko.mo stony silty clay cojns:i.sts p£well-drainad stiony,and;roc'ky mafeeEial deyetoped i.n inatbeE weatherea fadm basic igtt^aus .Eock.'nis^pe.isiaeabtrity CoE tfte so.ll is .mocfe.rate,i-ts EUHQ¥£a.s slow and iis erosion hazard tifaar^cyfcgtist lc AS .s i.igl^t:,::E ,A.,Pgs.12-13. 34.inlana seetians; 'sBa.:!' fi,E;:fc6e: asa .gewsc'aiKly •£ouiia^,etU Property contain Koloa sfeD.dy Ttfis soil too is well-dr.ained Q.ia voloanic venfcg in upland s'.^'/'Haic'cl .rS<3Si5t,':us'uta:]ttiy'underlie this Boil at ,'a'Q€SS-SB^sawSvBB^^.:'Swwff is meaium,to s'evars and t:Se^i;C!Sicin,;BAzaTd iSMOiaejrafce.E.A.,Pgs,12-13. 35.Tl-ie;sxofeot Area g^nffrally encompassed by .S<!aa.komo stony ^sJLttx <=33i3""ainct^Elc>ihala SKoiiy silty clay^':lBsin soils,;i^:'witltia;,<;&&/.icitilier importaat aaricultural land c'lassif&cafej.on oE ttte ftgliicttltural Lands o£Importanee o£'t:be State o£Hawaii (.ALISH)Agrioultural Land EvaluxfciMi System.Exo'SBt Car aaproximately 11 aprBS ol.atssitiecl ,prine agricultural land at the inauka I:)0iuii89.r''ir::cif ttle iproject Sit.e;tbe remainder of tUe 210. 'acxs 1?v0yect SiKe,generally inaulfa .of the shoreline aEjea,:3.:s^not:;classifieGl.B.A.,Pgs,.1A--13. 36.Mthin fehe Pro^ect Stte,,'fche Land Stufly Bureau cs£the of Hawaii elassifies tKe maulta lana the saroe axea.shotni on the AEISH map as ofciiei impprtaat.a^clcultuEal land a&d prime acfr^.cy-lfeB.ral tand)as 'liavi.ng a nariitcil (master) pcocli.tCitivl.ty rafcias a?"S".ty tSs wska*yfiitiona of tbei^Bcojefffc Si.fce',"B:","p;",an3 "B"class^flcations B'.ft,,,PgS,12-3.3.,:1:6:.• N 042865 .9- Hvdroloav and Draj.nacie 37.'Fhece ares no aurfaoe watar E'eatures ori the Tiie sita'?togogragby sad s&il,ctiaa;acfcecfstics an extrsmely wei.l-afcatine!^:cqria;it::Kia suifcable £or developmaat..A aan-made retehtdon and sedimsatation Sasin exlsts in a.low-lying are.a adjacent t6 tfte site aaKai of Pu'ti Maako.'E:,A.,Pg.16.. 38,Kuao££fcom tbe!Trogeefc.Sifcs will be aiaa.i'itaiaeEl,in -Ehe euTrenl:manner;.Mo -increase.i;n sur£ac&:'»atar da;$oliaa;ge .or ;"gcoufta water discharge .wtll 'Ee:sult .:£rom the;d'av-elciBtn&n'fc-'E.A.,.Egi 1;6;;I.,;V.;I<.-CeH,JPigs. 443-4^&,''.,' 39:.The PrQ.gaet Si,te':s .offsbo.ra wat'ers a.re claesiftea by the Sfcate.Departmentof Healfch as Cla'ss A Ksterg,the second bi.gbes'fe cl.ass o£water rating under the .DBpartnient.'S:rating.:system.Discharge in.to these BateiCfi i;s..jgieEmitfceel.Qnty upoti having the best degr^e o<tr@9tiiiBnt!^:;:oF 'cantEol eomgafclble with the criteria esfcat)lis|h6e[.:tiy fclie.Mea,ll:h.Deparfement for ,t:fais class.;TK&,grqgoSed'Project.will.not invol-ve dtscharge of atiy wasfeewsfieaE',ponjnterci.al .poilutants or.industrial wasfce tnAp t^:^o^Ein;,^Sitrjeaee runof,f "geneTated by tKe'gBe>pos®a^cleyeIos">snfc.SB:planiied fco be contained wttliiin fctie ig'olf :;goars®.:idiE t;<»:be limited fco that which ri^8»&lK SIows 'iati>t&e:.oceaa..Indeed,with increased .l.ctngaGapa.ag'aSi'tfte^ProjBet Sita,,aur£ace ruao£f will ];>B.r^BuceB 6y:pT^^ntdre ground percolatioa to tSkg K^aceJ and .cariseguently less flow iato ooastal »taSe.i-s:;,vti'l:I:o<;ijcar;.a'.A'.:,Pg.16;T.,V.I,CGH,sgs. 4ii3-4A6,'''.', 40,.SSMaga generateial tey fsbe gffoposgd dtxBItOuffe!CaclIi'fclie.S; asd;ciii--si-t:,e rsstroom fati3.1ifei.es wa.11 ,be collected.and ttt.a:plariHgcl wastewater treatmient faciIiKy Etir fcfae'new Hyatt'SegBncy Kauai Hwfc&l.E.A;,, pg.16^T,,V.I:,fiai,Pg^.l6'7-10,a,,. 41,ft var.iety o£birct SBeexsis tiave been'csfyssvveS,ancl 42 .Si:..<:tie.; Bave ,been la'enfcifred n&s^r.ug.in AHe l.ffenfi.fa.ea^iuclfide Pgs..16-3.8;^auha 'slite:. as Aeea.:cafcs, ;X.,V. No endangered.specieslar spegiBs mrc&.E:'.A., 358:,3:;64, 'Matamal ratg an3 I,CCtt, The Brojeia'f:ArStt ,aaa;3,As Bur'rauacl.lng enytrftns a faai'Iy.diyerse.range'of''&abitafcs 'wbich \aTe ..utila.sseia^ by tft.e £ypidal array 6f exofci.c biidfi and -10-W Q43S^ 43 44 4S sbcirebi'rds expectaa in thi:s .lo&a.tion..NQ eriaemic Sfedies ^haye been 'taBnSiEa.sd ;6n't&e rr.ppecty.E.&., Bgs.16-18;B'auna Siarvey^T.,V.1;,CCHi,Sgs:,359-36'i > The nafej-va inffigengus biad speca.es 1'dentlE.ied at .aaa adjaceitfe to tfte:fProj:ecl:S:ifce :fall .piiisclominanfcly ^ntb migi-atory l:ypes.6>£':tiiras incluaing tbe Pacific GoldeR sueh.as the.Wedge-tailiBd pre^gss a Inw g^assland type a result ttls:dlevelopmen.t o£the gQlf tacreas:e.tKe presence o£tbe plover ana: Shff of hsb.lfcat:.anfl as cQUEse wi.il. ln .98 tAe area:..The:^mpiot'fcat.ibn.'ftf.treBS of tHe igolf cour&e', aivefsity:o£li.yi.ng arte 'cuprsntly ava i.1al)le.ai: resvlt.in tKe'i.ncreas® tree-neSting T.,V. i&to tfae,area will create a spaees and .haba.tats than the site anS will liKely o£various spec.ies o£ a'vifauna.E.A..,Pgs.16-18; .1,CCff,Pgs.359-360,;362-364. Fauna The majority Of shearwater buc,E..ow.g tQ Bhe Project:Si.te^ar®a.oeff'tsed cli,f£s outBide:d:f tbs,PiCb.jeGt Are^.. T.,V.t,CGH,Sgs,362,aa^.: identlfied adjacent. da seaward Eaeing E.A,,Pgs.16-18; ea^ieipfcea^'t;® tBose I cottrse .for a' coarde w.i.ll not;bave an KH®':Aa»att£iedtoi.Fds s>t those OT ton'tKe5 haba.frafe utilizfid by tbe development 6f febe W6. aoffetats fc&6 fioast anfl B'auaa CCB,.Eg:. of;;-tha '.Wi^amf^S^ ,usa.:1:}jiet;'arfia Qs ..tKes''W3.1:!prQbaBliy..iinprovs fhe babitat :pf .BjEiecleSt Ttie development will no.t gny Sirds .inelufling:seaSi.rds such as 0:r :njigrafcory shorebirds,Indeed, :C3pHt;r01 og tlsie CQastwa.se access anel >n of j.aafSCflpria.te •vehicular aceess aloag may i.nip.ro.ve'tbQ habit.at for fche shearwafcer coastal,nesfclBg afvi.Eanna.E^A:.,Pgs.16-18; V.I;CCK»Pgs.362-363;"r,.,V.III, 2:6.. ~'' 46:»Those por'fca.otta sf SUe P'rojept:.Slfcs not ;coYered ^fey siigarc.ane field :icphtai:n scsrut) :and war.a.ous;:wBe,dy or *'rude:r,al"veg«tatton 'Eoxms. E,A.,Sgs:18-19;'aotaaica,!gu.ryey;:;3'..,V.I,CCH, Pgs.18S'-2.08. 47.one,Imnaiffs^.fGirty-aine ,(145).specresoiE .Elora we.re invenKDEi&a1 wiiEhin and .afljacent to't&e:Projesfe ^l.te^6£ whtcit,12Q .ggeCies,liave:.;bsen j.n.fcroduced,'19';are iffadgeri&us,l.e->aatlve :tq th^islajads Sna.sls'eK(h@re, 5!are eaEaemie;,i..e.,natii.ye Qftly to tfie:is^anas.i'asd S -11-M Q42M7 of Polynesian AntitQftuctiQn.So fetersafcgneel SSeeies'v»erg founfl in the EEoj:eat Area JEew speeifis,ia(ii.u<33,ng hinjaliiRa-kahakal, n'aiiia anfl olielcj-.kal axe cansi.dered Wose spsci.es-are:described as nafeiv®co^sfcal ;sfrAnd ,yBgetafc'igH •:at!a.have a.3 ffecuEfina vilWin tha eQnservafion incluaing the:.seBwaro[facing sloges,oufside 0£th8;EEOi3ect Area,E^A,,Pgs.3-8-13;:T.,W.!,;CCH, Pgs.188-2S8. origiTially or although,^a k.ipiritai., rax-e &x cotninon.ly beea Oi8fcri:et; Site: Air .46.De'fee.lcigijisnt s£ths golt cffy);;se ;Ero;jeefe als th,e•wi 13,Kave no aSYeaise;::eEfeet cih'.rai-e or or i.aaigehQy.s species of plants or on Elora •The atiufemenit;'.ef the Project Area feo the ConsgEvatioa DistrlGt and exclusion of Qff-ro.ad vehieles along fche coastal stretch of the Projec.t Area abuttlng the eonservation District will improve the habltat £6r eoasfcg.l .strand ve.getation whicli has been i.mpact.ed;hsayily in fche past by such vehieles.B.A., Sgs.1.8-19;Botaaical Survey;T..,V.I,CGH,Pgs. 194"-19.i6i;T.,?.III,CCH,Pgs.46-47,.50. 4S,Tfae/.AppItcanb ffncl Infceryenors'fltir&l expe^rts,,Wlnona DQroShy.Tfao^resgectively,'.toave ^aph tliat ac.aass t:o Makawehi dun.e npt be .<S£;£-rQad'.vahieles as they faawe had a tin]ciiaet::^pn dune vegefcafeion.arid hava•:t6.eros.to.n c>f;the dune area.Ea:ch. :feHafc :-peCt^s^i;iaa.traffi.e fot tbe ^fti.King,"sightseeiag arid fehe like Siirtfcer,eaeh toas recommeiided wxfch e;ssilx-grQwn nativa speci.es en'vAii'onmeata'l conclitions inciuclihg incsorpora-tea an'to the go-l-E cciurSe :E,A.,Pgs.18-19,T.-,V.,1,CCH, 194-195;'T,.,y..XX:i,GC8,Pgs.46-*7,50'. TIie/.AppItcanb .C&ar gad DQrot:! Eeconumended , Si|T(ni'k3fcea to deg;Iriit;e. ccititrttouted Sas....leiaemmertaeg' py.csoses.Q£ eOntiaue ;feo-Ve tftat -laaasGa®;lng aciaptea:.feo;loea 1 salt spray -be. landscaping Bgs. ^uality 5»:'^A tlie exislblng a4.r gi.iaiAfcy wa.fcliln and ^aEbuael:the sliort-term afr qualit:sr;,i»npa:G:t.•Sitrtfig .i'ts of adeqjiiafcff,dusfc duting the .oo&straQtion :and ::alleviate.resultlng adverse suErQyteiaing resort and residen.tial Tfae SitB::iS .vsry maiy1 r^sulfc:yE'vom•constriKition .gKaSB,•control .measurss phase wMI' ,eff6cfe&^;if asy:,'aa 51 areas resultTrig.E.A'.,Pg :19-. No substantial adygrse .ehvlroainental Qr affecfc ·vij.il Eesult .Ecom.the 'develi3pme»t:i6>f;tfie eourse.ladeed;fche ptscemeat a£tlte ctSu^ee t?i:tbin fche Proj'eci;'Sitie will.reduce fiirecl;long-tprm aic .12- W28Q8 quality in^acts 'ass.oci.a'bed wifeh aTeas..E.A,:^?g.119. ;cane Ita;rve&ta.ng ln 52 Cohstrupti.oa aotiyi.tlffs associated 'with t.ba aigvetoiimgnt o£the gol€cpursa may.cori;fc:i;ibttte In:..BSe short-tSiTiii to tempdtar'ily.inorease;ao3.se lawels.. ReBfcEistibn of:eonsfcittefcloh:aiattwa.'tj.e.g.ba ^ayII'ght tewrs wtieys tBe actSvifetSsE aee;eoiadu'cfceia .th to devsl.wped »Eeas^'wi.l.Ii,;iai;t;lga1:&aiid alleviate any i.mgatt't::.assoGa.ated with such aGtivity.E.A.,-Xg-22,.!!:•1':^';;;--:1'-: 53.The EFpp.osad iTOplemyntation of the Project at fche: yrojeafe Site is not eatpectea to increase nbise level ia the long-tera.An increase ia traffic,which woyld be a priiicipa.l souroe of long-terni noise level increa'ss,is not expeGted by virfcue of iingleinentatlon of ±he pEo.posed Projecfc.Consequenfcly,the aeyalopmeai:W.i.ll;not have any Bubstantial aflverse ,Bnyj.Epnmenta:!QE:acologiea.l .effBCt in torms .Qf noisB:. Ta,,:tlie extenfe tbat noise may bs a cQnGBra,EOadside :laniasG.apiag wlll buffer no.Ise :emina:ttng from autcifflotive vehicles.E.A.,Egs.19-22;T.,V.X,CCH, ®g».::444-445. g.cchaeotoav ana Histoiical.'B&sduEce? 54.Sased .oaall the svidence'pr^sentea -to the eominlssipn, tbs 'Braject Site bas marginal a.reb.aeological :.S3.giEtificance.A surface and subsurEace survey of tbe area :xdentifled a total of 18 arehaeolo.gieal sites »i.tbi,n;anfl about tbe Project Area (7 o.£which had .been preyiously ideiitlfied in the >Tyne 197.4 ArehaeolQgical SesSa.cch.Center o£Hawaii Surysy)..Subsurfaca exeavatloh efi'nducted .aa part of tshe 19B8 survey rBveaIecl,no sybsuifaEe 'cultural clsgositfi.T.i v.•I, cca,&gs.,2t3-2i5;T.,;y.iii,'CCH;Pgs.7-1.9; Siirveys.. 55.Ot tiig 18:"a'ro&aeologica'l beeH i.dffntifi.ed^as ftaye.:-teeen tnformation ai>a maasUreB .gre ao safes'i.ae&fcified,10,have impor'tant for;thel'r iriformation and thEOugh t.h.e reGordakion of fchat furtfter pXQfce.etive or preservation in respect of those sites. Of tBe <AaeBtlfled sltes are important both Eor thetr .ih.foriaats.on and £01 their pbteritial as good ex.aiiip.les o£s.lte,tyges and/oa for fcheir eultural valuS.T;.,:'K.2:,CCS;Pg.214;T.,V..III,CCH,Pgs.. 7-191 Arphaeplogical Surweys. -13-M 56. 5f TJie 8 sitas recomniended fbr pres.Br.w.ation ,by.bo(:.ii e Applrpant's:and 'tlie rnteryenors'..a.rchaegApgfe'ial PhiUtR aoBen$alil:'and Wi^llAnt ^ilntci'ii., 1,:ha'?e been.:lat>el8d:T-3,,;1'-3^T-7,,T-8, T-11 and .3216-THeir .sa.fce ;lpaa'fcioa is at Eigure 1 'of the Savi'sed SAt:&s T-7 aad 'S-S ars l^caKeel S:be Bouftdeiry of tha .Etoject:A^ea.S;i<;s f-? .withta tfie geXf'.couicse.Bpsnaary:.Site'S-2 the •over'all ^rol.ecsl:AreS ;a,ofated atop'Pu'u tliecefgr®'ap'fc w;3,tbin:.Cfae,lltnifes o£golf T-9,T-ID., Ea-fleEited outsiSs »E is tocafced is wj.tXin ASnafco and fa'ir'i^asB -nor '.witliin.any.flrea., a'-3::l:s'-:tf: ,oa feUe seaward locafced on: Sxte T-3,however,i.s for constEuc.fcion of the fey:;:pl'at;£Qrni- and.i's baundaEy. proposefl iEor iniproveinenifc stone-stepped siae of Pu'u Atnako the Proj ee.t Area not within an area gdlE course os any imBrovements..associatea wtth the g.61:f courea.Sites T-10,T--11 and Site'.3,216 shouia be consiaared a single si.1:s c.0Mp Ijex .(Song 1s tiag of steppefl filatforms,the lArger ;o£—HbiBtlt ;T~IQ is locafcea/withiff fchs Conservafci'pn Da.stifiol:.outside ths fcoundary of t&e Area,,T}iff;sroaller ;piatEorBis,si'fces T-ll and ajE'P'eiar to:he:w3?t&S%,l;tie;.';PEpject Acea..'!.,v.i, CCH,ffcrs.'227-233';iSreKaes.i.ogieal,Surveys, a£ sy fei.S. ttte 5S. Sa<?'b.sxRBr-fc haa :riaGonmeiiS8d:,:s<'>m8 leval of £or ;ls&8 ;&sigfiifip^nt arcliaeolo.glcal sttes sangisg :EE<5ia eonsei'ystifciBn ,(sii;e pfesevvakioii as is anfl slte jB»o£act;ii3ii):tfaESiugh l-lnterpretafcion (patilxc eauc'-a'fcion attd rsBOUcce ^feuay).,/.B6th fc&e ftpplicant's and iBtlscveilors'eapertBF eoncur that the seppe 0£ reottniinehflea .tiy Dr,Eosendahl at Table 1 t>ro'feBetiviBj:;Measures Meino should be unclBrfcdken Applicani:.She Applica&t:has ..agteed t.0 tttas.e.recQ.rmaencled p.rese.tyafcioti.rneasurss tn p£ths slgnigt'&ant arcteaecitogieal.sites which incslude ooffsiSEvafcxcio,clefinng sinfl cl.eaniag of sites. T~7 •anfl T-.8,:ana i3.n|feer,E>re:t:afci;Di»o£sittis T-2,T~3, T-9,3;-IO/T-11;.and .321<.t&roagti eiiearing .agd cteaiiiaig,.aad ,s;fcgl:iiIi;za;fc.i;C!Hi,,:.'.amqn^,pt;fae!'E:'tat.erpretiye iae%Burss,.T,,V.I:,;geH;,rg.:110}T.,V.,T,,,ce»,rgs. 2:18-238.223;T..,V.ITT,:CGH,,Pgs.14-15;Protecfiye MeasuESs;Meiao. sifces a clearly flagged AIso,an w.oxk with tbe faiow wRar^ In be tie TQ ^iaBure greSeryatlon of the 8 faitffe£zone aiQund fciie,sa.fees .sbuulfl-during,'tlie .c<asAruc1:ibn arfiliaebloglsl;BKouia ibe .a^stla&le tia ciayat-rvcttcn peati3.e:Qn-sitB so.i:hat tIiiB fiouseiartgs of tbe fchis inannisr acciGtfiittELl;iB.CMrsi'o.ii; .•T,,'V..'I,^:JGGH,;•E>9..213... i.ntg. sites ,'are. tb&':afeas~c aa .14-M 04287G B*s 59.Due t.p the flsxible riafcure Qf golf'courge clesxgni.fehe Brciiaeplogical sl-bas ,wa.tiiia tfte;.Proteot;Area boundan.es and.on ttee;.feoundaries 'may be SuOdessditIy lategFa^ed:intp the gal£couisa aad fcbus pESBeTcvB:^in the lo'llg-Semi .:aS w&FX ^'<iS:In,tlie shoEt-term CpnstE'ueHion peri&d-Th6 stfces 'can toe incorporabed anfl •lt is pceferaBle.tp lacQrfiorafce:fcha :aroba8ological st'teg'iKtu tlie 'cau'iE'SE&'B:nafcucal •aad euttural E^atuEes-.Incl.iiatng ;t&s;sltes ',.wlfefaa fche course tioxindary will batfeer'ss3've.tQ;.t)<eBeTvethe sites tfar'OugIi.'Betteft .ciaaxfe'enasce ;aod control.oftfts sites, ania:'»r3.%;.nofc .jeiaipa'rdiz®'^uKl.ic aecgss:'tb 'tihs sibes tci :iAtetesfeed:;;peTSQiis.T.,V.I,cea,Pgs,.218^219, 23i-23'7;;'see'-:also T.,V.III,CCH,Pgs..14-15,13-1.9. 60.BOth the ftpplicant's and tnfeervenors'arehseqlogieal expetfcs have concurred tliat the Survey and Prptective MeasunBS Mejncirandum prepared by Dr.Rosendahl can be integratedl into a cultural resource managsment plan for the regional area in a successful manner sbould suqfa a pian be devsloped by others in fclie future. Bo:th esESrts :further agree tha.t fche signif.icant sites l:ocat:eA';cati.'ti@ eff'ecbi.velY sfcuftied inaependeal:o£a rega.onWiflet.Blsiror .siirVey..T.,V,I:,ttCH,Pg^.22tl; T',.^W.Ita,:<3e ,:Pgs.1'8-19. Natural:Hazard . 61.IKe Eiofeet Area.t..B •outszSw,df .aRY ^flood.^fitaa lay tlte'pioaS,,1'asurance ;Ba'Ea Mae '('"KXSM"^ :;.tbs:B.S.:Argcr:iGorp oS.Engifteiers'.,Xnae^S^ ths^Projeefc:Aa.sA is'flocsRt^dabmre the:s&oreline be&ind liniysfcone:'snff litliQEiKyte^calcaerous saiid dunes whiofa :ri&e:agp;rQiEimat;e'lK.;3a-1213 .feet above sea levsl..TIia i'iase'.fl&oS.ei-Svatiqaof .a pntential 100-year tsunami ii.nunaafcioa ,is oaly 7 feet accprdinct tQ;:the ?IKM map and there:are no pp,<:eti.<:lal ravine floofl plain.s whtcb can adVarsej.y aSfecfc fKe Pcp'Berty...Other natural hazEards are of n&;1 consequeftce to'• 9 Projeet Site.. E.K..,Vg,22.'-:... 62 63 Tbe yropos'ed gi3].t cpursa wil3;fcionta'in a .l.arge exEfanae pf gfceen l:urf:.,:^scstfesi9a :sfaBu$s'.^and 'brses,.•Tlte';rte(]ot stEuciiural lin'p^ovBnients:wa.11:be the:go;l£'clubhQusj&.'ancl maAhtenanpe fa(23;li\ti6s-,E.A,,Eg:i i22j T.,,V.'I,.'CBH, ggs1.WO-1BI,;:.'' Ihe go.lf clubhouse faallitA.es jnauKa siae s£Pu'.u Ainaito. impair vrews to,sfron).'6i wl:ll Be;nes'bled Qh ttis arifl :these£;Qi;©^lll not fch.e oce.an.3'hroygb the -15-M 042S71 deve.lQpmgnfc .o£the c|ol£Gourse,views fco;and £com t&g ocean and .l.atsral shoteliiie yiews will n£>t bB ith(iac1;ed•,.hut»rather i.mgirBved.ThB'tnaiwfeenanee fco be located'at fefae field nutgery .site will 6e sersenea with stirubs and.tress :attd 'wil'l not impaefe mauka/maKai,viaMs,,npr fche vi.e^alpng fche shoreline.. Iti fact,^velosmeflt iof a :gol£coucss-at t'b.is site will FeSMlt.:ia,t:fta :ajpeniing up of views towatds the ocean;anfl:'mpauBa ias .Kesu'ltaJrig in.a.•meic'a ^aesthet ica 1 ly gisasin^;:and viBu^lly:,^Bba^ed'enyirpnwe^fcfte S.a'a area thaa'that whicfc prese]fttly;exa.s:ta.:K;.A.,Pg.22; T:,/V:..I,CCH,Pgs.100-101. BiolQCfiaal/Oceari :Marxne Resoucoaa 6A.Tfae Health De.p.artmenl:is the lead agsilcy to assess watar guality aad watat .pollution in the State.T., V.II,CCH,Pg.,96. 65.The wafegr .qualt.t.y in.the &a'a area csastliae can be 67 68- descBi.tiecl as ^vgry fiaajflr.•^rSin?.:wlwn .siltaiei.iaii ai&Ghatg. Kf9t®r:g;.,,••T'.;,;!y ..:/-I,; Eg.89i W&titlS. natitral. ;,in;tKe CGH,Pgs. A);e:fcG,agt;in.times o£ eresion :,and su§accase oc.ean ean imeact:the, 172-173^and V.XI,CCH, 66...Hl.fcragen,MltS.cB.::.i.,s a imjpacjfc .maEine aua'ooral.res'Ss .Mi ;firoj scfc:,.Safce,T ;,t.6.t:he Mariite of £er3:ilizer,can .;itesoUFces,i.noludlag water rie:ar sfaors regions aajaeettt V;I,CCH,!>gs.163-177; Cur.rent qualit&tstva evalya'fcipns.o£:watex gyal^ty?re^leet ^':::evia6U0^^^^^^^^^ soi-t:dr a»y:sor1:,o:f agveFSa BEEsSt: chemieal iiiftltrafcion thcougb runoff a'fciiEi.bBtafil^to sugarGaae :.bpsratton. :pga.I7Z-173;.V,II,CCH,Pg.88; Report. fche,near shore poUufeion of sriy attr.ibutatole to pr .grouna water T..,.V.I<CCH, .Maxlna ;Blology Th.e efflueaLt course'; intancls^to 'utilize CEsafced at t.tts ^Aepl.icasiri: to Xrrigate saB,:in part T.,.V.I,,CCH,Egs.3.63- ttreated''s sewag^tteafcmettfc fertalize the 177?MaTlqe^ 69..The creatiari Qf ,a tKe uttlizaSioa iif eEfAueat:fc0 1/2flth bsE the oomp&red,t6 ..couxse :afc the.EEOj-ecfc:'St1;e .farti-lrgeas on the .ocntrsjs'.•aiifl tlie:ec>'ttrs&'"will cesuit 'ia abput i. b:tfoau,cea i.wiiO.gi;oun&wAter s-ugareane usage ^gt't;Iie s.l-te.T., V.I,i3CH,.'Pg.1:64^T.,V.:PE,CCH,S&.99;Marine Stology .Repcirfe. -Ifi-M 042872 r'r 70.The conversion of the Proje.ct,Slte to golf coyrse Site will rssult in no increase in phosphorous introduction to fche near shore enYironifient.No adverse env.iE onrnental or ecolo.gical ef£ect wlll resul.t by vi.rtae o.£"tli8'se us.es.T.,,y.I,CGH,Pg.164. 71.No CQnclusive evidence was adduced regarding the potential impacts,whether adverse 0:r dtheFwise,fcb tfae environment or ecology o£the oEf-shore waters aS a result b£fche use of cheinical herbicides or pesticides in t;he;:pTolect area.T.,y.I-II.,CCH. 72.Ths cuCEent sugaccane:operation along the coasfe has a more detrimenfcal.eEfectingeneral on near shore water qyaliby Chan Wltl .gol£course use.T.,V.II,CCH, Pg.11.4. 73.Based on the testiraoay of D.r.SteYen Dollar,it is uhnecessary at this time.feo conduet a baseline qualltative study of the iitarine shore organisms iri the afea as fehera i-s no .evidence that there will result a negativs iropact Erom ttie golf coyrse oper'afcion.T,, V.I,CCH,gcrs.174-175.: Econotilic IriiiEiaot ^". 74.CoastruGtioH and operatiion of the proposea golf course can fae expected to result in increased employinent, personal inconie and gQvernment revenues ..Direet sliort-term cons.tructio.n and long-teEm dperafcional ecpnomic benefits will be Eealized ia the neigiiboring Koloa-Poipy area communities as well as indirect economic benefits in the cest of Kauai and the State. E.A.,Pgs.23-24..., 75.Direct employnerifc is expectea to result during the temEo.rary.constryGtiOR phase ,and the operational phase of.the golf course EaGility.The Applxcant has; repCBsented thafc ^it will findeavor t®use as mahy iQcat emiJlQyees as ppssible in both the coastruafclon and operational phases p£the golf coyrse,This activity would be in keeping witb fhe dsvelopeE's historical appro.ach in oonnectioa wit;fa deveXoproenfcs On the island.E.A.,^gs.23-24;T.,V.II,Pul3.Hrg. 7:6.iHdireet empXoyment.will :be generatefl in compariies supplyxng materials and services needed to eonstruct the golf course and related faeilities."Induced employment"(whieh refers to adaitional jo&s creaked thrbyghout the economy when constructidn wotkers and employees and propnetors and supply Eirms spend their wages and sala.Eies)is also expected to result from -17-M 042873 •'*'. 77, 78 79 the InfcEoducfcion o£tlie golf egujcse i&p&ication afc the Pro:}ect Sits;.Tbe GQiipl-i.ng p£i.nd.iiceofc and inciuced empl;qy[U^a!fe addsd to atireet.BBiploymeBtwj.li .result in a effeofc genera'fcing 'more fchari one job£pr eacil/jiQb pr.eatea at the golf course GorisferuGtlon S.i.ffi*E'.A:,,Pg.23-24. eanstruction ,oftb8 faca.llti.es 1s axpectea to require ;2p moatafs .fco complete aaa a 'total o{12 -fcune'6gui:ya:];@nfc;tobs ars'ex]oet3ted to be Greatea-duiEtag:;tKat';peTJ.fed.A full-time eguivalsnt jofe'a eonibiaed aggregafce of full ah4 part-timeoyer-:tlie'^worket1 months to be generat.ed ducing tfae eonstruetiioh.Ehase Qf the operafcion.E.A., Pg.24..- Direct golE course employment,incluaiag'amp,loyment at. th^:golf clubhhouse and maintenanee facllity,is eBtimated to incluae about 86 persons with inanagemeat personnel a:eco(iatlng for about 10%o£the golf eQurss emp.toymenfe.B.A.,Pg.24. lb is long-term that:goverttmgnt reyenue in tha ;wi;l.l ,iijcrsas®by yirtue.vf the' &f tbe proposed Prpjeol:attEtliufeatole liiofeh to aii increase ta the property tax base anS con'seguent property taxes;payable to the Cpunty,as well 'as tax revanues resulbing froai eairnings and gEe,naihg o£wage.,salary and proprletor's iriccime .associfftecl ^wi'feh flitect,.indireisi:and inaueea joKs ge.nerafeea by fche ogeration bf tbe golf courSe.E.A., 24-25.. the as 80,Baeh o£soo^o-ecoriaml.c,irtipaetSs is bene£ic;ial an^..wi'll ho<;'QiBats;any s&vex.se wgac&cm the.islaad econcany,^eiiyii'onroeiit ot E;A.,Bgs.24-3.5. Publie/Faoilifeies ..ana ServiBes : 81,The gost to construct :tlie-AnfrasfcBUCfcuEe tiie .goU;course .Prol&ct ;wtll .be Deye'lopmeat ;of S. will Esgiuire .tti^^xtrepEign:ef Parpu:.'Soact ma.uka bR»nclary ;^f :fhe>;:H%a^it;'Se^eney :KaiXal;; a,s well.as'tbe ^naferupfci&ff'.'tiE'a prpgbsea:gpl£;eluBMouse,.a ^di.'st.anae- 6f .2,00®fieet;.Ifc.will.ba ii fcwb-I:afie,payed FDB&';in staActaras,witR gr:sii3sd-shoulfl&rs and portlon &£the road ,whieh adj.olns the of fch'e'-;}iot;el site.will be develoeefi by Ito teoiriiS'b^'cySUEge ; e; Ho.tel;'&llS®! fa the. of appfcoximately ifc®/i3c«a1:6 a'wifeli '.Cciunty fhe mauk.a bQUndary fche hotsl Qwner aff&aBpr&S^l :£Q¥this roa3 segmerrfc bas alceady be,en -1S-M OS 28 74 r r obtalned from the County iri connecti.on with approyal o£tKe hotel.This roa8 will als.6 be extended (per the previous County approval of fche hotel.)towards the beach afc Reqneloa Bay to afford public access to the planned public:beach park at fche faotel site parcel. E.A.,Pgs.25-27;T.,V.I,CeH,gg.105. 82.Pota'ble water Etir the gblf course operation will be available thro.ugh the 12-incb water lifte running along fete exisfcing portion of poipu Road.It is expeeted fhat the clubtiouse will re<iuire an average 6,600 gallons per day of potable water.Any required imEEOveinent tp tlie existing water sysfcem,which will include an exfcension of the existing transmission line approxilnately 2,000 feet Srom the Poipu Road termlnus to the clubhouse will be effected by the Applicant as part of the development of the Hyafct Regency Kauai Ho:tel anfl all fees of fche Department of Water will be paid.Wafcer source is currently sufficient to safisfy the projected deinand.E.A.,Egs.25-27;Staff Report. 83.Secondarily treated effluertt:generated &y tbe planned Hyatt Begency's sewage treatment:plant,as well as plani'ied imgatiQri wells to fae constructed by the App.lioant,wxll te used to irrigate the course.1'fc is possible that.Agplican.t niay also use reeyeled surEaae runoff from mauka lands for irrigation purposes; E.A:,,.Fgs.^5-27. 84.Mo publio sewage collectio.n sys.tem exists in tKe area of the 'Erojeat.All existing systeins consist of priva'te eollection and;treatnient facilifeies.Liquid wag.te generated from the pr.oposed Projeat will be treatea in CQnjunctiori witb the plannefl Hyafct Regency Kauai at fche hofc.el's sewsge treafcmenfc plant;whicll will be designed to service the two facilities. Slydge will be disposed of in acGordance witb Health DepaFt:ment regulati.ons and County requtrements.Solid waste will be aisposed of by private contractor. Neither wasfce element will have any substahtial adyerse environmental OE ecological effect and aiiequate servioes eaist or can be develdpea without cos-t to the Gounty,tp meet th&s6 needs.E.A.,Pgs;. 25-27;T.,)V.I,CGH,Pg.108. B5...Aclequate poliee and £ire protecstion services ana electncal and telep.hone services are available to service any nee3 which may be genera'tecl by tbe prQpDsed Project.E.A.,Pgs.25-27. 86,Iraplementation of the Projeet will not unreasonably burelen .publiG agenGies to provide tQads,streets, M 04 287 5 •19 Access 88. 90 sewer gchool E.A.,Pgs. and water fsci.litieg,, 0E police drainage and fire Eaci.littes, proteefci.on. 25-27. 87.DeveJ.o'ement 6£a,golE fiQurse;oit nQt iriipair piubl.ifC .afiGsss ,;or, rest3E'ic1:loBS on.:'.Biitil.l.B,'acces's-'fco lanas,heaches or areas Srea wa.il rfeduce QE iinpQse fciaai or subm.erg^d by tbe mean ti.<:16 la.ne,Devaloement of the cdurse will ,legitiinize ana iHfEroye publio access fco and along the SKoreliae ,a.n4 Sba foregolng areas.T.,.V:.I,CCH,Pgs.105, 23S-276,279, Cottcurrent,.wifch fche de.veloproent of the golf Bourse pub.lic patis.ing facillt.ies will be:created by the Appliean.t on and ofiE~&tte at th&wesfeem end 6E the cburse at t&e 1oas®o'f Makawehi auae (off-site),at the northaasfeern.coastar Aordar of tfte pourse (off-sitg) anet at t:hs field nui'sfiry/mainterian&e buildiag loeattpn ia ::<she apgrox.imate areas refilecfcea on s..ExIi.i&it 1.An area sufficient foic paxking 40:auJt;6niot>ilSsw:i;ll be af£oxSe3 ab.tKe Western parfciag^acea atoel:/arsa sufficienfc fco:park 5.vefcicles at each stte wj.Il i?S:a£fprded at.the.noftheast cpasfeal and Eield ;nu»Sftry maAafeeiiancs builffing sites.AeceSs fo the weBtern ^.grki»g CaGiIity will be via 'E'olpu Raaa,•tKe Saac&^accsess raaa,tlie golf clutohous.e driveway ana a :admpaefciea:;JCBirt:po^sibly not surfa.ced.)roafl to'.lae::consterucfceiS by.AEi&llc'snt la the general atea.refiecfced oa:aB,gliijeaat::'.s;'ggBi6i4;1.Acc'ess to.tBe;field nursery fsrMws SsiBi'^i^aad the northeas't coastaX facillty wMl be 'vi'a exigblflg haul csne roads (with mluor rBa;ligtUB8nt.s}alsd raflected on Exhlbit 1.T.,V.I,<3CH,fgs.105-lpA. 83.No'fcw'i.tBstanaing tfaa clo.si'uEe ^Lfea., to." MeSryde and t»y iSoB-TySe Sugac iCov, otliesc .p'tantiafci.tinSi :o:E.fciiaUr:tiaul ^as-aa®-i-oaSB accgss,,aEica®flerosiafcs :&ave beeflf 'made;•wiAlt: Sugar^:(wha ;will con'fciniite to Utej/'Ii.aa tfie hayl caae :EOad::tn,au?ta .and ..ricirtheasfc ;o£a tff:-tfie courss)to^.ntaj.rifeain oE»eia:publl.f;:a:cc:ei?a fgr .fis;l3.ermen-attoi otfter ^sers ,;'aloag.f&c>s8 porli.i.cJtts;'a£. tHe Kajur.tsana Aoad,.'SYgtorn:'nyiaessary t®':;access^tUe £iel<3 .nyrsery afflS ''nsy^heasfc .ooastal.,.EaEiii-ng fScititiss.T.t V.'I,GCH/Pgs..105-3;®^A2S-430'^43.4. 3'he pacliiing £a:Ei;lifieiS.prsposed to t>e .created :ift conneictiaori with.tbe!flevel.ppment of the golf cpurse have .b.een s.i'fced i.rt areas/fflps.t;coramonly ussd by fishermaii and otliers fco.aecess fclis coastline.Aeeess .20-M 0428 76 from the parkirig fac.ili.ties to tUe Gpastline wil.l be affordea to th6 public aud •fche^existi.sg sfao^sltne trail ptas^nt-in the Conse rv.at ion BisifcriGt adjacent fco tlie Brogject Sfete,whicta affo,ras _i.at®ra;l aoe'ess aloag tli6 entiietf o£ths Goastlirie adjaesBit fco .tilie :PtolecE Site,wi.il alsohe mad6 available for peaestrian acGess.ftdditionally,a sboFeli.ne trail from the axi.stlHg Hyatt Regefacy Kauai site to the intersiectibniotthegi»l£;:cqu;Ese 'Project Sits boundary anet fche Cail.se.rvatiion:Dis-trlet boundary will be affbtded t6 fche EUiblic is t'hg getieiial aEea refle.cted on ABplicanfc's :'Bxttibit 1<thex''ebY a'EEording lateral pedeStri.ari publia a.cCBSS along tbe:c'.oastllne Erom the ho:tel site to the noEtHeasCetn mbst boundary of fche golf course site:. The sxistlBg sftdrelina trail in the conservation dlstrict will be maintained unobstFucted in the general area reflseteia by a dofcted line and labelefl as SboTellne trail 6n Applicant's Bxhibit 1.T..,V.I, CC{I,Pgs.1'05-ioa. ,91.Applicant iia's regresentecl that it will provide to the Gounty a su:Egit5ien'f:,'li.eense afforctin^^a fcfae putolie tlte acBe;ss lict aa^,'along.fche shoreline,indicatea. Altlioiigli ^resfepajsion of various facilities iiiay occur in tItB fufeure.,sfly !£onn of license grantea by the shall prqvicle,for tfae substitution o£ eguiva.leat:aeeess upQji such relocation. T.,V.3,CCH,Sgs:.129-132.. 92,;6£a'l.icense In 'lieu :of a qx.aat o£ easement:,will inihimise pQtential liab.ilifcy exp.osure to t'he:C6unty<By re^alning ;as grivate Ihe ownershlp and rigKts assbcdatea^wttto the licensed aocess..areas td Be c.reated ib Conneisfcion with .fche developmsnfc of the oonrse and reflscts :the Coun<:y':s current.stated p.refBrence.'r;,V.I,CCH,Pgs.l2:a-l3:2. Grove Farm's Plans 93.Grove Farm ComEany,Incorpor.afced,auEreHtIy has.under lease fc McBcyae'Sugar'Conlpsny,:Iitd.araas la Ea'a;;and, Mali®rul8pu^Th&.leasa |by:itfi.terms exipa3;e&in,19'94. T.,V.I,Egs,407-45&,V.II,CCH,Pgs..7-%S.. 9.4.^inGe aa eStlf-as 13-60 Graya EaTm :has.,tJBein ;devel0£>ing tionceptuai ]?ta»s relati-ng,,.to prosfietsfcivs 'taad:'uses\t.n .the :Ea'a anfl.:HciIiaTulfipu areas adj acen£:,^R fehie •Ppoj ect slfce.T-,,v:.i,'ggs.4Q7-4S8;,;V.II,..CCH,,^Egs.7-25:. 95:,ta ass;essing tlta potienfcial ;cutnulat:iVB i.mpaots oS.oblier deyelopitienfcs,^th®CoitBnisslon lias .rec&tyea aiia reviewect all of tbe cpne;ept;uaA glans:formuiated By:Grbve E'asn -21-M 0^2S77 97. 98.. Company,lac&rporated in respect p£tts Pa'a aiid Maha'ulepu prQpertie&.T.,V.I,eeH,Pgs.4Q'7-458, V,II,CCH,%s,7-25.., 9fi.Scove Kann eon©any"s Ra'&/Mafaa'ul.epu filanB, ,X:nte!rveBoi;s*.Exhibrt E,;a-rs not TeasojnaBIy,E'robaS^s of in fcSe reasc>ttably;ant;itt'ipated EufenTe. tha't::l!3rov«Farni:©&i!tSany has for and ;Mal»a "ulepu surisounding ana .-Area .reqnire reguir.e /substantt.ve 1'aTfii .ComRasrt Incdrptorated,will sisek :g(jv®Eninentar appr.oval of any uSes consiaered.1.1 V.I,CCB, :[!,ceH,Pgs,7-25. %e the areas in Ea'a adj wsfit bo fche su&stantsial fattber chan.ge :be£brS Sc.oye b6 la a posrtioa to of the p.roposed laiia Pgs.407-4S8;T..,V. aad .riiay ComRasrt The lack of study by Sroye..Farm.of its conceptual plans arifl the failu.re p£Grove Farm Coropany to have uiiaerfcaken feasibility,infFasfcrucituEe and ma'rXefc/'deuana &tudies,snd the like,associatisd wifch Its'eqneeptual;pla&s-,together with.other eyidenoe i>toagciea:,.;at;t:ha.cQ]'ii:estecl case hearing relatlve to ttiesB ';plaBS,rsveals that the land use concepts eHvis:I<yied .bs'GCQVS .E'ami CompanY are ndt reasonafaly protiajbls'of .iniEliement.^tipn in the antieipatea futTare. T.,W.I,CCH,Pg:S.4®:7-458;T.,V.II,eeH.Pgs.7-25. The currerit CG'HeBpCual Blaas,..d-dv® suETSundlng BalauMaha, tg ttee course ts;;:indesenasrit::of the EaEm .ComRany ,has for tha i areas gnd was fomiulatefl fot the developmanfc oE fclie uses aEea.T&e eutrent FrojeGfc and tbe land:eavtsTOitea:in conoept by Grove Farm for areas ::tlie prbposed golf course are not tli'fc'ec-deBendenfc.Tha groposed .gplf course on the .Pr.djjeet Sifce is not;seonomically ;.o;r functionally on fche iTO)o.lementatio.a of .auy larid us.e for areas surt-dundling &.Proj^c't:Site.aiid conceived.by Grpve Saxai.GcSn'pany..in ?,t&ooneepCual plattS<T.:,V.I,GeH,Kgg.407-458;T.,X.;:II,GCH, Pgs.7-25.'..::: 99.Siace the eatablisluntent:o£distsiefc :KpuBdX.ca.es and the I.an<a Ose Rules,tbe.rs'-Iras tteen a iRCrease .in .tbe uss arid irifeeryst i.n the gol£raaiiafccy.a'he.^dous of many rssort enaaavora bas no.ved:from GonvenfciQn.s,and ths free.iadeg.endent travelBc to tfi6::incentive group market,w&leh cantiot be aftracl-eaeffeeta;ye.ly without an on-site golf faoility,T.,V,I,GCHt &gs.115-118,281;..Demanfl -22.W Q4 2 87 8 102 103 100.Tbe pBEceatage of golfers in t'he Hni.ted Sta.tes has gl-own 24%to,20.2 nlllipa persoas gver :the last two yeass,In opder td keBp.pacawl.tli.theaiemaiid anai the neesl for .golf crsated 6y :tlie iacreaseS interesS In gol£ia tha United BtSteSt maay golf courses woul.d liave to b®fanl.I't,-TBis .l.ntsnsity p;£laferest ana need i^s gE&af:er xa Hawai.i,snfl t&e synbelt^Stafces.ttean.iji Q't;ti6r parts of.the GouBtry:.Xndeed,Hawaii Is seen as. a vaca.feion jnecea w.itli a.a.iti'tense aeriiand Eor golf cur.rsofcly that S.s not.;pri^ectesd feo abate in the fatyre.T-.,V.I,<3GH,Eg.^281;DeMtand Sfeudy. 1QS..Basea oa Ctir:rent s'esS,aftd diemand,.,Kauai.;,wtt'l neefl to sigaifiC'antly tneBease double fche lUui'ibeE pf golf QouEsee cyrrently ..available to satisfy eaisting anfl antiai.pated a6eel fox suoh recreati.dnal,Eacilities. 1.,V.I,CCH/Pg.342,387-390,395-400;Demand Sfcuay. 105 Bxisfcing:gdl£Eacillties.on the island o£Kaual.are. inaifleguate::to'ineefccurlreht deaand and need for golf on Kaiiai GFeated by t'he iB.sifle.nt anS tburist gopulafeiQn, 6:g(;lvsxva :o'£^.l:Ita::-demana and.nead to.be geneiated Jby Hie .Hyat-t:Reg^oey Kauai Hotel.T.,V.I,CGH,Pgs . 39-9-400;Denianff Study. Rea'so&able es'tlffiafcas of the dema:ad aud need tp .be c'reafc.ed for ;adat:tlonal golf afctra.butabls 11:0 the:Hyatt RagetiGy Kauai.Hdtel teElaet that t&&Hyatt Hotel will eE.eafce a need.E.pr afl^itional golf Eaoil.i.t'tes exclusive of the gei'te^al.^'Eniblic and t&arisl:neefl,It is esta.mated .tKat:A:li^:;Hyatt Hotzel wilX Greats a deniaHGl Eorsoine^StQOaiiroynffs.Qf golf ahnually at its.initial Stags wftich';;wt3;l .ineriBase thereafAer and is expesfeed to.resch a .clerttand for some 48/000 FOunGls of golf aiinual'ly.;T.,V.I,CCH,Pgs.392,333,400.See atsp Iiemana ^Stuay. 104.The existj.ng County golf faellifcy ./at:Wailua:is ^ ourrently '•oveicused^Slay.at fchat fac^la.ty has.been aescri.tiad as re^ahing .the sgturattori;isvel./.;^ as-Qcase muriieipttl course in sunhel.t sl:iat:es,sw&eregfflf usage :is ;htgtler tftan other stafcas in t&e malriland Hna.teeEl ;State&,&as.:55,0:00 cQuhds par year :playg4 9*1 tbe.£aBi:Ii<:y.Afc W^yua.:some 120,0.00-1361.0.00 rounds .o£gcilf acg p'iay^Q,aiiaually.T.,y,I,CCH,Pgs. 4ffi&-AOI.See also Detaand Study, NQiihwilsKstanding tb^creation 6f new eourses, inallldatig^t6&i.aaai'fetp.ffialft-ftol.es lebnAeinalated at PrX'noev.iIle anS tlie swseWie SeystOfsnent^^pe an 18'-&ole go'lf:"eourse ;at Kuky.ittla,:an IS-hoIs golf courss in l.1hde and an acliSitiORaI 9.-holes at Kiahuna, .23-M 2 879 r r ,,' there exists a compelltng private need (created by fche Hyatt Regency Kauai Hotel)and public need for additional golfing faisilj-ties available far the tourlst and resident populatton oa Kauai.T.,V,I, CCH,PffS.115-118,389,390-333;Deaand Study. Hawaii State ana County General Plan 106.The Hawaii Sfcate Plan,adopteS iri 1978,serves as a guifle for the iQng-range fyture develognisnt:of the Stafe.it establishes an oyerall tfaeme^gQals, objectives,polica.es.,priority directions,and a system for plan formulation ana BrQgram coordiria'fcion £or the integration of all inajorl State and Couuty activities.State goals in the areas of the economy, physical environment,and physlcal,social anfl economic well—being of its population are set forth in the plan as well as ths State's objectives and policies in the areas of population,the eccinoroy,the physlcal envitonment,facility systems and socio-culfcural advanceroent,Ihe development of the Property is eonsisfeent with the Plan and will coiitribute to the fulfillment of the followj.ng goals, qbjectives,and/or policieB set forth in the Hawaii State 'Plan fay; a..Aading a strong,yiable economy,characterizea by stalsilifcy,aiyersity anol growtb thafe enables tha ful'fillmenC of the needs an3 expectations of Hawgii's pres.ent aael future gsnerations; b.;Adding to a desired physiGal envlronment character.ized by beauty,cleanliness,quiet, stafalg,nafeural ,sysfcetBS and uniguenass thafc enhanpeis the mental anal physical well-being of V&e peopl.®; e.Eaeouragement of ah increase in eaonomic activities and employment opportunities on fcbe Neighfaor Islancls consistent wifch community needs and desires;.,..: d.Tfae enRouragemeat of businesses that have Eavorable fiiianeial multiplier effecfes.wifchin Hawaii 's ecotiomy; e.The prQino'fcion and protection o£intangiKtiS resources in Hawaii such as scenic beauty; £.Assistance to the overseas promotion of Hawaii's •vacati.on attractions; -2'4.N 042S g. K. 1. Improying tbe qu.ality desi.griatipn araas; of exista.ng visitor k. 1, m. n. o. p 1 Ensura.ng that.visrtor facilifeie^and d®stinst:i{tn areas are eaFeful.lY planned aod sensitive to aea.gtihoring ecaiiffiunities ana acti.yities; Eravldiag publtc iAce&ti.ves tftat enapyrage p.rlyate aotJ.Ems to pto'fcect.signiftcgnt ,hat:ural resbuxces ftom aegcaaattciri or unHecessary Pursuirig coWEia'fclble relata.ons.Ka.ikS :among actiiviti/es,,Cacilitltes^na^ural .res.oyrRes, esgeeially withj.n shoreli.ne areas; PrQtnoting fche p.res.grvatioit ana re.stQ,ration of sigaificant uatural and historic resQurces; Promotiag the ylsual anfl aestbetie enjOYment of mountaias,ocean vistas,.s.eerilc lahdscapes and ofcHer aafcural features; fe&e recreatioaal and educational pcrlijeiltial pS natural reBources having scenic, o.gei't s.gace,:culfcur.al,histor'ical,geolQgleal,or Jba-olog'ical yaluss; Ensuring eppffEfcuittUes £os eveiryone to as'Q ana ®njoyHawa;ti;l:s recEeatioflal reso&rces; Sliari.:ng tfae.avai;:tabllifcy nf suffieient rssburces to provicle £&i?.£uture recreational neeas; E'.o.sterittg th;e.incrfiasea knos»lBdge and yilderstanaing of Hawaii's etbnic anfl culfeural herx'tage's arid the ;iiistsry.o£Hawai.i/;. Managing population grow.th.sfeatewi.de in a.mann.er tiiat provides increasea opfiOrtMnities for Hawati's eeppie •fco pursiu$Cbeir phystcal;;SQcial arid ecoaonilc BSfiira^i&ns wha.ie recogitizing.the unlgue:aeieas;p£:eaofccourii:y^,..''. Eiio&urags :gyss1:!er;ccioperatioii befc'wean fcbB.putilic anct Eri.vats sectors tri dewelopAng aiid ^malnfcaining well-aesigiied ;and aaeguajfcely .sfiiryi'ced vlsitor indust^y and relatted dBv&Ioipineats;;' Mainta3.ai.ag pFUflent use af Hawali's l.aria-baSed, slioreli.se and (nanne resaurces;. M O^^SSl .25- r r —f. t.Assyring effective profceGtion of.Hawaii's ynicfue anfl fragile envirbamental resources; u.Assuring the availability p£sufficienfe rssQurces to provide for future cMltilraI,artisfcic anfl recreati.onal needs;and 7.Providlng a iWide,range pf aetivities and faGilities to fu.lflll the cultural,artistic and reereatibnal needs of all diverse aa.fl spec.ial groUps effectively and efficiently.': 107.Tbe General Plan estaBlishss the County's pplicy .governing thg long-range,c&mprehensive development ahd allocation of land and water resources within the Gounty of Kauai.The Development Plans,iricluding the Koloa-Poipu-Kalaheo Development Plan ("Development Plan"),are used as guiflelines in iropleroenting the Genecal Elan.The flevelopmBnt of tba Project Area confocms to and is consistenfc with the provistons of the General Plan ana the Development Plan inasmueli ag it contra.butes to the atfeaiamenl:of the following goals of the Beneral Pla.n:. a'. .», a;. a. e. Maintaining t.he epncept of Kauai as "Tbe GardeB Isle"by providing for growth in consonanee witfa tte .unique lanascape and environniental Gharacfcer df tfie islandj. Ensuring fhat:physl.ca 1 growth is,cpnsistent witli tbe oyerall ecology of fche island; Creating opportunitieS Eor a greater diversifcy and stability :of employment for resiflents of; Kauai; Providing for a ma.simum recreafcional acfciviti.es; vanety of Ottfccloor f. Recognizing those aspeGts of the island aad its people wfaieh are hisforically and culturally significant and maintaiBing arid enhancing such aspects as s eQntiriuiag expression of the island's phYsiGal and soci.al strycture; Eromotirig tbe inipEoveiBeat aa3 expansion o£fhe islancl's economy by Eecognizing and care.fully. utilizing land an3 water resources; Guiding and controlling developmenfc to fcake full advantage o£the islana's fpriB,beaufcy and climate and preserving the opportuiiity for dn improved quality of life;anfl .26-M 042882 h.Guiding pbysical growth so ttiat tsland an3 visi.tpr.eominuni.tieswi.il develop In social and econQmic cdricert wifch each gthet* 1:08 .The .aev&lopmeat,o£ Plan,•Of tfte forth t&sreta fiyt tbe REGperty anfl will followi.ng is conslsteHfc witb tfie congriSute;:to tfte an&bbjecta.yessst: a.Etee body of knowledge ynders fcanding 6£fehe area':s about the 'and; Eacouraging ug«s aria a develo'pinent:^pa^feern;wttich enhqnce aad prbtec't .oo.astal waters.and beaches and encou'rage cteastructipn of s.fcructures which.ao not prompte Elood and tsu.nami dangers; of vis.itor facilitieg resideBts aaa visitors; EacouEaging wtoieh best benefit a, 8.DiEectia^.in£T»st:cuc;fcupe for overal.l Best benefit; f.Sievelopa.SQ pub3.Ac acciess fco coasCal areas wlieEs ycivabe ;ptopert:ies blpck such acciass;arid 103 the development of daytime and nigtitiiine reoreational activities aesired by r^sia.eats :artfl:visitora. To the extent,xf any,the deyelppment of fche Projecfc Area ie regarded as inconsis'tent with the General Plan pr Heyelopmerifc:Plan desig.nations refsrred fco in garagfaBh 21 yerepf,the guidellnes established b.y suc.li d&s.ignati.oas a;cs nofc the.inost desiratile iri this ;par.<:icu.:l:ar case anfl wbuld.frustrate the goals of the Gensral glan and Deyelopment Plaa as set fo'cth abpve. D..AGENCY COMKENTS 110.;Tbe Depa.rtmeni:of ("PB&XIX:.Worfcs"), eouHty .of Kaxiax Of HBat:fcIl ;Of Depart.iiieat:"),the Kauai <"Etre PEieser'vataoB/Review arid tKe..Sfcafee Beg'ai-fcnieBt"^, wifcto tfte Bublic the ("WatBr the Fire Stafee WprKs of tbe Coun.ty p£Kauai DeiE'artm&n.ifc;;o£Water <ir£tibe: DepaEtment;"};,,khe Depattmerit o£,Hawail .(;'lHaa:l;tte of fetie Counfcy of t&e.Kaua.i HistoriG <"ffistor»c;©QimBissioa"') ("Agisiculture fcN>:'- Comma.sston ;&E biiifc s;uraete:i:nes tefeFsed to Oo.l.Iectively .deparfcinents.aod:coBimis&ijoU.::as th.e -27.M 0^288-3 r "Agencies"faave each commented on the Applicafcion and the propdseS aevelopment.Staff Repott, 111.InBoEar as the vacious Agencies have requestea Applicant fco acldress issues regarding expressed concBrns or po'tential impacts of fche proposed golf cou.rsa on various resources within ths area,fche Applicant:has addressed the same either Ctirougti written or oral testimoiiy in the context of tfiis pcoceeding.:... E.SPEGI2U.MftNAGEMENT AREftDSEPBKMIT .:: 112.A Speclal Management Hse Permit is tequlrea slnce a portion pf the proposed Project is lOGated wlthin the Bgecial Management Areas as established by the Counfcy oE.Kauai and the developmant eost o£fche Project exceeas $65,000.00.See Staff Beport,pg.1, 113.Dev.elOEment o£fche golf course at the Project Sifce Wlll :provifle coastal .recreational opportuni.ties accessible to the public.CQupled wi.th tfte shore.tine aocess to be providea by the Appli.cant on lands adjacent to tKe Project Site,the creation of a golf course afc th.a Project Site will provide adequate sceesgible and dlverse recreational opportunities in tRe Special Management Area and ia tll.e area surrounding it:.E.&.,Pgs.27--30;T.,?.I,Ce;H,Pgs. 105-108,129-132,234-236,276-273,428-4^0;T.,V. IX,CCH,Egs.30-31.\.: 114.Placement of the golf Gourse niauka o(the Conservation Distript bounaary aad the 'ccegtion arid maintenance of a vaeiefcy o£Vehicular aocesses to parking faci'lities witt»pedestrisn accesses to the shQ.re.ltne togefcher with a lateral shoreline aecess will pEotect the Frojaet:$rea coastal rssourceB uaiguely Euited for reareational activi.'bies,ACGess fo and along tbe shorel.i.ne sncl t6 recognized f:3.sbing;.and :syrfing ,sjifeBS w.ill be a-EforSeQ.tso fche pybliG,consisfcenfe with tbe so.und conservafiQn of natural reso.urces.Id. il5..Creation of the golf course at the Project Site will inde'ed encourage expanded,public recreational use of t&e aajacent shorfeliae lands.Id. 116.The creation by the Applicant of a li.cense foi; vehicular access to varlous parking facilifles td be created by Applicant ana Edr pedestrian access from. th'ose facilities td the shore.lirie and lafcerallY along tfas shoreline will effeet a reasonable dedioation of the shoreline areas having recreational value for pufillo wsa:,id.. .28-M 042884 r r ii7.-Adherence feo the Healfch Department's regulatlans wlth respect -to grading and erosion control measures at the golf course sifce will etfectively regulafce point anfl non-point sources of pollution (siltafcloh)to proteet the recreatibnal value o£coastal waters and the nesr-shore marine habitat.E.A;,.,Pgg.28-30. 118.Development o£the golf course on the Project Sifce wil.l insure the protecfcion ana preservatiori .anfl,wbere appropria.te,restoratiQn of historic and Bcshistoric resources iden.tified in frhe coastal zone manageinent area as well as such cesourcss that are outside of that area which are sxgaificant In Hoiwaiian hisfcory and culture.AEchaeoIogical Surveys;T.;V.I,GCH, Pgs.215,218-22Q,234-235,-237-241;T.,V,III,CCH, Pgs.10-19. 119.Through tbe proeess of .an archaeplogical tecohnaissanee survey and the conservation ana interpretation of varioys signiflcant atchaeological Sites.,significant archaeological resources in the area have been iQentified and will be analyzed;,Id. .1'2Q,Implementatipn of ttie proposed deyelopinent:wi.ll result in the pEesecvation of remains and artifacts of a signiflcant natUEe i-n and about the Project Slte.Id. 12:1,,Archaebloglcal discove'ries in and ataout tbe Eroject Site.canbein'fcegrated into a cultural resource Survey of the region should such a survey be conducted.Id. '122.Adopfcing the protective ineasyres,proposed by ApElicanfc's expert.anfl concurred in by Intervenors' expert on arGhaeolpgy will,through feHe aevelopment of the Eroiect,supporfc Sfcate goals Eor protecfcion, resfcQration,interpEgfcaSion and display o£historic resources.Id, 123.The develppmeat of a golf course on the:project::Site, outside of the eonseryafcion Disferict but following the ConBervation District boundary line along a portlon of the Pa'a coastline,will serve to protect,preserve and infp.r.pve the quality of coasfcal BCen.i.c and open-space resoyrceg.Id.;See also E.A.,Egs.9-30; r.,v.i,GGH/pgs.lOo-ioa,131-1.32,zis-zzo,234, 274-2SO,429-430,434;T.,V.,IT,Egs,3,0-31,lOQi. 12:4.Tbe portlon o'f the Pa'a eoasfllne adjacent:fco the golf course i's a valued resource and tfae prp.ppsed,golf course aevelop'ment is compatible in ibs visual enviFpnment,design and locatiOn with .tbe cQasfcliiie aad fche surrounding land uses.I&. .29-M 0^2885 r r 125.The development-of the golf course will resulfc tn a minimum of alteratioa of natural land forms ahd ao adverse Impaet on exlsting pyblic views t:o and along the shoreliBe.16.. 126.The development of tba course rtill perinlt:the maintenance oE fche sIiQreli.ne apen-gpace and sceriic resQurces within tbe Special Management Area and adjaGent thereto throughout the coastwise -tengfeh of the golf Gourse.Id..... 127.D.evelopment Qf a golf course at the Pr<3>ject sitB will npt impact aaversely valuable coasfal eco-systemS. E.A.,Pgs.9-16,18-13,22,27-30;T.,¥.I(,CCH,Pgs. 168-177;T.,V.II,CCH,Pgs.96,99,100.114, 128.Disruption or degredation of coastal water eco-systems will be avpided effectively through Applloanfc's adhsrence to Fegulatlona of the Health Department regarding aischarge of water and pollutants into t&e near shore envlronnient.Ii'iiplemenfatipn of fche development proposed at tbe Project Site will promote water quantity and qiiality planning and management p.cac.tices.Id. 123.The proposed golf course will be a privately owned public facility important to the State's econbmy.The .propossd siting of ttie golf course is a sultable loc.at.ion adjacent tgi'existing urban concentEations, reeogaj.zi.ng the low agricultural Froductivity historieally .experiencea iri the area and the uaavailabili'by of.sufficient lands contiguous to the Hyatt RegenGy Ka.uai Hotel site within fche Orban District.E.A.,&gs.23-25;T.,V.r,CCH,Egs. 133-14.0,422-43fl,437.• 130.Tbe golf course will not result in any impairrnent:o£ any existing cpastal uses dr views if deyeloped subject to the CQnditions contained in this;Decision and Order.Bo ;aBlverse soctal,visual or environmental impacts will occur in tfte Goastal zone management. area.B.A.,T,,V.I-III,CCH. 131.Klaceaient of a portion ojE the pTopose.a gol£course pn Lana Study Bureau Produotivity Ratlng Class "B"larids is wafrarited,reasoiiable,and justified tn that i't 'i.s not .feasible to yfcilize presenlily urban designafed locations contiguous fco tbe Hyatt Regency Kauai site fo.r tlie purpose of constructi'ng a gplf coyrse. E'urthermore,reBtr.iGting construetibn of the proposed golf cOurSe to exclusivsly Class "C",:"D''or "E" producti'vtty ratefl lanas adjaeent to the urban -30-M 04fsss r c district would require intrusioa infco the Conservafcion District.The Gurrent placement of t'he course is a reasonable,jus.tiEieci and effecfcive Balancing of inteiests,bofeh economic :and non-ecoiiomic in nature, in the avoidance of adverse envlronmenCal impacts an<3 tn satisfact.ioa of currenfc and anticipated need, E.A.;T.,V.I,CCH,E'gs.138-140,4(}-?-43.7,•i:27-428... 132.Develepmenfc o£fcfte.golf ociurse on tKa Projeet S:ite:as proposed wi.il notcreate a hazard to life 'and property EiEpm tsunami storm waves,stream flooding,erosion or SuBsidence.E.A.,Egs.10-13,16,22. 133.To t&e extent:applicable,the developmenfc of tbe Projecfc will comply with fcbe requiEements of fche Feaeral Flood InSurance Program and witli appropriate j.rTigatipn and dralnage control will npt result in coastal floodlng.Id. 134.Ad.equate an3 propeiClY located public access to shoreline recreatiQn areas and facilities will be legitimized ana reseryed tn conne.ction witli the clevelopmenfc of the golf course Project.E.A.,Pgs.3, 27-3:0;T.,V.I,CCH,Pgs.105-10fl,12S-132,-234-Z36, 276-273,428-430;T.,V.II,CCR,Pgs.30-31. 13S,Adeguafce provisions Jhave been made By the Applicant for solid and liquid waste treafcraent dispositii.on and management aa3 will result in no adverse effects upon fehe Specia'l Management Area resoyrcss.E.A.,Pgs. 25-27;T.,V;.I;GGH,Pgs.100-108. 136.Alterafcions fco existing land forros and vegetatAon (except crops)and the constructlon of structures at the Project Site will have no adverse effeGt on water resources nor upon seenio and recreafional amenities in tKe area.Id. 137.When develope^in accoraance with the conaAtions maae part o£fcbis Becision and Order,the proposed Brojeet will not ha-ve any subs'tantial adverse environniental or eGOlogical effeGfe.E.A.;T.,V.I-II,CCH.: 138,The proposed develQpment does npt irreyQCably cpmtni.t any significant resoui-ces to loss and/or desfcruction. Tbe proposed development will not curtail tfie raage o£ beaefiGial uses in the area.E.A..,t'.,V.I,CCH, Egs.275-27?,:,.. 139.The aevelopmenfc 1s consisfcent wl'bh e County General Plan,zoning and other applioable ordiaanees and ;is Gonsistenfc with the objec.tlves and po.licies of Gfaapter •3i-M 042S87 205,Hawaii RevlseiS Statut.es, Managemenfc Area Guidelines set; sures.E.A.,Pgs..7,26-30. and th.e fox'th in tKe SMA 140\Tbe,proBosed develCtpniant:doe's 'not sybstantlfll ly eEfsct the economte o»sbcial welf.aTg -asa.'acitivifcies of the caiiBnuni.ty,Coimty or .Sfcate;svA^fcKe ecanoinic iropact .o£tBe dewelOiEiaenfc will Be 'posi.ti.ye.E;.A..,Pgs.23-25. 14'L.Tfae prOpoSea-aevelo.pimant does nol:.have any substantial .sfisooBadry inipacfc suqb as population changes or effecfes :dn,pufalic factlities,IS. 192.imBlementattoB of the.dev&leEmeat at the,Project Sl.fce wiil :not eliinlnate planaiag option ahd .will nofc have aa adverse cumulafeive environmental or ecological e££ect when considered in connection with reasonably anticlpated future projeots.E.A.,Pgs.27-30. P.USE PESMIT 146. A UB®PeriBit gplf Gourse zo.ning ts rgguieecl .aiiel:ts aecessary u'sss 'witliJ.a ttw Soiinty's Ses Staff Repo.Bfc,Pg.1. to establish agricultural 143. 144 145.Ttie Bstaibltstonen.tt maiateaance ana .o.petafe'ioM of tbe constTucfet'Cin :anfl'dewelogmenf 6f &golf course.use afc the Projecfc'Site is a eompafcible use generally with surrourid'i.tig urb.an uses and agric.ultural usas.E.'A,, Egs.23-.3:0;T.,V.I,.CCH,ggs.100-108. A Glass IV z.Qning Rermil:is a prOcedural reguireiaent sa.ace:.the UBS PBrmit ia ^sittiultaneously Ueing SfcaSf Repo.rt,Pg..1. The proposea gplf course usa^at the Pro^ect Si.fce .w:i.ll not.be detnmeiital to ta&altfa,saEety,.peaQe;,^inocats, eorttfoit or .'bhe general welEare ^of BS.t'soaas.r&stdtpg or fTOcittng in Cbe nei.g,hbQ3:bo&d Of tli&Projsct Site. E.A..,&gs.23-30. 147.Tfte or lajunpus to neighborKood or CbmiBunitty.E.A,i course use wlll pr.oper.ty an3 i to t.he Pgs.23--3Q not he,aeifcciinenta.l EirQvetneats i&:ttee. wslfa:FB a£tfie 148.The:proppse4 gol£course ns,aga:at :fclte,gfflj.ejsit;Sifce will aot CSMSB any:'sUiiistanfeial liamiful enya.EotBnenfcal Goriseguenpes'oa,t:!helatiff6f1;&e.Apjpllcaiit oa &n c>l:'her larias OE watecs aa^.aeent tb tlie Proj.ect Site and,is consistenfc with tfte intsnt t?£ e RCQ or the General Slan.S.A.,pgs.23-Stt. -32- M Q42888 *A*4^; 0.SPECIAI,PERMIS 149 150 151 A Special Permit is necessary .since the tiroposes t.o as.tablish golf course Escreational asage on agprtlon of^the lands wliloh are ;ratea 'Class "B,"by the Land SfcuSy Bureaa°'5:Detallea;Iiaad .Classification oveEall (MaataT)ProAu'efiYi.ty'Rattng,wiilch.use is no.fc exprassly pBrmifcfced in that aisfertct.See Sfcaff Pg.1. The proppsed golf e:o.yrse:usa:ge al::the Erpjecfc Sike is an unusual 'anB reasunabl^uss wKich may bs penitikted wttMn febfi:Stftte Land U.se.Agricultural Disttict and .has'toBen permittBd in other locations.E.A.;Sfcaff Repor.fc.;.1.,V.I,;GCH,PgS.138-140,275-276,4Q7-417, 427-428. The pro'posed golf courge use is not co.ntrary t.o::the objectl'yss .SQugKt fco toe aecoiaplished by Ghaptecs 205 and 20.5A of the Xawa'ii.R^viaedStatu.tes and •fche Land Use RB^es.:Creata.on of a golf sourse at tbe .Pralect Siti6 rflll liot result iri an ,in£.usion pf major urb.an uses,into,;tKe A^tiieulfcural BiE.triGt.The golE caurse m^l'ely infcrocluass a landscapefl parklike Opea spage re.crsationa.I'experience intQ:.the distriet:and implemfftitatipn,af fehe Prbjeet through the mechanisin o£ a Special permlt does nofc frustrate tfae effectiveness ana .olaieGtives of the Stats's Land Ose taws.E.A.., 27-30';,T.,V,I,CCH,Pgs.27S-278. 152,'Elie:prQpOs.ea;g&tf..GOu(:rse use at tbe E'cojiSet Site will i'lbS-'actverselyafEeefeand is not incttnsisteat wifeh the current use?of surroundiag property.The prQposedusewillno.t:Bubstantially alAer tihe essentlal character o£tbe land and will be the highest and besfc yse.of tlia lana as it remsins tbe Agrioultural Oistrict.Id. isa.Tbe groBosed golf net ro.acts aaa Sfereei:, and use at tbe FEOject Site will public ageiieies tts 'wa'ber,dr.ainag.a .aBd coyrse faurden sewers, pblice aha::fire p'po'tsection.E.A. fgs.27-3.0 154 TJnuaual treBd&,coada.fclons and nee8s bave ari&en in tfae vlsitot Irtdiiis.trx'tfiB'gciiflng,l:n(3us;try:ana,.;t£he agxicul'tural thau.Bliry since the establishineafc;of the iM.sfcri.et .bounaa:ries;:ana •bfte Eatia :Ilsa''Rul&s which justify 'tlte prcrpp&ea gBl-f course 'u&a ,at tUe ^rrojfiict Sifee.V.,if.I,CCH,Pgs.112-117,2:8<1-^90,34fl-342. 38:7-393,339-401.. -33- M 04^889 r •t r •*^. 1.5,5.The evidenee is both clear and conyincing thafc the land upon whieh fcha proposed use is sought is unsuited for tfie uses parmitted wifchin ths AgEicultyral Distric'fc.T.,V.I,CCH,Pgs.A07-411,413-415, 427-428...: 156.The progosea Project Are.a cpnsists of predominantly vacant:ana yncultivated land wifch a portion in cane. WitBdrawal of fchat portion of the Prioperty Gurrenfcly .in sugarcane cultiv.ation from the current lease in favor oE McBryde Sugar,which is permitted under that lease,will not occur until harvest and will not adveFsely affect fche eonfcinued economic survival of McBryde Sugar's opera'tions and will not be contrary to tKe objectives sought to be acGomplished by the Land Use Rules and Land Use Law.Id.,E.A.,Pgs.26-30. 157.MeBryde Sugar's yields are aroong the lowest in fche inaustfy,appEoxi.mately 22%below averag®which is tbe c:ase with many windward plantations situated in areas such as tfae Project Slte ana its environs.McBryde Sugar has itself been withdrawing portions pf its ..acrsage from cane over the last seyeral years and fchere is a strong possibilifcy that McBryde Sugar will riot confcinue its lease for sugarcane in the Project Area and surrounding environs in 1994 when its lease explres.IS, 158.TherQ as flo p.royea altema^ive agricultyral crog which has beea shpwn to be economically viable In tlie windward areas of ttte State or Kauai.Indeed,the windward plantatioiis afc Kilauea,Kafauku and Kohala have gone o.ut of business and eacisting wiridward plantations such as Mauna Kea,Haraakua,Lthue and McBryde :are 4oing the least well o£all fche other planfcatiQns in CQnnection with their sugar operations and fcheir cli-versifiea agricultural operations.Id. 159.The e.ffect o£cloiid cover and high miniinum and low diurnal temperatures on the Ea'a area affects the eGonomic viabllity aad suitability of the area Epr agricultuEal pursuits,i.neludlng sugarcane and, altliougfa millions of abllars in agricultural diversificati&ri studies have been CQhducted,none have yieliied a productivei successful or economieally viable;ores tliat can subsfeitute £01 cane in this area;Ifl. H..EVIjDENTIARY MA'FTEKS AND RULINGS . 160.For pyrposgs of •fchis proceeding,the Elanning CoiBmisBion takes juaicial notice o£the G^necal Elsn .34. M:042S80 of fche County of Kayai,the Koloa-Ppipu r)ev6lOE><nejtfc Ptan:,tb&RCO;fche:Kaual edunty CBarfeer,the Kauai County yiood CQnfcrol Q.Ediriance,fehe SMA Sules and ruaEiB:,the;Land Ose Kul.es ana fhe Hawaii 'Revised Statu^Bs applicatole to the ftppli/cat.ioh,khe Planning Department's £i,Ies I'o reispect i>£tlte Applipation aud all maes tberei.n coittainea,the Cdun.ty's Zoning Maps, asia thg Sfatfa Iiand Ose Distri<yt:Maps. 163..Tff fcfie extent any eOiOclustoii Of..law liereinaffesr se;t forth in.ttits Decision'ana OxQev is proBeriy s'fcyl.sd a o£;'faGb,said .cpnclusic'a o£:law :is hereby at tlu.s part as a finddng of .fact. eQNCriHSJONS OF LAW Jliri.sdictlon 1.Tfae.Coilimisalon has jurisaictlon ov.er tha aeglicant's Applicgt.i.on yiirsuant^bo e Hawali Rev.Stat.§205-6 Cbasfcal Zp"ne.Mgnageriieitt Aet,Hawaii Sev,Stat. S 205-A,,the SCO,:t:he::.CT!^Sylss,the Kand Ose Rules Sad pther appliifCable ptsvigiwis of fete Hawaii Hev. S(ia:b..':;:' Adraiaistcafci'ye Erooeaure 2.The ycefc.eiSn.tal r^suifeneats of .each;oC ttoe Eoregping .stafcutes,/,ryleg and.regula&ions,tncludirig SggGtEtc^lly,.•tlie ^rfiguxreBenta 6E.;tha'.HSwail Admrril'strat'i-ve rica'ctj.ce ABfe,",Bawa£i,;Rev,SSflt:,.Chaf)ter :91 'liave:tieen met.!S,11 iriterssfeect persons aaa^;gaEt:t©s have 'beea ^gi'o'en'.aue ndfcicjs'aE fctia pcoceedxiig ;ana,have been af£c>tcl6El thg bppo^tunxty f:o preaant "coniffleafci aviiaance aad arguroeot;on tbe Apglieatioh. Environmental Impact Statament 3.Hawaii Rsv. appUeatifla 2QSA,tKere assassaeat to eaviroiuoeatal Hawaii Rev. eav j.ronihfintal tfae p.roject:tbe Stat.§343 for a.evelQpnie; sfaall fcife fleteTmine if r.equires that £0.1 ;of IsAa?,'under cgpa'rea:aa t&ere,way 'be,^ eyery Ska^- may haY& Plan'nin.g by tlie:proposeol project, 343-5;(a)(3),•II such an diBcloses ,tha liltslthopd tbat a signififcant 'eiawl.ronmental Departinent ghall order the >n'of a,n enyiroiunenfcal impact statsment as defiited uncieit:Haviait '&ef.Stal:.§343-2,ss requireS &y Sectlon '7.1E OC the xauaa Counfcy SMA. -35-M 042891 r r —^^ 4.The Commissipn finds as a matter of fact,based on the enviconmental assessmen.t perfQrmed,anid concludes as a matter of law,that feKe submission an3 acceptance of an Environmental Impact Statemenfc is not required £or the proposea use at the Pro.jeot Site. Stata.Gsneral Plan and Deve],opmpnt PIan 5.Chapter ;226 o£the Hawaii Rev.S-feat.sets Eorth a Hawaii state develdpment plan aesQribing the overall theme,goals,objecfcives,policies,prioriCy gyi.delinaa arid implementati.on mechaiiisins to be used ia long-range ^deyelopraent o£state lands.Hawai.x Rey. Stat.§226-2(5).Those objectives,policies ahd guicl6lines are set oufe in Sections 226-3 through 226-28 of that chapter,and incorporated ia tbe Hawaii State Plan. 6.The Coinmission flnds as a matter pf £ask,and ooncludes as a mafcter o£law that the developaeafe bf the Property is In GonEormance and is congistent wifeh the QveEall fheme,goals,oBjectives and'policies of the Hawaii.State Plan,Hawaii Eev,Stafc.Chapter 226. .7.Pursuant to Section 7-1.Z(c)of the Kauai County General Plan,the General Plan functions as eaabling legJ.slation whleh establishes the frainework, parameters,constraiftts anfl guidelines for the Development Plan.Pursuant to SeGtibn,7-3.3 of the General Plan,fche Development Plan is a guideline for tlle iKipleinentation of bhe General plan.Eursuant to Hawaii Rey.Stat.§226-2(15),whicK is made applica.ble to the General Plan pursyanfc fo Hawaii Kev. Stat.§52('a)C4),a guideline is a stated coursa of aGfcion which is desirable an<3 shozild be followed unlisss a fleterinihation is made that it is not the most desirable in a partieular case.Pursuant to the same aythqrity,a guicleline may bs deviated from without: petialty dr sanction. 8,Pursua'ut to Seatibn 7-1.3{b)of the General Plan,.the General flan'shall bg interpreted fco recognize the changes in spcial,environme'ntal srifl economic conaitj.ons and may be moSified to apeommodate sueh CKanges by amendment to the Genecal i'lan or'by cb.arig.iag iAplemehtAng legislation or progEams.. 9.The CommissiQn Einds as a matfcer of fact,and concludes as a mafcter of law that cleyelopment of fche ProjecS AEea confprins to and 1s .Gonsistent with fche General PI:an. •3fi. M 042§92 SoBCial Manaaement Aicea Use Permit 10 11 12 Bawaii.Bey.Stat,§205A ahd the Special Managfiment; ftraa Rules and Regy.lafcl.ons o£fche Counfe!y of Rauai promulgafcea th.ereto,require:fcttat:,pri.or to .germitting use of:lands withia thje Speeial Coasfeal Zone Hauageinent Area,.an ap.plicarit aust show that the proposed pE.pj.ect meets the bbjectlyeg and policies o£ tlie.SMA Ru3.es set..out at SecfciBB 3..0,of t.he :iRules;,as well as acldrsss and,to tlie ®xtentapptloable,satisfy t.hs guiaalin.es aaa cpn41tiofts specified in Sect.Ioa 4.0 of fcKe BMA.Rulss. The Conitnisaiph iEiads as a mafcf;eE o£fact,and eo.nclyaes as a aatter af :law that fthe.Applicant has met aa3 satisEied all requirBraenfes and conditioris Of the 8MA Bules of She County of Kauai necessary for issuance of a :Speqia.l flanagement Area Use Pernilt. In appro.ying BrcijQct Site eXfeot fche has ao.fc ;aad flSrencS.es ."ai>ct OE t6 CQnceived tfte and i.n Goyrse riot o.o.Bmiit csiltimxaga.Qns^td•nQGsswaFy Gfcove E'arm E'os areas: SAfre. tii ra'a of a golf Gourse ^afe ths fehe .permits reguired to ;:,·tte.is.Cotiuiiission pr .other revi.ewing a prflcfcical ..commitmenfc tp of the land uses in its coriceptyal Haha.'ulepu surroundiag the 13,Ihe .CcimmissiQri:Ke're.i.n cbnsts.tBftts with Kul;es ana Stat.in fcha.t; coricliides that tBe, ^arid pplici3.es arifl Cbapter 2ff5Ai. P'cojecfc is of fche SMA Hawaii Rsv. a)THe. adyec.se as hea'ltb, lafcerest. af^ects jby 'foireseeate.Ie cuiBiilative, Butestaatial wxll tio-t:have ^ay suiis.tantlal, ehviEQnnental or sco.logical effect axcept adverae effgd:is miriimtasd to the'exfent and clearly ftu1:weigbed Sy publ.i.c and welEa.rs,,Q;E cpmpsj.i.iBg EBbljig The;PrQjsok will not :Kave ^ad.verse ifcself :OIF wit.tt othes individual curtBntly eaisfei.ng o.t througfa .the.creaCi.&n iifigact ^hic&::woulg. adserse.envi.ranmefetal of : EBSUlt -Ml.-,3 or eeolqgiical sffeofcj fli;fc&e -eltffiinafaion df plaaning Qpfci.Bins b)Th6 Eroject is consi.ste.nt with the oB poAicias,of Ctwptw:205A,Hawaii Sev Becfeion 3.0 arid 4.0 sf;tfie SKIA Regulatioas. •and Stat.,an3 Kules and •37-N 042^93 r r C)The.de.veldpment is consistent with fehe Gounty general pton,zoning and other applicatile ordj.aanpgs. GZO Use Permit ... 12.The KaUai County Compreliensive Zoning OrainaMce at Title IV,Article 20,Secfcion 8-20.5,authorizes the issuance of a Use Perniit for any projeot for land use offering yse eompatible with the cOmmunity in the general yi.ci.nity of ths proposed developmenfc,and for wtiich it :ls:sbown that there is no detrimental effect on the healtb,safety,peace,morals;comfort or general welfare of the c.oHtiguous conimunity,and which is Gons.istent:witb the Z&Miilg Code and tbe General Elan.•••' 13.The Gommission finds as a matter of fact,and concludes as a matfeer of law that the Applicarit has mefc and safcisfiea all requirements of Article 20 of .the RCO,Section 8-20.1,et seg,,for fche issuance of the Use E'eymit..•, Class 17 zonina Psrmit .' 14.Ingafar as tfae Class IV Zpaing Eermlt is a procedural reguirement .arid reguires no substantive rsview by the eommission ia lighe of the more extensive fihaings required to issue.tbe GZO Use Eermit,supra,the Applicant:has mefc and satisfied all the requiremehts of Article 13 of ttte RCO<Section 8-i3.:l,et sec[.,for ^ttie issyance of a Glass IV Zoning Permit:,, Spficial Permit 15.Hawatt Rev.Stat.Chapter 205 (the "State Land Use La.w")and Seation 15-15-95 of the Hawaii Land Use eommission RuleB promulgatea thereunfieE,autftorize the CoinmissiQn to issue Speci.al Permits £or unusuaJ.and reaspnable uses meeting tlie guidelines tberej.h sefc ^fOrtfa. 16,Under Hawaii Sey.Stat,§205-6.,Special Permits may be issyed for l.and uses aeferroined to fae unysyal :.and reasonable apply3.ng theseguideli.nes,and whxch is not an expressly Eermitted use witliin the Agricultuial pistrict suoh as tbe gplf course in thits instance, whi.ch is riot aa expressly permifcted use Mi.thin the Agricultyral fiistrict:under Hawaii Rey.Stafc.Chapter 205. M 042S94 -38- 17.The Conimission finds as a raatter o£fact,and concludes as .a aatter o£:law tha:t fcbe ptoposed go.lf course has niet aitd satisfiea all requir:ejB.ent$of Chapfcer 205 of tha:Hawaii Bev.St:a:t.ana tlie.I.and Use Rules necessary ;£or ttie issuance of a Speoiail Eerinit:. eompatibilltv with Findinas of Fact 18.To the e&fceRt any findlng .of Eact confcaiaed In Declslon and Order is properly atyled a 'conGlus'iOri bf law,said finding o.f fact is Ue.reby iBCdrporafeed at this.part as ,a :c:6nc:;l.usions :of law. DEGIBXONAND ORDE8 : XT IS HERBBY ORDEBED tha.t tha apglication by AIN&KQ RESORT ASSOCIATES ana GRO-ra EARM ERO?ESTIES,INC.for Speeial Perroi.t SP-8.8-6,Use Permifc U-B8-31*Special Manageinenfe ftres Use Permit SMA.(U)-88—1.0and Class IV Zo.ning.^erait Z-IV-88-33 fep dev.elop a golf cpurse and acafissory Eelated usgs.ana straotures :on appfroaimately 21Q±acres of land.Iflentifled tsy ,:Kauai Tax Map Key:?-9-0^:Pot:.1,,locafced in fche Ko^loa.^EegAon,:Fa'a Ahupu.aa,. Cpurity anfl Iffl.and Qf Kiiuai,State:of,HawaM,is 'appfdwaa ana fcKat satfl:perintKs:S&S13.be and are bere&y issued,sufaject to ttie;:foillowIng:cQncltl;i,ons an@[restrlcttons,all of wiitcfi shall be aEgli.Gatile'to'gacli pf said perinlfcs.: 1.TKe clu.bbou's.e .faollity,including restaurant anfl snack sKop./sBall :'B&conna.ated fco an appro.vefl wastewater tai'e^tniant faaiyty.Liquld waste Erom tKe proposed clubli.ouse wil.l be eonysyed to eitlier the plaruied wasfcewater treatmento facility £°.r.the new Hyatfe R^gencyKauai.QE/the Pra.yafce Wastewafcar Treatinent Work (tWTW)afe Pdipu Kai,:.uppa.its expansioh to aceotnmodate tKe,sewage Ecom the clubhouse aiid the hotal. Applicant:may inst'itut:e fll.ternate means £6r sewags .treatmant at remofee facil'tties p.rovidea tbe same aEe apgroweS by 'tfae Deparismenfc of Health. a.A;aew PWTW oi;the shall :be.Qlesigns aecoraance wtth Hawa'ii Bey.Sfeat expanstan of th®.Polpu Kai id,,install<ad the ,ai>Klica&le 27, PWTW ^it df as :aKiendsd,and ttt6:plaus fqr tlie pwposea EWTW oc 'fctie Poipu Ka.i. PWTW ea.a^nsi.OA :sfcall be sttBinttted t.o.fc&e. Wasfcewa'ber 'i'testment:Wo'iKltB CQnstcuc^ion fixaats. BscaacK of ttee fieiiartaient 6£.Heal'El'i foc xeview aiid .b.In.eoTaaecta.on with O f such o£its Health.Bepartmenfs .Eevi.ewand sKaII .obtaa.a .effluenS .38- M fld9sa^ M 042895 r r 2. •3',. system under the applicable requireinents of Hawaii Rev.Stat.§282-1,et seq. As sfcated in Hawaii Rev.Stat.§27-21.6,the engineer aesigning the prpposed PWTW is given flexibility and design resEOnsibility;provided,liowever,the eng.ineer sbould consider incorRorating inta the desigh:• a'.A sludge hoiaing fcarik to allow tbe .opesator: betCeT eontrol ovar the solids iRventory and tb Goncentrate the sludge for disposal at a County sewage treafcment plant;and B..expo.sing to ths atmosphere fche water surface in tlie .'aeration tank anfl claiifier to Eacilitate. egse of operatioh,Eepair and maintenance of the facility;and fi. d:. a stand-by or emergency power electrical powered eguipmerit;and source for provisions t6 erisura tbat storm water does riot enter the facility.; Aay proposed PWTW sfaall Be operated by qualified personnel eertified by the Board of Certrfieafcion of OBerating PeEsonnal ia Wastewater Treatment Facilittes as sta1;ea in Chapte.r 340D of the Hawaii Rev.Stat. The projeat sball be provlded with potable wafeer tKroug!i tlre Couaty:water systera. Prior fco fche issuance of a bulldi'ng permit the Applicant shiall prepare and oBtaaa the Bepartment of Wafcejr-'s approval of conatrudtion drawings for necessary water systein Eaeilities and shall eifchec construct said faca.lities or post a perfcirmance bond fffr construGtion:.These facilities shall include: the domestic service conneetion and the fire serviee ocinnectlpn.Tbe Applicant shall also submit to the Departnient of Water the iriterior pluinbing plans with the appropEiate bacKflow preyention device reflected, if the same is required.. I£apglicable,a refund,agreemsnts betweeri t&e Department o£Water arid the Applicant miist be GDmpletea,whereby fhe developer contributes its share to BlacKfield Hawali as prpvided in the Deeartme&t d£ Water's Rules. TBe Applicant shall pay all applicable charges 6E fche Department of Water as reguirecl by the Departmenfc's Rules...•''•:.:-••:-••• -40- M 042897 r r 8.Grubbeci material created in the construction phase t>f the Project shall be disposed p£at a sifce approved by the Department of Healtfa.Open burning is prohibifced. 9.The Applicants shall submit fco the Planning Department for revievf anfl approval prior fco any Coynty perinit applicafcion: .a:.bulldlng elevafions,roof design,material eolor sehehies and/or samples; b.laridscaping planj(s}f:. c,site layout development planCa)<S>f the entire off-streeef parking areas,total nuniber Q:£ parking stalls (improved and untmproyed),and street llghting plans.The final parfeing plan sha.ll be sybjsct to approval by the Planning Direcfcor upp'n Confirmation by the State Land Use CoHtailssiQn; d.any and all grading plan(s),. 1Q,The Applicaats shall iaeafeify tfae bounctaries on •fcbe. Conservafcion Distriet with survey sfcakas or pias and sball notify fche Planning Department and attorneys of record for the Intervenors prior to any coAstruction, gi:aaing,imprQvementsor landscaping activities pn the oyerall pareel area in order that an inspecti.on might be condueted.The location of the boundaries shall be aisc@rnit)16 and mainfeained throughqut all ph.ases of developmenfc of the project.. 11.In view of the series of publie aceesses and facilities,ineluaing pa.rking,which were developed and execufcecl over several ghas.es ofdevelbpmeht within the Poipu Kai resort eonmunity,tHe Applicants.shall provide a eonsoiidated easement location map showing al.l public:ro.adways,pedesfcEian ana vehicular beach accegses,and the respective o.wners of any easenient areas.. 12.Tfte ftpplicants sball pay to the Elanhiag Department; the regui.red Envirpnmental Impact Assessmenfc feei, based on fche final constructioh arawings submitKed at time of building permit applicatiori. 13.IR thg evenfc the cane haul road fronting the golf cour&e is Impraved:as a raajor fchoroughfare,the appllcant sliall provifle,install and maintain at their expense,on the maKai side of the rpadway along its entire length,tKe fbllowiBg: M 042SQ8 -41. 14 15 16 17 curbs,gutfcer.s and sidewalks desigaad an3 constructed in accordanGe witft Couiifcy ^sfcaadards; and additioaal staadards, jpggers,, ,i(nproved:pavement wld'th foi;u.se as a iion-veh.icutar and tO Counfey patfaway £or Iha.s;eoadition sllall ba srribeidted^.m aii Snfcer^a tnta By ana betweeft^oth Applicants anct the Couafcy of Xauai,an.e*^of which shall be subnitted to fche-Planairig Department prior t6 the cointne.na&nien.t:of any g'roiind altsEation acfcivitiea on the Tlie Applj.cants shall .witblB two (2)years froin the flata of Stafce liand Use..CommtssiQn approval,cgmplete siibstant'ial cQns.truetion yf .tfae projeofc."Subsfeantial Cpnstriietlo.n"shall meaa :grading ;and grasBing 0£no less^than 30%o:f the .piQject stte ana^titis .ceimpletion b£Isuildiiis fiiunaafczotts far tli$gQJ.£::;clubliouse fapility.:B'a'xlura to jcfytiflefce,'ssbsfeautial Ctmstrycfcipn WEfeHiU the t:inie,pectc>d speoiflad shall resulfc in tKe revoc'ation b£tttB:subject permits, pyrsuant ta .proper;procedures. T&e Appl.'lcaats ,Bha:l;l di'seuss:,.resptve .and/or aomp.ly wifch the agsricy:comments and reguirements:'inQOFEO.rated :&terein,,:or iniBOSed .Bereaftar,with tbe.aEiproprlate SQvecn"ient agency?prior fcb any :building Bermit The Applic.ants abaj.l submi.t a cer'tlfi.ea .sKQ.Fel'ine survey to fche..;E'laaning .D6p8rt:B6ab Bc3.bt :t:e!issuanee of any ^graai^ng o'E'tiail:di,ng:'permltsdatBa:no earlier than six .(6).mpntBs EEOTO thB.GoitBtEBneement of any cQAStruotiioa activifey :ori tbe 'Ehe Applicants s'bal.l sstabli.sli anfl .ina.intaiji a grciuB ra;te slTEuctuEe i.dcAiTpotafcing ;a Kamaaiiaa rate tn :ba.sst. at $22.,00(:i:n<sa;tiaing::<saa;t:fee,s)Sor Kauai:icesi.deivt.a., which ,$22.,0fi 'rafe .sfta:tl ba KOi'lntariigd f'pr a periotf (3f five <5)years'frpiK tfae.date of the opening Rf the gpl£cour^e,.wi.,th iac'reases 6E no:more t.han $1,00 a year,eSCK year ;tlierea.£t;er for the next five (5) ysars.Tbe Aiopl»Qanfcs;.sWall :alsQ CftnSecutive^starting days)cominenoing at :i.0 fo.r which resetvati.ons twenty-four ^24.)hou^s•fclihe.Shoul.a t;h®re.be gMarantee three on tournament 00 :a.m.,£6r-Kauai resa.dents;•myS;fc ;ti&uSSel.iBo less ttian in aavaace,;D^,the starting no .requests ,inade within this time £rame>such 'times can be/Bold or given away -42- M 04 28 9 Q r —f; c "^. 18. 19 20. 21 22 The Applicanfes shgll insfcitute and maintain whatever measures are neeessary,inoluding but not litnited to filteT screens,eiltation ponds,efcc.,to limifc to not morB than eurrent rates,surfaee runoff flowing airectly or iridirectly infeo ths ofE-shbre waters,bofch during aevelppntent of and operatiori of fche project. Plans and/or improyements £&r sucli run6f£pcevention measures are subjeet fco Planning Department revlew and-approval prior to the issuarice of any gcading perntits Sad .ipEior to the cortimenceinent of site :work On the The Planning Cornroission shall impose additional conaitions,restrictions or requirements on tbe perinits approved herein should unanticipated or unforeseen circumstances arise which requite such addltional conditions to insure compliance with the standardB contained in Chapter 8,KGC,State Lana Use Distr.ict Rules and Regulations,or tbe SpacJ.al Management Area Rules and Regula.tions.. Erior :to fche issuaHce of any.graflirig or buildihg permits,the Applieants shall resolve wlth the PIanning Department the location and/or relocation of the existing horseback riding fcrail previously approved by the Planning Commission (Class I\V Zoning Psrnu.t Z-XV-86-9).: Effec.tive atist anel soil arpsioh coatrol measures shall &8 implemenfced during all phases b£i clevelopinsnt and oigepatloa byfctae.AEplicaittg.:;'.:.,•. Pripr fco fche issuanee ,o£any buiiaing or grading permi.t,the Applicants shall flag and create buffer zones aroynd tlie etg&t (8)significant arehaeologieal sites iaentified in the Archaeological Report.Such buffer zqne.s/flagging shall be tnaintained by the Applieahts at all txmes during the Gonstruction/deyelqpment pbase of the projecfc .Duritig gradi.ng anQ,construction of the golf course,the AgRllcanfcs shall have a gualified arcKaeologist on si.te to monitor fche work.Should anything of itistorical 6r archaeolpgical sighificanee be discoversd,worlf.in that area shall be stbpped for review by the ar.cBaeologist.Any informatioB genesatefl from sucb revisw shall be forwarded without delay 'tb the Planning Department anfl State Hisfeoric Presetvatiori Offi.cer.The eight (8)significant arRhaeQlogiGai sites sball t)$preseryecl in the manner reflected iri TaBIe 1 of the .Archaeologicat Seport,a copy of which is attached her&'to and incbrpocated M 042300 -43- r' -1 r herein as Exhibtt "A"and,where possible,the sites shall be integrated in-fco the golf course laybut desigri. The Appllcanfcs shall notify the Planning DeEartment. and attorneys o£record £or the InteEvenors afc such time that the creation of buffer zones and the flagging oE thp si;tes aie coKiplefed,EQT Eeview and approva.l bytheDepaBtmant.... With respect to thpse 10 sites identiEied tn the AEchaeologieal Repqrt as not being ineiuded or cons.idered as significant and warranting preservation, the AFplicantS sball at fche time of Bubmitting the first of .any gradin.g plans,present fcp fche Planniiig Department for re-view,a written nsgort detailing the proposals therefor. If applicable,the OEfice of Hawaiian AEfalrs' guidelines and standards shall be folloMed fdr this interment o£ancient Hawaiian burials at tfae sit6. 23,The Applicants shall implemeni:a system of barricades and signage that will be designed to prohibit aHd excluae all vehicular aceess on and around the Makawehi sand dune.Such system sball be implemented witbin three (3)months of the date of Planning Commission approval.The Applicants shall submlfc a map reflecting tlie method and location of such barrle.rs aad an example or examples of signage,to saale,for review and approval by the Planning Department. 24.Prior fco any burlding aa&/M:,graflirig permit appl:ication,fcKe Applicants shall subinit fbr review and approval by the Elanning Departaient,khe form of licease by wKieh:members of the public will be affoEcled the accesses created in conriection with fchis application.An executed copy shall be subrai.tted prior to the issuance ff£a certifi.cate o£occugaHcy fpr the projeet. a»The license shall proviae fbr vefticylar access fcc! the p,arking facilities aescribed in concli.tion #25 herein,and .shall create a public right to utilize sucft acGass and the parking facilities fpr th.e purposes describecl in this aondition and said condition #25. la..a'he li,cens&,sfaaM proyifle pedBStrisn aecess to tbe shoreline from the parktng Eacilities and sball grant public pedestrtari aceess along t&e -44. N 0429Qt r r -? shoreline in the general area of the sKoreline trail,reflecfced on Applicants'Exhibit 1,from the Hyatt Regency Kauai sifce to.the interseetion bf fche northeastern coaatal border of ,the groject site and the ConServatiori District boundary. c>.The license shall permit rslpcation in:the fufcure of the various facilltles desCElbea in fchis conditioH and;condition #25 herein,subject to•the review ana approyal of the PIanning Commissxon,and subjecfc to febe requirement that the Applicants pFovide alternate and substantially equivalsnt substitute aecesses and/or parking. d.The licerise shall aBsolve the Gounty of aay liability claims,Th^Applicants shall be Eesponsible £or fche maintenance of the access and parking facility areas,together with any improvements installed,erected,placed br constrncted thereupon. 2&.CpncuEpent with its development:of fche project,the Spp.Iicants sbal.l,cbnstruct fchree (3)uniinprpvBci garking faGilitie&at locations as depicted on Exhibit 1 o£sufficient:dimensionB to park 40 cars at one site,aiia 5 ears at the remaining two sifces.Prior to said coastrucfcion,•the Applicarits shall stake the subject sites for inspection by the Plaftning Departroenl;.These Eacilities,fcogether with vehieular aecess to ttoe facilities,shall o£ficia:lly be maae gvailatile to the coasfcal recreational users 6n the date of the ftrst publiG opening to the golf course. Duritig Gtinstcu.ction>^lternate acGess areas sliall be provided to thp public.The Appli.eants sftall Subinit a map refleGting these teTnporary access areas,and shall publish such map in tfte local newspaper. 2S.Upon fiie execution of a lease in favor of Ai.riako Associates.Eor the gropert;y,•the Applicants sftall, witboufc Selay,sybmit a fully executed cogy thereof to fhe.Plaaning DepaEtment,togefctier with any extensions or t.enewals of said lease.NOtt-perfcinent iteros,Bucsh as lease rentals,may be excised Erpm the:required lease,renewal or extension. 27,The Applicants are resfcrictea froin utilizi.ng any pestica.cles or herbiciaes on the prOjec'fc ai-ea until such time as a reporfe pr repQrts are :subrnitted to tfae .PIanning Commisslfin and the Intervehors'courisels bf -4S-M 0429 record,concluding that no signi.ficant:aclye.cse envi.ronraental or ecological conseauences wil'l res.ult therefroin to ttie Eroject areg,immediata envi.rQns,ana ttte wa:ters off-shore Erom the project area.Sliould tKe Appl.icants petition dr mo.ve tlie Pla.nning eojiimission 'fpr .moclifiea.tion,B.menanient or ae.letlori to this conglittpn,no'tjice shal:!be given to •tBe la'terveaQrs tp attend any mesting o.i'beaicing feKereoB;, tbgether with.'s copy of gny petltioo'OE inotlbn aiia acconiganyiag doc.uinentatiun, 28.The petmlts through tties t&areof fof. is issuefl bergunaec Sball eontinue:in effect; leas'e .Eierioa .or -any exbenslona^W rBnewals ttis prpperty and thereaffcBr s6 lon.g.as fche used fQr golf eourse purposes,asd are Eurtbftr conditioned..upon ths use of.the properfcy only Eor goli course purposes .gAa tlie struGfcures and inproyements listed ih tbe applicafc.ron ar>d depicted on t&e.consfcruct.iQB plans which will be certifiGd by the Piaaning OepaEtin&al:iu ebnneclslon ..hereitlth.No aaditional s'trwetur'gs ;dt ilBgrci'veinents;ars hereibY aatfaorxzeot^nor any.exsaitstohsf tKereot, M 042S03 -46- BY (BDER OF THE PLANNIW3 CC»«SStON,ths flppMcants'request is ;hereby approveel,sytiject;•to the afQreiitentl.onei:!condtflons,:.by a:,:6' ' to .1 ,vote takengtthe August.IO,1988 _,PIarfro.ng Cianroission meet.u;s-as'fpJ-lo:#ff: F(K! Sia'Iatia Dela Cruz Nblo Contrades Matsunura Costa AGAINST: Fuji'ta: iBa.linian'Dytl-ieecBmtlsg&in Bata^.^fo^,(s_ M 04S804 r-r' EXHIBIT "B" r r ^ R^|97 STATE Of^HAWA^M97 BU^U^^NCES JUN 18,2009 08:D2AM 20 10U21 Z9 DOC N0(5)2009-093592 Isl NICKI ANNT_HOMPSON REQISTRAR CTax (30):$24000.00 ^ReturnbyMail [X]Pickup [] Case,Lombardi &PettH (DML) 737 Bishop Street,Suite 2600 Honolulu,Hawaii96813 Attention:Dennis M.Lombardi TGOH 200925736-S TOES A9-401-I415 Amy A.Silva Total Pages: (t^ |0 Tax Map Key Nos.:(4)2-9-001-007 (4)2-9-001-008 (4)2-9-001-009 WARRANr/DEED,COVENANTS, AND RESERVATION OF RiGHTS THIS WARRANTK DEED is made as of \W 1 2 ZDpg by GROVE FARM COMPANY,INCORPORATED,a Hawaii corporation,(the "Grantor"),the mailing address of which is P.O.Box 662069,Lihue,Hawaii 96766-7069,to and in favor of KAWAILOA DEVELOPMENT LLP,a Hawaii limited liability partnership (the "Grantee"),the mailing address ofwhich is 745 Fort Street,Suite 1608,Honolulu,Hawaii 96813. WITNESSETH: In consideration of the sum of TEN DOLLARS ($10.00)and other valuable consideration paid by the C3rantee,the receipt of wtiich is hereby acknowledged,the Grantor does hereby grant,bargain,sell,deliver and convey unto the Grantee,Hs successors and assigns,in fee simple,as tenant in severalty,forever,all of that certain real propsriiy described in Exhibit "A" attached hereto and by this reference made a part hereto (the "Property"). Together with the reservations,reversions.remainders,rents,issues and profits thereof and all of the estate,right,title and interest of the Grantor,both at law and jn equity,therein and thereto. 367/62ra81403.6 EXHIBIT "B" r r SUBJECT,HOWEVER,TO the encumbrances affecting the Property as set forth in Exhiblt "A",and, EXCEPTING AND RESERVING to Grantor,its successors,but not its assigns,for a period offive (5)years followlng the date of recordation of thls Deed,the right to utilize existing excess capadty,if any,of the Wastewater Treatment Parcel located on Lot 2-B described in Exhibit "A"attached hereto ("WTP Parcel")(the existence of which is to be determined as contemplated by Section 7.01 of the unrecorded Waste Water Treatment Plant Lease dated as of December 1,2000 (the "WTP Lease"),a short form of which is recorded in the Bureau as Document No.2001-006244,subject to Grantor's obligation to pay Grantee for such serw'ce at a reasonable market rate.The rlght to utilize existing excess capacity shall termlnate on the date that is five (5)years after the date of recordation of this Deed and shall be personal to Grantor (i.e.,Grantor may not assign or transfer the right to utillze existing excess capacity to any third party).Said resen/ation shall not include any right ta expand or relocate the fadlities located on the WTP Parcel,and Grantor shall not acquire any ownershlp interest in the facility as a result of its use of any excess capacity.Upon acquisition of the WTP Parcel pursuant to this Deed, Grantee,in its absolute discretion,shall solely determine whether it desires to expand the facility.Additionally,(1)the right to excess capacity shall terminate in the event that Grantee transfers ownership of the WTP Parcel to a third party or transfers the management obligatjons of the fadlity to a thlrd party,and (2)the right to excess capacity shall not affect Grantee's right to elect,at its sole discretion,to cease operation of the faa'lity at any time. To have and to hold the same,together with all buildings,improvements,fixtures,rights, easements,rights of way,privileges and appurtenances thereon and thereta belonging or appertaining or held and enjoyed therewith,and all other rights and benefits running therewith, unto the Grantee,Its successors and assigns,forever. The Grantor covenants with the Grantee that the Grantor is lawfully seised in fee simpte of the property and has good right to sell and convey the property;that the property is free and clear of all encumbrances caused or permitted by the Grantor or Grantor's immediate predecessor in interest except as set forth herein and sxcept for the lien of real property taxes not yet required by law to bs paid;and that the Grantor will warrant and defend the property unto the Granlee against the lawful claims and demands of all persons daiming by,through or under the Grantor or Grantor's immediate predecessor in interest,except as aforesaid. Grantor and Grantee covenant and agree for a period of ten (10)years following the date of this Warranty Deed and Reservation of Rights and its Exhibit "A"(this "Dead"),in the event Grantee elects to sell Lots 2-A and 2-C described in Exhibit "A"attached hereto (collectively,the "Golf Course Parcel")pursuant to a bona fide offer from a third party to purehase the Golf Course Parcel tliat Grantee intends to accept,Grantee agrees to give Grantor the exclusive right to purchase from Grantee the Golf Course Parcel pursuant to the following:(1)Granlee shall give written notice (a "Notice")to Grantor if and when Grantee desires to sell,assign,transfer or convey the Golf Course Parcel pursuant to an offer from a third party that Grantee intends to accept.Grantee shall give Grantor a Notice together witii a term sheet specifying all material terms of such offer.Grantor shall then have thirty (30)days to exercise the right of flrst refusal by giving written notice to Grantee that Grantor has elected to exerdse the right of flrst refusal.If Grantor etects to purchase the Golf Course Parcel,the parties shall proceed to close the transaction on the terms and conditions specified on fhe term sheet.If Grantor fails to give such written notice to Grantee within such thirty (30)day period, Grantor shall be deemed to have waived the right of first refusal and Grantee shall be free to sell the Golf Course Parcel to the party set forth in the term sheet.If the sale to the third party 367/62/981403.6 r r fails fo close or if there are any material changes to the offer made by such third party,then Grantee shall be deemed to have received a new offer subject to the right offirst refusal hereby granted.Notwithstanding any provision contained herein lo the contraiy,in the event the purchase price in the offer js decreased by more than three percent (3%)of the price set forth in the offer,then Grantee shall resubmit the term sheet to Grantor and Grantor shall have an additional rlght of first refusal to acqulre the Golf Course Parcel at the lower price.The right of flrst refusal shall terminate on the date that is ten (10)years after the date of this Deed and shall be personal to Grantor (i.e.,Grantor may not assign or transfer the right of first refusal to any third party).Notwithstanding any provision contained herein to the contrary,Grantor's right of first refusal shall not apply to (a)any offer that indudes other property in addition to Vne Golf Course Parcel,and (b)any transfer of the Golf Couree Parcel to an afflliate of Grantee. Grantee acknowledges and agrees that Grantor and its affiliates are engaged in the development business and have or may have in the future other lots and projects in the vicinity of the Propsrty ("Seller's Lands").Grantee agrees that nothing contained in this Deed shall be deemed in any way to restrict the ability of Grantor or its affiliates from developing,marketing or selling any subdivided lots within Seller's Lands.Grantee acknowledges and understands that the active use of adjacent lands,including Seller's Lands,for development and construction of residential improvements may from time to time result in dust,noise,large vehicle trafflc and other activities affecting the Property during such periods of development and construction. Grantor and Grantor's affiliates acknowledge and accept the followlng conditjons that may affect Seller's Lands:(i)structures,property and individuals on Seller's Lands may be inherently at risk of damage or injury due to errant golf balls from the Gotf Course Parcel;(ii)the improvements on the Golf Course Parcel,including any trees,landscaping,golf ball nets,lights, tees,bunkers,fairways,greens,and other improvements,may be changed,reconfigured, added or eliminated from time to time in the sole discretion of the owner of the Golf Course Parcel;(iii)pesticides,fertilizere,imgation water (whioh currently includes treated wastewater), and other chemicals approved for use on golf courses,may be used to maintain the Golf Couree Parcel;(iv)irrigation of the Golf Course Parcel may result in overspray onto Seller's Lands and structures,improvements,and property on Seller's Lands;(v)Seller's Lands may be exposed to lights,noise,inconveniences and/or activities resulting from maintenance and use of the Golf Course Parcel,including the mowing,irrigation,and grooming of the course during early morning and evening hours;and (vi)the Gotf Course Parcel may be used for tournaments from time to time whlch may result in increased noise and traffic and the presence of spectators and temporary viewing stgnds,television towers,and other installations.Grantor and Grantor's affiliates and their respective successors and assigns shall expressly waive and relinquish any right to assert any claims against Grantee and its successors and assigns as the owner of the Golf Couree Parcel,for losses,injury or Ijabilify of any kind which may arise from any of the foregoing conditions. The Grantee acknowledges and agrees that (a)Grantee has not relied on Grantor's skill or Judgment to select or fumish the Property or any component thereof for any particular purpose,(b)Grantee has been glven the opportunity to inspect th8 Property and each component thereof and has delermined to purchase the Property and each component thereof based on such inspection and (c)Grantee shall accept the Property in the "as is,where is" physical condition of the Property with all faults as of the date of this Deed. The parties agree that this instrument may be executed in counterparts,each of which shall be deemed an original,and the counterparts shall together constitute one and the same instrument,binding all parties notwithstanding that all of the parties are not slgnatory to the 387/62/881403.6 same counterparts.For all purposes,including,without limitatlon,recordation,fillng and delivery of this instrument,duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as one document. The terms "Grantor"and "Grantee,"as and whgn used herein,or any pronouns used in place thereof,shall mean and indude the masculine or feminine,the singular and plural number,or individuals,trustees,corporatlons,limited liability companies,partnerships or other entities,and each of their respective successors,heirs,personal representatives,successore in trust and assigns,according to the context thereof. frHE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 387/62/fl81403.6 IN WITNESS WHEREOF,the Grantor and Grantee have executed this Warranty Deed Covenants,and Reservation of Rights as of the date fjrst referenced above. GROVE FARM COMPANY,INCORPORATED, a Hawaii corporatlon By '^OLM.twh^Oi^U-^C Title^i-i^^'tT^^^^°T .n.LxJi^By OM»Jio Name-^mf fA tr,b|Ay \Tifte:Pfci-irfrjnf ^CTt^ "Grantor" KAWAILOA DEVELOPMENT LLP, a Hawaii limited liability partnership By:TAK HAWAII,INC., a Hawait corporation,its partner By Name: Title: "Grantee" 367f6W81403.4 S-1 6 IN WITNESS WHEREOF,the Grantor and Grantee have executed this Warranty Deed, Covenants,and Reservation of Rights as of the date firet referenced above. GROVE FARM COMPANY,INCORPORATED, a Hawaii corporation By Name: Trtle: By Name: Titte: "Grantor" KAWAILOA DEVELOPMENT LLP, a Hawaii limitod liabllity pertnership By:TAKHAWAII,INC., a Hawaii corporation,its partner ^. JuiL^CIfeada Title:^Wce President "Grantee" 3S7/7/43357S.1 S-1 STATE OF HAWAII CITf AND COUNTl'OF HONOLULU ) )SS. ) On June 9,2009,before me personally appeared Warren H.Haruki and James M. Cribley,to me personally known,who,being by me duly swom or affirmed,dicf say that such persons executed the foregoing instrument as the free act and deed of such persons in the capaclty shown,having been duly authorized to execute such instrument in such capaclty. (.< 4^-^4.^^ Print name:Colleen Mae Oka^hige Notary Public,State of Hawaii My commission expires:11/14/2011 Date of Ooc:undated at time of notarizafion Name of Notary:Colleen Mae Okashlge Doc.Description:^(c^^fl. ^^fcyi/P^^o;4L 6 Notary Sjgnature i»Pages: Notes:exefeuted in counterparts Date Firet CIrcuif,State of Hawaii NOTARYCERTIFICATION (stamp or seal) ^. 367/82/8989S7.1 ^ r r KAWAILOA DEVELOPMENT LLP. STATE OF HAWAII CITl'&COUNTY OF HONOLULU )SS. On June 9,2009,before me personally appeared Jun Fukada,to me personally known, who,being by me duly sworn or affirmed,did say that such person executed the foregoing instrument as the free act and deed of such person,and if applicable,In the capacity shown, having been duly authorized to execute such instrument in such capacity.^ss^Ya^^^y^w^.•y ..^TAfl;!-?^%.. Type or print name:. Notary Public,State of Hawaii. My commission expires: ^'-•A^*/?'i"w'^- Marion S.L^ri^.-"f>''-e.:-'^ 3/05/201^i%l/1&. •-^.»:s=:.-;,OI's:.-'.?^i"^""'iiHimW^' ? DateofDoc:June12,2009 #Pages:fl-| Name of Notary:Marion S.Leong Nirtes: Doc.Description:Warranty Deed,Covenants,and Reservatlon of Rights fS»WWI_W!/,,,,, ^^^\M0""^KC'¥.I11^:.XJ^ss^ '-^^^ ^^»y_6/9/09 I^ Notary Signature 'Dats Firet Cireuit,State of Hawaii NOTARY CERTIFICATION EXHIBITA -ITEM I;- All ofthat certain parcel of land (being portion(s)ofthe land(s)described in and covered by Land Commission Award Number 10605 to lona Pi'ikoi and Royal Patent Grant Number 1754,Apana 1 to R.W.Wood)situate,lying and being at Paa,Koloa,Island and County of Kauai,State of Hawaii,being LOT 2-A and thus bounded and described: Beginning at the southwest comer of this parcet of tand,Uie coordinates of said point of beginning refenred to Government Survey Triangulatlon Station "LAAUKAHI"being 22,822.55 feet south and 5,705.73 feet east,thence running by azimuths measured dockwise from true South: 1.166°38'30"120.18 feet along Grant 1414 toWathA'ali; thence along the remainder of L.C. Award 10605 to lona Pi'lkoi (Grant 1754, Apana 1 to R.W.Wood)for the next sixteen (16)courses,the direct azimuth and dlstances ofsaid courses being: 2.188°11'142.96 feet; 3.188°00'139.04 feet; 4.192°14'362.56 feet; 5.171°04'258.69 feet; 6.185°48'281.41 feet; 7.214°00'120.00 feet; 8.219°00'322.00 feet; 9.230-00'105.00 feet; 10.221"30'105.00 feet; 11.247°00'360.00 feet; 12.290°00'88.00 feet; 13.311°00'100.00 feet 14.341-00'157,00 feet; 15.297°00'121.00 feet; 16.283°00'75.00 feet 17.280°29-37"233.23 feet; 18.288°56'205.66 feet along the remainder of L.C.Award 10605,Apana 1 to lona Pi'ikoi (Grant </ 367/62/981403.7 r r' 1754,Apana 1 to R.W.Wood)(Lot 2- B); 19.312°52'176.00 feet along the remainder of L.C.Award 10605,Apana 1 to lona Pi'ikoi (Grant 1754,Apana 1 to R.W.Wood)(Lot 2- B); thence along the remainder of L.C. Award 10605,Apana 1 to lona Pi'ikoi (Grant 1754,Apana 1 to R.W.Wood) (Lot 2-B)on curve to the left with a radius of 1478.00 feet,the direct azimuth and distance being: 20.37°16'07"299.22 feet; 21.31°27'32"335.16 feet along the remainder of L.C.Award 10605,Apana 1 to lona Pi'ikoi (Grant 1754,Apana 1 to R.W.Wood)(Lot 2- B); thence along the north side of Poipu Road on a curve to the right with a radius of 722.00 feet,the direct azimuth and distance being: 22.46°43'46"380.32 feet; 23.62°00'214.64 feetalong the north sideofPoipu Road; thence along the north side of Poipu Road on a curve to the left with a radius of 2028.00 feet,the direct azimuth and distance being: 24.57°23'326.46 feet; 25.52°46'273.57 feetalong Uie north side of Poipu Road; thence along the north side of Poipu Road on a curve to the right with a radius of 572.00 feet,the direct azimuth and distance being: 26.65°38'254.75 feet; 27.78°30'228.38 feet along the north side of Poipu Road to the point of beginnjng and containing an area of 44.905 acres,more or less. EXCEPTING AND RESERVING TO GRANTOR THE RIGHT TO USE EASEMENTS E-1 AND E- 2 FOR ELECTRICAL PURPOSES,AS DESCRIBED IN THAT CERTAIN DECLARATION OF SUBDIVISION DATED DECEMBER 20,2000,RECORDED AS DOCUMENT N0.2000-183608 0-HE"SUBDIVISION DECLARATION"),TOGETHERWITH THE NON-EXCLUSIVE RIGHT TO GRANT SUCH 367/62/981403.7 9 r r EASEMENTS TO THE KAUAI ISLAND UTILiri'COOPERATIVE AND ITS SUCCESSORS AND ASSIGNS,WITHOUT THE JOINDER OR CONSENT OF GRANTEE OR GRANTEE'S MORTGAGEE, QN CUSTOMARY TERMS AND CONDITIONS AGCEPT LE TO SUCH GRANTEE. -ITEM II:- All of that certain parcel of land (being portion(s)of the land(s)described in and covered by Land Commission Award Number 10605 to lona Pi'ikoj and Royal Patent Grant Number 1754,Apana 1 to R.W.Wood and Royal Patent 5157,Land Commission Award 3245,Apana 2 to Hama)situate,lying and being at Paa,Koloa,Island and County of Kauai,Stete of Hawaii,being LOT 2-C and thus bounded and described: Beginning at the northwest corner of this parcel of land,the coordinates of said point of beginning referred to Government Sun?ey Triangulation Station "LAAUKAHI"being 19,327.88 feet south and 1 1,435.13 feet east,thence running by azimuths measured clockwise from true South: thence along the remainder of L.C. Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)for the next twenty-seven (27)courses,the direct azimuth distances ofsaid courses being: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 268' 354' 17° 14° 343C 259' 257' 304' 8° 336" 51° 59° 70° 78° 84° 81° 35- 40 ' 59' 53- 29 ' 46' 27' 19' 17' 27' 43' 22' 01' 33' 28' 51' 541.59 202.70 291.30 423.31 217.95 414.35 562.06 240.88 116.45 99.37 92.84 195.00 254.00 391.00 200.00 409.00 feet; feet; feet; feet; feet; feet; feet; feet; feef; feet; feet; feet; feet; feet; feet; feet; 367/62/981403.7 10 \\ 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 32. 33. 85' 82' 74' 63' 61° 46C 35° 42° 46° 49° 43" 88° 29.9' 30.88' 31.166' 146' 125' 34.169' 45' or 02' 56' 18' 49' 48' 39' 05' 13' 05' 35' 50' 35' 46' 12' 39' 08' 05" 40" 15" 44.5" 321.00 feet; 422.00 feet; 211.00 feet; 366,00 feet; 335.00 feet; 147.00 feet; 302.00 feet; 318.00 feet; 264.00 feet; 398.00 feet; 39.97 feel; 949.81 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)(Lot2-D); 433.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)(Lot 2-D); 520.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)(l-ot 2-D); 792.38 feet along the east side ofAinako Street; thence along the east side of Ainako Street on a curve to the left with a radius of 172.00 fest,the direct azimuth and dlstance being: 120.79 feet; 38.97 feet along the east side of Ainako Street; thence along the south side of Ainako Street on a curve to the right with a radius of 20.00 feet,the direct azimuth and distance being: 27.53 feet; thence along the south side of Poipu Road on a curve to the left with a radius of 778.00 feet,the direct azimuth and distance being: 367/82W1403.7 11 \v 35.212°02'53"16.00 feet; 36.211°27'32"335.16 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); thence along the remainder of L.C, Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)on a curve to the nght with a radius of 1422.00 feet, the direct azimuth and distance being: 37.241°20'16"1,416.79 feet; 38.271°13'227.62 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); thence along the remainder of L.C. Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)on a curve to the left with a radius of 878.00 feet,the direct azimuth and distance being: 39.248°25-680.48 feet; 40.225°37'180.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); thence along the remainderof L.C. Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)on a curve to the right with a radius of 772.00 feet,the direct azimuth and distance being: 41.246°28'549.55 feet; 42.267°19'108.51 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); thence along the remainder of L.C. Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)on a curve to the left with a radius of 578.00 feet,the direct azimuth and distance being: 43.252°04'30"303.90 fest; 44.236°50'713.18 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 367/62/981403.7 12 p r r 45.222°00' 46.211°06' 47.198°16' 205.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 290.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 236.52 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)to the point of beginning and containing an area of 148.139 acres,more or tess. EXCEPTING AND RESERVING TO GRANTOR THE RIGHT TO USE EASEMENTS E-3 TO E- 13,,FOR ELECTRICAL PURPOSES,AS DESCRIBED IN THAT CERTAIN DECLARATION OF SUBDIVISION DATED DECEMBER 20,2000,RECORDED AS DOCUMENT N0.2000-183606 (THE"SU3DIVISION DECLARATION"),TOGETHER WITH THE NON-EXCLUSIVE RIGHT TO GRANT SUCH EASEMENTS TO THE KAUAI ISLAND UTILIT/COOPERATIVE AND ITS SUCCESSORS AND ASSIGNS,WITHOUT THE JOINDER OR CONSENT OF GRANTEE OR GRANTEE'S MORTGAGEE, ON CUSTOMARY TERMS AND CONDITIONS ACCEPTABLE TO SUCH GRANTEE. -ITEM III:- All of that certain parcel of land (being portion(s)of the land(s)described in and covered by Land Commission Award Number 10605 to lona Pi'ikoi and Royal Patent Grant Number 1754,Apana 1 to R.W.Wood)situate,lying and being at Paa,Koloa,Island and County of Kauai,Stale of Hawaii,being LOT 2-B and thus bounded and described: Beginning at the west comer of this parcel of land,the coordinates of said point of beginning referred to Government Survey Triangulalion Station "LAAUKAHI"being 21,258.49 feet south and 7,153.39 feet east,thence running by azimuths measured clockwise from true south: 1. 2. 3. 4. 225°45' 320' 339' 320' oo' 06' 10' 367.96 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 204.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 172.82 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 28.00 feet along the remainder of L.C.Award 367/62/981403.7 13 ^ 10605 to lona Pi'itoi (Grant 1754, Apana 1 to R.W.Wood); Thence along the remainder of L.C.Award 10605,Apana 1 to lona Pl'ikoi (Grant 1754,Apana 1 to R.W.Wood)on a curoe to the left with a radius of 1,450.00 feet,the direct azimuth and distance being: 5.40°48'46"471.34 feet; 6.31°27'32"335,16 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood); 7.121°27'32"28.00 feet along the east side of Poipu Road; 8.211°27'32"335.16 feet along the remainder of L.C.Award 10605 to lona Pi'ikol (Grant 1754, Apana 1 to R.W.Wood)(Lot 2-A); 9.217°16'07"299.22 feet; 10.132"52'176.00 feet along the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)(Lot 2-A); 11.108°56'205.66 feet atong the remainder of L.C.Award 10605 to lona Pi'ikoi (Grant 1754, Apana 1 to R.W.Wood)(Lot 2-A)to the point of beginning and containing an area of 2.758 acres,more or less. BEING THE PREMISES ACQUIRED BY DEED GFSANTOR :John N.Wright,Adolph Haneberg and Willlam O.Smith GRANTEE :Koloa Sugar Company DATED ;May 27,1880 RECORDED :Liber 66 Page 69 367/62ffl81403.7 14 ^ r r EXHIBIT "C" KA^AILOA D EVE LO P M E ^T:.L L P AUTHORIZATION KAWAJLOA DEVELOPMENT,LLP ("Applicant")hereby authorizes JONATHAN J.CHUN,Esq.,of Belles Oraham LLP to file Appltcations on behalf of the Applicant,with the Planning Department and the Planning Commission ofthe Coimty ofKauai, and all other govemmental agenoies,to do all the fhings necessaly to obtam zoning permits, use permits,variance pei-mits,building permits,grading pei-mits,subdivision approvals,SMA use pemuts,and otfaer land use permits required on the Subject Propei-ty located at Koloa, Kauai,Hawaii,more specifically identified as Kauai Tax Map Key No.(4)2-9-001-007. KAWAILOA DEVELOPMENT,LLP By:_^-^t^ta^— TQshiaki Sfamdo Its:Director Dated:Septembei 19,2019 DB/\GRAND HYATT KA.UAI S POIPU BAV GOLF COURSE |P.O.BOX 369.KOLOA.HAWAI)96756 •197 j VifWW.KAWAILOA.COM EXHIBIT "C" r r EXHIBIT "D" ssssT^A*'f^'€1^ J^^7^^-.,.^ ^^•Sf"".,„..,/"•«S..'S:"*'".«.<S?K'/ .[1 -.L /A.-:,;-°*•^fX""M '\. ,s*'' '^ KXATIONMAPS BUREAUTERRfTORrOFHAWAII TAX MAP 2 1'9 1 Oiltii1:K'.^.U^l .rL.C A-Qt.o^t.^uaSir cc.. w r r (»T7(»EXHIBIT "E ISLAND OF KAUA'i ^^WM .^ss-,^ i—^y HAWAIIAN !?UNDS PROJECT VICINITY MAPS CONSTRUCTION PLANS FOR: NEW PARKING LOT GRAND HVATT KAUA'I HOTEL w TMK:(4)2-9-01 POR.07 PO'IPO,KAUA'I,HAWAI'I PREPARED FOR: KAWAILOA DEVEI-OPMENT LLP LOCATED AT: 2250 AINAKO STREET KOLOA,HAWAI'I 967S6 E^[;9S@!A[glSB _@VB LANOSC*1'E AfiOHITE. Iniiaax O^DHAWINO«APPROVALS EASEMEWT 1M •"BEMCKUWtK CEOTEBUNE titONUMENr u.ELEV.^2.33 MSL PROJECTVICINITYMAP PROJECT LOCATION MAP DESCRIFT10N CIVIL TITLE SHEET CONSTOUCT10N NCTCS 1 COWSTOUCTIDN NOTES2 GENEHAL S[IE PLAN DBIDLmOW ANDEROSUM CCWIHOL VUM BORUSUIOS EnEPUN GRABINGAMO DRBimGE PUN PARWWeLOTOETWLS OIUIMllGE ftWO EROSUlN COWKOl CETAILS PROFILES IRRIlallTION flW iRRiaBTioM pemLS i IIUllWTlONDCT/tlLSZ IRIU13AT10N DETAILS 3 IRRIG.CTONOETAILS4 nAWnNGI'L'IN P1ANT L15T ANO DCTAILS aeCTniCALSYMBOLSAW!)eENEIlNL NOTCS CVEIULI.EieCTNlCAL SITE PIAN OUCTSEC'noN DETA11SANO FIEQUIREWE^^S EtfCTRCM.SITE PLAN 1 ELECfflicM.srrepuNii ONyjNE OWGFtnw.MeiERECiUIPMEMTElfV^TIONAND PANEL SCHEOULES MIECEUANEC1US CCTdlL! SHEET .T-1 \fi ^h'DR WORK r r KT7((EXHIBIT "F ©2020EeltCollins Hawail U-C M:Grand Hyatt Kaual/2Q1B.33.1001;—,.ai A22Jan20SO 2 r- r~r EXHIBIT "G" r r EXHIBIT "H" ••d^,eS;?7~~~~~^.."^^ wuani,^"--•.-••••cre ~~~~~~~~^^s2L=S=-g^S—;^c^^^--s—^^^::^---^^.^_^^"-.£::@^^?$^o::^?^^r-;%$53tfe^ KK./'y-fs^s^sss'/'s lAiUi)[t .__^i^S^BO^r^^jSiu 3[up>^-/\UI (U M ^t=3^!-^^-'^k^°n!-ssm,-^S^-^f^T^^SSsss^s?^ ^77^<!s5^/lt^^--"^3^'\|._ ^&BZ-flL -SL"©~~s~ JS-a.w TS~~<iy~GT sm 33:® VJLVO 3Ayno aNn BSVB r r f»T»»EXHIBIT "I PRCiFILE-BASELIJIEA 100 loo _6-?1 _s] SG\ J?1 (a-J rss PROFILE-BASELKIEB !? _6G\ ss .-sol 45 s KAUWIILOA ceveLophieNT LLP SRANP HVATT IWUAj HOTIsL Z2SOWIWXO STREET KOLOA.Hl S6Ti6 SHEET C-10 of r~r EXHIBIT "J" PROPOSED AGRICULTURAL CoconuVBee Farm 0.7 ac. Papaya Farm 0,3 ac. NORTH SCALE IN FEET Exhibit PROPOSED AGRICULTURAL PROJECTS U5ePermit,SpecialPermit,ClasslVZoningApplit:ation r r" EXHIBIT "K" PROPOSED PAPAYA FARM Use Permit,Specia!Permit,Ciass IV Zoning Appiication r r EXHIBIT "L" St SUIUIVIARY Coconut Trees Area Bee h-1 ive Driveway 28,500 sf 500 sf 1.5005f 30,500 sf (0.7 acres; EXHIBIT "L" PROPOSED COCONUT TREE AND BEE FARIV1 Use Permit,Special Permit,Ciass IV Zoning Application k^L-4 NORTH SCALE IN FEET r r EXHIBIT "M" KANEI0L00MA AncientHiavaiiaa 'Billage Restca'atlBn3?i!c§ect Rnst;OHtoe,e.&x,24:». kt)laa;HISB?56 QeceniBerIO,281S Mr.A'nspn Abalos Senio'r Project MatiaBer ({?wgilpa;p.evelsp.ment t.1P ZZSOAIriateStreet Koloa,Hl S67SS. RE;EmployegParkifjglot. Aloh.a Wt.Abalffs, Na Hu1 a.KansIotoui'na isa rioH-profit.orgsriitatfpn.who ovensBes ttie KaneloloBtna KaKra cernj?lex,,.-i~.^ Ibcated onthe'.soutbsHoreofPoipu.itisa.signiiicanleitl(tira|,sJts ntafnln.g;theiTSm:ya^^^^^ HawBiiB;nv]lla£etha.t.praetfcedGulByatfon,,sflprfingetfents-?nd Uglbus/GerenionteSi^ datlng:batfeto the year'MlQ..Since tts:cBstpFa{iOB Bfld'With its oylt'Uraj sigtlifi^iieftitjsyislte^^gUi'.jyT',; not'iwily oyrlsla:^tN ll '}^^b6yr'Wrt.'»isitoCs;whEi3 re:t'vastlBterMlft.WmMai'®? That'teing saia,N<HiirQ KSneiiBloumsi;a;rB in sujtjiort oI;Youi'flmpIbYeB;parl(ing Ifft alqng Potpy SqwS .oBpnsjte pTtbs erandHyatt;Xaua1 Retprl &;Spa fa Felisre fheiaesl;he^l(t.togfegl(Mig,Pajpu:ftciatfalsB ff'f noted as one.flf K3ug't's"se.enitC 'bywsys",/'"'"t Wea!sa;,reiteta th?t;the.lflcatIgnof eB^^^^^^^^ HaWMieB eullye.as alsa BMeclit-i.thB-atdlgiglOgiEiil.s&iriy^ns^I'aui H.BpsggjiffhW O..tBe. AtfiheSftigjtiit.Plrm.lsD.mjsfstefi in WSK/I9S9. W6:;lwBeoBrsuPP0rtwll)ritewme;i:heuHsl8htty;laok;pfcars:parkiR^alaog5 tBe; lBU^^ BMisiflfe-aSleatt lootoanB fe6l fbr fljtUt6lenaeavate, Me^fteateha.puh'lEh.aria, RupBrt Rowe Po,BeaKl OfDtrecfors Na Hul DKSj'ielSlttuisna c:TessieKinnaman SsndiP.aalnsaat PHone808.<63B-la89''i.niBfijKBnelploii'TO.gig' WffWifSanfff^wma.wsf EXHIBIT "M" POIPU KAI P6ipu Kai Association DegeiBberS.aOl? iMl'.AiisojiMBlRii PitgeoisSfiniiarMaitager KfiWailoaItevelopment IiLP ; 2250AinBlto.Street Kofea,EQ 96756 IStibtseCEmplgy^Patkutg'Lot'; AloliaMr.Ayalos, The^oipu^^AssDciMiQn(PKA),»s^aBoi^m2atiGikt>Fownei&o{'the453.Bving3iiBtsiri t&eKoIoa,Kauai,Hawaii area.^irtnojl^'fiaUed'tlie.'Poigs^.gi BssSirt..©BtieiKSitfof thess dwners,tlie PKA BoaM ofDirecl^wistBSl&express^suppoi^for the praposed emgfoyee parkinglQt dongPoipu Road,oppositethe Grahd HyaltRauai IlQtel.We 90CB j(Would help irftprove safety along.the rosd for the cDnuiiumty.We respeclfully I'equest.tobekeptinfptniedastheplsnsevolve.especiallyregatiliagplaiisfarappKtpiiate landscai);iiig to eoftenthe visual impact ofthe parking lot,eblisisteiitwffithe aesflietics 6f fhe;:©i'antiByaUItotel aiid the Poipu Kai Resori, Yours tfuly,; PoiptiKsiAssoeiatibit Russt^oen Presidenl cc; I^r^lSai;B8a>'(fc<>^lM.reslei% GaroIyn;CayIn!:—JPDipU^sj iSeneiaJ Niulger SHiishJnft HgttB -I'K.f't yisca^MflBager (Hasvaiiana Manageinsnt Co.,LTD) Frojn;Dfie Morlkawa Seht;Wednesday,Novembei-.20,2019 9:15 PM ToiAnsQflAbalQS Subj^ct:Re;FW:Seneral'SIte flari -fiiahy HyattKauai AddiUonal.Parking Than^youAnson.PleaselstKaainaknqw^tbatlsyRBortyoUtefinrts.IK^getting^dangerBUs'ancl ugly. De& OnWeii;NeV 20,2019 at ?!26 RMAnsoi)iAbalos •S3nson;sBaIds@l<avi<aiidaiCBl-rt^Wrotfe: ftlohaRepresentatitffi Mortkawa, Attacbedisthegenerals)te.plan:fortHeRt^(MedfirandHya{t^auai(BljK)addifl^ Kawailoa De\(elbpmenl;l.l.P (KES) proposingtd^bulltthisaddiftOHaf parking |o(on the GplfCoursaside ofthe QH^.KD owns both the GolfCourse ahd GHK proRerties.The hotel is managed by the Hyatt,at this:t|mS'bveFflbwparkIngfromfheguestfemploYeesandcofitract6rs/Vendprsare.Qnthero^ can average 30 plus cars a day. ThisadditionalpaFking(90stalls)wIllhelpwiththecommunlty)guestandemployeesafetyforthis area.TherearewalkeFS,joggers,bicyclesridersthatalso5harethePoipuRoadwithvehicledrivers. MaBalo, Anson.Abalos P.ro.jectSenioFManager Kawailoa Bevelbpment LLP 225f:Lft!nato3fc Kotoa,Hi 96756 PH 808 855-2350 Ka'aina S.Hull Director of Plarming Jodi A.Higuchi Sayegusa Deputy Director ofPlaiming L SUMMARY Action Required by Planning Commission: COUNTY OF KAUA'I PLANNING DEPARTMENT DIRECTOR'S REPORT Consideration ofApplicant's proposal involvmg an amendment to SMA Use Permit,Class FV Zoning Permit,Use Permit,and Special Pemiit to allow renovations to the existing facility that would involve constmction of a new parkmg lot. Permit Application Nos. Name of Applicant(s) Special Management Area Use Permit SMA(U)-88-10 Class IV Zoning Pennit Z-IV-88-39 UsePermit U-88-31 Special Permit SP-88-6 KAWAILOA DEVELOPMENT LLP. (fonnerly Amako Resort Associates) Jonathan J.Chun,Esq.,Authorized Agent II.PERMIT INFORMATION Use Pennit Pursuant to Section 8-3.2 of the KCC,a Use Permit was necessary since the initial golf course proposal was not a permitted use within the Agriculture (A)zoning district. II Project Development Use Permit Variance Permit Special Permit Per Chapter 205 of the HRS,a Special Permit was necessary since certain aspects of the project was not pennitted within the State Agricultural Land Use District. Zoning Permit CIass Elrv Dm Pursuant to Section 8-4.7 of the KCC,a Class IV Zoning Pemiit was a procedural requirement for any development requiring a Use Permit. Special Management Area Permit Use [_]Minor A Special Management Area (SMA)Use Pemiit was requu-ed since the project is situated withm the SMA and the cost of fhe project exceeded the threshold in obtaining a Minor Permit. A-2.^1 E\U!cr!lkhull\D(!kt»p\[ltport-l 1».;7.21 DC_SNA([l).lt-l«_Ka«aihl_Emp[»y!tParking Latdaa Date of Receipt of Completed August 31,2021 Application: Date of Director's Report: Date of Public Hearing: Deadline Date for PC to Take Action (60 Day): III.PROJECTDATA October 12,2021 OCTOBER 26,2021 Decemberl 1,2021 SMA(U)-88-10,Z-IV-88-39,U-88-31,SP-88-6;Dlrector's Report Kawailoa Development LLP, 09.27,2021 2|Page AMENDMENTS [_|Zoning Amendment I1 General Plan Amendment State Land Use District Amendment -iSWIiS^SWisHSWSSSVSiSySUHMtSWffUisj^^ Parcel Location:Po ipu.The project site is situated directly across the main entrance to fhe Grand Hyatt Kaua'i Resort &Spa,along the mauka side of Po'ipu Road. Tax Map Key(s):(4)2-9-001:007 Area:44.905 acres ZONING &DEVELOPMENT STANDARDS Zoning:Agriculture (A) State Land Use District:Agricultural General PIan Designation:Golf Course Height Limit:50 feet Max.Land Coverage:60% Parking Requirement:Presently,a total of 40 off-street parking stalls serving the golf course clubhouse facility,5 public parkmg stalls for coastline recreation purposes Front Setback:10 feet Rear Setback:10 feet Side Setback:5feet Community Plan Area:South Kaua'i Community Plan (SKCP) Community PIan Land Use Designation: NA. Deviations or Variances Requested:NA. IV.LEGAL REQUIREMENTS Section 8-3.1(f),KCC:This report is being transmitted to the Applicant and Planning Commission in order to satisfy the requirements ofSection 8-3.1 (f),relating to the provision ofthe Planning Director's report and recommendation on the subject proposal within sixty (60)days of the filing of a completed application.The application was received on August 31,2021 and the Applicant,through its authorized agent,was notified accordingly of the Planning Department's intent to commence permit processmg. Commission Meeting Date:OCTOBER 26,2021 V.PROJECT DESCRIPTION AND USE 1.Background The subject permits were initially approved by the Planning Commission on August 10, 1988,allow the constmction of an 18-hole championship-caliber golf course and associated amenities,and it was intended to operate m associated with the adjacent planned resort facility containing 605 hotel rooms. As noted in the Application,the original approval of the project required the Applicant to provide parking facilities at various locations through the site to accommodate golf course patrons and public members.The parkiag facilities would also be available to coastal recreational users. VI.APPLICANT'S REASONS/JUSTIFICATION 1.Reauest As noted m the Application,parking issues have been brought up by the Planning Commission in other permits withm the Poipu area.More specifically,there has been concems expressed by the general public of vehicular parking along Poipu Road fronting the Grand Hyatt Regency and during events held at the resort. The mtent of this application is to address the concems raised by the Planning Commission and the community.The proposed development affects a 1.3-acre portion of Parcel 7 and accommodates approximately 90 vehicles.This proposed new parkmg lot will support the Grand Hyatt Kauai Resort &Spa's curreut operations as well as the additional parking needs for the area.It will be setback &om Poipu Road and landscaped to mitigate any visual concems.Preliminary design drawings of the proposed parking layout are represented in Exhibits 'F'&'G'ofthe Application. SMA(U)-88-10,Z-IV-88-39.U-88-31.SP-E Kawalloa Development LLP. 09.27.2021 3-6;Director's Report" 3|Page VII.FINDINGS 1.Project Site &Surroundings As previously noted,the project site involves a portion ofthe Poipu Bay Golf Course, more specifically,along the makai side ofHole No.1.It is situated directly across the main entrance to the Grand Hyatt Kauai Resort &Spa (GHK)and located outside of the Visitor Destination Area (VDA).It is surrounded by resort-type uses to the south and residential development to the southwest.The golf course parcel is abutting fallow agricultural lands along its northem and westem boundaries.The nearest residential development containing single-family residences is situated along and across Po'ipu Road,approximately 1,000 feet west of the project site. 2.Vehicular Access The primary access to the project site is through a driveway connecting into Poipu Road.Po'ipii Road is a County roadway with an 80 feet wide right-of-way.It is capable to accommodate two-way vehicular traffic. 3.Existme Land Use Pennits The following information represents land use approvals/permits associated with the subject property: o Subdivision Application No.S-99-8:It mvolved a six (6)lot subdivision that created the various parcels surroundmg the golf course (Lots 2-A through 2-D,and remnant lots.The application received approval by the Planning Commission on April27,2000. VIII.PRELIMINARY EVALUATION In evaluating the Applicaut's development proposal,the following aspects are being considered: 1.GENERALPLAN The proposed development satisfies the following policies of the General Plan,as taken from Sections 1.3 &1.4: Section 1.3,entitled "VISION AND GOALS" a.Goal #1 A Sustainable Island"-The project is an example of responsible growth in an area designated for resort and open space uses.The Applicant will implement environmentally enhancing initiatives (landscape utilizing native species). b.Goal #2 "A Unique and Beautiful Place"-The project would continue to compliment the natural,cultural,social and built environmental assets of the South Shore communities (Po'ipu/Kukui'ula area).It will further support the surrounding resort opportunities,as originally represented in 1988,and remains complementaTy and compatible to uses m the area.As designed,the project mcorporates landscaping that enhances the appearance of the resort area. 4 |Page SMA(U)-88-10,Z-IV-88-39,U-88-3L SP-88-6;Dlrector's Report Kawailoa Development LLP, 09.27.2021 c.Goal #3 "A Healthy and Resilient People"-There will be mmimal visual impacts since the project area will feature landscaped berms.No significant negative impacts on historic sites or Hawaiian cultural practices are anticipated. d.Goal #4 "An Equitable Place,with Opportunity for All"-The project would support and enhance economic and business opportunities and jobs on Kaua'i. Section 1.4,entitled "POLICIES TO GUIDE GROWTH" a.Policy #1 "Manage Growth to Preserve Rural Character"-The proposed parking lot is within fhe Kaua'i General Plan Golf Course district.Even with fhe proposed parking lot most of Parcel 7 will still be used for golf course purposes.The proposed parking lot will not substantially change the use or character ofthe remaming portions of Parcel 7. b.Policy #4 "Design Healthy and Complete Neighborhoods"-The proposed parking lot is located across Po'ipu Road from the Grand Hyatt Kauai Resort &Spa and within waLkiag distance for the hotel's guests and employees.Having a parking lot available to the guests and employees of the hotel across the street is consistent with good design.The parking lot will reduce the number of vehicles currently parked on the mauka shoulder ofPo'ipu Road.This will improve the visual environment of the area and make Po'ipu Road a safer place for pedestrians and traffic. c.Policy #8 "Protect Kauai's Scenic Beauty"-Through proper mitigative measures,the project should not have any substantial negative impacts on the visual resources in the South Shore area.The proposed parking lot will be set back from Po'ipu Road and will be landscaped.The proposed parking lot will uot interfere with views towards the mountain nor is it near any scenic byways,open space acquisition priorities,recognized preserve areas or wetlands. d.Policy #11 "Help Agricultural Land be Productive"-The proposed parkuig lot will have minimal impact on the Poipu Bay Golf Course (originally recognized as an agricultuial use).As part ofthis Application,additional lands will be placed in active agricultural uses such as a papaya orchard,a coconut tree farm and an organic beehive operation fhat would provide support to the resort facility.These active agricultural uses will be used by the adjoinmg Grand Hyatt Kauai Resort &Spa whose employees and guests will be using the new proposed parkmg lot. e.Policy #15 "Respect Native Hawaiian Right and Wahi Pana"-As previously discussed in the original Application,the project would not have any substantial impacts to any historic sites,Hawaiian traditional and cultuial practices,or access to streams,shorelines,or areas associated with Hawaiian religious,traditional or cultural practices.It is further discussed is Section XXX.H.of the Application. f.Policy #16 Protect Access to Kauai's Treasure Places"-The project does not have any negative impacts on the public's access to streams,the shoreline,trails, recreational areas,or places associated with Hawaiian religious,traditional or cultural practices. 2.SOUTH KAUA'I COMMUNFTY PLAN (SKCP) The proposed parking lot follows the policies ofthe South Kaua'i Community Plan.The proposed parking lot is consistent with fhe walkable community policies m that it will SMA(U)-88-10,Z-IV-88-39,U-88-31,SP-88-6;Dlrector'8 Report Kawailoa Development LLP. 09.27.2021 promote safe,pedestrian friendly streets that contains less vehicles parked wifhin the road right-of-way.Rather than have guests and employees park along Po'ipu Road as it presently existing,guests and employees will now be parking within an improved parking are located offofPo'ipuRoad.In addition,Section 4.3.3 ofthe South Kaua'i Community Plan specifically recognizes that "parking is essential to support businesses,particularly m the transition when there is not adequate public transit service or safe pedestrian and bicycle facilities built...." 3.SMA RULES AND REGULATIONS It should be noted that at the time the pennits were considered m 1988,the development of the golf course and its related amenities were located mostly within the Special Management Area (SMA).The present SMA boundary follows the Po'ipu Road aligmnent. The proposed development is located mauka ofPo'ipu Road and is outside ofthe SMA. As such,the project is not subjected to the applicable SMA policies and criteria. 4.SPECIAL PERMIT STANDARDS Pursuant to Chapter 205 ofthe Hawai'i Revised Statutes (HRS)and its Rules of Practice and Procedures,the Planning Commission may approve a Special Permit under such protective restrictions as may deemed necessary if it finds that the proposed use is an unusual and reasonable use of land situated within the State Land Use Agricultural District,and that the use would promote the effectiveness and objectives of Chapter 205,HRS.The Plarming Commission in 1988 approved the subject permit in consideration of the following guidelines in determining unusual and reasonable use: (1)Such use shall not be contrary to the objectives sought to be accomplished by Chapters 205 and 205A,HRS,and the Kules ofthe Land Commission. An intent of the State law is to assure that agricultural lands with a high capacity for intense cultivation be afforded the highest protection of agricultural purposes,and the uses allowed on other agriculture lands be compatible with such agricultural uses. The use is not contrary to the objectives sought to be accomplished by the State Land Use Commission as the proposed project is compatible to the urban surroundings and is ui the vicinity of a similar use and does not displace or reduce any existing agricultural use within the project site.While it may be argued that the proposal introduces urban uses into the State Agricultural Land Use District and displaces approximately 1+acre of land that can be utilized for agricultural purposes,it should be considered that the Applicant is proposing to dedicate a similar area into agriculture that establishes a papaya farm,coconut tree nursery,and apiary.As represented, the agriculture use would support the resort use occurring on the neighboring parcel. SMA(U)-88-10,Z-IV-88-39,U-88-31,SP-S8-6;Dlrector's Raport Kawailoa Development LLP, 09.27.2021 6 |Page (2)The desired use would not adversely affecting surrounding property. The proposed use should not adversely affect the nature of the surrounding properties and is compatible to the adjacent resort and golf course driving range facility.Furthermore,since this area was previously under agriculture cultivation and now fallow,there will be no irrevocable loss to natural, scenic,cultural,historical or archaeological resource or sites.As such,the use should not significantly affect the surrounding properties. (3)The use would not unreasonably burden puUic agencies toprovide roadsand streets,sewers,water,drainage,school improvements,andpolice andfire protection. The facility already has all the necessary in&astructure requirements in place,and there should be no additional burden placed on the County to provide further improvements (4)Unusual conditions,trends,and needs have arisen since the district boundaries and rules were established. At the time the project was originally considered in 1988,there was a growing trend in the visitor industry and the golfing industry since the Agricultural District was first established.The project would further support these industiies and would not adversely affect the agricultural integrity for the remainder of the parcel. (5)The land upon which the use is sought is unsuitedfor the usespermitted in the District. As represented in the Application,the subject parcel was primarily fallow prior to its development,and only a portion located away from the shoreline area was suitable for intensive agriculture.The area being developed is not in agriculture use and primarily serves as a landscape buffer between the golf course and Po'ipu Road. 5.USEPERMTT STANDARDS Pursuant to Article 20 of the Comprehensive Zoning Ordinance (CZO),Chapter 8 of the Kaua'i County Code (1987),the purpose of the Use Permit procedure is to assure the proper mtegration mto the community of uses which may be suitable only m specific location of a district,or only under certain conditions,or only if the uses are designed,arranged or conducted in a particular manner,and to prohibit fhe uses if proper integration cannot be assured.Section 8-20.5 of the CZO specifies a Use Pennit may be granted only if the Planning Commission finds that the use meets the following cntena: SMA(U)-88-10,Z-IV-88-39.U-88-31,SP-88-6;Dlrector's Report Kawaiioa Development LLP. 09.27.2021 7|Page o COMPATIBLE USE -As previously mentioned,the proposed facility is adjacent to urban uses along its southem and eastem boundaries.The parking area is situated across the Grand Hyatt Kaua'i Resort &Spa and adjacent to Hole No.1 of the Po'ipu Bay Golf Course.While the proposal facility is considered a passive use,it benefits the area by supplemental parking for the golf course driving range facility as well as the nearby resort.It can also be utilized for event patrons and resort employees.As proposed,the parking lot is similar in design and will feature heavy landscaping m order to minimize any visual impact along Po'ipu Road.Although the property is located within the Agriculture District,it has not been on agricultural use and intensive agricultural operations currently occur further west along Ala Kinoiki. The proposed development is compatible with the surrounding uses and is not expected to impact the agricultural activities. o WILL NOT BE DETRIMENTAL TO PERSONS RESIDING OR PROPERTY IN THE AREA -The Applicant contends that the construction of the proposed parking lot enhances the safety,peace,moral,comfort and general welfare of persons residing and working in the area.The project makes for safer roads and walking conditions within the neighborhood since it would have guests of the resort and golf course,as well as employees park within a designated area rather than along Po ipu Road or other side streets in the area. o WILL NOT CAUSE SUBSTANTIAL HARMRJL ENVIRONMENTAL CONSEQUENCES -The project site has been previously developed for agricultural purposes pre-1988 and is unlikely that rare,threatened or endangered species,or sensitive habitat will be affected by the proposed use.Due to the extensive ground disturbance ofpast farming activities on site,it is unlikely that cultural resources or historic sites will be impacted by the project. It is further noted that drainage from the parkmg lot will be handled by existing drainage culverts in the vicinity of the project site.There will be no wastewater or solid waste generated by this use and the proposed use does not involve the storage or use of hazardous materials. O WILL NOT BE INCONSISTENT WITH THE INTENT OF THE CZO AND GENERAL PLAN -The development of the golf course as its amenities was previously considered through a Use Pennit.As previously mentioned,the project supplements the parking for the golf course as well as the nearby resort.The project would be in compliance with the General Plan,as previously discussed m Item No.1.above.The Applicant should realize that intensive agricultural activities occur on nearby lands.Impacts such as dust,noise,and odors my affect the project site. 6.KCC DEVELOPMENT STANDARDS &APPLICABLE REOUIREMENTS As proposed,the project complies with the development standards contamed in 8|Page SMA(U)-88-10,Z-IV-88-39,U-88-31,SP-88-6;Dlrector's Report Kawailoa De\/e!opment LLP. 09.27.2021 Sections 8-4.3,8-4.5,and 8-8.2 ofthe Comprehensive Zoning Ordinance (CZO).It is further noted that this project is subject to the conditions previously imposed with the permit and that they remain in effect.In further consideration of the project,the following is recognized: a.On-Site Parkine:As represented in the Application,there is adequate off-street parking that serves the golf course and the resort.In an effort minimize traffic impacts to tbe surrounding area,the Applicant is reminded that during the constmction of the project,an on-site parkmg area shall be designated for constmction workers.Workers are discouraged from parking along fhe Po'ipu Road right-of-way and nearby roadways. b.Visual Mitipation:In order to further ensuie that the project is compatible with its surroundings and to minimize the visual impact of the project,the earthen berm situated along Po'ipu Road should be a mmimum four (4)feet in height and heavily landscaped with native species. Finally,it is uncertam as to whether the Applicant has made provisions for night illumination with the project,based on the prelimiuary plans that have been submitted.If 80,night illumination should be designed to minimize adverse impacts on the Federally Listed Threatened Species,Newell's Shearwater and other seabirds.Night lighting should be shielded from above and directed downwards and shall be approved by tfie U.S.Dept.of the Interior Fish and Wildlife Service.If extemal lighting is to be used in connection with the proposed project,all extemal lighting should be only of the following type:downward- facing shielded lights.Spotlights aimed upward or spotlightmg of structures is prohibited. IX.PRELMINARY RECOMMENDATION It is recommended that the Commission APPROVE the proposed development mvolving the construction of a new parking lot.The 28 original conditions as reflected in the Findmg ofFact,Conclusion ofLaw,Decision and Order dated August 10,1988,shall remain in effect and the project is subjected to the additional requirements as noted.For clarification purposes,the conditions are numbered as follows: 2021 Proiect Amendment 29.The proposed improvements shall be constructed as represented in the application.Anv changes to said structures_and/or facilities shall be reviewed by the Plaruiing Department to determme whether Plannmg Commission review and approvalis warran^ed. 30.In order to minimize the visual impact of th^_E>roiect^fhe earthen benn situated alone Po'ipu Road should be a minimum four (4)feet in height and heavily_landscaBed with native species. SMA(U)-88-10,Z-IV-88-39.U-88-31,SP-88-6;Dlrector's Report Kawailoa Development LLP. 09.27.2021 9|Page 31.The Applicant is reminded that durme the con_stmction_of the proLect^an on- site_parkmg_area shalLbe designated for^onstruction workers.Workers are discouraeed from parking along the Po'ipu Road right-ofcway and nearbv roadwavs. 32.The Applicant shall resolve and comply with the applicable standards and reauirements set forth bv the State Health Department,State Historic Preservation Division-DLNR,and the Countv Departments of Public Works,Fire,TransportaUon.and Water. 33.In order to minimize adverse impacts.on the Federally Usted Threatened Species,Newell's shearwater and other seabirds,if extemal light is to be used in connection with the Broposed_Broiect,all extemal lighting shall be onlv of the following type:downward-facing shielded lights.SBOtligLhts aimed upward or spotlighting_of stmctures or the ocean shall be prohibited. 34.The Applicant shall develop and utilizeJBest Management Practices (B.M.P's)during all phases of development in_order to minimize erosion. dust,and sedimentatjon impacts ofthe proiect to abutting Droperties. 35.TheJ'!amiiiig_CQmmissi9n reserves the right to revise,modifv or add conditions of approval,or levoke the Eemiit thiough the proper procedures. should the development be found to adversely impact the surroundmg neighborhood,or the scenic ciyalities of_the area as seen from oublic viewine locations. *NOTE:Material to be deleted shown in brackets &strikethrough,and new material shown underlined. »+-DALEA.C1UA Planner Approved &Recommended to Commission: "^- Date: KA'AINA S.HULL Director of Planning t0/utttt-t SMA(U)-88-10,Z-IV-88-39,U-88-31,SP-88-6;Director's Report Kawaiioa Development LLP. 09.27.2021 10 |P ag e EXHIBIT'A' (Agency Comments) For reference SEP -1 2o?) GOUN''-U i"!r [/A!-IAI COUNTY OF KAUA'I rra^n",nS:.ofKa"<" •^,orn nn n a-./I PLANNING DEPARTMENT '~""''""auo"Agency '"4444 RICE STREET,SUITE A473 LIHU'E,HAWAI'I 96766 (808)241-4050 PLANNiNG DEPT. FROM:Kaaina S.Hull,Director (Dale)August 31,2021 SUBJECT:Class IV Zoning Permit Z-IV-1988-39,Use Permit U-1988-31,Special Permit SP-1988-6,Special Management Are Use Pennit SMA(U)-1988-10,Other Tax Map Key:(4)2-9-001:007,C/o Jonathan J.Chun Esq.,Authorized Agent) Kawailoa Development,Llp,Applicant TO: D Department of Transportation -STP DPW-Engineering DOT-Highway,Kauai(info only)D DPW-Wastewater D DOT-Airports,Kauai (info only)D DPW-Building DOT-Harbors,Kauai (info only)D DPW-SolidWaste State Department ofHealth Department ofParks &Recreation D State Department ofAgricuIture Fire-Department State Office of Planning D County Housing-Agency D State Dept.ofBus.&Econ.Dev.Tourism D County Eeonomic Development D State Land Use Commission D KHPRC State Historic Preservation Division Water Department D DLNR-Land Management a Kaua'i Civil Defense D DLNR-Foresty &Wildlife D U.S.Postal Department DLNR-Aquatic Resources n UH_Sea_GrantaDLNR-OCCL u Other: FOR YOUR COMMENTS (pertaining to your department): CTA ^Yft^^o Fvp^HQP-G>^*^eM^oi^T>\\£>^ZqjscT. Tfe^ c(-n'-24?^f This matter is scheduled for a public hearing before the County of Kauai Planning Commission on 10/26/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.Ifwe do not receive your agency comments within one(1) month from the date of this request,we will assume that there are no objections to this permit request. Mahalo! COUNTYOFKAUA'I PLANTflNG DEPARTMENT SEP -8 2021 E^yiTiOi'iMWSL i€ftl-l;'reFHTiC!:3 4444 RICE STREET,SUTTE A473 LBBU'E,HAWAI'I 96766 (808)241.4050 EROM:Kaaina S.Hull,Director (Dale)August31,2021 SUBJECT:Class IV Zoning Permit Z-IV-1988-39,Use Pemiit U-1988-31,Special Permit SP-1988-6,Special Management Are Use Permit SMA(U)-l988-10,Other Tax Map Key:(4)2-9-001:007,C/o Jonathan J.Chun Esq.,Authorized Agent) Kawailoa Development,Llp,Applicant TO: u Department ofTransportation -STP DPW-Engineering DOT-ffigfaway,Kauai(mfo only)D DPW-WastewateruDOT-Airports,Kauai (info only)D DPW-Building D DOT-Harbors,Kauai (info oaly)D DPW-SolidWaste State Department of Health ;Department ofParks &Recreation State Department of Agriculture Fire-Department State OfRce of Planning D County Housing-Agency D State Dept.ofBiis.&Econ.Dev.Tourism D County Economic Development State Land Use Commission D KHFRC State Historic Preservation Division Water DepartmentuDLNR-Land Management D DLNR-Foresty &Wildlife nn Kaua'i Civil Defense U.S.Postal Department DLNR-Aquatic Resources UH_Sea_Grmt D DLNR-OCCL County Transportation Agency Other: FOR YOUR COMMENTS (pertaining to your department): 0.//3/^ This inatter is scheduled for a public hearing before the County of Kauai Plannmg Commission on 10/26/2021 at the Lihue Civic Center,Moikeha Building,Meeting Room 2A-2B,4444 Rice Street, Lihue,Kauai,at 9:00 am or soon thereafter.If we do not receive your agency comments wifhin one (1) month from the date ofthis request,we will assume that there are ao objections to fhis pemiit request. Mahalo! Class IVZoning Permit Application:Z-IV-1988-39 Use Permit:U-1988-31 Special Management Area:SMA(U)-1988-10 Special Permit:SP-1988-6 Applicant:Kawailoa Development,LLP Based on our review ofthe application,we have no additional comments ar environmental health concerns for your consideration. 1.Temporary fugitive dust emissions could be emitted when the proj'ect site is prepared for construction and when construction of new 2-story back of house and recreation building occur.In accordance with Title 11,HAR,Chapter 11- 60.1 "Air Pollution Control",effective air pollution control measures shall be provided to prevent or minimize any fugitive dust emissions caused by construction work from affecting the surrounding areas.This includes the off-site roadways used to enter/exit the project.The control measures include but are not limited to the use of water wagons,sprinkler systems,dust fences,etc. 2.Noise will be generated during the construction phase ofthis project.The applicable maximum pennissible sound levels as stated in Title 1 1,HAR, Chapter 11-46,"Community Noise Control",shall not be exceeded unless a noise permit is obtained from the Department of Health 3.The property may harbor rodents which will be dispersed to the surrounding areas when the site is cleared.In accordance with Title 11,HAR,Chapter 11-26,"Vector Control",the applicant shall ascertain the presence or absence of rodents on the property.Should the presence of rodents be determined,the applicant shall eradicate the rodents prior to clearing the site, 4,The construction waste that will is generated by the project shall be disposed of at a solid waste disposal facility that complies with the applicable provisions of Title 11 HAR,Chapter 11-58.1 "Solid Waste Management Control",the open burning of any of these wastes on or off site prohibited. Due to the general nature of the application submitted,we reserve the right 1o implement future environmental health restrictions when more detailed information is submitted. EXHIBIT'B' (Planning Commission Findings of Fact,Conclusion of Law, Decision and Order August10,1988) --Tl ffECEft'ED .AU3;l}iggg EiiAHsaiiG ettatissa'OB &?'~aBE CQOKIX:QF KAUA-I 'S-raas OB"BAWAn III.SE .fi,IHMSg),.EEWBT .aSSOC.I&'mS: afi^SRQVE FSIW ;iW2lREBIIBS»CTG, (?B03a87Ze43iy03aSA/6390-.Ll: sftE-cissi swxs^ss-as-ff yss^sssssK.jhS^-sa.f ..^,;. :&fEeSKJS':'WSS^<SXESSi:KSXK v^-ys@ss'c':s tW-sfS-fe: o&A^r^tw '%&ras-!eBKMiT z-iv-s^as-'";-•.' KSBIH6S OT T&CT,. COSCtttTSI&SS OE-IAW«DSCISION AND ORBEK iiaasooacsaas Ihe iPSSOBteTIBS:, ttee: 13BS f6fi':s ,Agp:N.<ant:S-&XSS,^>,,RES(giTr.•ASSQGI&mgS: tSC:.^i£S.:l^{Bn.'i^taill^atida ftKe fiwwi''a.g.S$]jpa)c;fea^nt..:af;';£^s,^e6unty of Kauai. safl S^iSS-'SetisiS.i'fco'^ &as(>•'» sg-se-s .I^iiat*$,,;"saae1. ,Kl^.'':'t!tt^ oa .-f.' ascea'i-CEsa:••z-sy-sg-ss:.• .eoacse', %:'.;^'ji^w&t^'wse •ISual'"BcSssS.f :Ea'''a^^;IsitSBa'...SB3, aag'kBair':ttfi,.2-9-1, tiofa'l aeiaea•Sreise:xty'"pT£ Coani-.ssiQn of Sbie'Cwia'tt.ss'ion'}acit;;&pg OBaiaatices :aE ttia •iCaaffity a£<lcaua-i; •ABeff'':fittleS iggovE Jfasa:•^..-Xl:fch' o-n Agril 18, a Use Bemit,B-8S-3L a SMa,(Gr)-as-i'o ana a eiass CT seefcs atitllOTizatton constTuct eeifcai.a ptdposed couisa (soHie.times the to:the aeyBiopnieafe af tlie Hyatt ,a6&ae'•;S!^g!i;a$n.•Teal prdTgBrty sa.tiiste at SByKa'U»4.,,,;St;ate:o£Hawail,Iiearing tax 3.floasisSlng^p£agproximately Zlp Sdm&CiiBBs;referred to as the .aT-ea"O:T "Piroiieo't Sit:6")..'Ehe Planning GouTt'bf o£Ka'u'aa.rtberainafter fche itt acpsidaaeS .wlefa t;&e Revised Gode ,of ;fclie "aeo"),ths;oE [the Codnty of Kauai i|;Si»e;:'lgilBL:aulfes*)/,'S&e'Sules of PraGfci;ee attctjProcedure of tte.-.SXaBaiag''.'OettntIsBilMi::fol tbe ''C&uwty \.'':tti|'',:;I!:auai (tbe''Cfi«Bid.;sslttB':ffiiIS!yl'^'^:13ie'.IHawail I.ana Use sCbaaBtasion Rules, fScafti^c/'lS-lSt ®£.Se%.,.;aawaii ,Aamiiiistratlve/;,I^uXe^^i<t6e^•'Land Bsa^Bulas*)/l&e:.S&nS.alstiTatiye.Pcoc84mces Act .W tli®Sj&ate of BtENrait '(t&e'•'Ma*11}.'dnd''iBla^'aii'..Eevlsed Sltt6uteBS,:.titwipfcers 2S:5 sal aoS-.fc,as well a^.otSSc aspiicable.stiatatosy^ liava.'ttgj 'heaifS .,tte;test.tBGl'igF.aBa.sxasiiaed t&e evideaae." .af 'fch6 aeEasla&s helfl i&csoate<8^toa wlth the ABplicati6&,.ana ooasiaerBa t&s total r6®6rd,incluaing tbe proposea csf jEaflt asfl coaclitsibas oE law sulanitted by the .tfaKBs fite f.ollowing findi.ngs Of £act, *t tt4t8S7 EXHIBFT "A" cftBcIus.xoAS 6f l:St»,...declsian the "i3«::a.sion aad OxSet''1): aafl e'rcliM:Chez'e^aaf'bei'.soa^f;ines S'lSOIHSS OB.FACT: h.PAKTIES. z. a.MffiR?l®&OBT...,^ <aA2SS-^aaa':%Qssl .^SBC.'tSC.. ;<SffrSSa|S£I^-\:a%BS^.a.i^lcaljleGSi1»els'''SestK6a;Beid 'as ttte :"^j^ca^*',^<ma}'attATe(B! R(;ef^-fco..'.^gelic.aH-fc'shall'8.sscsi'i'9-'"Viot:fi:Sinai<iO,:;IiaS6:B£;;;as^<>cii.at8s.;:wifl.:.GtQye -Xarn /SsciseShV^^-Efte...^..Bt3ye!.'igpplied'^fflir;:tHB^SSttaa®S;;;^if the•aBtiboi'.issa'SwSBS';<toBC&tiiibei6ore •iiientt&aea''"tt?'.':BWBaa.1:Kbe :><>£•a golf ^eourse .and related.facilitiBs a clriBliouse,restaurant,pro-shsp,caif barn<.fi&ia asr^i'ery and maintenanee Eaci.ll.ty) asclllary fco.as3 associated wlth tiie resort facil.ity curr'en'fcly .age.cbs'ed for'eonstructi.bn on i>.roperty adlacettfe'to 'tshe!^Srojeclt ftxsa*. firove Fatn of .tsl»e. ^e6raa'ry,2, .Stte.; .aatliOrAzed: .the :.flaa» '-f. afld1 a.a;.the leg.al jawaer Aas,"'ptirsuant tb-:»'lel:t:iBE,.'dated 1988,a copy .o:f.wliicil has beea lodg.ed WitK Departnent o£tlie County o£Kauai, Grove 7-asSi Pro]serties,Inc.,to aaiply in aad stead of Srove Earm eonggaay, to the SpSEOpElate.agiSnei.es of the•oE.^Kaaai gna o.f th»State o£H.awaii for .thosB jieEBiAsr,,'»ati>aiic6p,approffals and authttEizatidns tfcafc aze:•a-ESSbffstat.'a;advisable ot neoessary in orSeE to aevfflljojp;tKe PropiesrCy as a cbaiwiouship golt course wtth relateS 'faelllt.i.ss.Aihako Resorfe Assbciafces is tUe -¥f0aas<ea lessee af tfce .Q&aaa:Q :WiaU,a';i leBU anfl aalania O MaBa^utepu ace un.incorBSsatea;asBpclatxdns wbo haye suugSt and have beeri gcaaltefl laitffrY-eBtion ia con.niectioii with tfais :o'£..Katiai -aBsaiEy i'KfWVSSSO.,s.We: Ssnd ,®aSi''..BU.lss. .:'isevlSw?::•'oiE iwfdxS/We- ifor':<tfi,a. .-of:€tte .4,...Ttie :Pl:aana;ag ..Dsp^rtaent;o£tlts.. £ti®reiaaiE'ta&fc:h&e '"DeiEaritaneafe*}.^::£bie: ,EesiE>onSible,..fiUiriSBaid.'ts^iSt.affia.^atsufcs, SMK'.&il^a'^'ttee^.Bawaisstori.BtaB^.,«na.'1:Be. fcr .GpQrdiaaEAag'the.CoaiBi's.Si'oa's asf'li.caSiGas,'.'6S We:,XiBd•G(aiami.ss'l'<hEi 'aiifl.;£or flo!ama«s4o:n*s .coiaaltergtl&n .cencerai.ag •a- B.fiSOGEDOSftIi HASraERS bas :inaae..tite ascsssaty.jEl.Iiagtt ''smS. peayiiBaS:'ttee '.witiae riecessary aaa:^E6qM2.Tecl '"liaafiie •:£tt8: ZO.S-A.a£.;•tiiiS ;'Sawaa,£,.:'»evisi0(i \8iiS£tfcea: tbe;"Coasfal Soae^Ma^aga^af;:ftcfr'':):,..-6tie''-Sj'B;'. ?:<S>aaiss.i'cRi^'firilBS1 'aad'':it:8e" SjfttSfc.'Os'e tc...special -BSEiM;^,'a&ei ,pg.mi,ts:; .•arsa.•$aatti;i:S;.<"asd :c-lsss-IH?:\2:aatns\, Tfce pi:»?i;aaco, (somet Rules.» S B».33l:ile liieara.ng.ttt"rBjgsiset af. dtity'BofeicBfl:<'sclf&dtil'ea &:;tT'aase:cist:''gf 'tfaajl: 7BlaBes;MCfi coa&ecullya'ly nuiB&sCeS to tSe fcTanscrijo.t o'£tlte voluae and paga'.wKie'h.shall.Be format::••T<,V._,Pub,Hrg., ."fcSe .»ppI;Eca1;3.eB;/wa's' «ng":oieca'cE®a^'ttn'^-May ;;2£,;?;I?:88'. OoBSiafea;a£fcwo flagss..'•"Refefehces' liearlng.:shall Be:tio c.iteS in.feh'e Eg._". Pnor t6'("Ma.lania:-')h.eariaff..Malatna ^wo&ana*) O.Maixa' aaa .IfcBeS'Katiai:-€o 'WaliwBa tbe Obaaa :0,Wsb^'- gssoexat3,pn:.;flgcli lateEVSie'in-'tiie^aBpiticaSian •fitocess;.. .Uw;^Rsitai \iits:::•ss&:SSasaK's eaSSS.iaciS^'thea r'_.a'.ile:aE3,ng:•conGeming tbe u»:fcea:ysat,i'.oB(::.gf Malana ayQ Qbaaa '(Ae^eiffaSfcet soiial»Sin6s','ii.&e!^.''.:iaSe:rvenaiC5"y,'tIie; GSiiaaiisslon •flTflniiSsa •fco;'^acfb :t&e ...stnFfcu.s^'of 'ihf:ecvsnpr, stt&jseia^,to:''.tge '•.,a;eSi»2.£eae!Bt"^-:'t;SaK In1:ervsnors <:o9:8.Rl:;:i..i}at:sa^,'.tIiB:a.r....6Ia.«ffl^;^-wft;b?•'telS^etSi:'to simU:a;i: iiS-iBftgS:•:ra:isect.33y':-Isfaei .'Xaterveaara.^lii;7fc&alr•Eo'Jc.'lnlsertEention.T..,7.I,PuS.,':&;g:.',I'gs.22-24 Afc-:tBe ,':j Assoctattctn ,fo,r.a.afceris'eAbKOxi •!aafl :ieguBBt&,.: 'K£tSs basis:fo.t fehff: Oa iBiae aaa tlie..•wifSt atSeadea.a o££i;cer^fo.r t&a aTaila&le^:. to;sceB'aES. feeSbre iTuaie 6- 7>1QSS,tbe Tat&wene.ts, couttse'l;,througli ii:a: caynsSI:,"t:aorna.•"Nis&iawtsu; cKai.red /Syi'SicSs •tsucfi.Ixa^.'Hsarisg?the PIajiuiiicig:Cwrtigstoa^irii iccinnecfeiBa witli'. Bo'.;£iiansol;Ai>i:OaE ttiat ''iit^eting 1s At tttS:^tlstiiag 1:fee.,partiies-•:.wea®'..^«eguestea and to salrout :te :t:bje ..ComnlSSi.Qnoa gn.or 16,19.88 Ctiati pcogosed lrsl::\'ci£:..:w;i;taesses .list of/exhltl:i,Ss:,'togeKher witb any.inoti'ews or that,$3>ie.^ssxtS.BE:;Biig&i:..3Mwe'ral'atiag:•t&1 the' canauet :o£'"ttfce ^roceeSiag,,'Pg.rsw^Bai;^!fco-'ttOf:':'regtte^t, Vse saESies'St^geiff^,'aftd''aBch'iEiIsd'^.i'fcs respecfcive wi.'eneSS att&'SichSMC;''ISsts...IntSrveBQis',furthst'fl.led oa a'aaa S,"isa-S;,.a >fv6it fw Dec.lsratory Ordec and oa Ju'ne 16,X'SS.6-,a Rtsguesfe for tbe Issuance.of Sttbpoenas.Ittfcftivestirs".Mofeion €QX DeclaTatoiy Oraer M 04^8§9 -3- :ins Oipepffed by wnttett.WeinoraBautB in .3;at;efffenefs'Slscavs.'cy SCevo.est,fci.led by .Jane 3.6,19;88^..'•. to. Oa, 10,.On 3uas iSj 'l9:SS;lAte;..<3(»m>i'B'sa.os,Siiasl»yBe,.CE(s<ba,t'.,"6iiie. SitEtiywoaaa,anff''CotBU^a<»aESicB/''a'&oa^-^]&3ia?;Taaes,.1 f^S TBSa.&a;anjd Rabeeoa Si&lana.sil3l;iiag.;':'.oi»tatBeAed--l;':'a1 pre--&ear:l:n$in adva'BOe.o£the coBtested Base po,ri:i<»a-OC Uie:®co<;ee^itig..,The ti.SiSBCxift oE the gEe-fcearisg pO'ttlOa',®£tfie proceeda.ng consists o€:a singi..e v-o^ume ?nd ic's.£^:re&e:es theteto shall.be eifeed .as fcillows:••¥.:.,^'v,t:»'.Pie-Htff-,.,.sg.'.__.••• II..Stit!tiaaisctapt wi.lA rBS;peci:;to.tbe ,eQBfc&stfid case poafcioa (»£.;the.Appli.catiori prB.c.Sedtng;co&siets '.of tKree vol'uiae.s (sf wbi.ch Toiuae l is two pa'rfcscoiisxst.iag bf coBsecufci.ve.ly numbered page.s).asd raferencea .tiieiet.o s&all be cl.tea as fo'llows:"T.,?._»GCH,.Eg._." 12.Tb»bcss^csiflts.feSVf^eet.ta •i.0 this.:Ssc.tion B l»av.& lifeea ffertifiaa by SSe^'¥3iana'i,&9',aepArtnent as cOF^ec'b. 13-...Aftsr ,(;dstt!s.3:agj;Lin^:.,.,t.te .lafcgtveaBT.s''Rsguast £01'..IssuatG8..o£-Sut>iE>osnaS'.aaa;'l^i&e';:i:gpre:sentafi'oBs/.aiid cral ,argumegi:^-d£'.']pa]jtt,t??a'::'Gii:Snaelia cssyect.oC tKe s«g>e» fcttet s'libpoenas ri9ques<:ecl fe Interveaers w^ee issuea, Biit ^foT the Sufepoena propbsed to t>e j.ssuad to avery Xpiia»fche Eoriner Gounty Planalug Director,ahlch the Giinniasifln reflised fco i'sstia .for tbe purBOsss o.f .g'rayl.dtng testiaany rsg.aBaing kfae;"legislattve":'iB.ten.t o:E:::tlte..CQ.nmIssion,ihe KaUai.CoUBty .Gounail and BIayor oS 'gli^;Cqanty .ia formnlating SBfl aSoptlng.tSe KgEloa-Sftlpa-K.alaheo:DevBlopaent Plan,regues.tad by InfeeA'aeBQ'cs-*Iirtervenors'liaguest to BS.j;mi.l ttoe sulBiizBrslo.a o.S rtrittea feBsti.taoiay jay ;6feprge.fipoper..aaa ftntiiony 'Bomo.,un^er carcuflisfe.aaoes wber.e .these i.Haisitduaiff wQiilS nt»,t .8&avail.abls:.£or .feEChas'-exattittatioa.tiy^ftspla.caiit,.:was-•S^s.s.eS.T.,:.'?'..I, Tte--Hrg.,"'&gs:..162,'.J^i-ase.'''':: 14..iSifter'ctmai4Bred lev'iw^.oS-'SSaa -Iaitervea6<s'jmsfca.oasS^Br. aec.Iar^fcaTy •(ft&ett^SBfi .;;(fem6xaailuB».:..fi.I^l.irt':aiipgort ;tliei:eoj6,-tiiB1 'HeaffiESaajCM,''•Elteia a>y'.SgtEtti.cgmS""'•;ili l3®e'c>s:i£don:'tiieieial:!)^sad '•'^s&''".TSS S®tItatioaSi''':Ssa-''aFgWSnts "taSe'fiy'.^esenjasel'?&..t:Ks"..jrecoiyai.,..'tfce Cpnniss^on grarEbSd 'ratecwerKit's/'.'-Malsi'On '£^'^08csTixcfSt<3X''T ^Eflei..ana directed the gTednGtion Of cerfeBia aoGuments ty:ABgllcanfc bo iBfcervenor la acobrdgaee witii Ctiitei.ss:S..oo>s.wrlttea O'Baer Sraating Moti'o.a fot Order,-whle'h:Order.tea.s rat.it-ied-;hy tiie at i.t.s &ea:ring conauctea oa irune 23,1988,. -4- M 042S«® aad enterea at kh.at kitne.See T.;,V, .Pgs.iI.4A-161.See:3ls:oT;.,.'y.I,,GGH, S68 'also,Orflet SranEitng MotS'o'n.foc I.t lpTe--HEg., ^PSA.1.48-51.:-OrdeEi" 15,.tlie.docttmeats fcae Coaai.ssAiOn direcfcisa ..AEiaidaat;'^to ^roance Aa '.latarvenors':;''»(e,r®',.iiTOicLueea Att wftfi ttw-ofSer &E -tlbS'CoHBils.sion., tlBfi'tBe . fiie-yar'i.QB.s' ApBla.catU;;la 'Srupfipaye natesa.als Bjtl:lcia'feion an•eoafeestbd.:eas<e :8Ui?y^Bs;"aaa:.Bi:uaies Report"?. Ssgassttent, ASsessitoafe* .&E$Qtii..ates;, 16..Aiooag t3te na€er3,als suisaj.tted .Btfciiec •in conasetlon.lpf''fche.•VKOyecS.'^ac. i;,.of''tfaie''gXQieeeaiiiig: .airs •Tari.asi&^:8urW^'s;"ana:.Bi:udies';preg|a±«a-«a'IJBteaIf-.flf' .'(ff.::'tSs-Proteel:,ss.'wttil !::as ttis•;s -'/:-SkSfS ''KeEOEt :.<tae "Staff Tfe ;nat«ri.als InoludBa fcti?ETivitOniasntal daited April tSiBS;('''Enw-i'onmeatal qr "E,A.")prepared By Belt Colli'ns and a flotanlcal S.urvey,dated .January 198.8 (tte ••Bofcanicsl SiiEyey"),preparea liy Ghar and ftBSOBla'fcfeS,.Bo:taiti.citl/EDVlTOIm>eatal ConsultaTtfes,. Wtaona.S,Chffr aad gsbrge K.tiinney,a SarveY of the Avltaflaa -aaff :Eeaall.H;atrimals at .Groye yarm Priap»rties, ¥otipu,,Kaast,^dal^d;,3anjiaEy,20,1988 <tte fFauaa Slirvey":),gi;esais8;.lw^PbilllpXi.Brunner,Assts-tant•PcofesspF.d'E..S3;o>Iog3-,;4Dlcector of tbe:Museum .of fffffciaral His1:ory,'ffE'Er'BS'w&il,a ietter,astsd Apifcil 27,:X'.98B tay.Pliit.ll.ip Bruaast 1:0 Sel'b CQllilis and Associates. ;titidat;i'ng frhs A-yiiEauna Siirvey (reE'erred,to eoIlectiTeIy . w£tb t&e .EauB.a Suxsyey)<;a Golf Conrsa Beaand Study, dai;sa MaEch,;2,1388 (tbe "Donaaa Stady"),pn&pared by SitBert E.S'caall,.1ns,.,:Recceati.on Goitsnltaht,,,.a nacg-.ne reSeaecfc repQrt;,dated :June 18,t9Sa {t'bs••aailina-Bi.olggy Report*),pr.e.parad.by Mariae Re'seareK CQnsultaa'tiS,Stsyen Dollar,Ph.D,,;an Icterim ReBort: Riniaings and GlBnaral Sigiaiflcance a9&itecoihtendea Geaexal Treatments, EBGonnaaasanee Sweyegr,Hyatfe fiegency Eauai''Eaopps:^d,..Bjay ''eovusse Pnii&cjt;%,rwa»,datSd:May•19&S .ffctie ^StesS^.Atcliaeoi.ogisal.,.garwe^V We Se^JESsd'laterim,'^ipoicly'a.isebSeolwgaEcal .S.Ssasa.ai.asance: dai:ed.:iSukSi\'laB®''t'6&&;'.'"Bten.s^<l'.'^a'cIia&'Q:I-b9i:'c;a;l ")i,sfl£F JfeiBQi-aaflten!,;SegarSijn,g Biecontoendea I'feeservafei.tin ..M&asatfeB.^fpi .jae&Kila.ea :,ar^iaeeilogioal St'fcga'*.Elflted1 .i?uae;'20'^:'3.ag$:(t&a..•',Pr8SGrVaita;.aR'Mea.suTes wawi'}rs£laE,rsd..to cBlIectxvsly 'ira^Ia.tas;£Bt<Bi-lm.aita.'KewSsea &ieS^e6i.ogK;i5i3,Surveys.as'tte.'^AcoIta'eoltfgiiial Snrveys")^acifi^/s;EJBpa.Esd by HiiUip®.;SasS9ctBlll< fti^O..,Xac.,:Coasul/tlag Accliaeollogisl:.Tbe:,psaBM&r 6f sach ,o£tSp 'fotegg.ing repprts (Josesb 'ViiKCSs oa JbSiUfIf ot SeItieollAns ;&Assuci.ates)testifyiug afe the. CBaies<:8S .case.goTfci.an oC the .proeeeaiBg weEe a;s::axpeal,s.a.a tfteir respsctive fislfls as SUianaay °£ Asg&sSHien'ts M 04 38 61 •fiall SB 'Davta .I'cafct ia tAe fielfl 6f ,AgxooBiniyDr,.WiIMaiil .Riteictii,Areaaeolarftst.'Bo&aia.1 Marine;Biologtsl:.,Savia: DciraClly Tao'on f'l.or.a,:were' InteryenOBs ias.witnssses aitd: eoamisslos acceefcs £or:ths Eecord al3. Kla&•&p!p.ltcsca(^< 2a*ta?8aaen€a;I':aaSegsfligBt' letfcers Q.F aieiao.rafl.da Xlaa :f Bo&aia;:BeaCftfikt • oa -BwitagniS^'•'ao&- ^fteh'called.'By ::tslie: so:..gnaUii.edn :*T|&B atfcaciaiaiafcs Ao .l.iBEluding the aafl acy Sted'ies.'aE.-surveys or [siitmi-fcted i:a.oonaection ^eiewit&.,;%^tK^,fetie..;C(sn^;B,sioa.:L:a,cceEts for tiSe xssffvS-''apgl^a^fc's /^xlilbits;l-l'O,'''inelusive, 'ISl:eCTeaoTS;',,Bx&it)£tsa^'C,1?*S aaa',r:^fehs..5ta£-f. ReBpjrfe a»fl CousCy :Zo»uigK%g Bo.2M-PO-300,.Bakxng isl:C»:'Roaslaefatioa.•fcKe ^avai'Iafallity '®f;:fehe aiithprs b£ tiie repOTts for cross-examination daring the contestad case.portdtia :bf the pr'ticeeding,the eeiBni'ssion accepts as writfcgn teBtimony eacb of the reports eoatai.nedamo.ng ABBlicaat's exhibifcs and incorpBrates hsEein by tlils rsEeretiiea tlie Conaisslon's wEitzten ordeE ,ln respect 'sE't:K<e interveaors'Motion for DadaratQryOrdex. :e:.DBSGBiEp'rxoN av pwisseE AiifB f&apssH'v 17', AA- Vae ^aoleet:^iKrea ^itnfl ^IB^'.la^'B.ax'.t^' SrttpCtsea-..:t&;ag£Iteaenci^ ln:^Qse,:igtaKe...Iiana'';Iig» a^-loosta^y.a Sgs'f ^l' •i& -2-..' ,'fciW.•^isteeao'fc.'af -:pa.''a feg'tlie t»ot tbs 3iEagai 'HoBpt,^Sidt -•±s located Hcyffi Distr.iet. e proposed t»f the Praject Site are ^"•Sfgase^f a:ji£l'Xita:''9Sava.EOBiaeBtal AsseisstBftat conBeesfci.nn.;Wi1;ii<:"tli6se prpeeedings.E'.&., 'Ehe.•pEGBosecl gplf cbii:esa wii.l cgris:ist o£el^&teen HoleS.,a ariTVldg t.aag;e,piafcting green^c.lubh.QuS.e, fteia,;nu<s6ry aad.naint:enaao»'iBtiMlag.Tbe .clabitause ;iA3;l:^be lacafcia^'tt&ar tSB-^plann!Ba 'Systt Regeacy 'Itaasi and will lacltiae.Bwcking :asff aooflsss f'roiB •tIi8.'«!XfcenSion. »f,.Eoititt Itoad vl^f .tfi<!.'B9a(A;,:Bcc®se.,fOflA.-'^'I:}i& slubiip'usB^lisrl'l^iBca.uae.^a,.g<»l£gEC-gUojp,.re!aii^»rffa6.,;igolf club s;t:iu?ass'rcpa .,ati3::-sfpli£:.eart: WVL.T&e')tella:i^..'wiTl arfeicj-iXa-te .an :StS"te;tliat 'yU.t.ST.emai^wttbyKfw i^att :'K^ei 3':-ani the a.iachitectMts:.%E tI»e,:..aE.eS.:;T&e g'e-liE.Baurse malateEaiiee Jbullcting.^a^;fceni)Qrary-;£i6il3:nBrfiieey »£U be.located :m:feiii.a t&e:'gblf Tai:rways'<',aaj|»ceafe tg ^airways,10 aBd-5)..as.'raSl.WkeQ la Ei^ure 2 :o:E tlie BawlroaiBeaktal As'ssssiiaent...EjA.t Pa<?•?'a.:,S'.I».PaB^Hrg.,Pgs.:39-CT,'•,:. 19;:• e!go.IE assr^s layfo'at will;toe i o£tbree Kgles ingakfc •gt 'fcfie tt.0 eossrs^ K^SBney witS'"lAe 042862 20;. 2-% 23, M reaaioilsr of the.COBESB ta an aFea.eas-t cSf ttte O^uijtaoiiSje':g^neEalIy ,'EollRWing,tfae e!&astlin&,Saufc aauka 6£ 6 CcinsBtyafej.Oti,Bisfei'lBti;.Ttie nafcfti <ho.IffS a.i&e irifeeadsct to feaKa agyaafeage,&f i3ie .tfreFa*S;»0iaRi.e .am^i:ti,es 'as.weU 'as greservs €hs •gb.Mfs:t.i1aA'B agsn—space;envirotBaes£.E.A.,Eg..3.. The spiatsa.l;s.'dfesignafl ;Bssaii't-3..a'.lly as .a A.'e.>,a,.Sowcss ratS&r tftaa: tse,.'l.0avlBg":'£lrpB Aee-' wltfite .^Dssa.aentela.l fche gregosed;teturntiag to .arwas^ tfte or Soilss of .the .course .are oceattsiae oE fcBe Sfcate Lanfl Ose C.&fflsai-yataon bouiida'ry.A shoreliua aGCess trall tBjca'tioa o£tbe exi.sting fcrai.1 is reflectefl tlie C.a.assrvatlon Dtstriet boundary and nalBtsinea as part o£the fleyeiopment of tfae E.A..^flg.2:T.,V.I,,CCH,Pg.273. "carg.,coiirSie?;., -aria ',flaaetS^r wi.tS.'ifcs.fivsb'"aaa:;iSS.: clStiltouse^MQ o:a-t&& f&6 aakai of wl 11 be'Project. Z3L,IBe Pi;Q3,ec.t a,rea ..'ls withln the S-tate Sasd Pse Ai(Taciuatttral Btstrj.cfc'*_;3'Be Proleet;.'Acea •i.s .als:o Mi.'tifia.tt.ji:ih?!,-CoiBWtir's z6aii:^:'..lAgri<sulture Bisfetict aafl-K ^ssiffsiaa.'bf tbe gEOieet Site l.s TBaaag^wst Area aefine.d by tlie"EBeg:<'! ttai County General Blaa ana the PoiBU-Koloa-Kalaheo :Btstr?;c1:i .KrtKBn -®e- :fisai ^'^o£'VwfsiK. :(,~6eagra;i 'Mw&'^ ^.t,.iEllaJl.'t''®es^l<?pin6Ht Plan"3 .itesignafcions iBCfx fte;B>EB3^t.^W:':.are::Ag»iGultuEe:Bi)d:Open...E»A..,Bg. 7.,'g8e:':B6uiri^''?ZQainff'li :"3nd Staff Ragoct. T6a;oos-t ;\e£;,;i:Ks^:dii®EovaBiWtsyfopQsee to bg;.aade ta- ABat gdictii:'";'cif gb®FropSrty wlthin.•l:li^...5p6eial Ban^geasa6::,&Tfea tn conneetiah^itfc the develaansat:oif fcUe .gtilf floiirse'exeieed SSS.OO.O.itO.?ee Sts.££Seisoct. £o;caiBEB,^5s.'at •tfia.s Thg Vta-jech Area aonslsts er.lnaclls-p£ sngace'ane'tanids.ania a33Scent.'aiBaB. as/ces ws tlie.si;Sa':j'ieaaia alazftsa in. tiaS.7,.,y,''I,,i3CSa','Pgs:.:'4a:B-^l.l-sugarc.ane; The ^galiioant;.iititeadg ;and ,BXQgp^»s to -aawloe.,an. ^S-hole ..e&aittEiiWsBiS-calitB?'.isoff ''WWs's.3W :sswgases•fco .pparaiEB i;t "tn aSSocia't^itt wtlA .fefi8'"Bl* flsa •^OS-cooia' •Hyatt Beg.ency .'xa.iial'•a:fe::.;K6onaloa Say."Sfie prop':ds:e8 de'ii'elSEimeui:''Hi',11 :be op^Eatsa as -s rB.sdr't''(ili,®afc6a faciltfcg-'.Ijdt 'sill BS,.oeen to tbe'anfe3.1G.-:'nts :S<tIf coarse'wi'll.'&&.fleva61ESE©9,;a3.SQ:'•fc®'acMSomBddate'an i.'aeaeasiag 3emaaa 'lEoT'go'l£''>p.lay iiii:::tAe 'B&i.gci'^axsa fff Kaa&:i';aac[s':Kajia3..'generally and to iftaKe'Biiutb'^Kauat SKire i3oiagBt2€±va.,.aapag othe^wi.s.it.or aesti.na.ticiB aceas. E*A.,Pgs.;'7-U9:;T:.,.V.T.I fub,Hrg.t Pga,.39-fiO;T., V.E,EGH,BgS»:1SS-120. M Q428&3 28': 2,S..T&e .?rc>}ect Sifeft a.s .loeated.6n tte easbern^pstfahetarQf^ther ::ressTt'conmunaAy of ?o3.pu'ln 'soufcK.'Kauai^ Bnirke::inast^i;.Bl'annea aesjti.satsLoB areas 'asVelBped toy.Sitfcities,.:Potpu is .cosBrl;seft -o£:a'"aantes aS 'rBSCtpl; 'aaB'Iititel 'aeYelbfiaeflts,•tBcI'uaaag XiaNina 'PIantaHou,S&etatoo Kaual Jaald,*lw .StaiafiEer WaiAiiai-BnK;,'eg.^.,7-9'i''•'.\:''' 2,6.galy.tgcanffy. area..'SiSQ't faas; i;a::3.SeO, hiSMes: beffcw^a ;aaicw:was:aa:isoi.afcefl'airiaF<"ipemo'fee by a 'sroaH.'.BUntiieE ti&^.ibBaslifEbnts'wiiwh'^y^cs.primaci.ly assocfa^Bff wtAit.Khe .sugar tUat still ogeEafces a mi.il tttday about 1.5 :Biiles.:te fetie florth.Today,Poipu bas nora tfaas 1,BOQ htofel .r.ooms,.anOt Spartmen.t condonlBtuais,togethe'r witfa VBiriou.s p.atks. ^isonuBeFCial B.A.,Pg.9 Eacilitiesi.residences and beach 27,fhg Projact .l.oca.tsd OB h'scixlis.wci iof '&ifce.is' "l.aaag'. leased^'Vo :' ;i9a; ^af.^stoggiMsaBe.'.:;' B': .ttttifitl,f.iEetn.?j.n$.5ug3.i6i3&:,'tw fi^, to.!wtitid3i:aMal',';Ijy ^iwFB^'syxw&a.^f 169BIS-:':K.A;'?:.'Sg;',^i8;;."T-;^:®.':/l%-SC:!ti BBSaiF*-)^'''Xot:-.••ga.aati.ag ceimuiuttt:^ SM' ffiE.^;: coastsal aafl focmsr .-thg B.rni'aifc Area is (sometlaes BBd <B:E-tlie land IS«^eE;;is sublect e.'S6vas.:'<iC y ~t:97A :*a6-.4i0. tBe'.-We^t:'' Efpjee.t Area an •CKe ,we».t:,is .tte .eeSort: wl»icll strtttdbes a8>Ero.xiaata'ty 2,3•B seiatharn :coa^t,Iiweai.ately to ;a<e':'iBSssfitral lesost-fesii.aefttia'i prgjects,S'ayviWtt^.St 4S lot resideiitial SMbdlvisioa,-Vi,lita !':;;lKa}Eaii-,.'^a^47 :lot 'resuaeati.al .a'.cesoFt-Essidential to'thtf ..Prpject Bi-fce of tU6 ^planaed SOS-rckca Hyai:*Hegeacy wbidii is seaeaulsd tQ eoBiBeBce cattstructien ia 138B. K,»,.,Pjg.:3.0:;s»e AESo .Staff RepOFfe.aad T.,S.I;.CX®, MO-IZO'. Banai: aad'; subdivisioo,•eQndoninium. Is fchs slte Raual Hotel .PhYsioara'Oiiv. 3.9...Tfia qveaan^tet'raia oi££be,^Sto'peyty -giraflualIS'X;5.B©sEfflitt.a.3tt-f%ufe:.'Al-wati<sa afe;l:i:ts/iBes:t:;iBalEai^BQiuiaaTy;fco' aEinrexuaa£^ly,.;3»25'E^et'at;'itbe SA^a'-a'maafca btnnaa.Sf-s'. Tbe.awer.ase'.sS.fcai Bloge;.is/-Eaiaiil:4^..'E.A.,.Eg'^%• 30.SUaze:A-re ,ao :a'i:Bi?I;ngu,i,sjiatile aaainage..faye a'&fcaes'Sxa'petty ,a^':tae i:4sag^^e^'''is cSlatS.valy^-even..Sifee cuagEf Is ^EftttaTiIx^'lby-sBeiet flow tc>wai?fla tlo .geean. E:.A.,Pg..18:.•' ^^42.884 -fi- '.^^ 31.At t&a caasU:ta^,qi.its'»dB tfae;Proj ect;,Sl'tie:,.aEe fftCTia'fca.Qns e-E':I;Hnes:t:ane::''ard l;l;thoet®te,.:,.as,i»ie3,li,:a.^' OSilcat'ecms^s'asS ^nas',o.E:'aBgEosiimaiil^ly ::3fl-12'a •iEeeife Ji.ti ,;alayattan..'.••.Tliieia;'are;no ls«id;.Saas&es in -tlfa .feccaect.Area:or,::on.^;&e'/oSaansM3ie.o£:''thB.fro;3!ect feoimdacy;.;:.'t'be'nearest saaa fieach;'ls:ate.>;tiie aya-t&Segency RauaA Hotel Alta:.•y.K:i:,.Sg..W-^"'"'"•.':"" 33 34 3.5.: 3.6 32:Ac<;<»^ijing,'.1sci^th&.SQA^.'eoaservati.oa',Sg^Aiee -:erf 't&e-iF.fe,-0£:Agritcscltiirsi,,the Pcoiject Site co&fcalns'WaIk!M(iti:;:;sfosy silty clay.Also preseata,te Kolpa sfcony stlty clay,Maaala atony silfcy 'clay loan.s aiid ijaucas loamy fine sattd .in smaXler amounts. .E-.A.,Pgs.12-13. WaiiEo.mo sto.ny st;qny.aad:roc'ky .aateria'l Sxwt .Ksslc rgnsoaS.',Kadi.:,Tte. ts ,rt(e>cl0iat:a,:•a<ta?•.ru3BEOFi '\3;s:s.low.e&aEctFjfcffcist ic sa^•.sli-giy::;..:'''"'-E ,.A ., eoasij.s.ts of •well-dr.ainea :aa icatter •iwe.a'tfaerea ,0.£tbe sol l a-nd its erosion hazard Pgs.12-13, .;seet;i,aasF ;fi|E;,^Se:.-graperty '&l.a.y.:;'Sca.X/t^BSS'i aBfcl ^gealetaias;'fwasaS^ .,"Hasa^''TSc$%.:.;':'~Qif,.Xg-'19-tsXSieg;,Septtt contain Koloa sfeoBy sx :i ','ffits soil too is wall-clEBined on^elaa vpleasiG vsnts ia uplaad fisii»13y underli.e this soil at a.;.,fitiasi.j3£f is .meaium,;to sfevere and t^^^^slcun^.&aaaficd^a.s^msasEaibe..E.A.,Pgs,12-13. ;TBte »yci;j.Bofe .Area;,geaai;^lly:.fencoapassed-'iay ;;:»|aijc&m6.sti&ag;""^}.,l't^^^May^sa ^jKEsntala stony silty cIay'"*'Xomn'. S(ia;.rs..;3t,5;:intli}:nl,!tlie!'.<Jcii:J:ie:E it^oitaafc a.gri.cultural iaiad clAssii.ftcafciori dt i;K6 AgiElciultural aands Qf IinporCanee a-f '~t:&e .State o£.Hawa.i.i <AI.I'SH).,Agrieultural .I.aadSvalu^tii.an-'Sygfcea.ExoejBt £ar aeproxiaately 11 acxss^oiasstSiect .prlne agEt.cultaral land at "fehe Bayka &cninag.rs''::&f."Sbe Project:Site,,fehe reaainder o£the 210 aiSce •Ssfjecb Sit.e.,generally'nattto:.o£the Bhorellae•axga.,•i&.^liBt^classi'EiSS.E.A.,;I>gs^'.:l;2-l3'. ^.Chtiii^fche::8ri)3apt.'St.&B»,;i;Ii&.Iiaad--gtBay'Bureau of Kto'B&iveiislrfcy _.,{>£.Ha'sraii elas^ifies-tMe naufca lanfl tjie saiae.-ai^ai,:.altowu o'n t&e AIjISH map as lattd and ptitaeas.hayi.ng a Bgrmal (naster:)ratiss.af •y..Is.-tSe :sskia3^.Sfirtiass of••iSif6:,'S","S",.aad "S""•classtfi.cations fea,,?gs!>.12-l3>'3.;6;.:" otBeTf ^'impprt^ttfe ,Esglri.cyltuj:al. 'fchS:;,;Bi?o.3^ee'fc' -•9- SvQ.ro.loaw and.Draln.aoe 37, 's's- 39 40, Thtsf*.ai^.go•Tfte:•sl.t&'js aa ex.tremei.ly Sasxn'n^3ta:t suTSaOe.watar,.:Se»t.uces.oa .,£he'.I'rcspests'. ^topsgraB'fiy.'aad'still,'cliar'acteTitsticis ·gtws.de •:we'l'l-atf.a'infta:;coafl£1:ioa suitafale £or ;X aan-Biade .&st:en;tioa and .s'edi.nieatation exlsfs i-a a:,'lOw-lying are,a adjaceiit t6 ttee site of ful'Ti.iaia^o.S,ft.,Sg..1.6.. Si:te wi'l.I be.nal afcainea :ia .-tBe 1to/".'•itictey.se.•S.a.'^s.uctaee-:.watea: *fater 'diseita.cge '^wltll ;result ^.£rbm B.A.:,':',:-(ig'>''t6;;'T.;,,.V.';";;3:,.:-CeB, Iiuno££fFom .tifa'es eu.E.r.ent aianiier dt*oltaa;:g.e',Sr ttee:: 443-448$ The pEolee.ls Sice's .o^fsbo.Ee.Haterfc.axe classlfae:a by. the State.Oepartment 6£Health as GlaSS A.ftatsrs,..tite second blgiiffslfc ca.ass of water rating under the BGSaytriwik''s,.ratxag,system.Discharge iate these: wate.Efl ,l?.'.:ge]:mi.tfce4".only upo&Kaving the best deg;ree o<;1;r«Batnieri&:;'oi''(K}n(.Eot eomBatlhle.wttb the.ttEifceria:eei;a&l:l.sMfia.:.:i3y taB.'',fiea;l;lt:h..Dejoa»fcitlent fbr .tfais class. 1&e,,gr'oiE>oS®d Sroiect-iWili.aot involTe dtscliarg-e o£aay ^Sfeew^sr,c:o«Slier<3i':?:l^;Ii"OI-itttants or industFisl wasfee•aato'^t;^^;.ocgaiB^_\.;®ia Ea'eei ruaoff.•gene'rated by'fcKe-'SXV^a^^^ffveXogsfsa&.:'3.^flaimed bo bp conCaiaedwtfcfcl'n'fclia'^t)l£--g!owrss^:S(ME.'.tiCt tie limifeefl to that -wlilch •flows?".iat<;i:;IB&e^gcean..IndBed,with :J.neraasea ::a|:.<tI»e^'"3E>ri3.j|Kit Site,.sarfacs runoff wi.ll'•tse.'':seQnQSS~'•Sy;:'-•yxe^i.kti-na more ground,pereolatloa to ^SSs.tt itlSc'a;..ainS'.oonseigiieatl'y less Slow latfl •eaastal wa;fce5CS':;Wai'tl.:.ogM;u,E;.S:»A-.::»:.Pg.16;7.,V.'I,CCK,Egs. 4a,3'-44<6,-".':!'•'.'•.'':' S6Dag6 ;geaieicat«4 by ,tlie BE.oposed .c.lubliouse f.ac.l.Il..t.iBS and;;(3a-sl:jtjB ie6g;fci;ttaia faie;a..l»tteB^wiIl Ae,:ccil:l.fictfid_-aiia .6%a pi^aiMSLsa.was^ewafcer htejstment •tscittSy Etir tbe.new .H^atet:Begeatqr Kaaai Hiyfce,!;.;'E*Ai,» Pg,I6.;;T,:,''V.'Iy C:C^,Pgs.'t0:7-3;8&,'•'• 42 41.A wairiety o£;Sir.a ;sgee»AS IfaWfi been.obsstyeft.iaaa'rsBOES.ed.'at::t&s' '.V!eaief^^;S g!:-"fs fiflyp ''Aeen.'Ua&atifred-';as..Su^reatla''• oesftiicg.1.ut "-tSe:^Br63ec^:::Arsa..•llataaial taea'etXl.ea'.^iBel'uSe;'aetgB;,^-cafes,.rats'.aiiff., Sga:.':t6-3.8^''::B^iana^S'ii:Eyesr^^,''V.I.,CCH,< B'F iS .ai'ce,.:''£»%., '3&8,3«, "n®. 'a. by t;fie ;Ara» di.veEs.e. ;anH;4,As :..range of:&cKay of enyiroas;gab;i:1;ata:'*iriu=eli'^aTe ^uit:Ua*eft ^xxfbiy bi'raa.•.aad: -JO- sfao.rsbrcds ^iec'tBa,..in\,tlii;s .loxaafeion. 'speciss :;hay®^baeii:;:•i;aiBii£i;«.ed':•.&a:.1sfie 16-16;.VWKtia Bsrveyi/V.\,?y.'•I', Ha •endeBi.i.c •'E.A,.,. 3,S$-3.6-».. 43. e nafea.ve aB3ac:erH:fca: W.avws 'asW 'BS.xet sysciss,f&ssk.iCieS '-at dna'-:^fc&"iE»l'i-^:pti;e9om3La8.n'bty"'iat:& iacluaing f:he Paci.fle O.olfleR sueh;;as.the..Wedgie-fcailBd a low g^asstand fcype ttie: :s>f'S®al>iTas- •:.rhe'^ove^,oS .liBb.I.fc^t;.snd.as::a Tie&u:I;i;.:1:bie:dsyelffgmeiri:»£the valfoQuxse.wi,^.Mkeay :Iac:c'e.ase>-;t:;Se;-presencs of tlie ploverliin:':tae,.:aiea;..^•Elie!;.::ittsox!fcat;it ^fi£,tcees iato the.area flS 'Bapt';ctf/.,fBff:;g!bI£.;»:eui's&,:'tte8s'.eto)E'ito>fc wtl'l crea'fce a g^sateac'aivSB:r'slty:.^£ilsviaa sSaees'and .habafcats than arte ^c:lM;cent.ly:'ayai,I,abi;ei::af.\the site and wj.il likely pesult.in .tfie'increass o£vanous species of ttee-nesting avifauna.*E.A..,.Pgs.16-18;Fauna SUEVey;T.,V.I,CCH,Pgs.359-360,3S2-364. 44.The tBajoritr df .Sheacuats.r &u»:,i:Aws.iiiea.tified a:8]acent tfc J:ae"PEoj^ci:,';Slt$i.ai;®,.anc^^d.ofi seaward,EaGlng' q.U$:Eis ciufcside!::&£^t.i!.e^;]Pt03SGt;:^,.fi.reic(..B.&,,P^s'.16-18.;•T^,'?.I,'CE3I,;BgS,,-3S2,'3SAi.-'/. 4S<Oevelopse^.,.«£'t^./g&a£:^flOBi^-'-Mi:13.'aftt 'bave an-^a^s^SWa.iSi:[wnf^aftf^(^'S^:fSBV$:i£3.ei .birds j3>s'1:hoseexy^ibeS/;^'^sss!.^^6:^ax^:o:!T-«i]£!;t;B8:';'habi!bat vUlizfia ^by tfi,oss,"l»^asa .<Sn^.,;t:Bag<aon*raT/tlW.itovelapnMifc of felie' ^ttcse ,m^yi;,.] Obab]^:^liEBjar:ove fhff ha&itia'is temsrkably ;-of"::S]EtecleSi.TSe developneri't will not•iasiage:gBy'biFas ^nelniliug.sea&ird?such as fflr .slM.grafeory shorebirds.Ihdeed, gontyo.l'•o£ttte CQastiri.se occess .aad''oe'^-iSSPSse'BKiste .vebicular access a;lo.iK| may .i.Bipfove,fcli.ff Itabitst:for fcte sheaswater SSl-•S'.f V ';fiKe!,aT»rotse^' t&S .eoast' dad;sfiieff' Fauaa: cio'ajStSl•^t... .CC&,Sg:.2S;. ayi£aung.B<A»(Bgs,16-19;•9:f,CGHy'Pgs..362-363J T,.-.V.XII/ 46,.'abase portaoiM,a^E elie Prptetpfc •Sa.t^.ngt.ciiEr^pfcly. sisyeseS.'•6y:iswg9xcsae!Ei.^ld.;coitttaua ^ssrtil)^ves&i;ataci»- :and'wa;[;,ipUS;:,Mee!ay as'^csSefsJ.''vegetstimi:"tpMns. E.K..,'Bgs.\18-19 ?'<'B<AgMea3..-giawey;::3"..^7.^t.'£GH,. Pga:.l.SS-ZfSS.''•••'!.• 47.Otte,hun^e^.£yti:y-»iae^:(3.aS),,:species.••c>£:-'(Ipra.-wera i^ey^xi^!'^l^in."aagl.,^;a{»n^.'^o^:t^e:'Zr@3-e^'Mte^;af iriiicih las-ssf!^es^.^)5awe\^St^eiiitat.i<sWae:eS^^'iy ';arB. isa.i^eri&us,i<e.:/::-na'l;'tye.':):o tlt»:isl:afflas:;''aaa.^El-aBMih;]ei;e< 5;ate anSesii.&,1.e...,aata.ye :QitlT to.1;Se;l,s3iaa9s/,'aaa'S -11-M 6 42 SS 7 or •alfehoqgft ;tciipttK9i," zafe.wc CQtfton.ly bejeB 'aasati^felsa W.stXx ,' o-rigmally of'Edlyn^s.ian .tateloSiUCtian..Sg,,tfi%afcgnea sfeeeles 'were ''£flani3'.';2.n"t}ie/'.BEo3sc!t Arsa:^e»:'seseies,'::l.iteluffj;ng,,•hi.nsStna-kaliakai, nana a&a (ShBlij-ltal a.re coasidsised t".:'Tfioge.speci^:;ata..Sescci.aea as'fla$ava:'c<iftst;al ;siiiC.aad'l'vegeta€i;on aarid;,!BavB'ss .fleKu.EeiBg 'vtit'Sis 't&s.,'.cicinseicva'tiion tlie ai&awaitd '^ .EuA.,Sgs..-tfe-iS;;:T<:CCH,p£lAej'siEeij^ect;firea< pgs.'1»8-%08.'...^, •4&-'BeyiBS.osyeaK's£t;h8,:goIf'.cBBlise:®t:Q3Bet.:at:.-teKe•.:Sit^'^d:13>..'!'>ave'nia ^aBv^Bs^i^iaffeB't:•:an^TaTs'6:ir'"'cleBls<:ed^ ea3CT(ic''ot'iacti..genpdls"1 speci4.es of p3.ants or on Elora genej-sily..Tfae ci6u^aent;:ef the prqject Area to the CQnsffrvation fllstriGt anfl exclusion of off-road vahieles albng fche coastal stretch o£the Project A.re.a abattlng tKe eonseryation Dlstrict will inprowe the habit.at 'for eoasfcal .strand vegetation whicb has beeii impact.ea':he.ayily in the past by snch vehicles.B.A., Bgs.IS-iy;Sptanical Surveyj T.,V.I,GG3H,Pgs.ig4-i'g rT.,,x..111,eea,B-gs'.46-47,.50. 4^:.$he;.-Apel:lgaBfe Saft IdfcecYsnois'fl&FaI exe^its.,lAnoaa C&aac 'aSld Dcffoeby:,;'.lao.,fesp^cfivelY-,'^&ave «aGh reeBni^riitedi J:!tAat:^aesafis iso liakawahi duae npt be'•pecttda.tted-^iSi,.oCf-rg&S/^yatn.alss aa they bave bad tf•deCiLUltie,:':«egSi6),i^;;li':i3n^&et:?.on Sune •vsgefcatl'on .aua Bave ,COi Ei3but^_'iiteafciy^tQI'-a)n3i^iton.fff'the dune./aeea.'EaBh. ^s....,ie8cmiBi^ae^;'.^.6Bafe;'^^6ctes^Ei'art.,trafiElc 'EQC tlie.•BWiaose^-'Qf &i^ai^,''S3.}ta.Bi3»'';:-?aghfcseeIa3 aad the like•eOrit£na6,/;Bdf -!Se:':al:lici'>»^:;'.'fiarQtBr,eaeS h-ss ceccaimeafled 'IaadseaBUtg Mt;£i'..';^iiS:il2-9.rotre hatiwa .species;t0 l&eal .aa'^iifcQnm^ta'l eosditlons naciudihg salt 'spray 'Ue:inc:or{tpra't:e0 aoto the gqJ-S OQurBe j.'aadscgftlag gilaas.':E.^.,t>gs...1S-XSI»X,:,.ff,X,(iCH, Sgs^.ISA-iyS^•£...V::I1tI:,W&,.fgs.46-y)',SS':.•• &i r _OiiaU fc¥ ;:i.s.:very icesfltf' vom •A €&e 5®,,,Tbe. :Sifs' nsy' constractloii contcbl ..metisurss•iiba,ss':w£II;'Si^LS(afes; affei3il:&,:if .as'f^'-om•arsas reiBulti-Bg.S.S:,'Bg •1S:.'" 51.Ho snBstantial adyarse .enTs.soitgieatal or effesct 'tiUl :i;esult;.£ri!m.^ie •'.'dev&lepmeate 'Of;''••tfe 'eoa'Ese..Iad$e3;•tiia ..:pt?ceHteai:.CT£.feKe BSuaee .jffi^Iuca. tte iPtBliecl:':'Slt<e:'will.;reauce SUE-ecV 3;Ofl.9-'fegTn:.'a5;x. exl-sting.'air:.flpiia'l^ty /wi.tjteiil,and'.;8r0iuti3.^tfae•s&o -tsra.:^tt V'tciiaM^z^ :i>»03ee^,:.i3tff3rt$ff :?.a;te^ wS'•ad.enpia'bgv..3uat ducing tfas..c6a,s"l:r»etion and ^alleviate res'ulttng.adverse r&sort an3 residen.tial .12- -%;2S:«S quali.fcy;i.mpacts asSiOeia):ed,,.»»'tfc&:caae Itariresti;ng AH ^at^as.,3S.A,^..'i>g»'t?.. '••-'•!. 52.CohstiustioB !S4. shprt-lsgjcm Se'sifcBietaon liaur^'^'w&ei'e td" associatsd .w»£A *}». pf Qse,;gc e-.;cqttrsB;''aai^.«:>niti:ibu.tff.t»...*ae to^t'ea®osrar'3;i^^;.IncfceSEiss',.'aats?<:'^; »'al.&, o£:eoiistrucfelon- 'Bicta.yttifis^itot' £Be:.'actlwj:t:iBa:\wi;B^&iiBatite"ted.^tn . ^SEeas::,^A :l$I'^ffli..WIgatBC anfl.a'lleviafce any'assOGa.:at8d.:w:i.th sueh aetiylty.K.A., ;?g:s.-::IS--22-, 53.'Btte .55:,. linpleneaeafcion of the Prosect at fche: Site is nst eatgected bo.increase noise level in fehe lcing-t9''n.An increase ia traffic,which wouia be a pfcliici^aJ source of long-teriti noise level inerea'se,is 'WS.exgeefced by virtue Qf liiigleitentation o.£±he pro-pgsed PtOjeot.Consequentls-,the fles'elo^naeai '»>il,I:not ..have any SMbstantial adwerse 8nsiroiunenta:l:d&eeologtcal effB&t In feerns o£aai§&. Ta,;i;lle extent tbat noise nay he:a 'conc:ani;»iroadside ;la4a,Ei<2apiag t'?lll buffer noise .eninsttog £rpn aifficimi^tlve vefaicles.E.K.,Bgs.19-22;T.,"V.X;SCH,-;444-445.' AF:dhaeolfli:iV..and':Hlstorical.ItesouEces Sas-ed,'tll»"':oa gll ttie ewidence pr$sented to the Commissi.on, Site fias laarg.inal arehaeqlog.ical A surface and subsuriEace survey of tbe areA'ifleBtified a total o£18 arcftaeologie&l sl.tes 'Sit&an ana:;aiboufe fhe .Project Area (7 pf which had been preyl.oasl-y la^nt.iflea in .tbe Juae 1B.7.4 Arehaep.lQgli.cal Res^aceh C^atei;of Bawaii SUFyBx),Subsurface e&cairatlon eoaducfcea ag;patt •of £fie 19Sff survey Tsvealed.ao sailasurfiaee :c:altural..deposifcs.T.,V..I, ,8e8.,-'egs..;:213-2:i5;T..,;"'^.iii,.cyx;,ygs.y-isj ,Surveys..;..:,••• s:i!fes tefeia.ti^a-ed.i 10.tiaye importan-fe for,theit infotmation anfl tfarouaii tt^e reeordatioR o£fchat furtfier yrofeBctive or preserv.afeio.n in resjpeet of those site.s. Eigftt -ot .yte,,Aaenfclfied sites 'aie important bo'th Cox 'ia.sS for fcbair pbteatial as 'good bf ::si't.e.tyjiss and/or for feheir cultural ¥^:W.F,i2CS,iPg.214;T.,V.III,CeH,PSS. Suryeys. ^E''tit»s,-18, ^bgBn^x'deBtfeiiBea as'. Swve,'-SsffWt'.ywSwcvS laf-ttriiia.t.ibn anfl ao Bieasur&s'.®rB: •theiT :lnfi9i:sat3.'Cia .valKS', ?l-l5,l -ia-M 642 S€» 5i5,Vbe S s?. •E-9,X-W, slties'reoanimencled fdr prEsseraEa'Eiipa ;,!%.t)0jf:fa,,Qia's;::wa3.feBe Xnt&r^en&ts'. iiqgBn^aUl"~:and:,.WiUi^ir, ^teave been.',i,abel©3t;;:T-a,.,®-?^,T-'7.^,',T-8, -U \asd:'323.6.''•Thjeir .sita ;l(te;afeioa is at flgur8:1 of fcbe ^SBvised S'i.fcias 'V-'J and f-S,'airfr '-locafcea fiBe:..BbattaaFX-fff tbe;•Krogiee't:.A;C<!$.;"g:;t)»g.;'E-a .wi.tteta.fcae ijetf,;wsr'ge::Smtf8:aticy.."\S3:tes-.'T^-2 tbe .ovstall •^'iTOj^cti;Ar^a 3.0(:ated 'atop;iEu'a tfiacefota'•'ao'fc.'wifcitin.-taie.-linu-fcEi o.£golf tov i.ns'roveinent. stone-sfceppfid o£Pu'u Ai'nako Projee.t Area within an area couEse or any course.Sifees siae the aot owts»jfe:wE 3-s.Idcaitad 1S 'wlShia Aliiafca 'ahd ^aatKaxs '.Tno'r'^mitlu.a.''.as^-;B:rsa::':; ,^Si;t:e;:'3'-3-''ls'--'aE^'' ^sitiiatied).o»tlte Beaward anS is..•seeni;ngi;y'lioea.feed on: baunaaicy...Site T-3.,faowever,ia prQpo.sefl .for cp'tiBtruotion of the .iiHBroveiiients.assooiated with the T-10,T-Il.ahd si.fe.g :322.6 shoula.be fiocsiaBrea a single si't.e .c.smpl^x ca?BS.isi:.iffg of steppea ei-atEorins,tlie l.argeT &E 'wblpil,:'T-IO.1s locafeefl;wi-thia.tiie ;Cons'e3;ya.ti'on Disfiri.gl:ipytsiae.the twuBdaey of tlie :-&!?$&.,Tli^:flBBiaU^r:flpligtEorms,sl'tes T-11 an3 .a{ig8aT.^I;C!,:^;./Mit,ili::La;';fc}ie;::!P?!pje!Ct Aiea..T...,v.'i,, CCBy ;'egs't/'237-232'?<I^EQtaSo3.offioa;3.;Snrveys > •golf •fais'lt szsaxt;'ifVSc:^tBGff!^wiSe&:.:.sctS6 leval ofl£or':'': e ?ft BDgaa'efjcaat aEcliaeblaglca'l sttes.'rangi.ag. ;Et;om:''eo]iS%a:'v~a£Aon';-]6sa:ifcs prtservaticB as-Is and sit^ fX-Qf.'SGiiiSs}.:'tlttSo.ugt],;:;:-AntBrpretatlon <pab3,i,c educlati.on'9W •ESSB!Brca:":fi'€uay)_,:.Both yie.Appllcant's and 3;StietiWnc(TS"'expejrfe&'eoncu-r that the sccipe of pt!:e'se.:CT.B|fcioa reciiMnmanaed ;by Dr.Rosendabl at Table 1 o:^..&i,s;'yro:fe8ete3;we:i!^asuras HeiBO sfaould be undertaken. 6y'fcBB iSpplicanfc.'H'i.e ^ABplicaat; 'ha^!..ggreea :<;Q tKes^recc>n«Bended {ireseryafcion meaaures in ot'Vh6.BigfeiEtc^at arcltaeoIDgieal sites which laioluclg aoiSsetystvSfif,;c£aaring aiifl cleaolag of sitea f-vf 'avS 'T-Si ''SfSi S.aXsesxeS^tisn"e£sites^;T-2,.••T-.3, T-9,a;-l:o.';i'-ix...l;aaid;;:•323-e', .'.asd.;gt,sti3lti;za-fei;og;,;,:"sincing .ne^sreEss.':T,,'"ff'.".r»/'8CHi,' 2:lS-2g»,233;"T.;;V;.II:i,; KeasyEa.s.'iifeiito. t&ro.ugK .Gl^aEing aRd .SfSier' ®g..'-H;fl^:^.;:•V.:,I,.,C(SH-,Bgs. C6H,Pcfa.14-15;:.Prptecfiye 5&.TQ..laaur&'bsf.Cet sane :Srotind' W!W steos.ld ee'a.stenci io'a.-tlis bouada.ri^.o;£:;'tbe. this.inantteE iaecidi&atal;j.itcarston; awsiasft.T..,v.i.,;£G&,?a-, of .the g atgoifican(.sifes a tiie,:S3;t&s .'siWBia.fie .alaarly.'EIagg^d &l o,.'•aii"tssf ^a^yilsKi'ie't»vask Ki '-tbe'on-sita so.'Siial;tfiBy^-foiow wSiet'e Xa- be si;fces .-are.. int.o tbe-aTeas'caia .14-M 042870 S:3;Dae tp <;he''£tieaiibte ^aatace !Q£'goie'CGur?®.Ses,igtt,t'Ha .arcfaajeqlc^l.cai;''s'ltiss ..Kitftia':1;iier;'LrwAsis^.^A»BSboundstl.es ,aatf..on :fciia .;t)oandaFt<8S inay:.be sucGissfiSutly. ;wt;eg.r:a^ec(;;i.atq/the^cfdlf;;cgurse;ana;li:lias(pffeaezveS:in the.lloag-geca>"..';as.w&ll;-<t&;In/'^tli.e sfaor.t-term cpnfitsuctiion pert!:i4.'SiS7 gltes:eatt.Se .iitcorporafced ,asa ;it is ^^e£eraBle1;<)'iacergorafce:"t:Se..ai:ctiaeologxcal'&l'fces^.Antti'tte'''^e;cira'se;'ls,'-n:atuEal:l;aiid eultural -&esfeui;es^;.Inelaaa.n.g ::t&ei-.si.fceig;',9stttfly."•Ktce coucse »ilX !"bs$i:)e£'.;\s^W8',.::te;,Ei<eserye";the.sites SeikKec,•.Biaa.ffifewttaBoe'•ajna 'c6 &coa..or.:tli8 sites, an<t':').iH.I;l,^.Ao^.'yecipSEdi'ze.;':itluB3,ie ^aeceiBe''tb."1she sikbes to. :iji1;6res^6d;^seEsnns.T.,V.I,GOI.,?gs,.:2I-8"Zlg,:231-237y;se^alSSo T.,7.III:,CCH,Pgs.14-15^,IS.-ig. 66 B&t&t.he &?plicattt •s.cBd iBfcerveBois' experfcs haye concurreii that tbe Survey and Protective Measurps IIetBRTandum prepared by D.r,Ro.sendahl can be iategr.at^a lato a cultural resou.rce management p.1anfor.t&e regioria 1 area la a successful aianaar should sugti a piaa.be develppfid toy otliecs in fche futurg. Bot&eafeteaKtss ;fBr<:liei:agree that fihe.significaat sites locatetf .ciaa'.-liB effecfclvel?sSudi-ea iaclspeBdeaft;o£a re;ga.onwi3^;gla;EC:or .Swr'rey^.T.,V.I:,6CH<Pg.22fi;:1r.»,'.»;,.:rxiy.;::<a i.pgs.'13-13. 'Ha iiut'al i Haz a Ed 61.,. a^'proyetsfc.ArBa.,.is..,;cn,(i^lida:.:of ,:aiay...fIfiKiA,•'tey.*K&yFlopff.^iasuranee;:'E&t:8 :«gcB^f'ISSSf 't) ^.ths^^.S.';,Scffir-iSqrp 06 .BngUnear^.:•./XBaS^lt,. 1:Ks:''Ba;g:}ae<:';':ABea.5;ff,'.loOa<::ie&''SbBye the:'s&drjeliae bsteind liinB&bone^a;n$;'.'I11:KQ!&i^fe calc.aerous saaQ.dnnes whidii :Fi:sS.:.:aBpt'piici,iBa,t:el^.:30--12p .feet ASove ssa level,.T&a t:iase^.f:.Uao<i;...elS'.Tia'fcioa'o£a poteiitiial 100-year tsunani i.auttaabioa ,Is CHtIy 7 feet accordiag tq;:'tlia FIKM nap gnct therft are aQ,:\.E6otenfeiai EEraine d'od^..eiIalnB which datt ady&rsei.Y aSfset ,tBe.3E>rpBerty,':6t£er aatural liaiEa^8s ace of K.Al,.,Eg:.2,2. .ng;'c&nsisqaencs to fcHs SEojest Slte. 62.•'JSse ,greecrsBd ^g;gi.£'_,e.our^8^witl aontaiai^a..Isitsje ezgaase ftf •gtSen'-.:'t:iirfc;^scafc^tea^aliBBSs;'^iid •^ts'rsetf..•'TKe^iBjalQt.sfciuiaEurBl :'is©^ysaents':wt.lS:'bei •l:te/..;golf'tttsbbeuseiianfl ,naanteact6e»'.fiKiil'iti'e&t'S;S,,Pgr.:!^f:.•S.^V..T,;XESt Pgs:..^00-2fl;t:.;.::.'''' 63.s'iia go:l?c'labbousffi.•(aci-li'tatSS wl:ll'','B9,.nesl:led t»n thiies ntaUKa .siSa oiE Pu:lu :.Alfli&g;aa&±)s.evs£aye!wi'll Wik laipair viaws1:o,y£;Fon:tor;SlOEg th,e::c>c^aa.'"Rirouffh ttis -15-M G42-871 .of tlte gplf BHurse.views.fco,attd £a:otB :t.lie oceah sna^.lfftie'T.Bl^sho^fiiiBe:yl.-ettSy-wtll niy:fts:it>Ei»cfeed aqwexsely,,.:bufc,•i'aHier :tEtRrewed.,The'-iaaiafee&ance fajciility fco t>e;tocatea.af tiie.field ::nur^ery site will b«scF.eeneg .with s&rub®anfl tre&s ati.fl •aj.ll not iiap.aefe aaMlw/niaKaA.'viigws,aor.;fche viiej*-aloag ;Blte shoxe liae. Ia.£^fc,,.^s»XttBimeBt':igy':a;90l£conrss'a'tth.is sita m.11,teB!ttIi:,;.la;;'iaie ^jESsnj^'ae ^Tiew?fcgwaras the ..ossaa;'aMPteaBfiBias^ii'^uItiag:,in.,:'S,:.''tiioi'fe '-agstheti.cally piea^s^;:aiid'';'vaSua;lly;^banffed'.'eayiF.ofliaeBt;^li:H tfte Sa'a laE6Et..t;toaa'^&at:whicli^'pr&g:eBSl:y:^3u:sl:s:,,'';g;;A.,Pg.22; T.,:W.:SL,,::CGH,Pgs.100-101.:•- BioIoaiaal/Oce'an :Ma:rihe Resourtoes . '64, 65 .67.. ss. 63. tfae Health lliB.partaeat is the lead agBacy to .assess water giiality and.watet pollutioa in the State.T., T.II,CCH,Pg.,96. th®watjer qualt.ty in 'tlie,Ea'.a :area cg>a.stltae,,'can be::vigry ..fiFUSn ciesCTi.AJed -as iaajflK.•;t?aSf!,^'..^itSjea;/^nat'ural''" S;t{U:ati(f&:;ia;tSfe6aEge;.'in .tfis WStt^ES;.,':,','?.:.,;.,W«<.';E,.>CGff,'-Pcfa. EQ:,.'..^'•i(aainft''Bfica.i3g^:|&gp<2ri:. k) (tgegi:':'in. eresi®h';-rsncl'. oc'ean ca» 172-173,and V. Unes ot .SU^aaTG.axie fc&e tt,ecir, 6S.axfecEigsn,•waiie&..',i^s'l'a.c<:«^<MtBnt of ge^jrilizer',c.aa'a.iBpacfc:•.maEiue ;'^r.esbiMB;es,i.atiluding.water•gftalffy'^aiaa.^Rpr-al^teaSs j.a -aasr .sbore r®glans aajacefft: T,,:'?':;I,CCH,ggs..163-177;to Viis .tfirff3iS<*C:,,ga;£e«;. tlarina Si:(Uogr'-:Rep<:>at;,.''••. Cljrtrent tttaliifeatiYa ,&ya:I,uat:4.pi;is oE ..tihe,aeftr sliqre vs^i'~gs^i:i:^'-i^fis^:''^:^±Se!^'-^^~e!>llsii£tMof .any'sa.ri:',oii'aBy:''sor1:":,o:£;a3v»)cse 'iefifecfe1 •;ttt;tr.ijbut;aBl8 to cAeaicatl ififfltratiou through ^niaofif pr ..grounfl water at1;&ii:i)t>1:8Ble;'to':;sugai:'6ane;:',6pgrat;IoiB,.T..,.['V..:'-l«;CCB, :pgs:.VJX-flS;:'V..'II.' H,,'VS.88;.•Masiae: isn'fcatuSs.fcp ®T-e!afcad <fe'tt^. to .iESiga'i;®SnS t.,:v.T,''CCH',. 5to crestiiSB;:Q£,a-^g«^..cou^se.,,a'fc(^th&B):oy8ofc';S£fa'-.ana;;tiiB uiTt3iJ.ZB[fii<aa \of..:iSEtJtI.iietS'.•on the':'ffsgxss'^aad .ef£Auent-:;fcff:'^r^aatei,:.t36e;::.®<aa(ES:e.-'itillaesult ':,ia-'ab&ut l/20Kb of :i^''aiE]^ejli^[sWKoSw^.w^..^^9asa t®ter flompar'ed.to 'Tr.e&int •sugaxeane;:usagp ;at •l;hs,s^te.'T., V."I.i ec®,;:;Pg,Ig<?:T.,TF.l;E,.CeB,.E>g..99;Marine TUe. eStl'a.ettt Coursa. •utillza a;^saciQBd^rs'.tasat&fll' 6BB34'c!aal:'*s.^sewsg®;'ti:;'etalsme;iit ;fit .BBTt ^jEeT^a.IxzB'.-fhe 1,63-177;•WstCfsei'. 8iol<$gy:.Re&ort. -I&-N042872 70.Tbg ConyeESton of wi:];!r^aultt ta.no t'o fche A'e'ar ..saffyroiipetit.ai 'or tifcie :Paoj^ct.Stte.to. ine.cease Att ShBira'-:Biivlronaenl:.!s£:£ecfe go.it.cttgrsfi.gTte; i.ttfyogitcKtbisl .ya'-a&yefSB will r6su tjy vi:]i:tne:QiE"CASB«:.BSss^'.'T:;:,^V:.S-,CBa,fa-.164. 71..;Mo isonc.liigi.'ye,^iaei^.,^s .addnced rBgaseaisgi; e: :88,teitit;i..a|.'ingac^s.,.;wii^'tBer",aa?;'er,stt -'&K ..t»'thsnri:Ss»:.60 ;tSe "•ei»»tr6nmssfc:,ftfc..;ecc>l(»gy..;o-£:,:tliar..of£-s6oTa;;ij»a,ter'sas'a'.'ciesiiX&Sf;'.'CBei [wae-::QX':i;cSets^s3:'^Usifd.^i&as or •'pBSfcXGi-a.et!;fzi^i.Sie,:'Sfojec^a,T:eW.^'T.,.'W.;3:-j;I^;:,Ci2H. 72. 73 'CMe .cutteat.•^^aT(:!aa<9<,; Bsiratlo'n;;al6B9'.-'t:'16;':cl:]ssfc teas-a tnore dB't;iimfin<;ai\:e;EEeot^'in;geiieral on near sliore wafeer gnaUfcy 'tba:!!'»iII ;g®3-£caufse nse.T.,v.II,GCH» fg.114.' Based oa the .testiinciBy O.E.BX.Stev.en Dol-Iar,it is unneeessaEy.at fctoi.s:tine to Gonautst a laaseline gnali.ta'tive -Study pg '-fetta.aarine shore organisms ifi tfae area.\as £Iier<B::W.riOieviasBes tliat there will.rasiilt a nsffatri.va :t)(^iac<:.£i!Gtn;.tI»-i:golf course QperajttBn.T.,•?»'li,.,COB./"EgS.':..l?4-i;l?S,:'-1'. Bcondai'c;Imsaet •ri. •7S Coast:Tactsi;cia'.,and.^p.e^afiioa-eif:tha groposea getf coucss ..caa.be;.•Kip.ect.BS to r.esult i.n iaerfeasea eniE'le^menfc, ]pescs<iiaa!i.'lnepae and gfflS'e.rBmenS revenues.~S:iiect sBfijrti-tsiEja'-constructinn an3 long-fcaaB 'ecoaoBKJJC S«tieff3.t;s will ba realizea iff.'tbe .Koloa-fio'ipjil (area coinmuaifciss as well as iBidi-rect eicb"noBU::c BBagfits ip fche 'r..est:of Kaaai and tlie Sta.te. E:(A.,,.Egs'.'^23-:24..,. Dti;ect;eni{>?6Slttsnt:,ts'exseSSeQ...feB,Tasttlt.durixig;:;Vba. tempffta r?'":con.stru.ct:i.SB'.'{iSasS ^;at(3 ^CKs.'-OEe?at.?olIaA:'-'Phase: Of 'tlia .goliE '^coui®^',.£aeii;Ilty..;•Tiiie;'.:'ApgI4aaflt::^'';3ita's^ repiBesaStB?^;tKafe ;.;ifc^»a;l;2.,,esde:^vttr •too^[-usffi:;.as~.Aany;;'tocai ;:aiS.:';:po&sxSt:i3-e''lac IwfcK Miie.<'coa&tjcuBfeion and ^ba'ses ,o£;fcSa ..gR^.boaa.se-,,'"Tbls'aG.fci'ylty keejpiag ';s»it}i,<:S dgvgjloger''s btstorical Gonntee!ti;&&witfi,:ag»el..osnients oa the wotiid he islaaa. lii' i.n E.A.,(•ttS..23-24;^.it,:Sufr.'SSrg.. 'S®..tsdlretrt;:eiB!£>:Loymeat.'wtll :be;.gBtiie^atefl:dyg.eojiigaaies sypplsii-ntf laafce.i'a.als and .sSi'vtEKs n68d6<i ;£®.c(»s£xutrt; fe&e:''goS-S-'cduTsS:':and-''EeiLaliefl':-'f:aei33..i;ii&§:^.'•Tnducad:''^V&.i.tSl -EeSers to .adaiti:oaal 3e6S creakea•tBe^'BconBBgi;tffiieu eoiis'fcructioa '•WfWsrs ana and;'pr:cit)Ttiel;ors"iand .supgly Eirms sfiena their wages.anft'-saXaKi'es}.3.5 .aiisa,;expectea to result from -17-M 2S73 ;tKe,laitEoductsiQn of tl(e.g9%@oursB,®peKcat;ion at yie .^roj.ect.'Sifce;.Tb&G(>iaplit^^gfe'.i.aili^ectfc'anct'inducsd emyyosiseB.fc 9et^Si'Ko'~^lr«^-';'ew:)j3y»e ''»ftl:,:K9Wilt.ia,a eSfecfc .geiieratl.ng''inors 6Ii>aa''6ne jobfpE::eaGK g»b crfiated afe the golf course .coasfcracli'KMi^.sl^fi'.,'^S.Ant Pg..23-24. 77.'Cottgt'rueSlon af..fciie. ':28;uoaStS 'fco:arid to requl-ts a total of 12 :tn Be G'te.atefl 78 •1S: complefce' Eul.l.-t;iun&,ac[uiva:Xen;t;."3;obs ace•duBi;ng;;t:Kat;'^geE»:td. 'A full-tlme .eguivalent :i;epresen1:S 'a;efeailbiaed aggregafce'of full •ahd.paTfc-fcime'eBBlOy^at oyer:-::;fche!^worKei;nont&s to be.geiierated flttrihg t&B ^caris:iEr.u6tii:>n:Ehase Qf the oparation.S.A., .Pg.2-1,•••••••• Direct golf eourse employneat,incluaiag.einp.loyaient a.t tbe golf clubhhouse and malnteaanc&facllity.,is e^fcimated,to iiLGlude about 86 persons wifeli management persotiriel ..aiscottating fpr about 10%oE tfa.e golt course S.A.,Pg,24. -r9 tt.:i,a. :l6ng-tem tbait goy^x'ament;revenuB ln .tAa ^wil.l,'i4cr«aisB(:tg"yxctue.^of..t&e of;the p;roposed £103ecA .at:t;i;ilint?at)le ^oth tiy att inciease iv Che srpperty tax Base sina opnBeguent property taxgs payaWe to tlie Cpunty,as veS.S,as.tax .revBnyes r^sBlting froat earniBgs aiia ?E§,a3i.»g'o£.wag'e.,salary .aliS g.rpprtetor's .itiocuile .'ass.Qci.a.ted _wl air.sct,.indiEesS Baa inaucea jdBs by the oBera.ti.on o.f fehe golf coti'rse.E.A., 3..24-25..... ^he as> 80,Eaelt .o£5pie:L<!~6coacmilc;;lxi®acl:S-•is bsne£w:l.al ;;ana-..:w»1l.'i:K>'t;':^is»e<itw-.:arar;a.d\rg»se Ameacfc :cm 'fehff,is3^d:^^Sioay,;eaviE orl;;ecftl<:»gyi •&i.A.,'Bgs'..2it-2&^''!'^'1 ,:''':'::.,:;:' ;PtibllEi::Fac3;lii;i8s aBa''Sefcv:tBeB :..•,, 81»Theoost'fco Gonst:riict:.;t;fae:,..iafaa3t.r;ucfcuite:.rfi^ai.Eed'.lko•fcSe :gslfi'cbjixse .?Eff^iacti",Mll '-be..'iBNarnS^bg'•''^WSIWQJSS^sf '•t^'.^>a:ff^seac;:;gotf.\;c;i(>iies&'tra;!!/Eriguiife ,tJael'^^tEe^isa.oit.'af-l,iP[0:rpu:i;-Softe|^'!».l®ng-';;:t:lt& /m^uka,'ttoanaary^f-';:tHe:;jit^rt:,: ;lifiga[ y'::'Kauac ';Ho£e3S^ff:iiSe! ,as WB'11.^as'.'$Ae .s&asfet-'opfci.W.-' E.;^•a ^;:Scfete'wayyt:o:tlie.'"g'^0f^se&:,ctlcrl:E •^e'lwfiliious^,:::a,';d$stano&jof afiptexa.mately 6e 2.9fttt '.^eeli..:'Ifc;-^J:l?;.bfr'.am^OYea.^^ccesiVw'a ±wo-t4i%^.eweS-vosa/"\':j,S.,:^''spBplaancei;.^feii-^.'.'CoanfcY steaacl;ai;as,.m.tU I^Ssl8a^sh&aIdei;s'aiu:l''Ian(Ssttai>Mig:.:'-TKe. B.ortiOti B.£;,tKe:::BQ.ad ,whi.eh aaj.oitis fche mauka bQundary b£tKei:Iinte3.sa.i;s,;wlll .be develogecl -by tAe hotel owner :EQ'E .this rba3 segneafc has glready be.en •1S-W 042S74 obtained fcroa fcbe :<;ounty iri eoaaeetion ws-Vti, Of tKe'Iiofcel,.,.This 'roaS witl ialsp^be.,ext:enasa,, tlie:pceetous eoanty apyi.oval q^..tlie'.itoteli>' 'towai'as tbe tie'ach :afe.Kspua.loa :B.ay to .afforfl 'public aeGess:ts :the plaaias^gutotic^3aeacfi park at the hofcel site parcal;.•E.A.',.Pgs.2a-27^t;.,V.!„OEa,,Pg..10S. 82..VokSt)'ts,.waitl6i:.tcac^,vae-,:yolf vouise pperatipa'wi'll be a'yBltaialS t&n gb:ti(ia.;:32-i.Bie&..HatBlc liae runna.ag atong •£I^SlR^'tAttEf^l^Ttton'flf-Kiipu'Road.It is'ezqaeeted Qiat tliej.,>cSabUSasewiIl reiiyitre an .:avera.ge 6.»fi'00 ;gea..;day of .potable Wat&r.,Aay reguirBd tp tlte,eaisting water sysfem,whicB wtll ilici6as';aa;e»i:en?:t i 'oS tbe ezistlng transmissloa li.ne apiE'r.bailnateIy 2,,:QB.O.Eeet from tbe ^PO.IBU Road terminus fce fehe o.luh&ouse wtll Se effected.by the;Appliffant as pa:rt oS t&e aevelopmeat .o.f.tbe Hyat.t Segeacy Eauai Hp.fcel aiia.all fe»s .o'f.theBepartment o£Wa.feer will Be paid.Wa-te?:B.purce'1s .curtentiy suffici.ent tb safsisfy fche p.rojjec.ted degiaBd.E.A.;,Pg.s.25-27;Staff RepQrfe. 84 Hya.tt'.:.SSegeBcy.*B 83.flSceiaGla.tilT feEe'?ttea\»EElueitti;,.geBStated fey the :s^wa;^e..i't?5RSj aeiB<:.glant,as'well as ^WelTia <;o'J?Se!eonsfcructited tsy tite ^-waill b^'lfSiBftx'to irrigate tshe GOtirse.It is•fchat Ajoplican.t aay also use recyGlea surface .Sr.on mauka lands £or irrlg.a.tlon p.urpQses.. 25-2?. 'xswafS S'.A;,.', fla .fiabli(;.sswsgw c>ol:let:ti(»i STB3i:!em-exis$s.;;^n:,''t:aSi area n£.^tlitt':Bi;t)'3®o't;..''.ft};&::eaisfiag .systaffis eonsist of eolleis'fc^aa \and:fcreatmeafc facilifcies.Liquita geserated from ;,thB Br.opdsed E'rpjeot wl.ll be ereate,a ia'cQajuactiQii wi.li.b tfe planaea Hyatt &Bgeacy KSuai ::.ai:fcbe hotel's sewsge t'Eeatdient:plant,.whicli wi.ll be..designed %o .sst-Ylce ..this /two facilities. wi.il b6 disposed of in accsttEBaace-tiegulations and County wil.l',be aisgosed of fiy gctyafrB:? :Blet.fchei wSst:e,...el.egiient .WiII tsa-we.Stty- aft^ers®envt^afflasntal ev ecdlogical S9syta6S exisfs ofc ^an be aeveldpea wttBout tUS GfiBnty,,tp neefc frb&sfe neeas.E.A.,Pgfi.. »ast& wifh .Health Solid .eQatraclior. suiBStantial effeet ahd efisl:60. 25-27^T.,,V*I»CeHt,Pg,lOfl:. 85.Mequats.:.ppiiee.'.aiid.:£ire eIeCtr-Uiap-anS l±JelS6bo°S .lsei'<r^ces seTTicis:.any aeed'•.wtuceta ,:in^y^,:j9jEs Bropgsea,EEQ-iece...E-.A'.^Pgs*'SS-2"?. service's Eitta ace available fcp geaeratefl ..toy tUe 86,Iinplemen.tatiBa :af tlie;Projeet will not .bucBen :'puyiic agemsiies to peovide '•v<l&SS!,•sfcx&et-s, M 042.875 -1,9- Aocess B8. sewer anc!water sciioo.l i.mpr.civBaen) £,&...,Pgs.25-271 f sci.il fctes., OE fo-Iiise dEainage factlitieg< anii fire proteeUon. aot 8.7.Se'v^'lQfteani,.oS a.•tta(t:air;. OJB lanflB,:..feeachss or iCiaurse^,q!i.-1:h!s:<6a;ci3:ee1;:;.ftrsa wl.ll .accsss'';,.^',,'.re,d»iCe o.s imso.se .iSeiies:^:'''fcsi tsta'al CM'submarged'^Eeas-'^e&igaaSjeatoy titia meaii 1138 la.n®,Beveloeinenl;.p£the course will 9»?;iHtgroye p.ub.l;i:o access to .and alo.ttg the ,aaS 'Sfe foxegoiws areas...T.,"V:.I,cea, 235-2'76,279... slioreliae Pgs.loS, 90:. Coacurt'Stit .witb fche cl.eyalopmfint o-f tlie gOlf Goursd pub.lic parking facili.tl.es will:Vie.createa by the &pplic:an,.t oa arid oEf-s'Ite at the westera snd d£the cbtirse 9.*th%Bftse pl Mak.awehi dune (.off-slte),.at t'he noTtiieaBfcera ooa^tal -jborflar of tfee Gaurse (off-slte) anS Sl:^ltff'.fieia nuit&ery/naintenanes IsuUding:Iseatipa ia.:.febe apjE'soximate areas reflec.t.ea on ApBli.oa]Bf;a:s^ExBiS3.t l.,Att area suffioient-for 40::;aat6atfSx3Ce!^;w&ll be afforflea at.the western a.cea .asa^araa 'saffialeirt:to.park 5 ye&ielea afc ea.eh si.toe W3.il ^fli££araeia at,the aoa'theiEis.t coa»£al gnd .Ei-ea.a ;nBlseE!?;:BiaeafceHanogbulld;ing sites.AGcesss.eo•the viesVSw^sasVa.st^Eaetlity will .te via I'o'um aoaa,•tlia Bga6S.^:aQctes&^^ii^feSa golf clulibgus.e arivewaT anfl a !oiSfflp9cto^,.'(Ite(i:~ipa§sjAly npfe surfaced)Eoaa.to'Se-:c.oasteria{;^eii.':Sy.ABiEili^nt in the genetsil ai?ea.teflecfced 3i&AgplapaftS'^'Sxiu^ii^1.Aecess 'tp.'fcBe,fi^ld'riuc.sery' joaa'itiBg.;Eaei.3,ity;aad .ths aortheasi:coaseal facility «i,il 'Be.?yla 'sxastei.isg haul oaae.roads $with aiin&c .reallgrnnaats}a.ls*reS16Cted .on Bxhi.bxt 1.T.,V,1, <SG»..Pgs.105-1M;. VcS. to .Me&ryde :aad: 83.Sot]w'i.tBstan83;aa.fc&a .doswEe by otBer ,,gl;aptafca;giRS^R£^fe&eEc :a-cces:a»:...aBTawweaiKs :Bave': SugaB'.(•8)M»;^il-l •coHfcinaa:•liaul eat»8:\;'Ebafl':iBaaka..aafl. .iCB:(.<. TafffsS.'oaae-.AoaSa' toeSit 'sia&6.^wlCit^ to:;••uistlize.'.'fcfig .fiQftBeast:;'o£""S: .<jf;t&e coat:SB)to.:jnairiteaia flipen^.pufelic "»:^SE& Soi ..£iSSeEnien'--aKa ^ojS^.'w^s^fo^''K&c S:'ybxt3.ieSa^<si.•tsB®.'Haiil-. 'tSane":'•Boaai'';sys£e]fc'"ne®e«iary-'fcQ 'yacceia-ei'\i:Ss fiieia nnrBery::a^'^^i^a^^'coasisa3.^.»;eaEit3.ng £aci.1-£ties,'•'e;<•V».l,•GfX,'fgs[.^05-3^8£1;^29-43'B',:'^3A. 'ltis gatjfexng .:EE(e5.3:a't:aes;;'pr9:posea to 'i»e .creafced ;lfl ff6aii^c£l(tn"wil;fa the':Bevelja'BBent of tbe golf cpur.se Aavs tfsen aiteff la .air®ei$;'mps)fc connoaly used by £i:slierman aaa:.o.l::lt®rs fco.:aece'ss fche cdastline.i'kCeess -20-M 042;8?6 ftoa 1:Ke pafkiug .facilifci.eia tc.tBe ooasfclxa?',wi.Il be .affordea 'tSO 'the •pi.ibllc-stia.tli^.exls^sg;•.sti&iEe^iHe ;ta-ail pr^senfe-in 'bhe OausSr'iwtaon'SMiS*i.G<:.'adl^aeent;.Ao fciie Srbjaet Sxte,whic:l!,",aiE£Bir<:ls .lateral'aoGes:s,'aloBg tae'.entit«fey ;R£tbe coastliiie ^ajwseuS ^to,'lilie ^Pr.ol'eeESite,•su3;i~'also Tw aade available'ior-.'peaestrlan, aceass,AMIl<:3.oaally,a sfaorsline trait froa tSte «ci,st;usg Bfatt Rageticy Kauat s.ifce to the int&rsection of .tbs ;gftl£i.:^cowEse 'Sroject Sate .boundary auS '.the Co.ase.rwaCi.oa:D:l..s.fcriet boundary wi.l;l bs affbraecl t6 the •tiutilic..ta::fc}'>B:.^ei»iE'al area reflepted on AppliGant's 3EXtri;b;lt I,tiiAr&by aifording lateral ip^destrian publio aocess:along Klig.f.coastla.ne Er&a the hotel site to the aortheaseaEn fflbsfc:Boundary o£the golf course sifce:. ttw exlsfciag s&orelilie trail in the conservatioo dlstrict will bs m.aiata.in6d.unobstFticted in the general area refleeted tsy a dotted l.in.e aad Igbeled as shoTeline t'rail 6a Applicant's Exhibit 1.T.,V.I, GCH,iPgs.105-108. •tfie. ,91.fi.fipllcaftli ba's.r^Erasen^sBthat it wtll provide to the ^a ::sa:E£'t(S£e fe'':lieease affoEding,to fcbe piiblie aceess -lw sad..Atsng.the .shoBeluta;indica.tefl. :3C'e&»pai:3.6a.'¥i£';'»Stiousfacilitiss may pccur in tlis1 ;£u&ire,;sty'^fQnn:w£lieense granl:ea by tKe aBpU-caat shall'sxwff.ae,·tor the wubsti.tutioa o£ guBstaatially equiva'leiai;:aceess upoa such teloG.atlpn. T.,V.I;CCS,Bgs.129-133...:.. 5:2,fttllizafeioo '.QC 3-•l:i.Genge-•ln:.I:tea -of ;,a:\gxast OE B.asemeal;,will.Btinidiizp pBteiitial liab.ility exg.ostfre td tftie.;^<3oisity»-'Ky :rStBitii.ag .as gnvafce.the pwtecsbip and jcig}fts;:assoe$at:Sd^ifete:yielit;ensed aacess areas td Be eraaled ia;coifflteicfcion wifch the .development of the .couicse anfl je'flsc'fcs Ahe Cou.nty7':s qurrent;sl;a'fced fxeference.•r;,V.3,&CH,Pgs»123-132. <3ro-v&E'am's Plans. S3.,'Grove S.gtm .Coatjiaay,lacsorpor^te!!,autreri.fcly;'feas.':Mitder J.ease ttf-WBvfSe^Su39S'~C6fns9fts',,Ua.;l&EBas;,a:tt ,Ea''a^'aail:MaiiStiiiepB1.'.'Hi&.iIfiass :&s"'its.tteias sxipiiess-la:/I9'9?4:. T.,y.r,®gs.407-45iB.,y..:u,:CCH,pgs..:7-25;, 9A-:$uM2e a»ffariy-a?.13:60 .firBve Svrm aa;s.,.t)Gep,;ff$sJBldBiiig, ^nctegtttai- 'gJ^s'.^reI^ing, ..^p-'-ETass^M^^la^''a -tfsa <EeE'l:a a:nja.'-Hgitia*aIep&:aiceas^aS3aceinl;:,;fre X&ei.'SsVjsct'Stig.T,,,•V<i,:.!"gs;4:a?-4sa^:y.';"ii*.^eH:,';rg;s-:'7-25:. 95.ta apse.ssin^t;Ha,Bi:)fceirt:ial';(aitimia'fei'vs;i acts i0^^°SheT .esye'bss'sest'Sv ••AUe CiRim.a.ssion :^ias'•.receiveol •afiet''ii&vs.ewBa 911 oS '€b6 coneeptu'aA Bla"s:'EoEiBulstea ;BT;SEWIQ S.aSSt -21-W 042877 97 Goinpany,lacorporated x:n respect I(ab»*uIepB E»oip$t'tieia;,T.,V.:I/: v,ii.CCH,?gs.7-25. o£ CCH,. tfcs ;pgs' Ba'a and 4%7-458,, 9.6.ecQiye 'B'aiEin ecuBpany.^s'ea?a/Mabalulepit ^ 'ietaas^,. Mtsrvet»'^s'',ExhiMi.;®t;'~aTa--nQ^:.*eaBOjfi^%,,B® tnatlj^estAfeit®^iB''\-.islifc:,es9>stoaaa)te':'aiiticisafsa Eiitnre.'IUe'conBSpEBaI B^ans-ifci!ta(:^^.ro^!.^Kaan':®tHi®anylia-s for ih^areas';:ia Ea?a'ana.,;iKsItafuI^RU.:.:;SaE'lsouHdii.ng:and'sSS&cevS-.bo:.\t&*;,iBies:eat:,,.EEol3^cfe':.:;:*5ea .•ifiquire suBs£ari1;'taI tusfcber s*udy''.Sad 'niay'r:equi;re'.Jsnbstaiit:i:<re cbange ;bByari9'•Scove 'i^rtii .'CeiaBgay^iBcorpibifcattea,wilT. Ije iit a'ptts i:on^fco';SQgk :ga;'ilaminental-appcoyal oE awy of tbfi iproBasadlsrind ases.^consMereff.T..,v.I,CCH, ?8S.4fl7-aS%?;Tv.,V..II,Cea,Pgs.,7-25. TBe lack o£sfcudy by plaas and the f-ailuce uttaertaken mEttitefc/ffiaBaad «fcuAles, i'tS' Grove.Farm.of .its conceptual of Stove Fara Conpany ta liave',.infEaS^TUd:u3Ee ana sna tbe lifee,assQcS.ated wtfeh togetUer wa.th othes eviaenoe pttiiaacsea .:'at".tefea -<;!0irt;ested case hearing relative 1:0 ttiese ^lSiis,tigyea'Is thafe the lanS use concapfcs eiayiSi.BSaa^.lS'''St'o^B.,?9.Effl eomjEiairr are ndl reasoaably gECi;b$bte;i»f 'Amgl^a^wfcStion in the antielpat.esfl Eiirtiire. T.,T.:I,'031,.®g;S;;.4W-4S8;T.,V,II,.CCH,Bgs.7-Z&. •9:8.'Ttiie c c¥gni:-BEeyosed.^golf coiUEa»;'AB;..,i'nde®eifilaiit:>of.felie .p3:iaas._''."Gr<Sws.^.jeaBm.';:ComS!anY .has '£01 bbe /Ba;Ia~^iBifia;':a;teEqi'^sreas gnd waa'fointittlatea •~ti^'\:^Jsa\sx>»SeStl^S«i^.tfae development bf tlie f.';a'a;,ea,.-.''t'&e eurrept Fro'JBGt giad tBe laad ^eaytsimigS.ia.soneepl:By Groye Fatm fax areas'tXe ijpc&posed gplf ociurse are not iff'fceE-depeo.aenfc..Tbe pr.oposea gol£eourse oa fhe .Slfce .is ito.t;seonoaically •os functlonally o.a fehe :iiBpleaaBtatlon of',any larid.use .conciBft,foz greas SBFEOunBJEag tiie'.PrcijiSct Stte aiia coscseiveS by firftys B'&ism eoatpany;.in A1t».conaeptiual Blaris.:T,.,7.I,Ge»,ftgs.,:407-458.;T.,;V..,.:JI,ECB, ?gs.-7-.Z.5.••' .^••''••• &ses .99..Slftca fche gensr'ally and tla I>anfl use sttttSfeBiitAla3.';inorea.se>.in.Uie .•Ris.aCiieus o£ ot'distsict::.-iiptmelagisiffs''ltules,^tbexe''tsys,1 ^K.^a: useand infeer^s't'-£n the laany r.esort enaeaTors lias no.vsd..frpm tT^falBc.,:tB "tB6;'ineantive bs attrafitea T,<7, and the ffee group naEket,wltieh •c'anuot witliout aa on-sifea gDlf f,(iCHt &gs.115-118,28.1;.DemaDd --Z2-W 01 §S7 8 H)0.'Tha p.ereentage pi^gpISers ,i"Klte Bnijb^d Sta.tes .has gaown.;24t1: .20.1:2 Bi.IMoa geESOBS'.0yet;the last twq years,.lo-ipialer ::Io^)seBK:.,^Bce;.with.i;he;'iaieicEtaHd ana,fche riesA 'for '!;gflif lcrea'ted:..;.]:iy';^lte.iacrSasBSt^.Interes.t In galf in 'febs 'Oiiitea States.,,ngny golE.aSyrses woyld .iiave .to^:be '&uiM:--TItis.latenslSy Qf.'iat^rest anB neeA 1»gieaKer ^tfSswsli sttS':t!a^.suiabelt*'•Sfelitea thaii.i,n . t;li6r psfks''of ^t^eotuybiy't Jarsdeed,Hawail;is seeti a.a a:vaea.fel.on.(necisa wit8;an.iafcensa aenaad fdr gol£;cari^aii;ly ;<:hat is.,no6;::pro,3<eteed to abate to fe&e Etttsre^''S'-:V-I,,CGH;,Eg.;2ai;Oaimand StuSy. 103,.•BaBea QB cterteat:neeia aiid.dteaand,,..lCaaaiitd.l;!fieed fco•SiigAa.EiewttIy:daciwase double 'lhe tianibei:o.f •golf eaii.rsas ourrenl.is'..avail.able.-to safcisf?'e^i.sting and antiiel.p.ated aeed',.Eor sucfa recreAtidnal,facilitles. T.,V.I,fiCH,Pg,.342,387-390,3S5-4QO;.Demand S.fcudy. 102...Existiag :gol£Eacilltlssi on the island o£Kauai are. iBaaeguat&to BiB&fc .current demand anfl need for golf on lEauai:ere'ated by ttie'.re.siaent aa<a touEisl:p.Qpul.at'iQB, AsEclnsxVie S>^tSa:..fleittsna and.need to.be generated Ay We^^att^gpeaey.^Kattal'Hcitel..T.,V.I,CSH,Pgs. 39y-t0();DeSaal?Staifly. ld3>fieas.BaaaaIe sstlaates o£ e Seatasa ayS nefid tp be i3teat.ea';6o;r^.;aBM;i.'£ionalgo3.£attri-butable to tha^Byatt &eigi8|!»3yJRauai Hca.gl refleet tbat the Hyatt Hofcel wiy crea.lte a Tieed.-E'ot:astditi.onal gol£Eaeili.ties exclusl've tf£':..ttoe'•geSesaS'^ypb'iis-asS'tetaiist.need..It is .^"liimated .'tKat ;tiU«::il&at Hiyfeai will creafce s .deidana £o'fc.Si»is;;3&i,;0<Wl.coBaBis.of golf aaaually afe .i'ta i&it.ial st;Bgg;:wSic!K':;wti,t "increase tbereafter:an4 is expeeted fo.•Fieacli.a ,:S6a.aad far soiae 48,000 Fsunds of golf aflat!al;ly,T..V.I<CCH,Pgs.3S2,393,400,See aISo Demand .Stafiy. 104.1'he exisfiag Co'uaty goilf fa&i'tl/fes-,-a6 -Watltta..,1s csarxsatly •:;sveEused,.^lay At a1:.,£ft<;:i;la.'ty:;,liaSi.^.t}eea•dascrtbiea as.,rftaoI(lQg'..;:tIis'.'.-gal:»:ra;l:itffa',;:l;iei8'Bl.,.-"';',<Eli^: a»et:age'littua3.;eiEtfI;C;OBESg in suRhelfc 's£a<:es,:-wite;rs"gc»lf 'nsage.:iB ^'•liigSer ^KSH othier states in t6e mauiland itea .Sfcates',Sas..;S'S,OSO cQuiids per year .pla^'gA .oa t&e'£a<:Fi;Itfy.AS.(%l;lua soae I20,0fl0-130«;0:00 routtdS .af acsa.f'.arg playea,saanallr..T..,?..I.,ceB,Pgs. 4fl®-*01.See alB&DSiwad Sfcudy,., .105.,»Ql;6wi1:hstsaaing .•tfte.,ceesties :6f nsw,'ooiirses,'•tto, ,.:,aaaa't6»ai',..S-&p3.e!S. ' .ieonXfens'Xat.ea ajb Pcaacavj.lle'.,aaS :^'tfts''PS®a'ift»le:iteirtI.ai>Bi8CTt...-o£an IS-Sole golf:G6u3-Se:.:.at::Xufcuj.ula,.:an::;lB-IwIe gplf course in Elhffe :a»a...:aa addifc.ios.a':!;S-holes'afc Kaahuna,. -23-M ^4,2 5 7S there Hyatt aaaita.orial tbutlst .aad exlst-s a :Kegaacy Xaual fie6d Hotsel)and -Eas.i.lities available resS48afc sogulation QU Kauax. Say .tte '•tte^sl'.;:EiMT £dT tlte T.,V.I; CC2I,sys.115-118.,,aSS',:390-393;Deaand Study;, Hawat-1 State aafl Gounty Bea'eral £lan adoptea /ina.1378. .i&tturB. sn QVSEall seiewes ,aft.;a:-•\ e;>''fclia,. ^beffl!?.,.'..:g&a3.g;,, i.,.;aad''.':a; aaa firog-rdn coordiriat.ibn tBajor:gtste ana Cduuty the.areas Qf fche eeoiiony, ,so&iai and are.set forth .in objeetives and fcbe ecoiiony,the systems and 186.. e.Hawaii St:*fea •Pl.aft. guide tox th&lang-rangfl Stia'ta..It efi'tateliS.Ites titi3«ctAves,.pv'iiffa.ss,, systaa for plan...I&rsna.Iation. Eor tlre lint.e'gr.ation :o£.a.11 aptlvtties.Sfcate'goa.ls In pliS''sical envirannteat,and eeondai.c well-bsing OE its population the p.1an as well as the State's poliaies in ^he areas of papulation, .pSys.iGaI envi ronnent,Eaoility .s<»cto-eultural adwanaemeat.Ihe developH»e&t o£the•PfOBeEty :is .eonsisterlfc wi.th th.e Plan and wi:ll contEibnte.tQ-,tIie fulf.lllinen.t of the followxng gQ.sls, obaact'iTes,and7'or pol.iciee sei:forth i'n ths Hawaii ,Sfe^ittei'"Elan by;'. e*AWing a •s-b.zong.i y.xable econemy,ctiaracterizea by and groirtb that enables tliiB ttia needs-anS eXBSctatidi'iB of ada'fu.fcure geBerat.ions; 'SvS&vas:.to;..a:..ae^ired physical enviraiunent ietiaract:®ic'£zea:.;ti$-;.Beauty,cleanl.ineBS,guiet,-sfea&lB,Aatural;systans ao3 unigrueaes.s thafe ealianaes 'tfte*meni;al anS physical:well-E>e:iBg oE tlie peoplfl; fiatilisasnK .^oE .I;S •ptesBht •b.' e. d, e; f.. &Bepai;a.geBent o£an liiereaffe i:n ecoBoaic acfc.i.vigies'WA essyleyaetiK:..QgBprtual.ties .1:10 ^tliiS Heighlbor Xsla'yd^coasisteat 'wiSb:cpHBSitrii..t:y.:aeeds .anfi Ths enisowsagesaiit.a£liiy.si.aessss;..'fchafc'.. fav%Batele :f€aaaeial au.ltip.Iiei .Sf.feefrs -^tdjbiiin Hawsai's ec;en<>b3'.;'•'. T6e •ptiOteitipB ^nd t otee<:i-6n o£: cesenrces iti-Bawsii •suefa as scenfc Seauts'; As.s.iis.t.a'noe.to :tB'8 ciyer.s^as BrQHigtipn o£RaWaii's .vacattoaBttrffctions';•:':-•• -w-^^2&8Q •-t g. V.. 1.. fc. 1, n, n- »•• g. tbe c(ual:i:ty desi.giliatipn a re.as; of axista;ng vlsl:tor Etisuri.sg tliafc.vislitor jEaeiIities ana dsst.instaRn- areas XCe.eatefdlls'•planneel aitd,seatSi.friye'•t6 neigttboring tscainnmities »a3 actiyittes.; lacsati'yes.that .eneQiie.aga. prlyate »c£ioa&fco stsGiteet:;sign.i:£i:C9n;t?:;n«t:Bfar rasiouross fidn dsgira^atton or '•tmnecessary :among resc»yi::ces» Eursiung coapatiSl'e smtivitSesv •CaclliVieB,:^aatura.l eSseeially witbiii shoreline areas.; Proa&tiag £he preservatioB aiia re.sfeorata.o.n bf sI.gaiEicanb na'tural aad historic resQUrees; Promotins tbe visu.al aad aestiieti.e gnjopnent of mountaifts,ocean.vl:stas».spenlc XEtriSisiCapes and o:fcKer aafcura1 features;. fs&e EecreatlottaX and eaacatioaal pact^atial p£nafrural resourees Aaving scealo, ageg Sgace,:cul'fcuEal,hlstdneal,geolQgieal,6r biologa.ca 1 yal'ass; Ensurltig .eBpQiaaini.Uss for evaryaae to .sWe aua'eajoySEEWEti;I.ls.'re<aea:tioa<il re&oarces;'.-;; SItarMig <:lie;:as'aiiIsSllity o£^suf'Eieient rssbuifees tft .STtfvuie '.E&E-Ssrttite recreatioaal n6eSs; E'.QSterlag tlis.in<?r^a:.se!d .kaos'i.leflge Anfl UDiaBrstiailfling .:<:>£Hawai.i.'s efbnic'anB cultural haritagag ana.•t&e lii^feory oi Hawati';. Xaaaging :population grpwth.statBwi.ae ia:.a.:nann^r feiiafc proylcte^;;iacr6as®a..:OpBOTtMnitles tSX. .Hawail's.geqple •t:&:'pursuie-t&atr:;>phy&2scal;,"sgclal- gaa ^tecsoaonic asfixra|t:i<>ns '(dia.a.'e B®CQga£2;ing.ttie uaigaa::a6eas.:oi£':;ea(ifc^co'uiityj,;."!,;:/'\ .Eno&uragB .gaeeafe.E':coa5»rat:loa faet't?^en t&j^:pablic aaS.:jgr^.'jrats BectplS^'..£n: ^s-sleglng; 'and ,;;nBli;nt»iaing'welI-Basa.gBed \aBa;:aae)SEuat:eIy:;:^aeEWieeS wlsitcrr llidasj:ay -and ,rel at&ct ctes'fc':BEmeai;s^• Maintaiui.ng .ptuaent ys&o£.Bawaii's laasS-isassS, shOzeiJis^anfl iiiariRB res&urces^ -25- :w-'Q^sm —% fc.Assunng afEective;prgteettioa pf:HaKaii'sr saique anB Eragile6avirtma&t:balresourcss:;;• tt.ftssartag Vhe ayailaI?ilttY 'of.satficten?.AetS&uECss t.fs ysixvWa eox Eutyxe,catfcitrat,.arfri/sfcle anfi eecraatloaa'i.aeiBds;;.ari.a. r.Pisyi&iag a ;»n4e lraa%e of ;aot,a.7i1;l8s;.,.a;od faellifcies to fyiflll the caltaia.l,,ar'fe,ts;fcl,c:?uia: recr'eat.iOtnaI nee^s of .-ajl divefSie '.:W&: aEbfqis 'effsct'lv^Iy azsa •effa.cienfcly.' 107.Tb^Genecal PiaB.,estsUUstes the:..ttoiinfcy's goyern.lng e Ibnjg-range,'t;'oi(<>rAttensSvB auid allocat i.0in.g£.lanq'ahd :Hafcer'resources withla the .GouhtY.&E Ksiiai...Tha Beyelopment Plans,,including the KDloa-Poipu-KaIaheo .DsvalopiBeat .Plan ("Devalopment Plari"),are.assd 'as .guiaellnes in implementing the Genefal Elaa.The aavslosniest oE ttie Pro'jecf:Area Goafoiais.t6 a.ttB.1:8 ..cos.ststesft.wS.kb tbe pr&yisions o£ tSa Geatera:!Plaa.aaa't:he Des?^leipmBnt,;.Plan tnasauch.as It eoitferttntfees to ;Ui6:'afetaitinjenS o£the fell.cwing gpal's.of -tVe •SSBs.Eal Plaa,:1..• a.UaidtaiBang tbe,soacept Le«f ,^aaal.^c(B -"The Gardea SaW-fix st^widing for arowfclt ip.coBSpnaaee with:tba:.HRiquie,la<ia.:scape and eavironnien'tal cfaaraet-er £/''ttie.is3asff-;'.'• »< 10;1. d:. tinsur'ing 'th.al;'Btiysiipal giowkti is,&oiislstsat with;:tibe:oyera.Il.ecQlogy^oE:tbe ifilaad;; erea-ti.ng :ojBgciFfeiin.:i.t3;es for a aBd sfraba.li.tY RS employnent Rauaii; •gr.eftt.er dl.versl.ty f8E 'rssidenfcs oS P.rovidiBg for ;a.maXiimun Eecraafeioa'al acfcivitiasj variety yf fiiifcdoor a. Rec'oga.izing those asgects of ,the .i.slaiid .and .i.tB fi^ofl.e 'w&ielt:.;arS •I».tat;Q;cJ;cal;:ly a.pri.eulturally ^gtt^fa.caia!:anet tttaintaznaiig 'anfl ^enltaacang suefi aspeciis aa,"ia ;eonf:iaulfflg,;':e^pcsaBiiOB!-o£the isl'aad<'.s:gftysisal.'a(ta^lsoosi'«'i--ls't:FU8!tace.} Froffl0tll>g tlt^inigcpveaeBt:aaa exgans.Tsn .of .fc'he islaac^s ecoiwuy •by Te(:bSftiz:iiiy^sn.d carSEttIly. ut3::Ii8lag laial 'and ^gtBic aesources'; GaiBiagi asd fffzit.xol'iiay ctevelfiiaten.fc fco .feake ;£ull aavarrfcag.e et ;tKfe''^islanys fora,,.t^anfcy.•.aaa c tiBait&''sad .iitSs^rf'I.Bg 'h'b.'e opEQrf.uKlty''fo'r .'an inpro'reGl^•gua3;it:y of 'life-;.ana •.';. -26-M 042SS2 laarea&iiig Nia.bofly .o£knowiedge .abgut:.^the.-paiBlJLC"s.'.tyiidars'fcaaa.ittg o£;•^li&^-^fea rs':..:hl:Sti3cey1''ranff:, h..Guiding pbysl.cal growfeh so tiiat is.laaid .ang. visitpr:e&BiBBUiitKB?will aeyelop a.B s<3ei;.U.and^ eedneiilic .colice'rS wi£te;eicb .ffthB:c»•.. lfl:8,l?rte.ae»aloptneKt:,o£the BcogBrty'i-s''coaslsfceaf;..w&tti.tfie- DeveloipB»ttt;.Pl.aii.1 aa3 ^will •:coa<;Ei6i.ite.;^;t:a';:.tiie;:'Enlfi tlneBt:^-Q€t&e fsytwitas goaia .anfl,1'.<>ib3sct3.'?es^^at fartfa t&eEetB'Syv'''''' •a. b..Sncouraging:UL.s-e.s aiia a develo'pBient,-patfeBrnKr'hlclt euhgnoe aad pxotec't ooasfcal waters and toeaehes aad eneotiTage eoastructipu of s.tructures which do not promote f.lood and :tsunaml dangers; c,Encouragiag Seyeloymeitk o£vi.s.itor facllities which be.st beneEit resident.s asa vlsitors; a:.Zticte!a,siug jo&pssGiEtuttitiesi $:.&iEectia§(vsf'^aslicoc&sxe for oyerall Best benefit; f.'Oewelffpa.as patolie aocesa to coast.al 'azeas wh&rA .prtvafe^.p'toper'tles Itloak such aecass;arid .the dewelopBieat of daytime and .reersatlOBal a.ctiv.ities .aesired t>y cesdSenfs aitd:visitava. 109.To the :ezfceat,if atty,tfie fleYelopBieat.of ;fche:Erojeet SEiea -a.e :regar.aea as .incongisfeot wlth tH'e Senera'l Plan ot Beyelopmsri.t Plaa aasiffnatiQns re£.err?d fco in gaii'agraBh 2.X gerspS*tb®gaidlel'ines .egtahlished by 6itcft^a^sigaatioas dre;nbt Vtie:niosf:aesirable Iri t.lii.s :par.f:icu.;I:ar case ana tiouia.frusferate tlie goals ,of the Geri.er'al :?3Ean and Dev&lopiBsn't plan as set f.orth.abpve. D.AS^ICX CQtMSKTS 110..32Bie gs.saxfemenfc.of fiulilic.WoEjts.of tsbe CDU.ntY o£Kaa.ai•(•'&SXi'e^'Wa.rRs'"),.:Ua.)3^>artin6iri::^:oE'',Wafe&E '•of','°t;Ii9;Coiiaty,;o.f :Xaiiaa ('•Ite'Bec.BBpactaneiBt:">:<.,tIiy,;:DeBaaFt:meat? y&''aeaWk.e£.''E&e .ShaVe''^wK./'Hgw&ii'''('t si3;t&, Se^sftms-aX'''}.,,tbe ?ir&BSBW'.taieirit;,q¥£fafe Coan'ty o.f Kauaa,.{"Eire'a^ar'taga|t".>:,:^SSe.itauai Hisfcorie Prfesaryataiw Bevi.ew 'COmntBsa^a :(«His:fora;e ..Carantissioa*) aad 'tB^^a'fce liepactnierrf:.;s&f ^rxeuJ.turp '{"Agciculture De®:ari;aeafc'i.i.,.tstit.S'QsaBkimss'.jeeif.wtSiffS'to^cS'iIectiyelf wliib :yifl ffttey^ag :deEaEti(ieflta gaa".c^!imiigsj;t)Fi-.':as Itie -27-M 042883 "Agencles''fcave eacih eQTWented ,6tt -tlis &gBll:catiort •ana tbe;pcopQSfifl deYelopnient.Sfcaff Re.pQTt. IU.InspEar as ttie Yarib.as.•^ig.enc'i.e:s hav-e EequBsted AplBlIciant:to:sQ.Sv^as issues teganli'ag ex^res^eja eoBCBma or.poteajfca.a.l i.BiB.acts of £he .pro8aa!6a-':;§K)I£' coiirsa an ;yar,ious:;^cespBrces .wittiin fcto ai^,-t^ ifpi.i.c.atib fias ..adGErqss^a..the same.&i er ,•gUrcmgit'1 (»ri1:f;en or oral testiaOtBy in ;jfche euafcext :b£'^ltis S..SSEeiAl.M&NAGE5Mm>»T'MlBA:OSE:.PEaai.T , l:l2.A.'SBe.cial ManagemeBt Hs.e Sermi-fe is ssofuitea slaee a portian o.£tSe pEOposea PrOjecfe ia;located withi.n fclie; SE8ca.aI Hanagement Ar&as as .establi.shed by tKe.County Csf,Kauai aad the development eost of the Project exceeas $65,00~Q..QO.Se.e Staf-f Report,Pg.X, 1.13.Beaelpenieat of tbe w>lf •caurse'afc tte .PEOj.BSt:;'Stte •wil.t .^prayitte;-ttttasfcal :3;s<ae'a'ttOttaI":''iatP;P< 'fc)W-tas's aecessi.bl.e t6 :tli6;...eu:bHff...igesttlea.;:w£W.Jtiia •H)o,rel;tl;fte access ,fc0 tiB';piCCWfcaea fiy "itliS''Aiet>ltcaittl:;(»n""t'aiids .adJaeeflC'tQ:^e;;EEci3^c<;SS.ts,£be;.crestion d.f a goIS ewiTea\At t&e ••:JE:;wyj:ec6 Slte fri.Il pEovide adBquafce aceeBslbI.S aaa'fllver.sg .retsEea'tional .oppQ.itunitias ia fc&»^gteBaal;,'Hanageraeat',S.rea and Itt tBe area sarr(>nadlt(9;;,:j;£,..;S.X;,.:&gs-..27-3fl.;1.,V.I,/<3GHf.'Pgs, 3.Cl6-10fS,'\l2:S!-X32,:,:,234-23 6.276.-279,4Z8-430;'I',.,V, TI,eCH,.EffS..30-31:.,.: 114..Plaoement of fcbe go'l'f.course DigfcEtot bounaaEJr and tha a''sapiStyof 'veiiiciula;'acce;sses;^tio i.Ei'tS pedesstEifln aecesses :<:p.,the, wltli »lafce'is-al:;s3b&reUi»e acoess ffiea ffldaatal raseaicceB iacti-yitiesi.•Acceag aad f.sS teppgnlzecl..'wxll be.afforded to .fchs. .so.iind caasprvafion 'oB nat.ac.Bl •nliawka,o£..the:Caasetvafcion aii3 ;:na;la1;e»ai<c6 of•'patkiiig"'.ga&ligtSfe 5-es slH}re3;ltie 'togefiher :,w:t:13.^rdtjgcfc-Idie uttfgygly ^sttitad "f?.r lg.ajBd.,flIOsg ,<t:be acd ':sii££j.ng^)S3t:t»s, ;,';(:;onsd:Sfcei»l:,.*ri.'t&J.t&e readjurces..Id:.''.'• 115.Cyeation o;£tbe iaSeisS..eaefsiif'age. ti»e gajaceat sihor&liftg .laiids 116 go.lf OQUBse at fehe.EifS'ect::iS3;t:8.;will'.r^creati'oaat'use of id'.;••''/"•;-;'':'•" The cvwitios fsy tAa :Aapl'i(;arit.ia£:a Iteeus®:Eoc yBi}ic!alar i&ccess.ta vartoas pai,fexng 'faeiIitleS ''fco tie .crafltaa^.By .SajBtica'at'•'aaa'/'f'KE.^eaes^rian;.ttceiess .f'rDttt'. fchose-fcaci.latiies':td"'ttss :shflr®lS-Iss'atid^l'a^eically.'.alopg fctie.NhareliiBe'•'wlll.:effast 'a'•refasoftabls :;aBSicatisa'"aB; .the sbDs».IiB!&»3:eaa:Iraving reor.eational :va':I,li&;.£br: stiBlle:iais..ia.:::.• -w-M 042884 t;l:7.-aahereace fco the Healfch SeBa^taent'.g regylatio.fls .wi.ttt .t&spectT -to gradiBg .anfl 9Eoai&n cootrol seasares at the gssl£e.ourse;:sfte wl.13.eiEfeCtivaIy::xegvil^Se point and n6i»-]E>alaf:eSsl.t-css o£twllittton tsil'fcafeiQnl;fco proteet tfae recrea.tlanal valn^o£coasfcal .waters aBa t.he. aear-shore itt^rifis ita&itat.E.A..,;.pgg.28-3;0'. 118..Deve.lopiaeat .®£^tfa^.gol-f Eioufse •pa fcha Prqject Sifee wl.S.t ^insKES tM&"p.r<ofcefyfc-ioa ,gsai'lgreB cySl:i,:&p,-a'na»where agpropria.fce',3-est;&Ea:&i.i»u.'::o'f,"N.Btor2.c;,and .;gE.eliis.tDel;e TSfiSatCas 'ldesffEifiiad.,1'R''tAs .jtsoastai.zone.aiauageatieiit: ares iss well'SS'.snfstt 'resoaicceSf.tlia-fc;ai'e.aa't.side of tbais area'-»ati.ch.\.are sagwtfaoant1 li.B':Ha»i'»tiaEB hl&fcory' gnd cirti;UT«.AECiiiseitlogicaI ;BuT'yeys.;.;:T.,/:V;.'I,GCH> Pgs...215,228-2ze,:Z3A-:235,-Aff7-Z4I:;T.,;..¥..I.II,CCH, pg&.tO-lS. 119.TbrougK the pr.pe&ss o£:sn arch-aeo.log.ical Beconnalssaacie suEyey and tbe.oonservafctoa aaa iatarpretation a£-wari.o»s.signifi.caat"aEffhas6:I.ogical sites.,sagnfEicanfc axcfaaeQlogtoal resources »tf-the area hav6:yeen.iSeafci£lEsd aad will be ana'lyzed*Id.. 1SQ..fii®lMieBtat:.loa,.&£liiitg prnpes&a asvelopi»nj:-wil.1 result itt-:tfae p.E.eseiEvatj.on of rsmaiAs aiid ar-tifaist's Qf a Sigtti'flffaat'nataTe:in and aB&ut ttia Proj eot Sita.13. 133...AnsIiaiealQgical aiEiicaverleB a.tt aad aBoitt tlie Ero3ect'Si.tjecanbg.iiafeegT^'bediBtQ a cultutal tesource su:rvey o£tlie t&axoa'sBoulia SBGb a survey be coBduetea,Id. 13.3.^.^&ostiftg'ths :grt;rt;ectiye ^reeaautte^,Eiepposea by AgBl.i.cast's 6xgert.:,aa3 :eoncutfeecl iu .by.Intery-epors' espert on areltaeol;c>gy^33,l»tbrougli tlla.-a®<i?elopifleat 6f tfaa..Ero:i:€!Ct',suBgfirfe Btate .goals Ear protectioa, reEitqt.9tioa,.inteicpreifcaflga aad diaplay cif histo.ric rasourees..I.&,. 123 124 wiit .T$IB dieTelopmeaii:pf X .golf ciSu.E.se;oa fche: sutaiiae ofi': e;CtenseCT'9lsios ';D£s^ttct;.tiwfc CE>ris'ervstion^;Bistii£cfc lioundary liae tfee P.9'a ooastline, aad in®,Epve •tihei .Qpeii-spa'eB EesQB'.cee.?,.T.,,v.t,e@i,¥as.. 274-280,429-4M,43:4? ?ite., the a3-oaa a BPicfcS.ctii o£•servs to jBJiot'eet^'^BscBSBrye' of cffastal-'se^itig';'and 3.S.-}.Sea'alsb:X-A*:>iBSS.y-'SO;i.off-a.osr:asi-ia?.,;'zis-a^fe.-234, t.,V.;II,;I>gss 39-3f,.'109^^^- TKe t>ortioa o'f t6e Eqi'a .GOasti.ine . eourse:is ;a .va'laefl;.TS;sOaiEio&''aaa' couirse^daveIiii^BiesS K ^ia^atS3b: SByi'roiaBientj,-des3.ga·,.and.'loealsidn^ -anfl feh&'su'troiuiaing laaa:us.es:,I&. •tff.tfie 'tlia'!grspeisad.. 6 ^4a;ats iaitK';'the caasfeliitie .29-M 0^2&SS -"•& 12.5.The aflvel-osasni;-of.the galf ciiiurs.e »ill .r.esult an a BS.niBum of :altecatic>&Of iaatuEal l.ai»a (o.Ems aad fto aSwerse i.Bpac:t;oa existi.ng .public.vietits t6 ;aaa.: (:he sboreliae.id. 128 126.The dewelttsffleBt of the.eouasa wtll,,;pai^i&t s aaiabeaance';,sS •tha ssareli,iie.,cipBa--&gace^^awi^,Bceicia.tt rfesciBrces wltltia VS.6 .^Svial Mana.g^neat .Area ana •adjaoeat 'theietiff tiau'cugboat'tAa sb?st;wi!se<lefigfeh of the .ctQlE.GOffESe..IS-•''•••'•ii.~' 127.'DfivelSsnBnt;at a golf :couras.at-the.projBct'gifee.wjiiri v^iua&le eciastal..eco-sysfceing;;; :ia-l?,22.,:-::27-3-0i;"S-.;,•v.!r,;:'CCH,.' II,CCH,Pgs.36,99,IQO/114.\ not 'ifflBact E..S..,pg.St s' 168-177;T., -1€, V.;13 DiBEUption oi degreii.afcion .<i£coas'tal watBT eco-systens will be avoicted effecti.'^ely throygti &a^iIiGant's a sr8nc,e to.regulatioas o£the Health bepartjaerit rsga.rdlng disciiarge of wat'et aad pnllu'tants :into cbe neat slt'Qte snTirQfflBsn.fc.Iji®ldrieat:atieia of the g&yelopiBeat;proBO,5ed anfc^.t&e;.Sisdj^Bei:^Slte wi.il promote watar gaantljKy 'aad ^iality planntag and manageneat .&EaCt:i.<3es'.'Id.;'• 123.Vhe^s'roSsas^c.,gp'lf .coa^se.,wi:ll l5>6'a srts'atels-ewned paMi.e ;fa;G3.T4.fey';'l:E(Boc!b3SEiti ±&ihe Sfcsite'S econonisr.'FKe .n'osoasfl ,-sl a.ng:®£;t;Rs;;g:Bl£csoHrse is a suitable I.QcAti'ffs a&j»cen.t ts>exirfSng ucb^ig conGentratxons, »ej3tSigsisABg.,ttie lovi!..agBacultiual Froductl.vlty liistoi'ieSIIy,.exEerlaneea 'iii!fche'arpa:ana tBe unavatlalbi.Iiey o£effEiElci.ent;:Ignds coattguous:to the ^stt :Bageney Kaaa'i Ho-tel.s.lfce wi.thin fcbe Oiiban Bi;sfcr3..c<:<S.A.,fgs,.33-25;;T.,V.I,CCH,Egs. 138-140,<22-43fl,43^. 130.Tfe goIE .cou.Ese wil.1:.adi E.esnl.t ia any :lti®aii;aeat:;.of. ,a^y sxi.&fcaag eqastal USBS -QC riews a.fc ^.ia®Bft3^>pe!a saSjeci;tu.the cpjriSata.oits .coatataed'in tIu.y^DBSfsa'cia and OEdet.So ;.aGly8ESe'so!ei;a,I,vtsual or environmental iajpacts will.'occitr in.tfie Goastal zo.Be aanageaent. area.S.A.,T.,W.I-lIIt CCH. 131,KlaceiBeat o£a Eq.rta.ttn of 'the.gropds'sa gp3.£course.on IianS SSuBty Byieau £*oattct::iyi?by aafcwig ClgFSS',"a>'laaids, is.fa'an'aiiteft,rea&OfltaSle,saa jusfeifisa;ta^-t^iat :»t,.;iB jiot SWstSls:td'a^Xize-,JBC«Sffi^l^.ixrii^;'':deBtgBa ea loca'feioaB eosiiguistta to -t&e,:iByatfc :SegeaGy?;:Xauaa'.slte Sor tha .pu¥sose o£,'coiistracfeing''.a !g<oll,•eoftsese', sFuithecapra^'''.iTesfea;.i®fc-iag'.cons'tsufftloii -a£:'tii»;'Bi:s$dse8 goli GOti.t.Se to categ laiias Class •*C",,, adjBeent to :"C>1 ca-''B' fBe nrBa'n -30-M ff^g^se distKlct would require intrus.loa intx?tbe Coaseryafcion Dlstrtct.Tfae ;cwrre&fe eilacemsnt.io^-ths cpa^ss ^•s ^a reasoaabile,j(tgXified:and .Bftective &a;LanGlag;:;'of: i.stefs.sts,li6fc&'.eeo'Bonu.e'aad nori-ecoBOBa-.e ia{.,Ha't?uxe, la fcKe ayoa.dauGe:oS aetverse fenvdrttiunsat^l i.mE»ac<:s:::.ana itt •satES-fraefcloft ojE'cuEnenS .aod',an,t,tctBat»d .aeea.' B..A.;T..<:y.t.CCHy..&gs.-'US'-X»E>^•41}'T-43,7,•427-42?.:;'.. 138 :l32..;na'B'eldBmeat o£.tAe;got£.oaurs6 :Qa tSd^Scoiect ::®it;e;as, proppsed will ao-fc 'caealbe:a'Kszarcl .•tio 'l3:fe'~aiEta.iil*perty £E6»n:tsunaHti storm waves,streaa floo.ai.ag,eroslon Qr guBsidence.E.A.,Pgs.10-13,16,22. t33,16 tte exteiifc applieable,the fle7el<apaent:of.t&e Projeet will comply wlth the reqairsmeat's of the Fsderal S'lood luaurance FrograiB aad .fitli appropriate i.rrigati.oii aiid dratriag®contral vill not result in co'astal ,£losa.ing.Id. 134..Ad.equflte ana properly to.c.ated ..putellc .acsiess fco sh<ireline cecr<atioti aTeas and:ga.ci-lities wi.il be Isgitimized iaaS^reseryiesd tn cpaaectloa witli t&e fleye.loiEunenl:ot fchB:sol'f <!ourse Project.B,A,.,Pgs..3, 27-3:P;T.,V.I,CSH(Egs.105-lflSt 129-132,234-236, 276-2^3,428-4a0;1.,V.II,CCH,Pgs.30-3.1. 135<Adeaua'fcfi .gnyisions Aave baen mafle :ty tba App.Llcant KO.E 'sol.ta,aad liquid waste fcreafctnent dispusltlon and manBgeiiieBt an,a will ra'sult in no aiayerse effeets 'upOB eilia'.'SpeciaI Hanagement AEaai cesources.S.A.,Egs. 25-Z7;:3*.,V..'T.^COI'/PffS.lffO-108. t36..Alter:stioas.;.i;q e3tl..st4ag :;laaa if:a.CTis gid vegetatioa (exeeyk a.T'pfs}aad tae.-cionattuctiqii a:E ~;a6ruo1aires afc the.Ecejec't'Sifce wlll.have -iao ^&v^-sse^efSeisf.^ott water Eesources.cor uE.oa s.cffttic aad r.ecceaCionaI antenities in tBe-area.!&..: 1.3:7.Wbea Seyelppscl .i.n accor<2.anfi6 ..wxtb •fcbe cptieLitioaa niacle patt o£tfaia JBeetsioft afid Order^the prttje'psed.^yd: wt:ll -not teaw>aiay.snbsl.aate'iial 'aayerse snwtrQdnBfinta.l E.Ai;T..,V.I-tl.:£<%<;':."Or The pr.opps^d ,de?etopinent dbes npt ii any sigaiftcant ;resouX.o!es ko .16s?aad/a,t'Ehe.pioBosed dfivelopaani:wi.il aofe Buatail tiessfidal uses;in ttie araa...Z.A.<T.., 27S-Z7?.''' ,C.ot(Ui'£ dissferucliioa^•feBe::rang.e^aE.;-y../K''CCH, 133.T&s aevetoiaaeat ,j.s ^caasi.stssafcElaa,aoaiag.-aaft otBeir eoBsi.stent witS tfca with •fclie &Eti3.Bacei6s bt>3~^c.tS.ves aafl po.liciBs of aa3 .Ss -ai-M &A^S87 205,Hawa.l.i B®i?l.epa Sfcafeufces,anil .tbia Maaa.getiight-Area Gui.a61ittes se'l;£o?'tb iB feh®:SMS Sulies.E,A^»Bgs..7,•26-30'., Tfe .progos.eiSl d.eyBlQ!paan:t dffe'a no;t sutistaiitaally eEfect the ,ecgn6aic.OT'so^a'l'-<,t^£tffi^.-iaiia';a(:;ta;¥^S.SB of'fche .coHBufli.ty;.je<»Baty'\or^.:St;afc%^.erttdi:'j^^.acanainic Iniiiact •of ttig 'aewaltigaent.will 'S6:'pbs.a.:tiyal.i"'g;;A..;"PgS.23--25 . 1SQ 14.1..Th;8 .prcifiosed dey^l-e.enafll;does not.hav.e any .substanti.aL ;s.8fl0ti8a'ry Inpaefe^suQlt.as popylatton .changes ox effecfcs ^oSrublicfaclliti^S,'XS.. 192,ImgleiBent.af ioa of tbte.deyelegiaeat at the,Projepfc .Sl.te will :not eliuiinats p.laaaiag option ahd wi:Il not fcavs an adverse cumulafci'ffe eayironraental oi:ecplogical effeat when considered In connection with ressonably an.ticlpatea futur.e proje.cts.E.A.,Pgs.27-30. F.O&E PEBMIT 143.A Vs'e ^Bsfinit 1s.rgguiE^d..aftS^is p6u»s&.uses Wi'fcKiia Jfch^-.:aSsfcriiafc....See^SCaff a.44. aecessary r'.s Pg.1. fco esfeatalish A eiass I? s;i».ce:....ths Zanias PeEnit is a See p&rmit ld Sga.iEf aepoit.PS.1. Si' teguireaieBt belng 14.5:.TIte ast.atilisliaenfc./.itta'j.ntenaace anel.ii^ecafeitfa o£the coBBtrucsfeuia aaS^aemelopdent of 9 golf course.use afe feHis Prbj.eCt Site tS a comgatible use gensrally with sur:r,ouna'i.<ts ttrban uses and agr;icull:ural useiB.E.A., 23-3.0;T.^,V.I,CCH(Pgs.100-IS8. 3.4.6,TUe praptisea gdtf .eou^se ffisie'.at the t>E03&c»t SiS:»;Wt;1.3. not::6e itetrlffleatal Iso'Aaaa.tll,sa;Eet:y,;.peac»^:^ni0]eal,s< eanfort 6r ths gpaeEci.!....weilfare •Of pefso&s'resTfltag Br .worltiflg j.n eheiietghborbfflSd,,o£tl»Prqjscsl:Site. ¥.'&..,tgs.23-30.•,•. I«'}. 148 T&e or i.nlari.pus to aeiahborBoofl or'CbtBiminitr.E.A», not :be,.d^fe.rinental pro^aitests'ia ^iti>&•walSa?»'oC .t£e: co.utse,.usa wlll ptOBer.ty ana ita to t.he geineical Egs.23-30. Ihe:'^rsi.feosiad..giolE .cpuese :asAge"ajt :ftee.Ptl93:ejsi;,.^Si.tSie; will aofc.'ffausiB aay:^UtisfeanfeiaI .h.aiRiifuI :apviJsotiatenfcal eoidseiiUienees/'onfaiEs.'tattff-eiS •S&e AsJ^UcaBt or aff ofcher l.asa's ot wateES ^aja'Ggilt.t'b tfie Proleet Site and is coiisisteiifc ifiliit tlie infeent Of'•taa REp or the General Claa,E.A.,Bgs.23-M. -32- M,, G.SFECIAI,PERMIT 149.A gpaoi.al .PeCTiifc 1s aeeessary sincs,ttie.ABp3aiCftnt ti.roposes .{;o eateabllsli gol£,coarsg Esc:c®?tlpiial;tisage vm a:gpiita.on of tbe .l«and Overall ::83cpress.Iy Pg. €he lands.willcb a.re xafced etaas'"fi'by Bar$aH'''s;'Bafcailed;lia.nS.'Ratiag.,;..;s*hi<ai ia "Qia:t 'gisfertct.!.permi.ttea 1. use Ses is nofc Sfcaff 150.'IbB •ftn nausual wl'.tha.n tha liftS beea Keyor.t;T., 427-4ZB. ;C:our&e.:usaaB.al the groittct.Site is attfi,r.easynaKt!e:-usa wKioh may be 'ptecmifefcea Sta.te Land u.se..Agrieultucal Bisttiffl;a.nd ejcaltted ia otiier locations.E.A.;SSaff V,I,GGH,PgS.138-140,275-276,407-417, 151.The proposed golf csiirse use is not cg.ntrary fcg 'the objactives.so.ugUt fcq tos .ao.Cjoapl:Khed by Ghapter.s 265 and .2Q5A af.tlte Hawa;li,E.6vl:sed Sta-'butes and •bhe LaBd Uss;Ri.tles.:Grefft3.an of a golf eoucse at the .Pialsct Site.wj.ll.not-re&ult iri an ,in£.usion o£najo.r ueban use&antact:h!s'-:A9Ci<iyltlitalBis.tri®t:.Tbe go.tt ceurse lixtaoSuees a landsciapea p.arklike opea sp'assB experience infco;the .di.stEie.t;:a:nB Of the Projecl:tfccough the meehanxsm o£ lioes iiot fruBfe'cate the effectivenese oE the State's Land U?e Xiaws.E.A.) reGir'eationBl, imptemeibtafci a- aag 2'3E-3C'}'E:.,:?.I»CCH,.Pgs.,27®-2?8.. 152..Tlts,prUpuaeaiSa],f,c<»BLrsg use a-t bhs Erojieet Site will sat:,-:w('i?ersely atfieefc 'and is iiot iacttnslsfceal'wifch the Guxrsnt::uS.e'B;o£surrouflding proBerty.The ftopoSea.use,'will :n.ot subst.antially al±er the esseatAal characfcec.of tb®laiid and will be the bighest aad bes1: use.o:f the I:and as it remains tib.e AgrioulturalBi,sl:l;icfc».ia. :IS3,. ,154 T&e :g.roB9sea golfaotun:^eas<:!ti,aibl.y. Ft^ci&s,:a:aa-:-sireeS, iaipiioyiem^tttsi :anfl 27-3fl. coarse ,use a.t.tbe .I>tojec.t.Site iwriaen;ptibiic ageneies feo sewerst wrateE,dr.ai&^ge •aiid: •eftui:'fa.ce' -wi.1.1 E^A, '(KlMSa^l ttegds, the .s?iatSo:t. .CQBdifei.ons asd aeeds.h-awe afisett in tSie:':g l£^ag,:''iiiSusErs':aiaaf;^tlift. gince the ;es£at)llsbaeiU::.of tlis stistirisi;..^ouDaa'ri.es;>ana tehe"Sana:1 :^Bse:''ftBlefe .•*hi.iG!i 3asifci.fyv''t:&e 'iffinttos^ft'•c[Qa;;£'.cQurse./;uSe.,a:'i:'ffis'.Wwjsci Sl.te.T../;W.J:,CCH/'.Pgs..ll2-l.t7^28(l-a9t>,3AC-3.42, 387-393^:3S9-*03...''•""•• .33- M 0428&9 a.5fi Tlie.evideBce is botb land updri wfaiett tUe fcrr'-V&e.';iisas Distri.cl:.T.,V.I, 427-4Z8. 1S5.1'he!svideace is but6 clear ana coity.iiKsiHg,tliat:£be .lise is seugiri:is-:unsuS:fced; Hitlti.a ,ths AgncUltt(:ral CCH,Pgs.AO ?-4ll,413-4'IS, 1:5.6.Ib'e..gEoBP.s^a PEDJ^Cfe fi.l;^a ..CQdSis-ts of vacatrii »na uiMsyieiivatsa :taad "Btfeh a portion .ia eane. .WltBaEa1B^il.:::ci£:£Ba1:iiorfci.pa.o£thfi Properfey Gurreutly .in sugarcailB ^l^i.vata.OB :£fcon:£hB currfent fease in favor''QE.aRSBryae'.Sltgar,whi&li is i£iermitteS under tfaat lease,wi.ll.aol:oceiir untal Karvest anS will not aavsssely .affecfe fche:eonfciBuefl ;eeononic.suryival of McBryde.SB^r^B ^Qpefa-bitias and wrll not be contEaiFy to th'e obj:6cfctves sougfct:to :be-aceomplished by tbe Laad pse Rules aad Laad Use I>aw.ia>,S.A.,pgs.26-30. 157..MeBryde Suga'T's sri61fl.s are amoug th?Igwest in.the inaustry.apBr.Oxiina't.eIy 22%belpw average Mhieh is the c::asa wltilt many windwara plantat.i.ons sl.tu^ted i.n are»s sueh.as /CBe;^Bro3ect Site ana its-eavirpfts,McBEyde .Sugar ;bas:i.tsel.f faeen withdrawlng ppcUoiis .pf i'bs acreage'fr.om cane ovar tbe .last.:seysra.l years and there'ts ;:ff stfdng possibility that McBTyde SugaE will :no.it;.'coafcl;Bae its lea.se for sugarcaae ia tlie PrBjcct ft:reaaad surroundi.ng enviross lii 1994 wben ifes leass e3:pires..IS, 'TBece i^B<»,eTpyeB.^3Astaa.t;i.ve actrAcuiBBEal eEQS whioh tiga;^.tei^,^Ko^:,..^;:;bs;',; (}n(^if:^ll^''.in •tba ^ii^a^:;'aaeas.o£:.C^.:,S£afs';c ''^Kaaa't...•'lnaeed,tto 'winawawS .pl;aBtj«fclStts^?;st;;Kilauea,Kahuku and Rohala Aave;:sane out of .busihess ana .extsting wu'tflward Blarita-ttlwns such as Maung Kea,HgiBafcu.a,Lthue andMcBryde:^ase 4oing the IbaSt well of .all the otheE p^an.tg-E.tpns i.n ctiitnectioH with their sugar operations:aac(fch.ei'r diversifiea ag'ricultural pperati.ons..Id, 159 o.f <;l'<?»d eoyer ..aad ffn tt»e,I'a'.a .weS. pursuifcs', nlBa.'nn.uR »aS lov area 'af.£®Gts t&B•o£-tSs aasea;."Eor. s'sSss.cass^-..ss3.^•is"~VVagno VBwai The e.ffect .gtiurrial•easososlci ';a9'ra3?a:ltSua:at^..;,;Purlsuilt:s-'' ;la(;:audl;aI:t;It6Bgfa<.Btilllons ef •ac>Il;»Es ;iiiYiBi;sS:fi;<:.Et£j,<iai'studies Kaye tieen .CQnctucted.,noae bawe ya.slded a :pr6'duct:i:ve,suee&ssfBl or .ecoaoBleally M.able;erag ttorfc can substituto £or cane in this tisea.W. H,B»I&EtlTIASY MA'N'EHS.AtiO Rl&INGS 16'p.E'pr paEfioseis of .<:fa'i.s sTOoeeda.ag,.fcKe ..glaaniagCOHBnissiiOBt.akgs ^iiaicl-al afftiiGtt':ft£t&e.Sgoeral SIao -3<".W 042S9Q of t&e County of.Kaual.,the ItoIoa-Poipu Elaa,tbe BCO,the:,K»ual eotittfey :CB;artar,tte Kau'ai Cpunty .B5.0Qd Conifcrol Qxatnance^.the SMA Sules and Biafi&,the;L^ttet tTse S&les arid th®,tlawaii Ravised iSl:atEij;'fes/aEpli.ca&ia fco :tSe apI'U'catitsn?khe Plaualng Desai'tiiieBfe's fl.l.es in TssBBct of.::fcBe Applicatioa.and all inapS ttoisxn ,cetafeai;aBd,tfte Coiitifcy's.Zoning Mapa:, aaa tjliff $€at:B liand Ose^.Di'stta.Oi 161.10 tlte'.extent .any eoiiclusi'ga ot law lisa-siaaf-fce'e .se,!: forfcll in tihis 'I>acl;s5on:;and Orfe?::ts profieciy .,s'i:yle3,a o£.'faot:,.sald .cpnclusKitt aC.'.taw ;;ls st tilyts;paEt as a findlng o£;£act;. CQNCI.HSIOIiS OF I,AW Jurisdictlon 1.The:CoBm'lasioa tias JBrisdi.cfcion ,pwer the .Aggi.icant's AE>pld.cat?;ott 3par^nanC;:tw.tKeHawa;ii It6y.Bfcat.§288-6 Ccfas'tal %ofie:MaBiagetiieiri:Aet,Hawaii,Sev.Sfcat. S.':205-A,,.t^SCXS,',)^.'S^<RHles,tlie Eand Bse Bules j9flfl pther applisabl.e 'picovisfions uf^.tUe Hawaj.i Key. 'Siaat...'.:•""/'"'• AdnlaiH't^afcivs Sioc.eSase "We siisatutes.. restniTeiBeafcs qf .eacb.df .tiie.EOEegoing tu.i.ies;:;,<and..Eegti.i.iat.iQiis. .'y&e ,,cB^air!amenl::&'-of'_,.'fchS:' BiactsC;^.Ap1;:<'ISawt(£i..^IBes'-.;SSafc... aet;-...."•&33.:i-atSreStea :geEsoiis 'aad:;S>l''"'ba»a!'bavfi.:'6eeii :siy#n ,'&Qff-'Bot;ic:6''Ctf 'S^ea'\a.£iEt:>tt3lsa tiha lEWK'lfta"?®'VoS ar-gwaeB-t on the fctiie pcoceadiag t.d presantAgglie'iafeioa.,. .Haw.aii ;iEaiapte.r ;t>a'rttes ^ssS,have'eoSiae'ati ZnviTonmeatal.Insoacfs Statament 3.aawaa.i..S^v.Sbs.t.^343 aSS'U.oatj.fw .fdr aev&lgpnei 20S.S,tKere s&sll i?6 ASSe?BiMinfc,'to.fliglseCTxline ;i£ eiiviyo'iinenlial iiaBaBt: r.eqyl.res ot tha'fc Efit eyery :und'eE ^G&aBSer. a&.Bawi.TsOBaaaital jfeltete,'niay ^%..-g;'. fay.pfce'Haaaa.A 'Se'tf.Sfesifc1.;•^S':3<t3-^(a'y'{3').:'%^\suGti'an sB^irQadieatal'a'sssssneal;discl&sea.:.the liS.gllhpod tbat <;lie .CfojBGi;aay feava a sigai.ft&aBt:'etiwironmental ItBp.ac'E,,tfas PMnai-ng Department shall order ths. Sfffp&ra.kiWi sif An,'eiwi.ro nental iapacfc statement as aeflined''luiaeB,Haviaii-'ycev.r 'Stal:,§343-2,^BS raquirea .by Sac-fcloii 7.IE.;oE the Xaaai •Coiiia'fcy SKA --3S-W &42891 4.Ths CoBBnisstoB finds as a mafctet of fac-fc,basied oa .the savironmearfcal asseSsmBafc yacf.otmeS;aad:,\ooncilaaas aa a.-aabfce.r of law,that:tfie:'submisslon ana sfic&Bt'gnc.e of •sri ;E!hvi^Qameatal Impact Statemen'S:1s :spt requirea for.'tlie firapasea yse..at t-he'.:Frcileot Site. 6. 1-. 8. Stafce..GBaeraLPlan aria .De?Gloamahfe Plaa 5.:Cti?S.ter :226 •d£the Hawali.Rev, Hawai,'!.sfcafc'e (lev.e.lopneat .elaa ittfeaa,,,goals,obieRttves, gti%el±Bas aad.imp3.6men-tat-t.oia •fflechani.sas lyag-i'angp ,afiyelaBB)e8t;of:.s-feata lanQs. Stafe..S'az6'-2.(Sl.Tftffss .efli^ectiveB, gy.idalines are sst.aut tn Secfcions. 226-2.8 b£t.Kafc cliaptgt,anfl incorpoTated State Plan. •Sifeat^.setS :£o'rfch.;'a'.•bbe'sve.rall. •r:ta tee iussft la"Bawai;tit Ttev. policies.and 22S-3 thrciugh in tXse Bawail e;Commission fi.iid.s .as a mat.ter .pf fasfc.,.and ooiicluiies'as :a,aafcter b£:'law .tttat f^ie .deyelopiaettfe -uf t&e Proper1;y .^s ifl GOBiEptmaffcse :;and.is ;ppasas<t:eat wit.h t&e .Awergll 'ifcfaenie,.ggalg,objBctivas .anfl...po.licles :of tlte'Hawai.1:gtafca .Etsri,Sftwti.E6v..Sfcat.^.CIiapfcer 226. PursaaBt te Se<?fctoa t-t^Sf,B)fif tte..Kaiiai•G^es,a:i,..',?laB,-'t&s ^GeBeiEa:i.,;.;Elas ..funetian&^aiS' K&Ksh"^•eEtfeaKIrs.hes;'tSS,..Sisaswcftk, ..ettnsftralata :aaai gui^aali.UBS;'•E;w tbe ':'SiaiL...-BiiriSTtawt:s:1:0 Secit;3.ffiB.:^~-7-3.'3 ef tlie yi/as.^^^a.tiwreloyaest Elaa .ts^a .gui-deliEB for .UBEilieinsafcatiija'.crfe tKe General riatt.'Siizsuaat.ho'BOT'..•SUat:.:-&226-2 (15>;,"'irti.icfi;,is.aade ;.<so.tR%Sein.efal Plan BuTSB.aat:;fco:Hawaii Be'». SKat:.,.l'S!;5Z'(iayCt;^,';»:'','gu<tdeline is''a :^sfcafaA eMirse o£ aeislo.tt whieh a.d dsSair^ble and slioul3.be.followeS: .aiiless.a.fle&ecalatit.xon 'i's niade tha1:i:t::A's not tIiB nio.st dgsl-ra&le •l.tt a:partis»l*r case.ParauaaS .to'the same;a giitte343te ;maY'Be devtatea .fxas withoat: or ;.Geaexal tfie'.liBt Hswal.i. .iPyMugub to Seetion 7-~1:.^W^a£fclte Seneeal :.M:aa,lifte Gsneaal.^%I;an';,shaII./te''i.tti^6rp£ sft ^'JWWS&ww..QM a.itt,sociAl't envitoaBieatal:ang."•ggaoOitti.c '^Bel aay be ^noBxf'a.eaa'.!t:o aE»oninoa»tie::saeh tay ''ajBeaaiBaaiii ^to .ttee;'Sene;e,al .'glan o£.by -OT •ptogvams,. "Ebe @oiuBission;Ex-ads ..a.s.a matfcer oiE .f.actj,.aBfl CQi'l&lndes.att.&^inattae&of'lastSa't ^evelOEineafe :pf fcba: fioyecS.KS<sa smc£smns to fiaa is:lObaststent;wa.th e. Sea'eral Ptaa.:, H -3<- Soeei.al Maaaaemgn't Area Vse Permil: xo.Hawaii Bev. Area Ryles' Sfeat.S 205ft gnff thg.E and:Begii.Iatl.bns oS tibe•kKsrgfeo,Eeguirei thal:,prtar u&e'o£:'lands w£l:Iiia .thie Speelai. KlaaageHferi't :&r&a,;an applicant aust pxoppsed ;pro'j.ect:aeets tbe oblsctSyes fcfi.e.SMA Rule.a set 6a.t afc:..SectitSn 3..0, W611 .ais sdflcess and,to 'tlie Sxteati tfte gui:aeIi^i8B:ari3 co'acl.l.fi'pns af'tBa ^SM&.aules, :6£"Kguai t.d .pecmitfeijig eaaBfea!Zone show i;'aat the ,and pollcAes o£ b£tJte fiuleS:,as satisfy in Seet.ion 4.0 11 e Conimission iEli»as ,as a .mafcfcer o£fac.t,and .CGi.ncludes as a aatte.r af :Igw tliat fche Ap^UcanC &as net ahd .sat'iXr'.ied:all requi.rements and coadlfcions of the SSSK.Eules .of the County of Kauai .necessary for isSuailce of a Speoi;a3.ManageBien.t Area USe Perml.t. 12-in fefte aad apprQyln'g Site:aad 'is. eS'Eeeh.;the .'Spl£::,ecwcs& bas-aoi::a»ct;iffgas flfit caBmit';ac(enc!i;es:':afi(3i,e<?ttBU;asa'oas::fc&' s-s :td-.eBe'.aeibS&sar^•3by'.iStteyye;•Sfsx 'aesae: Site.'•.in.'^^.'.ftBtd- of a golf eouEse:afe the'the pennl-fcS reguired to-fcbi.'s Comaissioa :tt;;se;t£or .otteer';rSyi§!Wing a:BractSsaI .eommttmeu't;.to o£the lanfli uses in its c6n<5B9tual Etaha.'ulepa surrouiiding tte a.g.,Tfae:Bojaarssitin .Keze.ia;;con<3ludes thaS tUe,.pToject is col®l.&i:snts:':(<a.'fcIil;.,a&J,Bei£5i.yles.',flnd'; poliCxes:p£the SMft. Kulss'aaa ;3a®g;ula<:ic>as:'anft.'-Chapfcer •2iS5Ki.'Hawait Ksv. St.a.t..to,'Watf:'•: a}Tiift aevelopmen't;wi.il dot hay.e aar BuBstahtial.,•adyecs^^ehvlsonaent'al..or .BCi&logIoaI:'a£,fect •aieeyt BS syt!&ad'y^ESe;efaEectl is'mialinSzea to the'eartent jeifaetiCaBIe and .cle^rly outwetgtitea '.fty\public iiiea;Ii:b,BafWiy,snd welf'a.Ke,,<»coapslI^.Bg[\lgab.lac tnfe6ii;est<Tfte:;Pscj3^Qfe,•will •ao't ^llaye ^Advesfse ef£eet;a"",Iiy Ifcsslf'•.dr «it;b,!'ofiltet''iailtvt.dual culctpatly 'eaiafeias ':03:, fe&iE'pa^fc ^Be;e:real;i.o&aC cutduliat:!^.•tmgaefc1 •wlii:Gh;,;:-u!OttIA;resy'I't.'^la;-:.a. SuKs-tantIal'^aairSrse.,gnvtrQnn^nfcaI-or 'aee^offxca't, sffec:t:i •n'!:;^t^'»:H, ui.abi°n.of'yIawsXas oBfci&as^ h)"Elie PEojee't;is Goasi.ste&t witii -lihe oSJTeetivss aad BOflicias..of Cba^te^'20SA,,Hawara,;Rev.St^t:,..,aaa Sscfeion.S'.Q ^riS 4.0 (?f:tfie .SBA ffirles 'and -37-W 1042893 c)The de.veldpitteat geiieral ordiaanfies. i.s .cons.istent with. sKsni.a.g auci 0,th6r th^•Gopaty CZO.Ose PeFBiit; 12 'Rie KaUai Sosiity CoiBprstensive:Zoaing Ti.tle IVt fta.fclcle 2t!:,•Ssct'ion ;8-20.5i., is'saaBCB .o£:a 'gss Eerni.fc for.aAy ,use coiiiE>atl.l>la wi.ffi .the' viBla.ii.ty of tfas 'Bisoposed oxaiaattce ,at .{<:i".ffi5.?es''tiie:: Co:r lana:use; i.n the and,,£or: 13 trtsd.cB lt ;,ts:Siiown t&at:;t&BEy i,&•110.aeKciHient;aI SE'iEect OB't&e Tie'a'tth^.\:'sa£sKfi.'p&ai3&,noraig,'coinfgBfe :;'or .gener'al w^Ifare .of;.tKe''-o.onfe3.guoUs .ooBnuiaity,atid which is.cans.istBnt:witb :the Zttniiig Gpae and fehe Seoeral Bl'aa.•'^ The ©eiUBis.sion flnds as a matter o£fact,aad conc.i.udes as a.natter.of law tbat:the Aspllcarit.h,as niet aad satisfled 'a.ll .req'iu.rements of Acti,:cle 20 of. ,the RCOt Section S"ZO..'t,ft seq,;>£o.r fchS;Assuaace'of;th&•Use;'PsCTjifc;^•'".'.' Class T7 Zonina Pai'nit 14..Insafiar as t3w .Cla&s.,,rsc;.SK:u!iang,^BeEni&.ts ;a,^receaura-l. l.cssBijceiteat^ss&jfegiti^BB;'-aS^s'uiKsteBn'feiwe-;te^$Bw^'by'"t:I],e EonmaiSsioa ^;-:tu .'lxgSi;-;'';S;E,\'^^(^Uss&','^'fieaffiyei'''"flnaiags rsguii'Scl^lt»:.^.&Ba8^^t;B^^-G^^^B%is^^feermifc,,sup.fa,the S.^Stlioanfi ,t!:as'-Bie:t:,:?aa::;safc£sttga 'atl;';'^ire 'requlrements of'^ATti-Cle-1»\'QC:''tK&:»3Q<:S^Ftten .•&-;I9;.iL,.et seq.,fbr•^tle .issusnce^of;'a Giass';"!??oniag .Bennlt;,, Soecial -Ee'rait 15...Hawaii 'S.wy'-Stat..Chap-ter 205 (the -S.tate I<aad.Us« l>aw«^aad seation.1S-16-95 o£t.tia Hawaii LanaiUse Cotan:Lssiori Ru.tes pr6miia,ga!te<S,thecesynder,:aatliorw,8 ;H» Coni!Bi.B5:i(t)»So tssae •Speyi.^.t 'p^rmit^.'.tor tiaasltat;l::;.Bii!l leasoaeffile saey 'ae^Sng,'t&e guitaalii'uSis tiiSriein'set :Eotl:fa,,~''!":''•":'!'"'•"•' 16;.Hiider,Raw,aU..Sey..Stg.t:..§,205-6;,.Spep.ia.X'Iae .'issued'Eor -l.,anfl.'uses •S Eeas-BaaSbIe ag^lyl'Bg".theSiB an.:.je3tglcie;S8:ly^]EieBnu.t:-t®d;,'usie nlstxdcfc''sacK .a.s^';:tl»e goIE^ wiuicB is ^uat •aa eaptessly .Ag'ticaltnEal,Bi.sferict uiider 205. Bernits niay to;to's unssBal ,aad ;,anfi wBi.Ca is iKjrb wltfcia the ..^rj.eul'eutaA cOurge in t^its:instaace, y.eani.fc'tea uss within ttoa Havaia.Eay,g.tsi-t..Chaster N0^2894 -38-. 17..Tte Conmlssioit S.isSs as .a matter Oi£faet,and ctincludes fts.aatafcte'rttE :law t.ba:t the.pcppoSed gol.f couise fiss inet aitd sata.sfa.ea all ceg[uls6fflft&ts :pf CIiapter 205 'af.tlie Hawaii Bsv-.StSfe,ana^tteAana Use Sules .nece.ssa'rr :£or th6!tBSB'aiipfi <s£8 Speciai.Bernit:. ea'n'oati'bi-litv.wifct Flndlnas o£.F&ct 18.TQ the ^-fceBfc 'aay fladi.ilg p.f Eact DeffiiS.tiail and 0-r.aeE is p,roiperly law,s'a-id Siaol't'ng C(£facte''i.s' thiB:'parfc'as A!..:doaclu.s,K>ns ;<»£!law, BEGISJON AND OaDEB; confcsiaeS,in :th'ts a 'conclu's'ISri b£ i&cdrEor.afeecl.afc IT :IS,HEBBBY ORDEaBQ thafc t&s apBlj.catiaA :by ftnffiKO RESQRT ASSOCIATES ana GRO-irB EAKM BSQi'ER'riES;;RIC.£or Speeial Pernitt SP-S.8-6,Ose Pern.it U-8:<-31».5pec.lal .lilanageaenfe.A.rea qse Pe.nnit SI&(II.}-88—10anfl Cl'ass I?Zoiiing.permit ,Z-IV-8S-3?to dey,elop a gol£cpy.rsfe 'and a.caessosy Eelated usas.ana st'.mctuxes ;oa app'toaa.ma.tBly.210±acfes"of land:iaenfcifted By.,:Kauai •cax.Map KeT:.:2-9-09.:Po:r.l,,iocafced 1&;fche .ISfftoa ^BSdpu,^Pa';aAIuiguaa:,. Coiuiity aiifl I^and'cit.KSuai,S^atwS,ymiSii.,is ^assS-owBS-'asa. feti.at..:sa.:lft.'.pexini't£S:aSi.al:l be aS.d are bere&y issiied,subjea.t fco tlie,.ftiilc?»I:ng'coaai:i6'tons as&resferlctioas,all of wbicfi sfaall be'aefM-csffilie'1:0 SacK::of fiaid Beirmlts.: i. e clubboTTsa sSap^'gttall,"-! ta:eat'a6nt. clu'li&oris'e.ttill ',including res.'baurant.aiid snack :coime8ted tt).an..apprdved wastewater Liquid wAste E.roa ttie proppsed fae eoayeyfed.to eifelier the plaimedwast'ew'atser t'rpafcniwtfc .facility f.a-i thft new fiyatfe R^geRGy Kauai.-GE.the PTiyate wastewatBr Treatinent WbEk <SWTW)a't.I'oa.pu.Kai /UEO.W.tts eiEpaasioBi to accioaimodate tlis.setfage.fE.dn tstie clubhouse aad the .botsl. Applicaat :may ingttfctitee';al,ternat.e:ateaias for sewa'ge fcceataenfc at fSmofee .facilities 'prtiy-ldea the same,are apgrowect by :t3ie ^DeparSnient pf Sealtla.. A;agw 'Ewnf OB the expa&st-oa of tI'ie.-'.aoi'BU .Kai 'PM'IW sIiaU':t aeslgnefl,.'^inataltea ,ana •flpeiatgd''•x& 'aecoedanc^'wtth ^t:hs;'.,,9pglK;a»:i;e ;rBgu2-:ret^Bfe%,w£ Hawaii Bew.Sfeat..,Ciiaipte*27»as aaiendBdl,.anc[; tiie:^laiw £ar tfe pt»po5efl..EW'W'.''orl'fclte Pslsa IfaA, EWEW :esssssias/.:::sha:lt ibe sSlMttetiefl:j;:o:-'tSs, WaSfewa-lsar :;T;ceatnient;.'''WciHcB ConstEtKfKi.on ..GfcEints BtaacSr of tlie .tteB.aTinent fijE^StealSb'•£os ;,bescis«and .a.In:eganectaoa wi.th Of SBCft o£Itis • ii&alth Beptfrtaent's xev.isu aBS KgplS.eaKt sBaII..obfcaa.a afflsvBa^t:t M -3S- 9SQ<? N 042895 sysjfcein under .the.applicable regulreBtenfcs of Hawai:i Sev.$featy '§.,282-1,et seq_. 2.As sfca.tea in,.gawaai Hey.Stat,§.2?-2.l.6<.tHs .eBgtasei; aBiitgninig 'tfte l^pos^..PWTW;1s ^i^ea flexit&lityY'^cmel'aeslgn'resE^iEtstIirlilsy;^ro%iBed.;':howewBE,',;:tbel sng,iaeer steottM'cs>ns%9:c:'iscoxsex'atisg ittta £i®\!des.i.gtt:'";.:""-::": a. b. A .Sladse hoiQdng -•tairik fe6 ..alEow <.fbe :»p^safeoi: bgtli&r'ftpHfcTciI;'o'wsr thte so liets •xwfeskory aaS"~Va- SpBCBnt'Eat.e.iate::sltiflgs foc dispo^al.;\At a Couaty Bwogettreafeaeaf.ptaiif:;and lezpos.i.sg to ttiB atiBasphers the waiter sutface in tlie^tiecation tank -ana clarifieT to Eacili.tate e?se bf beeEatlon,x.&eair .aad nainteaance oE the facility;aad a stand-by o.r em^Egency pow.er electtical p6wer6d eguiiiaeri't'.;and sburce for Brovislons ,to erisurs :t:t>at sfcora :wa:ter does.not 8il1A:E:'i<hB?S'aiei.l3:t3<r:''•''''•;-:: Aay asiggofsed;?fCT»'®e!E<:l£:ieit 'slall';fie:•cipera!eed''''b$'''iBMtltl^ea, bylth^Board of Certifieafeisn o£ ,ia Wastewater Treataent Facillttes a»s6afeea:iii^taiairt^y 340D of fehe Hgwaii/Rev.Stat. ;The.yietjsok'.-s&aSl.Toe prQvidecl Bifch potffble water'•tBc&uga'thle^eguaty'water sratein. issuaBce oE .gEgpaae.'aacl: i<»£:: syat,e& .&' ciBta3.tt the/ c.onsttuistioni gaei.litl^a anfl Qt post a permtt 'tbe ;;E!epartinenifc oE flrawlrigs far sball eitheE bottd P,ni»r to tfa% ^e^Mianfc.sfcall'Wat8jcJ.s ;;•StpjE>Eoval' n0cjBssaty trater coiasfc^tet sadd f.ea'c&astrucfe-TOB^/Tb.es»::£ai;illties :SBaill tnclude: tiie dqae^tiC!i:'s8m;c&'.'l!aanneetion and -:fc&8';;£iife serviee ffttffiBftctiQtt..:-The;,.jStep:l£<:;anf:-:,shall also snbnit .to the Sepaataent:^,^Wa-fcea ^e intierior plunbiag plans with the ..iaegf'OEEi.ate •laicXElew <g:EeYsnt:ion dCT-ice 'reflected, i£.tfi&'saiae AS If ati&13:cflb';la>^,:^e£ang;.agreeaieafc Betweert-fc&e B^pa^-tmaK-t:''o£-.^Wa1:$i;afid';t&e'SB^tteaat 'aust'be1 c;piBEi:l:eiEea^^1i»liai;eby;:'tdte 'S^WIeBes:.ceis^sS.tmSes:i-Ks,^steasce' tfi BIac^a.elct •Hawail'!as"'Eraviaed :3.a "'^^".Bes'arti tte^':oE Water's Hules.;':•".",.":'1 :'•-•••:••••• T&e Applicflst B%all;gay alfc.apgltcaible,.cKarges E :]fche DBBfipfcaieqt:'.of'??^3tar''as T&^i:rea Sy:'fc&ei'.SelEiarifciagBS's- BKlfiS..:,•;.:'':;1!.i.''.'::1 .:/••••:• -40- N &42SS m II 12 13 Gcubbea aiaterial Created in the .co;netru<:(;ion'^hase .Rf tbe McuAct sha.tl:be..^ts]pos^d..gf.a't;s:Aite apgrywed.^by t&e Depsrinteiil:b£Healtlt..:0pen liuraing is -proMibifcejd. Ttte.Applio.ants Btiai:!...BUtinK:fco "fchs..Plsaairig.DepaE&ment fo:c,^rev.tstt;anB appro^al .prior tw an^Coaaty Siarntit a.btfiiai.ng'iKj.eyat'^pns,.rciof'-aes^.grt,;(iia1:si;ial"{;elor b. c'. sclismes '.ahd/at .saiqilsfr taBdacapiaa,..E?a"(s.)-^ site .layaut'.develSiEBaeat plan.('s)Of fche .entice a££~BtEeeefc p.arkiag;sreas,tofcal nuaiber •(»:£ parking stalls (improved an3 uniii^Toyed);.and s-fcreet Itghting elaas.The Einal pat'ki.ng plan sliall b.e.siibject to aKproval by the Plansing Dtrector upcn CQiifitmation by the State.Land Use. Conmi.ssion; d.any .siia .all TBs..ApplioaHts:-s®all ^tasiEitfcET.'tJls;beuiiuteO.'eife'on.•fclie :<:;oaseD?:a£^on-'latstr£ct;wiiH?'.sUr?ey sfcakes Oi»":p,iaB anS sttal'1 aei'tify.the Plannirig Oepartttant and a-ttornsys &£ icecQra £Dr the Intervenors Brior to any construction, giaaiag^,l.nproveaents pr landscaping actiwities pn th& b's'eiall^paffcel area in oraer tliart att inspeatlon arght ba-:'caiau(2t:ea.The l.ocation of tstee Boundarles .s&all be aisBffratftl^.and malnfealiiesd througtoQut atl.pNasas aS oE tbe project. la'yiew .6£tbs:serres.•of.Bublic ^accesBes,.and: EBG'rlUtAes,•laelud.tng.\'patltiag,wbicii wtjce.'^deyetoped aaa:^ex^ew^eS,Ww'-swrei^J.^&ase^.d'e aeveMpiiient within :ttie-';Boli>a S^ti;re5orfc.eOiiBMBlit¥t .i;Se::ABEl;lcaats's&all provl-Ba;.a;•^eonso'Iidated esssaisat loeafion ^iBfi:sbowing al3.S'utilic ro^dways,pedes'Enas anfl vebicular beach aecasses,and the *espec€iye owners of any easeiUent areais,,\. ,TBe1 t&e based.os fcitae OE tfaB. sfeal.l,p.aB'to tBe Blanaisg ESTX:FOBtteB*a l f,i.nal c&nst.rueti6&. Bennit :D§p<arfcmen't;. Assessagnt ijEee^ SBbmi.tted a-t IB f&e evenfc the'caaQ. courgjs'iiS;.^impxflyea;:S^ aEpla.caat',;s&al^:proTiflei; expensB.,.oa.lhe';'Makei3;: enfrre leng.tti,Qts fronfe.iiss tfte.golf,iiattl ..-road 9,nia'^os.',£nQX^Q1^.9,£t:£'^t^'6:^ 5,.,install ;ana ^roatMt;gin::;at fcheir side of the rpadway along ies M:04%S 8 -ai- 14. •13. ItS' 17. CUE&S,gatterA and aidewallts constrwQted la accpraaaGe'.wxfcb: and aesigaed anfl sta^idacas; additignal sfeai'u?A»:<tB, j.oggera, u fOT b. 3'ilis: [::infeal"6?""'faS of^'Kaual.,':ait:. sutimittSl :to t.he ci:>nnie.noeai6iit <s£any tlie use- WiBt.h a.s .a if&n-vftiil.cular -and fco County'fOT be;sBiliedi^d,±n aii '3betwpeSl .;:l»cMt:h Apjplicants anS.the eX.eCuted ''eiopy o£which s.hall be .aanirig Dspsrtment pcior fcfl the g.round alteratloa aetl'wlfcies on TAe Applica.nts .shall...wit&in Cwo (2)years £xom the date of Sfafce I.aria.(Jse..eQnmis.siQn appEoval.csaplete s'libBtantiar CQnstrucbiori of 't&e prcijept.'•Su.bsfeantial CosstEitcsfeio.s."shal.l mean grBding ,and.grassiag o£no less than 30%'Of:itiB;:6ro3:sct sl/te laad^tSie.-c^iinpleticm is£.toiiilcfi.ng'£anndat4;ans:fex./£li^;.y';$ol;E;.:;,,'club&ouse Sacllity...'\'B'aililirs'/'':te>''cp®le:te,,^.,;;ssbsfeaa*ial •ce^.t:»imtioa^wi ^:'1:^"'tii ,l:peBl^'spa^¥l^.shall lBSVi'lt'iii.tSe^''ssvocsaibi!3ii^ioC t 'subj^et .pertnlts,. liursuant ta.,pEOper^ Tte APpWBants,SK«a,:l dl'seuss,.resol.yS .aa^/or witb -Hie a-gencap:eoaments and reguiEBaents^; Seceia,:or .ifflEQSed .Bereaftac,witb ttie' gcwemrineafc.agBney sxios to any Uuildlng serait ABjoil.icantSi at)iaA.I...^sulaatt -a esetl£liea...:.sKaBallne fiEsl.or.'tB.tssuaBBe of dated ao;eailiar than eaianeneiamSnf of,any Tbe .sarvey .4:0 ,;fcbe; ariy •^TsMi.sg QT 'bui.lciing'^pBrmlts: siit C6^mottSBs Scvm.ths. :CQosfeructrOia •aetiyl.fey on tlie^'eroyevty. 'EhS Aipgl.leiant.s •sball sskatelish anfl 'maj.nt'ain a grgus :Tafee '^l:;rui::tii;E0;j.:s<a:!BP®rateing 'a KaiBaaina':ra'ta/'fe.o^;:be ,'sst::at.;$22;. 0:::(iaeiiitU(lnft:lic»rfc.i'fsas)ior'•Kauay.^esA4ertfl:a,, wBxcii ,$22.;6S "tia'tfr .stt»:l;l •Be.'tsaanfcarne^fciE'a.i)®tlod''6f; flwe <S}yeaifff,ronf':l:tie,.dc(fce.offcIie:opeoiiBg'^!pf the ,gplE cciw:s^'i'yii&ft'''iwssea9SB!"»£-np:abBe than $1..08 a"jea.t,^ea.ch yBa;E:,t:li%r6afteer for'the :ni^t Slve (5) jear.3,''Sti&'•Aep^caats;;:,sllall'alsQ'guaraatee .three ta^eCafciffe?:.s^aTl:fng .ttiBaslaaS.Iy {.eaccspt on touraBmeBt daxaY (;Smttenc;iag..»t,;lU'?(>p ,a.S.,.Icr::Kauai sesidanfcs: £<M—'TAich^xeye!;wati;ons^,''inCT^fc:;I:!&:iftaj?e^'np less tfaan••Weshs-towt •^Z-Siy ^.tiowcs..in:'.aayaBt;a.^.of,;;*he startiag tlme.:..s&onlia ^bec?!::36a^\aa ,regp»ests maSe,wittn.n this tilhe fraiBe,SMC&.tlwes ean b&'so'Id er given away. -^-;M Qi28§9 19 20 .21 18.The Applicant-s shsll instifcute,and .nainfcai.a wtiafcevAr measui:as :are aeeeBS-ary,ihcladtln;g bufc'^icifc Itinifcea fo Eiltei EFEeens,si.Ita'tl.on.fionasi.^etc.,to llmi.C to not mota t&an earrenl:rates.,suBfiasa ruaoff :;eiowing pr thailrsc^ly Infeo'tlie!,ci.Ef-sIiore;.iBs£aps,both ^dev^IopaaBt ,''oC atid.oeigrgfe'ioa Q£:^lie,,:.pi?o:ject. Plans ana^cnc :inipi0%»meft6s..::£0r''sucB.•ruiw)f£:preyeatidn neasMres^are::^subj:ee^/\fc&.PianB.i^:::tj^rtmeBt;•rfi'sriew aiid'aEpcqvtfl 'prier t&the is^ufiBJce.sl ^iany:'gi;^aing perndts Snfl .prior .;to ehs CQBimenc^agnt;.of 'site :wgrk dri the The P.lBani.itg Cptnraissi.QB eoaaj.tio.ris,restricfeionS permits approvefl fierei.n unforeseen cir.cuasta'hces adait.ional conditions td staadards epntain.ed :in Chgpter 8,KGC, Dist;ri,.ci:.Rulss and 'ReguIa'fci.o.as,pr Ma.nag.ement Area fiul.eg ana Reguia.t.ions. shall iapOBS additlonal or ^equlr^meats^•:on the shouia UBanfcielpafc.eid or aiise ^hicb reguire sucfa insare coapli.anGe witli the S.tate Iianfl Use the;Sp&cial Sjn.Bt ;to;;fch&i.gs»a;ace of .31%,graffing^6r•ye.ixita,,.t.h^,.•.Kgs'LivgLnts shall resolve wlth the B'3;am»itig .Itepai'tiRejiri:.^t&e locatian and/of relocatiori o£ ttie'exlsMSg'liciEsieUack rlai,ng fccail prsriouslyafp;ro¥pdl^Sy.".th^'^laiu:t3;rig Commtssiloa <Class IV z&nuig Per»i;t:;Z-3 -a:6-?l;.."",.. EffeGAi've aust a.na'.soile;rps3:on..cpBta:6l meaSuBBS shall t®im&Iemeafcea'.!ait^ing;..all:,.:Bita s.DE''-devBlQptnent ^and ogeratxBa;'^.-tfi^la^Iicjan^.;;:\\^';.':'"'"''-, 32.Pn'or to..fcfae 1'sstfariee sf t»e zonfcs arounfl tBe sifces identiflea baf-felr .any Elag'/aud etg&t (8)significant In :tte Arbhaealo.gical He'port. .sliall be maintalned by or create bufifet arehaeological Such the tlie gfllf'.course, aK all ttmes .pbase sif t&e Snoi 'ecmsfexuRtslon Of ;t:lia'sftall Ssve :a.guaU:£a:6!a saJte to iBoinj.tfl^fche-woi:fe.EBonia Ija.sterlEal ::i5r arcbaeo'iflgica.l dis&omeaiad,,w&rk'.tii .tfiaf::<;area;-'sIi,Bl.l':-'B]e' revlew fss;.•t.lte arcBaeiologisfc.Kriy:'[ £r(»m:;sa:ch:reiraaw.^sSall fte:::€o'cwara.ed Mtbout.:to.ths yia^Utg.^O^ayaneB*:aiaa .StafcS -Historic PEesetyati.eiia QfiEa.'iae^;.:"The jsiigll^';(aJ>,•'.si^iflcant ieisl ':SifcSs';';.;sha'll "tie ;&E»8e;ryea.\'j.a:C'tbe,.aanner Ia;\Ts3b.l:8'.1,^a£"'the ^AriyiaSoS^i^ai;!.:ifeport,a c&py of w&tcB 1s ^t-twihed liar6-i;o.laaa ::lneoBgprated tBe on of be fOE .iBCfteaatloa M ®42afi0 -43- lier.ein as.Sshlhtt "A"ana,whtite po'ssiSlie,ehe:si'tes aball be lategratBd tal:o the gol£ootiEsek;layau1t;'.aesigri. Tt»8 and. time sba.l.l .oS TsEO^d for tbat::tHe c-reafei.oa •of of t;he.,;sy;es,'dre by tSe- tUe fcbe Inteirvenlor.s afc.:sach'bMEfer iiioses ana.t.&e ECHE 'BeTi'ew;:.a!ia Wi:tia.rpsg^et,ko..fcbaae::'10:.Ed!tes Menitifiea:,,i,a ..tfe ArcbBeol.ogiGa1!;'.^ttesosfc .^?s;:.net':';Being'.^iiictudeei or cORai.deiaedl,as:sTSntfiiosat:;SM;t .-wartattH-ng'.-prsservatlbn, thB &ppXi.canfeg S&all.a£t;lie tlme tt£leubml'tting tKe first of .any grading pl^ns,firea.en-fc t.o fclie;Planning Depattiqent Cbr reviiew,a written repost .det'aiiing the pBOpos:als therefor. I£applicable,the OEflce bf Hawaiian Affa.irs' guidelines and standards shall be.foll.owed EBE tliis .intermeht of ancient Hawaiian butials .afc t'lte sifci&'. Tbe Agplicaafcs attd .XigttagssiiEGitiae.aii Kakawehi.sartd witliiii tfeEee eotnai.s'si.oa .ai 23,.Tbe Agplicaafcs .shall ittplement a system p£barr.iGa.des thai:will lie desigaea to prohib.it a9d Tefaiculac aceess .on.aad around the dune.Such syst^m shall be iimElamented ,(3)aoh-tshs Qf tKe date o£Plaaniag The Applicants shall submit:a tKe method aiid l.ocation 6f such aa.;example or exainp':l.es of signa.ge,to Eey.i; .aad apptoval by •fcbe Planning n'a.B'bactfiiers and .scale,:fo-c 24..Eti,<iE to any .lati,ldittg:ainfi/or;.igtaaUig permit apElicafcion,,tlie;ABpliceiats ^sBsll ..snbmiK 'fbr Eeview and approy.al hy .tbe:BlanniBg .Depar.tiaeht;,,fclie form of l.i.pense by wBlete laeHitjers';df the "jBtiBlld wtll be aff'ocaed;.the accesses!ore'aSBd.ia coanBeti'on witU this' aippl.teatipn.Aa'execwteff .COE?sBa'11 he .subtBitt,ad .prior to thg issuance 6X a cectl.ficate;of oeOuBaacy.COK'.the a,Tbe license .shall:.pcpwiae.fiM:."»eliicailar,.isc6ass;';fcc t&e fiai:fci,ng,f.acl;l.:i.tl.6s;;aes®rj:bei:l:in cdi^ttiod'if.Si.S tieii^i.n,ted.Sli^l lCTsa'fce/.,a..gublid:ri-ght'-fco atilizs;-sulcsti.aGeas&and.1;i»;JEia;i3clng EacUitles' fpr^t:tes.^ptirp&ses.:.:a®s(3r'ii>edia,tSis eondition and said coBaifct&n-IKZS. 'b,.3'he Mcense ;S&aM. ;t:he sKoreUae :frion( S&all grant pede.stBi.an ascess to £treF'..parkli&g'.fAeili.-tdes and aceess aiang tbie -44. sboreluie ili fcjie .gerisral a.rea of fcfte slitttellne tr.ai,!,rief.Igctea att ApgIlcaatB'Eali,iyi;fc-;!;/.from t&e'1 Hyatt S6gene$';?:Kauai^s'i.te'•<:a:;;fcaie:istfifffset.ion- BE fclie '(mc'th&aet.eiii ^ooast:.al :b6.ca[6t'of 'thfr .groj ect sif.e 'aod tba^ConSeirvstiori Dlstrtct Ti>e Ifccense staal.l gerai.t rel:ocatipn in :th^,future oE tlie vari.wta':faoildi;ies:des:eatbea .'itt fchis coa&i^ipH and:cotiaitlioa'tV5 'b^reis,snbject:tei 6K6 reyiew 9'na '.app.Fq.val::;':o.'£the P.laiinlng C6Ba3.sglioa,;/'aBa,'_SBb:3ect:^1Ae.'requiteaent:t&afc (ihe;:'Applieants .pE'ovide :a1:ternate and s&ba't&n'fc.lally eguivalent substitute aGcesses ahd/pr parking. The tlcense shal.i absolve tbe County of any liabili.ty clwims.Th^Ap.plicants shall be cespoasible for fcbe maintenauce of the access and pa.rking .f.acllity areas,together witlt any iniproveBen'tS,insfcalled,erected,placed br ooas;1::aBac.'fce3.th.B.teupon. 2&.'Coacurye^fc wi-tb.i£:s ;dey$logment:.o£ Sfaal:!'ooiBStTtiefc tslu?aA~:£iaca?l!t;t:'£es',afc.^l<K;BfI:a&s as'X::Of guffipiSnt'^aunensiQOS to paik sifett,,'&ttB/S ca'rs at:tbe reaatrii.Bg two Bal-a o6aefcTu<3tiQn,the Bl fche tfieprBjBct, uni.mpTaved on Exhibit 40 cars at one sifces.:Prior to shall stake the •aecss's •SitieB'for insiieet^on by Tilese faoilities.,together 60 "fctee ;;faeilit;tBs^sfaall ifl Aae,coasfcat reiatejSi-fciQhal Che Elaiining with veiiieular ibe naae users on thg da'fce 'bf fclte ^fii^i:..public opentng .to tha golf coarse. Dyriag c.onstrucfci.oa,alteriiate-acGess aregs shall be (itoviaed to theiiublic.Tbe Applj.caiits sfia3:l.submit:a ma.)B,rB.fiecting :th.ese.,:feeaipo;rary access a.reas,aad shall publish svch mas in tlie .IQcal newSpager. 26+Upon .t&e ftxecufciwit of ABSOCiat'as,:'Eor tbe 1 ml.tlioiut.^aelay^.suliiniA;'^;! Ifee.'Maiiaing pe)pai!taetit» ot leaewa.ls ..of said le.ase.- as.lB.aBerentaIs,may be lea.se,tenewal or eafcension. 27,Ihe tayQr ,aS Ataafetlease:;in •/'.'rssvyy^VltBveof^t.6'WaHsK'^aay^;eafeeBsions ;Nian—pjerfei3!t^ni;-;.:;itens.,sueh excisad";%oiif:;fche. :ara,^eBfcr:ti::tefl ,;EEQBt a$;i,IiaiBg any •QT.'terl^G;i:afis;ew'';tlie.'.Bj3:ijiffct,':.^t'ea imt:il suGfa,•frinie 'as';a';reBor'fe-':'or:;reSQTCs"aTftl\:Bitt)a!ittea:td tbe. COBimisslan'sad :±ae.:lnfeervenorB''-couasals.of -4S- N 042902 cottGiuaing thatreeo.r.d, ea'yironmental or th&TBfton)feo the. t.hB wa.tets .oif-shore fehe Agpl.icants eQimnlssl'oa::fbr .iaoaiEieafeion, t&ls .BEBtSitian,ho't.iEe shall lafcer'yeaoS's'to.atfefend aay tbgetber wi.fch,.a ceff-of ass acconip^nyiag..docunen'fc'ati.-on, no .si.gai.f.icant adwe.Fs.e coaseguences wi:l|L -aesiilt area,.InaBeaiatfi enva;rons,':'att<l £rojii fehe .pKiject:Brea:,,Sliou;td or adve araeaanient' be •-OS tSet o.r aalefcxon .to grT-^n'V>"fcge leatiCig;fcUereon, oic;::aoti;bn ana 2.8'.Ehs pgi;n>its issueS.ber.euna.er AIialI eonfeiaue:ig .effect, ttecough :tlia.•1-ease .perioa ;or:;aDy.ext;ensi9na:'.o.i''-»enswais:: t&erepf ;fot-.£bepfpBe.rtyaBd::th^reaft!Br 'so'lottgas Che propsrty i.5 ussd E&r gp3.f eoarse piwpQSea,and are Cnrthje..t condifcioried.upon ,tbe us.e pf.tlie propeirty only for golf course purposea ,gad the .stmelures and i.aprofemeats listed iii tbe .appli.catioi'!ana.depicted oa the consttuGt.ioa plans whioh will be ceEtified by thePl.aataxng .Bepa'rtment Sa Connedslon :!harswi<;h.-Ko aadlt;aona'l :s|tructur;as.^r :.,i,a®rci'veiSents;:l.'avB1-.'herei&y- :•tioc :;anx'l^spaaslonff" ereBt.t "•'. M 042903 -46- BY ;CBEER .OF THEM.ANNIW!COMHISKm,tfie •flppUcants'pequ&st is tierel^ ^iptsved,:^si^S^.to,th6;:afcffaMent;toned cEnaiaBhs,:.tiiy a:,_6_te._j._;votetakai-at the\AuguSt 10-..1'988 ,Planirang Cpnw>;t^l(m:ii]^ifs^;fta3#itei;: FtR'; Stelana Beia Cruz Contrades fetaunura Costa ASAI^ST: '&s"'^SsvS«^K'*^S^^t.''.ehatiSaB.:Sjr8-ie'':CEnmtssIaff- :0ats:^iy.'^o-.tt EXHIBIT "B" 1 BEFORE THE HEARING OFFICER OF THE PLANNING COMMISSION OF THE COUNTY OF KAUA‛I In the Matter of The Application: of Special Management Area Use Permit SMA(U)-2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the Construction of a Farm Dwelling Unit within Lot 7 of the Kāhili Makai Subdivision in Kilauea, Involving a Parcel Situated at the Terminus of Kāhili Makai Street and Immediately Adjacent to Property Identified as 4316-Z Kāhili Makai Road, Tax Map Key: (4) 5-2-01: 007 (Unit E), and Affecting a Portion of a Larger Parcel Approx. 27.56 Acres in Size, VALERIE M. NEILSON and DAVID N. KELLS, Petitioners, vs. PLANNING DEPARTMENT OF THE COUNTY OF KAUA‛I, Respondent, and ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CC-2020-2 Special Management Area Use Permit: SMA(U)-2020-1 Class IV Zoning Permit: Z-IV-2020-3 Use Permit: U-2020-3 TMK: (4) 5-2-021:007 (Unit E) HEARING OFFICER’S REPORT AND RECOMMENDATION OF CONTESTED CASE; CERTIFICATE OF SERVICE HEARING (Held): Date: March 4, 6, and 13, 2020, June 18, and 23-25, 2020, and July 2 and 7, 2020 2 CS DEVELOPMENT LLC and CHARLES SOMERS, Intervenors. ______________________________ ) ) ) ) ) ) HEARING OFFICER’S REPORT AND RECOMMENDATION OF CONTESTED CASE I. INTRODUCTION. This Contested Case involves the Application of Petitioners VALERIE M. NEILSON and DAVID N. KELLS (“Petitioners”) for a Special Management Area Use Permit, Class IV Zoning Permit, and Use Permit, to construct and/or use a Farm Dwelling, Pool, Greenhouse and Storage Shed (collectively “Proposed Project,” unless otherwise indicated to the contrary), on their property located at 4316-Z Kahili Makai Street, Kilauea, Hawai‛i 96754, Tax Map Key (4) 5-2-021:007 (Unit E) containing approximately 9.2 acres (“Subject Property”), which Subject Property is part of a larger parcel of approximately 26.191 acres in size (“Application,” unless otherwise indicated to the contrary). The Report of the Director of the Planning Department of the County of Kaua‛i (“Planning Department”) dated October 9, 2019 recommended 1 Various other documents and/or exhibits describe this “larger parcel” as containing approximately 27.56 acres. See e.g., Exhibit 9. 3 approval of the Application, subject to twelve (12) stated conditions (“Director’s Report”). By Petition For Intervention dated October 15, 2019, CS DEVELOPMENT LLC and CHARLES SOMERS (“Intervenors”) requested they be allowed to participate in the proceedings involving the Application because they own an interest in an adjoining property (“Petition For Intervention”). Exhibit E at 1-2. At the October 22, 2019 Public Hearing to take action on the Application (“PC Hearing”), the Petition For Intervention was granted by the Kaua‛i Planning Commission (“Planning Commission” or “Commission”) over the objections of Petitioners. Compare Minutes of the Kaua‛i Planning Commission Regular Meeting of October 22, 2019 (“Commission Minutes”) at 53-60, with Id. at 58-59. As a result, the Commission deferred action on the Application and referred it to a Hearing Officer for review and recommended action without objection from Petitioners. Id. at 60. II. PROCEDURAL HISTORY. The Office of Boards and Commissions of the County of Kaua‛i by letters dated December 5, 2019 advised Petitioners, the Planning Department, and Counsel for Intervenors, of the appointment of this Hearing Officer for the 4 above-entitled Contested Case. Thereafter, a Prehearing Conference was held on January 17, 2020 to schedule the Contested Case Hearing herein. Based upon same, the Hearing Officer’s Scheduling Order dated January 17, 2020 (“Scheduling Order”)2 set this Contested Case for hearing on March 4 and 6, 2020 (“CC Hearing”). Prior to the CC Hearing, Intervenors filed Prehearing Motions requesting: (1) a site inspection of the Subject Property (“Motion For Site Visit”); (2) issuance of a Subpoena Duces Tecum directed to Petitioners “for any and all records relative to the planned development and construction on the parcel identified as Tax Map Key (4) 5-2-021:007 (por.) – 0005 (Unit E)” (“Subpoena Duces Tecum”); and (3) issuance of Subpoenas directed to several government officials, and other individuals, to testify at the CC Hearing because Intervenors believed they had information regarding the Application and/or Proposed Project (“Subpoena Ad Testificandum”). The Hearing Officer denied the Motion For Site Visit, but granted the Subpoena Ad Testificandum in its entirety and Subpoena Duces Tecum with conditions. See Minute Order Regarding Intervenors 2 The Hearing Officer’s First Amended Scheduling Order dated January 24, 2020, reclassified the designation of the parties, but did not otherwise amend the Scheduling Order (“First Amended Scheduling Order”). Therefore, the Scheduling Order and First Amended Scheduling Order shall hereinafter be collectively referred to as “Scheduling Order,” unless otherwise indicated to the contrary. 5 CS Development LLC And Charles Somers’: (1) Motion To Conduct A Site Visit; (2) Request For Subpoena Duces Tecum (which should be titled “Request For Subpoena Ad Testificandum”); And (3) Request For Subpoena Duces Tecum, All Dated February 5, 2020, dated February 6, 2020 (“2/6/2020 Minute Order”). On February 6, 2020 the Hearing Officer received a Prehearing Motion from Petitioners designated as Request For Reversal And Denial Of Petition For Intervention dated February 1, 2020 (“Petitioner’s Request For Reversal”). The Planning Department filed its Joinder In Applicants’ (sic) Request For Reversal And Denial Of Petition For Intervention on February 19, 2020 (“Planning Department’s Joinder”). Intervenors filed their Memorandum In Opposition To Applicants’ (sic) Request For Reversal And Denial Of Petition For Intervention dated February 19, 2020 (“Intervenors’ Memorandum In Opposition”). The Scheduling Order provided that a “Hearing on any Prehearing Motions [are] to be held immediately prior to the commencement of the Contested Case Hearing, unless an Order ruling on the same is issued prior thereto .” Scheduling Order at 3, ¶8 (emphasis in original). Therefore, at the commencement of the CC Hearing, the Hearing Officer heard Petitioners’ Request For Reversal and construed it as a motion for reconsideration. Kauai Planning Commission 6 Contested Case Hearing Minutes March 4, 2020 submitted by Anela Segreti, Administrative Specialist 1 for the County of Kaua‛i Office of Boards and Commissions (“Tr. 3/4/2020”)3 at 2 and 7. On that basis, Petitioners’ Request for Reversal was DENIED because no evidence was newly discovered after the Commission Hearing on October 22, 2020 to support same. Id. at 8. Even if the “postal service delay” advanced by Petitioners could be construed as newly discovered evidence in support of Petitioner’s Request for Reversal, the Hearing Officer deferred to the Commission’s decision in granting the Petition For Intervention and would not reverse same. Compare Petitioners’ Request For Reversal at 4, with Tr. 3/4/2020 at 8. The Hearing Officer also addressed Petitioners’ argument that the requirements set forth in the Declaration Of Condominium Property Regime of the Kahili Makai Estates, as amended (“CPR Documents”), require the dismissal of the Petition For Intervention because the Intervenors are deemed to have consented to the Application since they did not timely object to same. Petitioners’ Request For Reversal at 1-2. In response, the Hearing Officer ruled that the CPR Documents are “contractual[] in nature and binds only the parties, not the Planning Commission or this Hearing Officer.” Tr. 3/4/2020 at 7 (emphasis 3 References to transcripts of subsequent days of the CC Hearing shall be referred to as 7 added). Therefore, Petitioners’ Request For Reversal was also DENIED on those grounds. Id. Introduction and admission of exhibits was the next item for discussion prior to commencement of the evidentiary portion of the CC Hearing. Tr. 3/4/2020 at 9-10. First, the parties stipulated that the Planning Department’s Exhibits A through F would be received into evidence. Id. at 10-11. With respect to Petitioners’ exhibits, Exhibit: (a) Nos. 1-7, 16, 18-19, 21-24, 26, 30 and 32, were admitted into evidence by stipulation of the parties [Id. at 15]; (b) No. 8 was withdrawn [Id. at 12]; and (c) Nos. 9-15, 17, 20, 25, 27-29,4 31,5 and 33-37 were received into evidence over objections of the Intervenors and/or the Planning Department [Id. at 16-17].6 Finally, Intervenors’ Exhibit: (a) Nos. I-XV, XVII, XLIII-XLV, and XLVIII-LV, were admitted by stipulation of the parties [Id. at 51], and (b) Nos. XVI, XVIII-XLII, XLVI and XLVII, were received into evidence over the objections of Petitioners and/or the Planning Department [Id.].7 “Tr. __/__/2020”. 4 By agreement, Petitioners’ Exhibit 29 was to be supplemented with the missing Exhibit 2 thereto. Tr. 3/4/2020 at 20. 5 Exhibit 31 was subsequently stricken as duplicative of Exhibit A with Petitioner’s agreement. Tr. 3/13/2020 at 39. 6 Petitioners mislabeled their exhibits with Roman Numerals, rather than Numbers as required by the First Amended Scheduling Order. First Amended Scheduling Order at 3. 7 The Petitioners offered a combined thirty-nine (39) exhibits and Intervenors introduced sixty-six (66) exhibits, all of which were received into evidence during the course of the CC Hearing. See generally Intervenors CS Development LLC And Charles Somers’ Proposed 8 The CC Hearing continued on March 13, 2020 because the initial two (2) scheduled days (i.e. March 4 and 6, 2020) were insufficient to receive evidence. See generally Tr. 3/13/2020 at 1. The testimony of Petitioner VALERIE M. NEILSON (“Neilson”) was not completed when the proceedings on March 13, 2020 adjourned for that day and therefore, additional days for the CC Hearing were identified off-record. Id. at 158. However, the next day to receive testimony of Neilson identified as March 20, 2020 was “postponed until further notice” pursuant to the email sent to all parties by the Hearing Officer due to the recent developments and spread of the Novel Coronavirus (“Pandemic” or “COVID-19”). Based upon the Telephone Conference conducted on May 13, 2020, the CC Hearing was scheduled to resume on June 11, 2020, and continue on June 18 and 23-25, 2020, utilizing the Microsoft Teams Platform since the Pandemic remained ongoing (“MS Teams”). Minute Order Regarding Continued Contested Case Hearing dated May 13, 2020 (“5/13/2020 Minute Order”) at 1-3. However, since it was learned that June 11, 2020 is the State of Hawai‛i Kamehameha Day Holiday, the Hearing was rescheduled to resume on June 18, Findings Of Fact, Conclusions Of Law, And Decision And Order (“Intervenors’ FoF”) at 58 ¶302. The Planning Department did not offer any supplemental exhibits during the CC Hearing. 9 2020, rather than June 11, 2020. First Amended Minute Order Regarding Continued Contested Case Hearing dated May 14, 2020 (“5/14/2020 First Amended Minute Order”) at 1-3. Consequently, the CC Hearing continued on June 18, 2020, and took five (5) more days, concluding on July 7, 2020. Minutes Of Contested Case Hearing dated July 7, 2020 (“7/7/2020 Minutes”). During the evidentiary portion of the CC Hearing, Petitioners called Ms. Rose Contreras to testify on their behalf, and they also testified in support of their Application. The Planning Department called Mr. Dale Cua, Planner for the Planning Department, as its only witness in support of the recommendation in the Director’s Report. Intervenors called: (1) Ms. Nancy McMahon, Archaeologist; Mr. Rohn Agor, Architect; and (3) Intervenor CHARLES SOMERS (“Somers”), as their witnesses. Additionally, Intervenors requested the Hearing Officer take judicial notice of certain matters, and provided other information requested, which were all submitted pursuant to Intervenors CS Development LLC And Charles Somers’ Submission Of Matters Judicially Noticed During Contested Case Hearing And Other Matters Requested To Be Provided By Hearings Officer dated March 29, 2021 (“Judicially Noticed Submissions”).8 8 The requested items for the Hearing Officer to consider were as follows: 10 Upon conclusion of the evidentiary portion of the CC Hearing, the parties were allowed to file any Motions To Correct Transcripts they deem warranted within “fourteen (14) days after receipt of the last of the transcripts for the portions of the Contested Case Hearing conducted on June 18 and 23-25, 2020, and July 2 and 7, 2020”.9 First Amended Minutes Of Contested Case Hearing dated July 8, 2020 (“7/8/2020 First Amended Minutes”) at 2 (emphasis in 1. Email from Assistant United States Attorney Rachel S. Moriyama To Intervenor’s Counsel sent on March 2, 2020, and related enclosures/attachments, advising that Ms. Marnie Ganotis, Attorney from the Office of General Counsel of the U.S. Department of Agriculture (“USDA”), would not appear at the CC Hearing pursuant to the Subpoena Ad Testificandum served upon her by Intervenors on grounds 7 C.F.R. §§ 1.210-1.219 prohibited same because neither the USDA is not a party in this Contested Case, nor was she authorized to do so by an appropriate USDA Official; 2. Kaua‛i County Code (sometimes “KCC”) § 8-3.2; 3. Chapter 13-284 of the Hawaii Administrative Rules titled “Rules Governing Procedures for Historic Preservation Review to Comment on Section 6E-42, HRS, Projects.”; 4. Chapter 13-276 of the Hawaii Administrative Rules titled “Rules Governing Standards for Archaeological Inventory Surveys and Reports”; 5. Chapter 13-277 of the Hawaii Administrative Rules titled “Rules Governing Requirements for Archeological Site Preservation and Development”; 6. Chapter 13-278 of the Hawaii Administrative Rules titled “Rules Governing Standards for Archaeological Data Recovery Studies and Reports”; 7. Chapter 464 of the Hawaii Revised Statutes titled “Professional Engineers, Architects, Surveyor and Landscape Architects”; 8. KCC § 12-2.2; 9. KCC § 12-2.3; and 10. Complete copy of the December 1980 North Shore Development Plan. 9 The transcripts for the March 4 and 6, 2020 proceedings were previously provided to the Parties on May 26, 2020. The email from the Office of Board and Commissions of the County of Kaua‛i on June 9, 2020 forwarding the March 13, 2020 transcript observed review of the recording of the same to confirm the accuracy of that transcript was especially difficult due to the background noise and interconnectivity issues related to that proceeding. This same difficulty was also experienced with the June 18, and 23-25, 2020, and July 2 and 7, 2020, recordings. All of the 11 original). The last of the transcripts (i.e. July 7, 2020) was provided to the Parties on March 15, 2021. Consequently, on March 28, 2021 Petitioners submitted their Motion To Correct Transcript. Intervenors’ filed their Motion To Correct Transcript Of Hearing on March 29, 2021. On March 31, 2021, the Planning Department indicated it took no position with respect to the Motions To Correct Transcripts submitted by Petitioners and Intervenors. Finally, Petitioners and Intervenors both filed objections to the other’s Motion To Correct Transcripts. The Hearing Officer issued a Minute Order on April 8, 2021 advising the Parties the “Motions To Correct Transcript of Hearing will be acted upon with due consideration to the stenographic transcripts of the Contested Case Hearing held on March 4, 6, and 13, 2020, June 18, and 23-25, 2020, and July 2 and 7, 2020”. The Parties were also reminded Petitioners’ Closing Arguments and/or Proposed Findings Of Fact and Conclusions of Law were due no later than 4:30 p.m. on the thirtieth (30 th) day after service of the Corrected Transcripts upon them, filings of same by Intervenors and Planning Department were due within fourteen (14) days after service of Petitioners’ Closing Arguments and/or Proposed Findings Of Fact and Conclusions of Law, and Petitioners’ Optional aforesaid transcripts are hereinafter referred to as “Corrected Transcripts,” unless otherwise indicated to the contrary. 12 Rely was due seven (7) days after that. See Minute Order Regarding Continued Contested Case Hearing dated May 13, 2020 (“5/13/2020 Minute Order”) at 1-3. On May 14, 2021, the Parties were provided with the last of the Corrected Transcripts. In turn, Petitioners’ Closing Argument For CC-2020-2 and Petitioner’s (sic) Findings Of Fact, Conclusions Of Law, Decisions and Order For CC-2020-2, were both received on June 3, 2021. Intervenors CS Development LLC And Charles Somers Individually, Closing Arguments and Intervenors CS Development LLC And Charles Somers’ Proposed Findings Of Fact, Conclusion Of Law, And Decision And Order , both dated June 16, 2021, were timely filed. Planning Department Of The County Of Kaua‛i’s Closing Argument and Planning Department Of The County Of Kaua‛i’s Proposed Findings Of Fact, Conclusions Of Law, Decision and Order, both dated June 17, 2021, were also timely received. Petitioners’ undated and unsigned Reply To Responsive Closing Arguments For CC-2020-2 was filed timely on June 23, 2021. III. FINDINGS OF FACT. A. The Parties and Subject Property. 1. Petitioners are the owners of the Subject Property which is approximately 9.2 acres. Exhibit A at 1. The Subject Property is further identified 13 as Apartment E pursuant to that certain Declaration Of Condominium Property Regime Kahili Makai Estates recorded in the Bureau of Conveyances of the State of Hawai‛i as Document No. 99-099732 (“Kahili Makai Estates”). Exhibit IV. Kahili Makai Estates is presently comprised of three (3) freehold estates further identified as Apartment A1 with a common area interest of 60%, Apartment D having a common area interest of 20%, and Apartment E (i.e. Subject Property) also with a 20% common area interest. Exhibit XI at 2-3. The total land area of Apartments A1, D, and E is approximately 26.19 acres (“Lot 7”).10 Exhibit C at 2. 2. Intervenors hold an interest in Apartment D of the Kahili Makai Estates comprising approximately 11.6 acres and further identified as Tax Map Key (4) 5-2-021:004 (Unit D) (“Unit D”). Exhibit I at 1. Unit D is immediately adjacent to the Subject Property’s westerly boundary. Exhibit XII at 2.11 Somers also owns 161.188 acres of land that abuts the northern boundary of the Subject Property along the Kilauea River identified as 1957 Kahili Quarry Road, Kilauea, HI 96754 and more particularly described at Tax Map Key No. (4) 5-2-012-035 (“Conservation Property”). Exhibit XIII. The Conservation 10 The referral of this Contested Case from the Planning Commission by correspondence stamped-dated October 30, 2019 identified the land area for Lot 7 as “approx. 27.56 acres in size”. 14 Property is encumbered by two (2) conservation easements in favor of the Kauai Public Land Trust (“Land Trust”). Exhibits XV and XVI. 3. The Planning Department is the governmental agency responsible for reviewing and approving Petitioners’ Application for Special Management Area Use Permit SMA (U) 2020-1(sometimes “SMA Use Permit”), Class IV Zoning Permit Z-IV-2020-3 (sometimes “Class IV Zoning Permit”), and Use Permit U-2020-3 (sometimes “Use Permit”). B. Commission’s Approval Of Kahili Makai Estates. 4. The Planning Commission approved Use Permit U-98-21, Special Management Area Use Permit SMA(U)-98-4, Variance Permit V-98-5, and Class IV Zoning Permit Z-IV-98-27 (“1998 Permits”), for the development and construction of the Kahili Makai Estates. Exhibit III. 5. Approval of the 1998 Permits were subject to the following conditions: [a.] As represented, all farm dwellings shall be restricted to a 12 foot limit on uninterrupted wall height, with a 25 foot maximum height limit as measured along all points, from the natural or finished grade, whichever is lower, to the roof peak. All accessory structures shall 11 This Exhibit XII, and numerous other Exhibits of the parties as identified hereinafter, are not paginated. Therefore, the page references to those unpaginated Exhibits shall correspond to the number of the page(s) following the first page of the applicable Exhibit(s). 15 be limited to a 12 foot limit on uninterrupted wall height, with an 18 foot maximum height limit as measured along all points, from natural or finished grade , whichever is lower, to the roof peak. [b.] Exterior colors of all structures shall be limited to medium or dark earth tones such as brown, green, or grey. Use of mirrored glass, reflective sun screens, or other highly reflective materials for exterior windows shall be prohibited. Roof coverings shall be of a non reflective material of a color and tone compatible with the area surroundings. [c.] As represented by the applicant, all structures, including accessory structures, buildings or other improvements, shall be located a minimum of 25 feet from the edge of the slope on the upper and lower plateaus. [d.] In order to minimize adverse impacts on the Federally Listed Threatened Species, Newell’s Shearwater and other seabirds, all external lighting shall be only of the following types: shielded lights, cut-off luminaires, or indirect lighting. Spot lights aimed upward or spotlighting of structures and features shall be prohibited. [e.] Prior to approval of any building permit, the applicant shall submit a landscape plan to help screen the development from public views as seen from Kahili Makai Street, the Kilauea River and Mouth, and the public areas in the Crater Hill area. The landscape plan shall utilize native species, and species common to the area, and shall incorporate existing mature trees to the maximum extent feasible. [f.] Prior to approval of any building permit, as recommended by the State Historic Preservation 16 Division[,] a Preservation Plan for sites and features to be preserved shall be submitted to, and approved by, the State Historic Division, and the County of Kauai Planning Department. [g.] Proposed project designs, site plans, materials, colors, lighting, and landscaping shall be reviewed by the Planning Department for consistency with these requirements prior to submittal of final building permit applications. [h.] The applicant and all future property owners are advised that any development within the Special Management Area and Open Special Treatment Area including construction of structures, and accessways, excavation, grading, grubbing, or alteration of stream channels, shall require review and approval by the Planning Department, and other relevant agencies. [i.] All conditions of approval of the subject permits shall be recorded with the State Bureau Of Conveyances by the applicant prior to any unit sales, or building permit application, and disclosed in all sales conveyances (sic) documents. [j.] The Planning Commission reserves the right to revise, modify or add conditions of approval, or revoke the permit through the proper procedures should the development be found to adversely impact the surrounding neighborhood, or coastal resources. [k.] The applicant is advised that prior to the construction and use, additional government agency conditions may be imposed. It shall be the applicant’s responsibility to resolve those conditions with the respective agenc(ies). Exhibit III at 1-3 (“1998 Conditions”) (emphasis added). 17 6. Although the Director’s Report does not reference the 1998 Permits, virtually all of the 1998 Conditions are incorporated into the twelve (12) conditions set forth therein.12 Compare Exhibit C at 1-11, with Exhibit III at 1-3. C. Land Use and Zoning For Subject Property. 7. The Subject Property is within the State Land Use Agricultural District which “allows for agricultural uses that are consistent with Chapter 205 of the Hawai‛i Revised Statutes.” Exhibit C at 2, and Id. at 4, Section VII, ¶4. As such, “[n]o more than one (1) single family detached farm dwelling unit13 per 12 This occurred because the 1998 Conditions were reviewed when evaluating the Application and preparing the Director’s Report. See generally Tr. 6/24/2020 at 44-45. 13 Although there is no definition in the Kauai County Code for “single family detached farm dwelling,” Haw. Rev. Stat. § 205-4.5(a)(4) provides that a “[f]arm dwelling . . . means a single-family dwelling located on and accessory to a farm . . . where agricultural activity provides income to the family occupying the dwelling”. (emphasis added). “Agricultural activity” involves the “[c]ultivation of crops . . . [and r]aising livestock . . . for economic or personal use”. Id. at § 205-4.5(a)(1) and (3) (emphasis added). The Planning Department utilized this definition of “farm dwelling” in evaluating the Application. See generally Tr. 6/24/2020 at 11-12. Further, with respect to the above definition of “family dwelling,” the Kauai County Code does provide that a “’Dwelling, Single Family Detached’ means a building consisting of only one (1) dwelling unit designed for or occupied by one (1) family.” KCC § 8-1.5 (emphasis in original; italics added). “’Building’ means a roof structure, built for the support, shelter or enclosure of persons, animals, chattels or property of any kind. The word ‘building’ includes the word ‘structure.’” Id. (emphasis in original). “’Dwelling Unit’ means any building or any portion thereof which is designed or intended for occupancy by one (1) family or persons living together or by a person living alone and providing 18 five (5) acres of land shall be permitted”. KCC § 8-9.2(b)(2) (emphasis and footnote added). 8. The Subject Property is also within the “Agriculture” designation of the Kaua‛i County General Plan (2018 Final Version Approved By The County Council) (“County General Plan” or “General Plan”).14 Exhibit C at 2. 9. A portion of the Subject Property is further within the County Open (O) Zoning District15 and the Special Treatment – Resource complete living facilities, within the unit for sleeping, recreation, eating and sanitary facilities, including installed equipment for only one (1) kitchen.” Id. (emphasis in original; italics added). “’Family’ means an individual or group of two (2) or more persons related by blood, adoption or marriage living together [as] a single housekeeping unit [in] a dwelling unit. For purposes of this Chapter, family shall also include a group of not more than five (5) individuals unrelated by blood, adoption or marriage.” Id. (emphasis in original). “’Kitchen” means any room used or intended or designed to be used for cooking and preparing food.” Id. (emphasis in original). 14 However, Intervenors argue the Subject Property is designated “Natural” in the General Plan. See Intervenors’ FoF at 14, ¶54. Nonetheless, they stipulated to the introduction of Exhibit C in which the Planning Department determined the Subject Property is within the General Plan’s “Agriculture” Designation. Compare Tr. 3/4/2020 at 10-11, with Exhibit C at 2. Furthermore, even if that General Plan designation was revised from “Agriculture” to “Natural,” the Proposed Project would still be recommended for approval because Intervenors’ adjoining property is also designated as “Natural” and received approval for residential improvements thereon. Compare Tr. 6/24/2020 at 15-16, with Id. at 83-84. 15 The purpose of the Open District is: to create and maintain an adequate and functional amount of predominantly open land to provide for the recreational and aesthetic needs of the community or to provide for the effective functioning of land, air, water, plant and animal systems or communities. (a) To preserve, maintain or improve the essential characteristics of land and water areas that are: (1) Of significant value to the public as scenic or recreational resources; 19 District (ST-R).16 Exhibit C at 4. “It is the intent of that district to insure that development within these areas recognize, preserve, maintain and contribute to the (2) Important to the overall structure and organization of urban areas and which provide accessible and usable open areas for recreational and aesthetic purposes; [and] (3) Necessary to insulate or buffer the public and places of residence from undesirable environmental factors caused by, or related to, particular uses such as noise, dust, and visually offensive elements. (b) To preserve, maintain or improve the essential functions of physical and ecological systems, forms or forces which significantly affect the general health, safety and welfare. (c) To define and regulate use and development within areas which may be potentially hazardous. (d) To include areas indicated on the County General Plan as open or as parks. (e) To include areas clearly indicated on the County General Plan or on Zoning maps as “Special Treatment-Open Space” if an applicant represents to government authorities that any properties or areas within a development proposal or subdivision application will remain in either permanent open space or private park areas, or if the Council in the exercise of its zoning power requires as a condition of rezoning that an area be designated for permanent open space or private park. This does not preclude the Council from exercising its zoning authority as provided in Sec. 46-4, Hawai‘i Revised Statutes. Within areas so designated, no uses, structures, or development inconsistent with such designation shall be generally permitted or permitted by Use Permit without express provision to the contrary. The Council is hereby authorized to make such factual determinations as necessary incident to this Section. (f) To provide for other areas which because of more detailed analysis, or because of changing settlement characteristics, are determined to be of significant value to the public. KCC § 8-9.1. 16 The purpose of a Special Treatment District is to specify: the additional performance required when critical or valuable social or aesthetic characteristics of the environment or community exist in the same area as a parcel where particular functions or uses may be developed. 20 enhancement of those characteristics which are of particular significance or value to the general public.” Id. at 4, Section VII, ¶2. 10. The Subject Property is also entirely within the Special Management Area (“Special Management Area” or “SMA”) as governed by Chapter 205A of the Hawai‛i Revised Statutes. Exhibit A at 5.17 11. The Subject Property is within the North Shore Planning Area. Exhibit C at 2 and General Plan at 87-92. Specific to Kilauea, the General Plan observes “[a]dditional controls are needed to discourage development such as (a) To designate and guide development of County areas which because of unique or critical cultural, physical or locational characteristics have particular significance or value to the general public. (b) To ensure that development within those areas recognize, preserve, maintain and contribute to the enhancement of those characteristics which are of particular significance or value to the general public. (c) To ensure that development within those applicable areas is constructed in a manner that safely mitigates impacts from coastal hazards, including but not limited to sea level rise, coastal erosion, high wave run-up, passive flooding, and an increased frequency and intensity of storms. (d) Any of these districts may overlap any Use Districts, creating accumulated regulations that more nearly relate to the conditions of the specific location where the development or use may occur. KCC § 8-11.1. One of the five (5) types of Special Districts is “Scenic/Ecologic Resources (ST-R) (“Special Treatment – Resource District (ST–R)”). [This type of Special District involves land] . . . and water areas which have unique natural forms, biologic systems, or aesthetic characteristics which are of particular significance and value to the general public.” KCC § 8-11.2. 17 Although this page is the sixth (6th) page of Exhibit A, it is numbered 5. 21 ‘gentlemen estates’ – large lot agricultural subdivisions catering to a high-end market.” General Plan at 168.18 D. Subject Property’s Physical Characteristics. 12. The Subject Property consists of four (4) topographical zones. Exhibit A-Appendix 2 at 5. The northerly portion immediately adjacent to the Kilauea Stream is within Zone “AE” of the Federal Emergency Management Area Flood Insurance Map (“FEMA Flood Map”). Exhibit C at 5. Following a rise in elevation to 195 feet in the southerly direction, a Natural Bench or Lower Plateau comprises the second zone and is within Zone “X” of the FEMA Flood Map (“Lower Plateau”).19 Exhibit A-Appendix 2 at 5, and Exhibit A-Exhibit H.20 The third zone is the steep hill rising to the Upper Plateau or Pasture Land (“Upper Plateau”). Exhibit A-Appendix 2 at 5. The Upper Plateau is the fourth zone. Id. 18 Intervenors echo a similar sentiment with the introduction of excerpts of the December 1980 North Shore Development Plan Update. Exhibit LV at 77. However, the same was updated to clarify the focus in the General Plan for the North Shore is towards “large lot agriculture subdivisions catering to a high-end market”. General Plan at 168 and Compare with Id. at 23. But see Tr. 6/24/2020 at 102. 19 “[A]reas within Zone ‘X’ are determined to be outside the 0.2% annual chance floodplain, which means a flood of that size or greater has a 0.2%-percent chance (or 1 in 500 chance) of occurring in a given year.” Exhibit C at 4, ¶8. 20 Petitioners submitted an enlarged copy of this Exhibit H attached to Exhibit A at the March 13, 2020 proceeding of the CC Hearing. Tr. 3/13/2020 at 60-61. Consequently, all references herein shall refer to this enlarged copy of Exhibit H, unless otherwise indicated to the contrary. 22 13. The soil composition of the Lower Plateau is primarily Puhi silty clay loan (“PnE”) with 25 to 40 percent slopes. Compare Exhibit A-Exhibits E and H, with Exhibit A-Appendix 9 at 4. PnE is highly erodible land. Exhibit A-Appendix 9 at 9. 14. The Lower Plateau is where the Proposed Project is to be located. Compare Exhibit A-Appendix 2 at 5, with Exhibit A-Exhibits F and H, and Exhibit 33. 15. The existing grade of the land under the Farm Dwelling from the northern towards the southern end rises approximately 3 feet. Exhibit A-Exhibit H.21 16. According to the CPR Documents, “Easement AU-1 with a land area of 7,768 square feet (over Lot 7) . . . provides an access and utility easement to Apartments D and E [(i.e. Subject Property)].” Exhibit XI at 4, ¶6.1.A(3). / / / / 21 The grade of the land is relevant because the first item of the 1998 Conditions requires “all farm dwellings shall be restricted to a 12 foot limit on uninterrupted wall height, with a 25 foot maximum height limit as measured along all points, from the natural or finished grade, whichever is lower, to the roof peak.” Exhibit III at 1 (emphasis added). 23 E. Historic Sites In Relation To Proposed Project. 17. Petitioners requested the State Historic Preservation Division of the Department of Land and Natural Resources for the State of Hawaii (“SHPD”) to comment on whether the Proposed Project would affect any historic sites located on the Subject Property (“Request for Historic Determination”). Exhibit XLVII. 18. In reviewing Petitioners’ Request for Historic Determination, SHPD understood the Proposed Project to include the “construct[ion of] a single family dwelling and access road on the 9.5 acre property [(i.e. Subject Property)] along with various improvements that include landscaping, possible river access, utilities and septic system.” Exhibit A-Appendix 6 at 1. SHPD further understood the Subject Property “is part of the Kahili Makai Subdivision that consists of a condominium regime (CPR) Units A-E.” Id. 19. According to SHPD, the archaeological studies conducted for Lot 7 (of which the Subject Property is a part) were as follows: a. An Archeological Inventory Survey Of A Portion Of A 26 Acre Parcel, Kahili Ahupua‛a, Ko‛olau District, Island of Kaua‛i, Hawai‛i [TMK 5-2-21:7] (Revised May 1977) 24 prepared by McGerty, et al. (“McGerty AIS”), Exhibit A-Appendix 2; and b. Archaeological Assessment Report on Damages to Historic Sites on TMK: 4-5-2-21: 7 unit 4 and 5 and 4-5-2-21-6 unit 5 (August 8, 2003) prepared by Nancy McMahon (“McMahon Report”), Exhibit LIII. 20. The McGerty AIS examined the southern half of Lot 7 and noted: [a] total of four archaeological sites were identified in the project area representing late pre-Contract or early historic activities. Forty-seven recorded features included terraces, walls, alignments, enclosures, two fire pits, an imu, and a possible posthole. Of the four sites identified, Site 974 is recommended for data recovery, Site 975 is recommended for both data recovery and preservation, Site 976 is recommended for preservation, and Site 977 requires no further work.22 Exhibit C-Appendix 2 at 5 (emphasis in original; footnote added). 21. The McMahon Report was prepared as a result of SHPD being advised by the another governmental agency that grading and other SMA 22 “The SHPD subsequently accepted the data recovery plan on December 16, 1997 (Log No. 20704, Doc. No. 9712NM09) and the data recovery report on February 18, 1998 (Log No. 21065, Doc. No. 9802RC07). The SHPD also accepted a preservation plan for 25 violations were conducted on, in addition to an adjoining parcel, Lot 7, sometime in May or June 2003. Exhibit LIII at 51.23 With respect to Lot 7, the McMahon Report found: a. Site 974, Features 14 and 15 are missing because they were destroyed when a road was constructed in that area (Id. at 72); b. Site 975, Features 1, 2 and parts of Feature 3, have missing marking stones (Id. at 54); and c. Site 976, was damaged due to tree plantings destroying its archaeological information and integrity of this site and specifically, Feature 1 is missing, Feature 2 contains additional rocks, Feature 3 experienced realignment of the original rocks, and Feature 5 contained additional rocks and a palm tree planted in that location (Id. at 58). 22. Based upon the McGerty AIS, as updated by the McMahon Report, “SHPD’s determination for the [P]roposed [P]project is no historic properties affected.” Exhibit A-Appendix 6 at 2 (emphasis in original). Sites 974, 975, and 976, on April 2, 1998 (Log No. 21171, Doc. No. 9802NM07).” Exhibit A-Appendix 6 at 1. 26 F. Petitioners’ Application. 23. Petitioners’ Department Of Planning Standard Zoning Permit Application was dated April 12, 2019 (“Form Application”). Exhibit A at 2. The Form Application identified the Proposed Project as a “Farm Dwelling, pool, greenhouse, [and] storage shed.” Id. at 1. 24. Attached to the Form Application was a document entitled “Application to the Planning Commission For A Class IV Zoning Permit, Use Permit And A SMA Use Permit For Kells – Neilson Revocable Trust At: TMK (4) 5-2-21:007-005 Kahili Ahupua‛a, Ko‛olua District, Kaua‛i, Hawai‛i Submitted by: David Kells and Valerie Neilson Dated: May 23, 2019” (“Main Application”).24 Id. at 3. 25. The Main Application is comprised of Sections 1 through 10, Exhibits “1” and “A” to “J,” and Appendices 1 through 14. Id. at 3-4.25 23 The page references to this Exhibit LIII is based upon the number located on the bottom right-hand corner of the applicable page. 24 However, the Main Application was signed by Petitioner DAVID N. KELLS (“Kells”) twice, once on February 5, 2019 and the second time on May 23, 2019. Exhibit A at 17 (This page is not numbered. However, the Table Of Contents to the Main Application notes the next page which is numbered 16 is identified as “Applicants Signatures”. Main Application at 3.) On the other hand, the first signature of Petitioner VALERIE M. NEILSON (“Neilson”) is dated February 9, 2019, but the second signature also bears the May 23, 2019 date. Id. 25 Hereinafter, the page numbering for Exhibit A shall be based upon the pagination of the Main Application. Further, the page references to the Exhibits and Appendices attached to the Main Application shall correspond to the number of the page(s) following the first page of the 27 26. The Application was first received by the Planning Department in October 2018. Tr. 6/23/2020 at 80. However, the Planning Department determined the Application incomplete because there were “deficiencies . . . [that] ranged from missing information or failing to address some of the permitting standards that [Petitioners] were applying for.” Id. at 82. Petitioners resubmitted the Application several times thereafter. Id. 27. On September 16, 2019 the Application was deemed complete and accepted by the Planning Department with the payment of the required fees.26 Compare Exhibit C at 2, with Exhibit B and Tr. 6/23/2020 at 82. G. Director’s Report. 28. Mr. Dale A. Cua, Planner for the Planning Department (“Cua”), was assigned to investigate and evaluate the Application. Tr. 6/23/2020 at 77-78. He completed that assignment and prepared the Director’s Report on October 8, 2019. Exhibit C at 1. applicable Exhibit and/or Appendix. Finally, the Form Application and Main Application shall be referred to hereinafter collectively as “Application,” unless otherwise indicated to the contrary. 26 Intervenors argue that an email from the Mayor’s office on September 16, 2019 pressured the Planning Department to accept the Application that same day even though there were still various unaddressed deficiencies in it. Compare Intervenors FoF at 6, ¶7 and Exhibit XLIX, with Exhibit B and Tr. 6/23/2020 at 82. This argument, or the import of that email advanced by Intervenors, is not supported by the record because of the email’s text and the planner working on the Application was unaware of it. See Exhibit XLIX and Tr. 6/24/2020 at 29. 28 29. The Director’s Report confirmed the three (3) permits required for the Proposed Project of the Subject Property were a: (1) Special Management Area Use Permit since the cost of the Proposed Project exceeds $500,000.00 and included the construction of a second dwelling unit 27 on Lot 7; (b) Class IV Zoning Permit under KCC § 11.5 because the same is a procedural requirement for obtaining a Use Permit in the Special Treatment – Resources District (ST–R); and (c) Use Permit pursuant to KCC § 8-11.3 because the Proposed Project was within the Special Treatment – Resources District (ST–R) (“Permits,” unless otherwise indicated to the contrary). Exhibit C at 1. 30. In response to requests from the Planning Department to applicable government agencies for their comment on the Application, responses were received from the County of Kauai Fire Department, County of Kauai Department of Public Works – Engineering Division, and Kauai Water Department. Exhibit C-Exhibit ‘A’ and Exhibit D. / / 27 The “first dwelling unit” is part of Apartment D owned by Somers. See Tr. 6/24/2020 at 75 and Exhibit C at 10, ¶2. Further, all other structures situated on Lot 7 are “framed storage sheds” and the one located on the Subject Property will become a “framed storage shed . . . [that] will remain and be used for farm/landscape equipment and supplies storage [(“Garage/Storage Shed”)].” Exhibit A at 8, and Compare with Id. at 10, ¶2. In other words, the Proposed Project contemplates only “one (1) single family detached farm dwelling unit” on the Subject Property as required by KCC § 8-9.2(b)(2). 29 a. SMA Use Permit Requirements. 31. A Special Management Area Use Permit is required pursuant to Haw. Rev. Stat. § 205A-22 because the Subject Property is within a Special Management Area and the value of the Proposed Project exceeds $500,000.00.28 Exhibit C at 1. 32. Pursuant to Haw. Rev. Stat. § 205A-26, the pertinent guidelines for review and approval of developments proposed in Special Management Areas as applicable to the Application, are that: (1) All development in the special management area shall be subject to reasonable terms and conditions set by the authority [(i.e. Planning Commission)] in order to ensure: . . . (C) Provisions are made for solid and liquid waste treatment, disposition, and management that will minimize adverse effects upon special management area resources; and (D) Alterations to existing land forms and vegetation, except crops, and construction of structures shall cause minimum adverse effect to water resources, beaches, coastal dunes, and scenic and recreational amenities and minimize impacts from floods, wind damage, storm surge, landslides, erosion, sea level rise, siltation, or 28 The estimated cost of the Proposed Project is set forth on page 36 of Exhibit A (which is the page immediately before Exhibit 1 – Letter of Authorization). 30 failure in the event of earthquake. (2) No development shall be approved unless the authority [(i.e. Planning Commission)] has first found: (A) That the development will not have any significant adverse environmental or ecological effect, except as any adverse effect is minimized to the extent practicable and clearly outweighed by public health, safety, or compelling public interests. Those adverse effects shall include but not be limited to the potential cumulative impact of individual developments, each of which taken by itself might not have a significant adverse effect, and the elimination of planning options; (B) That the development is consistent with the objectives, policies, and special management area guidelines of this chapter and any guidelines enacted by the legislature; and (C) That the development is consistent with the county general plan, community plan, and zoning ; provided that a finding of consistency shall not preclude concurrent processing where a general plan, community plan, or zoning amendment may also be required. (3) The authority [(i.e. Planning Commission)] shall seek to minimize, where reasonable: (A) Dredging, filling or otherwise altering any bay, estuary, salt marsh, river mouth, slough or lagoon; (B) Any development that would reduce the size of any beach or other area usable for public recreation; (C) Any development that would reduce or impose restrictions upon public access to tidal and submerged lands, beaches, portions of rivers and streams within the 31 special management areas and the mean high tide line where there is no beach; (D) Any development that would substantially interfere with or detract from the line of sight toward the sea from the state highway nearest the coast; and (E) Any development that would adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, or potential or existing agricultural uses of land. (emphasis added). 33. The Special Management Area Rules And Regulations (As Amended October 2011) (“SMA Rules”) provide further guidance whether the Proposed Project would have a “significant adverse environmental and ecological effect” as follows: A "significant adverse effect" may vary with the individual setting and circumstances of particular proposals. Generally, however, any proposal which may have a major adverse effect on the quality of the environment or adversely affect the economic or social welfare of an area, or would possibly be contrary to the objectives, policies and guidelines of these Rules and Regulations, the County's General Plan, Development Plans, zoning and subdivision ordinances, or the State Plan, would likely result in a "significant adverse effect." In determining whether a proposal may have a significant adverse effect on the environment, the Director, Planning Department, and Planning Commission shall consider 32 every phase of a proposal and expected consequences, either primary or secondary, and the cumulative as well as the short or long-term effect of the proposal. The Director, Planning Department, and Planning Commission should bear in mind that, in most instance, the following factors of a proposal, although not limited to same, may constitute a significant adverse effect on the environment when the proposal: A. Involves an irrevocable commitment to loss or destruction of any natural or cultural resources, including but limited to, historic sites, Special Treatment Districts as established in the County Comprehensive Zoning Ordinance, view planes or scenic corridors as outlined in the Development Plans, and recreation areas and resources; B. Curtails the range of beneficial uses of the environment; C. Conflicts with the County's or the State's long-term environmental policies or goals; D. Substantially affects the economic or social welfare and activities of the community, County or State; E. Involves substantial secondary impacts, such as population changes and effects on public facilities; F. In itself has no significant adverse effect but cumulatively has considerable adverse effect upon the environment or involves a commitment for larger actions; G. Substantially affects a rare, threatened, or endangered species of animal or plant, or its habitat; H. Detrimentally affects air or water quality or ambient noise levels; or 33 I. Affects an environmentally sensitive area, such as flood plain, shoreline, tsunami zone, erosion-prone area, geologically hazardous land, estuary, fresh water or coastal water. SMA Rules § 7.4 (emphasis added). 34. The Application in requesting approval for a Special Management Area Use Permit shall also include: A. A tax map key description of the [Subject P]roperty on which the [Petitioners] propose[] the [Proposed P]roject. B. A plot plan of the [Subject P]roperty, drawn to scale with all proposed structures shown thereon, and any other information necessary to a proper determination relative to the specific request. C. A written description of the [P]roposed [P]roject and a statement of objectives. D. A statement of the valuation of the proposed development. E. An EIS, if required under Chapter 343, HRS, or when required by the Director, Planning Department, or Planning Commission. F. A statement addressing any affected Native Hawaiian customary and traditional rights protected under Article XII, Section 7 of the Hawai'i State Constitution. G. A written description of the affected environment and a written statement evaluating the [P]roposed [Project] in relation to the objectives and policies of the State's Coastal Zone Management Act (Chapter 205A, HRS) and the guidelines of the Special Management Area as provided herein. This written statement 34 should include the relationship of the [P]roposed [Project] to land use plans of the affected area, an analysis of the probable impact of the [P]roposed [Project] on the environment, a listing of probable adverse environmental effects that cannot be avoided, an evaluation of alternatives to the proposed action, a discussion of mitigating measures proposed to minimize impacts, and a listing of any irreversible and irretrievable commitment of resources. H. A shoreline survey when the parcel abuts the shoreline and when required by the Planning Department. I. Any other relevant plans or information required by the Department. SMA Rules § 8.0 incorporating § 7.1 (emphasis added). 35. As applied to the Application, the Director’s Report concluded the Proposed Project does NOT: օ Involve dredging, filling or otherwise altering any bay, salt marsh, river mouth, slough or lagoon; օ Reduce the size of any beach or other area usable for public recreation; օ Reduce or impose restrictions upon public access to tidal and submerged lands, beaches, rivers, and streams within the SMA; and օ Adversely affect water quality, existing areas of open water free of visible structures, existing and potential fisheries and fishing grounds, wildlife habitats, estuarine sanctuaries, potential or existing agricultural uses of land. Exhibit C at 5-6. 35 36. The Director’s Report also recognized the SMA Rules “contain objectives, policies and guidelines designed to protect coastal resources . . . [and] special consideration is given to recreational opportunities, cultural and historic resources, scenic qualities and open space, coastal ecosystems, and coastal hazards.” Exhibit C at 7. 37. In evaluating the Proposed Project mindful of the goals and objectives of the SMA Rules, the Director’s Report found: a. Public Access and Coastal Recreation - While the [S]ubject [P]roperty is immediately adjacent to the Kilauea River, this particular parcel is not directly adjacent to the shoreline and the site conditions are such that public access through the property is considered inappropriate since it is surrounded by similar residential development and due to the topographical challenges in getting to the coastal area that is approximately 2,300 feet away. Therefore, there are no opportunities for public access to coastal recreational area in connection with the [P]roposed [P]roject. b. Cultural/Historical Resources- The [S]ubject [P]roperty has been disturbed by previous activities, however, the [Planning D]epartment is still awaiting comments from the State Department of Land & Natural Resources (DLNR), Historic Preservation Division (SHPD).29 There are known archaeological sites (agricultural terraces) on the [S]ubject [P]roperty as well as neighboring parcels. The [Petitioners] should work closely with SHPD in order to ensure that these archaeological sites remain undisturbed and/or 29 Actually, Appendix 6 of the Application contains a copy of the letter dated August 31, 2017 from Susan A. Lebo, PhD, Archaeology Branch Chief, of the SHPD, concluding the Proposed Project does not affect any historic properties. Exhibit A-Appendix 6. 36 unaffected by the proposed construction activities. Additionally, should any historical artifacts, shell or charcoal deposits, burials and stone pavings [be] discovered during construction within the [Proposed Project] area, the [Petitioners] shall stop work in the immediate area and contact the SHPD. c. Coastal Hazards - The [S]ubject [P]roperty is located within the Coastal High Hazard (Tsunami) 'X' Zone as identified on the Federal Flood Insurance Rate Maps (FIRM). This area is determined to be outside the 500-year flood plain. Therefore, the [Proposed P]roject is not at risk from coastal hazards. d. Coastal Ecosystems - The [S]ubject [P]roperty has been extensively disturbed by previous activities, and developed lands surrounding the site. As a result, there are no known rare, threatened or endangered, plant or animal species or critical habitats located within the [Proposed P]roject site. However, the [P]roposed [Project] should be required to conform to the requirements of the Department of Public Works regarding drainage and runoff concerns from the [P]roposed [Project], as well as the Department of Health regarding limitations on the existing individual wastewater system. e. Scenic and Open Space Resources - The [Proposed P]roject site is located within a rural residential neighborhood that's in close proximity to the coastline, but it does not offer immediate views to or along the ocean, or from public viewing locations. In order to mitigate potential visual impacts, the exterior finishes of the residences should be of earth-tone colors and a landscape plan composed of native species, or species common to the area should be prepared to assist in screening the proposed structures, and to integrate the site with its surroundings. Exhibit C at 7-8 (emphasis and footnote added). 37 b. Class IV Zoning Permit Requirements. 38. According to the Director’s Report, a “Class IV Zoning Permit is a procedural requirement [pursuant to KCC § 8-11.5] for obtaining a Use Permit in the Special Treatment–Resources District.” Exhibit C at 1. 39. KCC § 8-11.5 provides in pertinent part: (c) Applications shall be accompanied by plans and three (3) dimensional drawings or models which clearly indicate the relation of the [P]roposed [Project] to other uses and structures within the Special Treatment District and the ways in which the [P]roposed [Project] is consistent with the reasons for the establishment of the District. Plans shall indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the [Subject Property] and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands as required by the Planning Director , but no less than two hundred (200) feet from property lines of the [Subject Property] which abut a public thoroughfare, park or facility and one hundred (100) feet from the property lines of the [Subject Property] which abut privately owned property. Aerial photography may be utilized to meet these requirements if approved by the Planning Director. (emphasis added). 38 40. In addition to the above requirements of KCC § 8-11.5, the pertinent provisions of KCC § 8-3.1(b) require the Application to contain or be accompanied by: (2) A description of the [Subject P]roperty in sufficient detail to determine its precise location. (3) A plot plan of the [Subject P]roperty, drawn to scale, showing all existing and proposed structures and any other information necessary: (A) To show conformity with the standards established in this Chapter; and (B) To a proper determination relative to the specific request. (emphasis added). 41. Specifically with respect to the Class IV Zoning Permit, the pertinent provisions of KCC § 8-3.1(f) as they relate to the Application are: (3) Within sixty (60) days after the filing of a completed [A]pplication, the Planning Director shall prepare a report that indicates the reasons supporting the issuance, issuance with conditions, or denial of the [A]pplication. The report shall be sent to the [Petitioners], to the Planning Commission, to any persons who have duly requested the report, and shall be made public. (4) Within sixty (60) days after the receipt of the Planning Director’s report or within such longer period as may be agreed to by the [Petitioners], the Planning Commission shall hold at least one (1) public hearing on the [A]pplication and issue the permit with or without conditions or deny the permit. Notice of the proposed 39 public hearing shall be given to the applicant and shall also be published at least once in a newspaper of general circulation in the County, at least twenty (20) days prior to the date of the hearing. In proceedings involving Use Permits within the Residential, Agriculture and Open Districts and for all project developments pursuant to Sec. 8-3.2, and for variances involving height limitations pursuant to Sec. 8-3.3, the following procedures shall apply in addition to the above paragraphs: The [Petitioner], at least twelve (12) days prior to the scheduled date of such hearing, shall either hand deliver written notice to persons listed on the current Notice of Property Assessment Card File located at the Real Property Division of the Department of Finance of the County of Kaua‘i, or mail, by certified mail, written notice to the addresses shown on such Notice of Property Assessment Cards for at least eighty- five percent (85%) of all parcels of real property within three hundred (300) feet from the nearest point of the premises involved in the [A]pplication to the nearest point of the affected property. For the purposes of this paragraph, notice to one (1) co-owner shall be sufficient notice to all other co-owners of the same parcel of real property. For each condominium project within the affected area, one (1) notice of the hearing shall be sent addressed “To the Residents, Care of the Manager,” followed by the name and address of the condominium involved. The notice shall include the following information and shall be in a form approved by the Planning Director: (A) Date; (B) Time; (C) Location; (D) Purpose; and 40 (E) Description or sketch of [Subject P]roperty involved. At least seven (7) days prior to the hearing date, the [Petitioners] shall file with the Planning Commission an affidavit as to the mailing or delivery of such notice and a list of persons to which such notices were sent. Should the [Petitioners] fail to submit the affidavit within the time required, the public hearing shall be postponed. In this case, the Planning Commission shall reschedule another hearing within sixty (60) days of the postponed hearing. The [Petitioners] shall be required to pay for the republication costs and shall follow the same notice requirements of this paragraph in the renotification of affected persons. (5) If the Planning Director or the Planning Commission fails to take action within the time limits prescribed in this Article, unless the applicant assents to a delay, the [A]pplication shall be deemed approved. (emphasis added). 42. In examining the Application and attached Exhibits and Appendices, a description of the Subject Property in sufficient detail to determine its precise location has been met as required by KCC § 8-3.1(b)(2). See Exhibit A at 5 and 7; Exhibit A-Exhibits B and Exhibit F, and Appendix 7 at 2-4. 43. The Director’s Report notes the “[p]lans and elevations of the [Farm Dwelling] are illustrated through Exhibits ‘I’ and ‘J’ of the Application.” Exhibit C at 3. Other exhibits attached to the Application indicate the relation of 41 the Farm Dwelling and Pool to the existing Garage as mandated by KCC § 8-11.5(c). See Exhibit A-Exhibits F and G. 44. The existing topography of the area surrounding the Proposed Project, location of the existing Garage, driveway, and utilities, and proposed walkways are depicted in several exhibits and an appendix, as required by KCC § 8-11.5(c). See Exhibit A-Exhibits F, G and H,30 and Appendices 7 at 2 and 9. 45. The location of the proposed plant material within the boundaries of the Subject Property was not included within the Application.31 See Exhibit A. However, that information was introduced into evidence at the CC Hearing. See Exhibit 33. 46. The Greenhouse and Storage Shed were not depicted on any plans attached to the Application.32 See Exhibit A. 30 This reference is both to the original Exhibit H and enlarged Exhibit H. See footnote 20, supra, for further explanation. 31 Instead, Petitioners submitted “Fruit Orchard Recommendations” with the Application. See Exhibit A-Appendix 11. 32 Although the Greenhouse and Storage Shed were included in the Proposed Project, it appears they are “[a]dditional requests, considerations for future building of a 10’x20’ greenhouse and a 14’x14’ equipment storage shed.” Exhibit A at 1, and compare with Id. at 8. However, should Petitioners desire to have the Greenhouse and Storage Shed approved as part of the Proposed Project, these structures must comply with, among other requirements, KCC § 8-3.1(b). Further, it appears the Storage Shed is a different structure from the existing Garage to be converted into the Garage/Storage Shed as part of the Proposed Project. Compare Exhibit A at 8 (paragraph immediately before paragraph no. 2), with Id. (paragraph no. 3). 42 c. Use Permit Requirements. 47. An application for the Use Permit is to contain: (a) the non-refundable filing and processing fee; (b) a description of the property in sufficient detail to determine its precise location; and (c) a plot plan, drawn to scale, showing all existing and proposed structures, and any other information necessary to show conformity with The Comprehensive Zoning Ordinance for the County of Kaua‛i set forth in KCC § 8-1.1 et seq. (“CZO”) and for a proper determination of the request. KCC § 8-3.1(b) as required by Id. at § 8-3.2(c). 48. “The purpose of the Use Permit procedure is to assure the proper integration into the community of uses which may be suitable only in specific locations in a district, or only under certain conditions, or only if the uses are designed, arranged or conducted in a particular manner, and to prohibit such uses if the proper integration cannot be assured.” KCC § 8-3.2(a). Therefore, the Use Permit may only be granted if the Commission finds that use meets the following criteria: օ The use must be a compatible use; օ The use must not be detrimental to persons or property in the area; Therefore, the Garage/Storage Shed must also meet the requirements of KCC § 8-3.1(b) to be included in the Proposed Project. Finally, all references hereinafter to “Proposed Project” shall include the Garage/Storage Shed, unless otherwise indicated to the contrary. 43 օ The use must not cause substantial environmental consequences; and օ The use must not be inconsistent with the intent of the Comprehensive Zoning Ordinance (CZO) and General Plan. Exhibit C at 9. 49. Based upon the criteria set forth in the immediately preceding Finding of Fact, the following factors were examined in the Director’s Report as applied to the Proposed Project: a. Compatible Use -The proposed construction of a farm dwelling and associated property improvements will be consistent with surrounding improved land uses. Historically, the [Subject Property] was utilized for agricultural purposes and the [P]roposed [Project] will allow for the [Petitioners] to continue this use. The appearance of the [Farm Dwelling] has been designed to minimize visual impact to the surrounding community. The location and size of the [Proposed Project] will not create unusual noise or other conditions that may be incompatible to the surrounding area. b. Will Not Be Detrimental to Persons Residing on [the Subject] Property or in the Area - As represented, the [Proposed Project] is located within an agricultural neighborhood. The [Proposed P]roject site was carefully selected to be outside of the flood prone portion of the [Subject P]roperty. Since the [Proposed P]roject is situated within a very rural neighborhood, the [P]roposed [Project] should not be detrimental to persons residing in these areas and the properties surrounding the [Subject Property] are similarly zoned. Therefore, the [Proposed 44 P]roject should not have significant adverse impact to the community. c. Will Not Cause Substantial Harmful Environmental Consequences - The [Proposed P]roject site has been previously disturbed and utilized for agricultural purposes, and it is unlikely that rare, threatened or endangered species, or sensitive habitat will be affected by the [P]roposed [Project]. Due to the extensive ground disturbance that occurred from the past, it is unlikely that any mammalian or avian species, or botanical resources would be impacted by the [Proposed P]roject. d. Will Not Be Inconsistent With the Intent of the CZO and General Plan - The [S]ubject [P]roperty as well as the adjacent parcels along the makai side of the highway are similarly zoned to accommodate the mixed uses in this agricultural subdivision. As proposed, the [Proposed P]roject is consistent with the development standards of the CZO and Vision & Goals of the General Plan. Id. (bold emphasis in original; bold italics added). 50. In examining the development standards required by the CZO, the Director’s Report determined the Proposed Project: complies with the building height, setback, and off-street parking requirements for development within the Open/Special Treatment – Resource (O/ST-R) zoning district, as specified in Sections 8-4.3 & 8-4.5 the Comprehensive Zoning Ordinance (CZO). [Second, i]n order to further ensure that the [Proposed P]roject is compatible with its surroundings and to minimize the visual impact of the structure, the external color should be of a moderate to dark earth-tone color, and the [Petitioners] should provide substantial landscaping. The proposed color scheme and a landscape plan should be submitted to the 45 Planning Department for review and acceptance prior to building permit application. [Third], the [Proposed P]roject site is situated outside of the [Visitor Designation Area]. As such, the proposed [F]arm [D]welling should not be utilized for transient accommodation purposes. a. Special Treatment- Resource District (ST -R): In considering the [Application], it is noted that the [Proposed P]roject is not visible to the general public from Kahili Makai Street or public vantage points along Kilauea Bay. The [Proposed P]roject is already situated within a heavily wooded area, and through proper landscaping, any visual impacts of the [F]arm [D]welling or associated structure would be mitigated as viewed from certain vantage points across the Kilauea River. Finally, it is uncertain as to whether the [Petitioners have] made provisions for night illumination with the [Proposed P]roject, based on the preliminary plans that have been submitted. If so, night illumination should be designed to minimize adverse impacts on the Federally Listed Threatened Species, Newell's Shearwater and other seabirds. Night lighting should be shielded from above and directed downwards and shall be approved by the U.S. Dept. of the Interior Fish and Wildlife Service. If external lighting is to be used in connection with the [P]roposed [P]roject, all external lighting should be only of the following type: downward-facing shielded lights. Spotlights aimed upward or spotlighting of structures is prohibited. Exhibit C at 9-10 (bold and italics in original; bold italics added). 51. The Proposed Project also meets the following Goals of the General Plan: 46 Goal #1 "A Sustainable Island"- As represented, the [Proposed P]roject is an example of responsible growth in an area designated for residential and open space uses. The [Petitioners] intend[] to utilize the [Subject Property] to support agricultural activities for the island. Goal #2 "A Unique and Beautiful Place"- The [Proposed P]roject will complement the natural, cultural, social and built environmental assets of the Kilauea area, and more specifically, around the Kilauea Bay and river area. As proposed, the [Proposed P]roject is compatible with similar uses in the area. The [Petitioners are] selecting earth-tone colors, vegetation screens, and landscaping which will enhance the appearance of the [Farm D]welling[]. Goal #3 "A Healthy and Resilient People" - There will be minimal visual impacts since the footprint of the structure will decrease in size33 and anticipate no significant negative impacts on historic sites or Hawaiian cultural practices. Goal #4 "An Equitable Place, with Opportunity for All"- The [Proposed P]roject would support and enhance economic and business opportunities and jobs on Kaua'i. Exhibit C at 6 (bold emphasis in original; bold italics and footnote added) citing Section 1.3 of the General Plan. 52. As explained below, the Proposed Project further meets the following “Policies To Guide Growth” adopted by the General Plan: 1) Policy #1 "Manage Growth to Preserve Rural Character" – As proposed, the [Proposed P]roject is 33 The decrease in footprint size refers to the prior proposed structure approved in 2012 for the Subject Property. See Tr. 6/24/2020 at 56-57 and 96, and Exhibit C at 5. 47 consistent in preserving the rural character of the neighborhood and occurs in a location that is zoned and suited for residential development. 2) Policy #2 "Provide Local Housing" - The [Petitioners] recognize[] the need for more housing in the north shore area and is intended to further support housing opportunities. 3) Policy #8 "Protect Kauai's Scenic Beauty"- The [Proposed P]roject should not have any substantial negative impacts on the visual resources in the Kilauea area. The proposed new color scheme and landscaping for the [Proposed P]roject would lessen the overall visual impact of the current improvements, as viewed from the Hanalei Bay area and from the Princeville area. 4) Policy #9 "Uphold Kaua'i as a Unique Visitor Destination" – The General Plan identify areas like Ha'ena, Wainiha and Hanalei being drastically impacted by non-traditional visitor industry operations. As a result, these communities have been considerably altered as a consequence of these operations. The [Petitioners have] represented that this residence is intended for themselves and it is not intended to be utilized for commercial residential purposes. 5) Policy #11 "Help Agricultural Lands Be Productive" – As represented, the [Petitioners] intend[] to utilize the parcel for agricultural purposes. The [Proposed P]roject also involves the construction of a greenhouse (10' X 20') and farm equipment storage shed (14' X 14'). Exhibit C at 7 (emphasis in original) citing Section 1.4 of the General Plan. 48 53. The Director’s Report also concluded the Farm Dwelling “is consistent with the goals and objectives of [the North Shore Planning Area], and is compatible with the existing residences in this neighborhood. Furthermore, it complies with the development standards contained in Section 10-2.4(e)34 of the Kaua‛i County Code (1987), as amended.” Exhibit C at 7 (footnote added). 34 KCC § 10-2.4(e) concerning Special Regulations applicable to all Districts provides in pertinent part: (1) Heights. Except as provided under Ordinance No. 416 (Flood Hazard Areas) Section 15-1.5(c)(4), height limits shall be as established in the Comprehensive Zoning Ordinance; provided, however, that no structure shall be higher than twenty-five (25) feet unless a greater height is authorized by the Planning Commission pursuant to a use permit after review (and recommendation) by the North Shore Improvement Advisory Committee. (2) Setbacks. (A) Unless as otherwise provided in this Section, setbacks shall be as established on the appropriate development plan. The Planning Director may allow minor deviations from such standards; provided, however, that: (i) The deviations are not inconsistent with the requirements of the Comprehensive Zoning Ordinance; and (ii) The deviation does not substantially alter the open space and building relationships established by the development plan. (B) The building setback distances for all oceanfront property shall not be less than twice the height of the building or structure measured from the oceanside grade to the highest exterior wall plate line. Such setback shall be measured from the legal shoreline as defined under the State Shoreline Setback Law. On sloping oceanfront property, greater setback may be required to avoid the intrusion of buildings onto significant view plains or vistas. No building or parking area shall be set back less than forty (40) feet from the legal shoreline in any case except that single-family detached residences are exempt from this Section but must comply with the Shoreline Setback Rules and Regulations of the County of Kaua‘i. (C) Within the residential and resort district, front yard building setbacks shall not be less than one-half (1/2) the height of the building measured at 49 H. Public Notice Requirement Pursuant To Haw. Rev. Stat. § 205A-29(a), KCC § 8-3.1(f)(4) and SMA Rules § 9.0. 54. The Public Notice Requirement for the PC Hearing on the Application is two-fold. First, at least twenty (20) days prior to October 22, 2019 (i.e. no later than October 2, 2019), the Commission is required to provide notice of the PC Hearing to Petitioners and also publish that information at least once in a newspaper of general circulation on Kaua‛i. Haw. Rev. Stat. § 205A-29(a) and KCC § 8-3.1(f)(4). Second, since the Proposed Project is to be sited in an Agriculture and Open District, and a Use Permit is also required for same, at least twelve (12) days prior to the PC Hearing, Petitioners are required to: hand deliver written notice to persons listed on the current Notice of Property Assessment Card File located at the Real Property Division of the Department of Finance of the County of Kaua‘i, or mail, by certified mail, written notice to the addresses shown on such Notice of Property Assessment Cards for at least eighty-five percent (85%) of all parcels of real property within three hundred (300) feet from the nearest point of the premises involved in the [A]pplication to the nearest point of the affected property. the grade to the highest exterior wall plate line at the side of the building facing the street or front of the property. In no case shall the front setback be less than ten (10) feet. (3) Access. Driveway access from public thoroughfares shall be at the general locations indicated on the development plan, or as approved by the Planning Director when local conditions require a different location . (emphasis added). 50 KCC § 8-3.1(f)(4). 55. Pursuant to Haw. Rev. Stat. § 205A-29(a), KCC § 8-3.1(f)(4) and SMA Rules § 9.0.A.-B., on September 27, 2019 the Commission caused to be published the required notice for action on the Permits (“Commission’s Notice”). Exhibit 9. The Commission’s Notice provided in pertinent part as follows: COUNTY OF KAUAI PLANNING DEPARTMENT, LIHUE, KAUAI 4444 Rice St., Kapule Building, Lihue, Hawaii 96766. Tel: 241- 4050. Pursuant to the provisions of Special Management Area Rules and Regulations of the County of Kauai, State Land Use Commission Rules And Regulations, and Chapter 8 of the Kauai County Code 1987, as amended, NOTICE IS HEREBY GIVEN of a hearing to be held by the Planning Commission of the County of Kauai at the Lihue Civil Center, Moikeha Building, Meeting Rooms 2A and 2B, 4444 Rice Street, Lihue, Kauai on Tuesday, October 22, 2019, starting at 9:00 a.m. or soon thereafter to consider the following: . . . 2. Special Management Area Use Permit SMA(U)-2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the construction of a farm dwelling unit within Lot 7 of the Kahili Makai Subdivision in Kilauea, involving a parcel situated at the terminus of Kahili Makai Street and immediately adjacent to property identified as 4254 Kahili Makai Street, Tax Map Key: (4) 5-2-021:007 (Unit E), and affecting a portion of a larger parcel approx. 27.56 acres in size. Id. (first emphasis in original; second and third emphasis added). 51 56. Cua of the Planning Department testified that the Commission’s Notice incorrectly describes the Proposed Project, and location of the Subject Property because it is not “immediately adjacent to 4254 Kahili Makai Street”.35 Tr. 6/24/2020 at 76-77. 57. The Agenda for the PC Hearing under “New Agency Hearing” described the Commission’s consideration of the Application for a: Special Management Area Use Permit SMA(U)-2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the construction of a farm dwelling unit within Lot 7 of the Kahili Makai Subdivision in Kilauea, involving a parcel situated at the terminus of Kahili Makai Street And immediately adjacent to property identified as 4254 Kahili Makai Street, Tax Map Key: (4) 5-2-021:007 (Unit E), and affecting a portion of a larger parcel approx. 27.56 acres in size = Valerie M. Neilson and David N. Kells. [Director’s Report received by Commission Clerk 10/8/19.]. 35 However, depending upon how the Commission’s Notice is interpreted, it may correctly describe the location of the Proposed Project because it is situated in Apartment or Unit E (i.e. Subject Property), the Subject Property is part of Lot 7, the southernmost point of Lot 7 is at the terminus of Kāhili Makai Street, the westerly boundary of Lot 7 is immediately adjacent to the property identified as 4254 Kāhili Makai Street, Tax Map Key: (4) 5-2-021:007 (Unit E) more particularly describes the Subject Property, and Lot 7 is approximately 27.56 acres in size. Cf. Robert D. Ferris Trust v. Planning Com’n of County of Kauai, 138 Hawai‛i 307, 310, 378 P.3d 1023, 1026 (2016) quoting State v. Kaakimaka, 84 Hawai‛i 280, 289-90, 933 P.2d 617, 626-67 (1997) (“Courts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.”) and Haole v. State, 111 Hawai‛i 144, 149, 140 P.3d 377, 382 (2006) (“When construing a statute, [the court’s] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And [the court] must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.”). 52 Exhibit LVIII at 2 (first and second emphasis added; third emphasis in original). 58. Cua again testified the Agenda Item set forth the incorrect description of the Proposed Project and incorrect address of the property immediately adjacent to the Subject Property.36 Tr. 6/24/2020 at 77. 59. Petitioners in attempting to comply with their notice obligations also set forth in KCC § 8-3.1(f)(4), sent out letters addressed “TO WHOM IT MAY CONCERN” and testified they provided written notice to property owners within three hundred (300) feet of the Subject Property (“Petitioners’ Notice”). Exhibit 1637 and Tr. 6/24/2020 at 92. 60. No exhibit was introduced reflecting the affidavit required of Petitioners pursuant to KCC § 8-3.1(f)(4) (“Affidavit”). I. Director’s Preliminary Recommendation. 61. Based upon the investigation and evaluation performed by the Planning Department, the Director’s Report recommended the 36 See footnote 35, supra. 37 This Exhibit 16 is Petitioners’ unsigned letter dated September 29, 2019, without the enclosure described as the Commission’s Notice. However, even if the Commission’s Notice was included in this Exhibit 16, the same would not meet all the requirements of KCC §8-3.1(f)(4) because, among other things, it does not adequately describe the “purpose” of that notice (i.e. construction of also a Pool, Greenhouse, Storage Shed, and Garage/Storage Shed ). See KCC § 8-3.1(f)(4)(D). 53 Commission approve the Proposed Project, subject to the following conditions: [a.] The [Proposed P]roject shall be constructed as represented. Any changes to the operation and/or the respective structures shall be reviewed by the [Planning] Department to determine whether Planning Commission review and approval is warranted. [b.] In order to ensure that the [Proposed P]roject is compatible with its surroundings and to minimize the visual impact of the structure, the external color of the [Farm Dwelling] shall be of a moderate to dark earth- tone color. The proposed color scheme and a landscape plan should be submitted to the Planning Department for review and acceptance prior to building permit application. [c.] The [Petitioners] shall submit for review and approval by the Planning Department, a landscape plan composed of native species, or species common to the area, to help to screen the proposed structures, and integrate the site with its surroundings. [d.] The [Petitioners are] made aware that the [Farm Dwelling] shall not be utilized for any transient accommodation purposes. It shall not be used as a transient vacation rental (TVR) or as a homestay. [e.] If external lighting is to be used in connection with the [P]roposed [P]roject, all external lighting should be only of the following type: downward-facing shielded lights. Spotlights aimed upward or spotlighting of structures is prohibited. 54 [f.] The [Petitioners] shall develop and utilize Best Management Practices (BMPs) during all phases of development in order to minimize erosion, dust, and sedimentation impacts of the [Proposed P]roject to abutting properties. [g.] Unless otherwise stated in the permit, once a permit is issued, the [Petitioners] must make substantial progress, as determined by the Director, regarding the development or activity within two (2) years, or the permit shall be deemed to have lapsed and be no longer in effect. [h.] The [Petitioners] should resolve and comply with all agency requirements as recommended in the permit application review, including but not limited to the building permit & drainage requirements of the County DPW Engineering Division, County Fire, Department, potable water & fire protection requirements for the County Dept. of Water, and regulations involving environmental concerns as administered by the State Department of Health. [i.] Since there are known archaeological sites (agricultural terraces) on the [S]ubject [Property], the [Petitioners] shall [work] closely with State Department of Land and Natural Resources -Historic Preservation Division (SHPD) in order to ensure that these archaeological sites remain undisturbed and/or unaffected by the proposed construction activities. Furthermore, the [Petitioners are] advised that should any archaeological or historical resources be discovered during ground disturbing/construction work, all work in the area of the archaeological/historical findings shall immediately cease and the [Petitioners] shall contact the SHPD and the Planning Department. 55 [j.] Prior to commencement of the [P]roposed [Project], written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department. Failure to comply may result in forfeiture of the SMA [Use] Permit. [k.] The [Petitioners are] advised that prior to construction and/or use, additional government agency conditions may be imposed. It shall be the [Petitioners’] responsibility to resolve those conditions with the respective agency(ies). [l.] The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts this [Proposed P]roject may create, or revoke the permits through the proper procedures should conditions of approval be violated or adverse impacts be created that cannot be properly addressed. Exhibit C at 11-12 (“Director’s Conditions”). 62. The Commission deferred action on the Application because the Petition For Intervention was granted and the matter referred to a Hearing Officer for review and recommended action. Commission Minutes at 60. 63. Cua was present at the CC Hearing for virtually the entire time of the Petitioners’ Case-in-Chief. See generally Tr. 3/4/2020 at 2, Tr. 3/6/2020 at 96,38 Tr. 6/18/2020 at 3, Tr. 6/23/2020 at 2, and Tr. 6/24/2020 at 1. 38 Tr. 3/4/2020 and Tr. 3/6/2020 are combined into one (1) document and the pages consecutively numbered. 56 64. Cua testified that the absence of select pages in the Archeological Inventory included as Appendix 2 in the Application (i.e. McGerty AIS) does not change either the Director’s Report or Director’s Conditions. Tr. 6/ 23/2020 at 118-19. 65. Cua further testified Petitioners’ testimony elicited by extensive questioning from Intervenors’ Counsel also does not change either the Director’s Report or Director’s Conditions. Compare Tr. 3/6/2020 at 112-70, Tr. 3/13/2020 at 2-157, 6/23/2020 at 5-47, Tr. 6/23/2020 at 52-65, and Tr. 6/23/2020 at 67-75, with Tr. 6/23/2020 at 120-25. 66. Cua was also extensively cross-examined by Intervenors. Tr. 6/24/2020 at 7-80. During that questioning, Cua testified, among other things, that: a. The Subject Property may be within the “Natural” designation of the General Plan, but could not be certain “without doing an overlay” (Id. at 15); b. The height limitations imposed by the 1998 Conditions would be confirmed at the time Petitioners applied for a building permit for the Proposed Project because it is the 57 practice of the Planning Department not to require plans containing that information in the Application (Id. at 34); c. Although the maximum land coverage area for the Proposed Project should be 10%, rather than 50% as stated in the Director’s Report, the same “would [still] not exceed the permissible land coverage within that zoning district” (Id. at 40); d. The covenants set forth in the CPR Documents that may govern the Proposed Project are not considered by the Planning Department because they are contractual agreements between private parties (Id. at 41);39 and e. The Planning Department defers to SHPD regarding the determination of the existence, significance, and effect upon the Proposed Project, of archeological sites because of the latter’s expertise and resources (Id. at 51). 67. If any Finding of Fact herein should be designated as a Conclusion of Law, the same shall be deemed to have been identified as such. 39 Similarly, this Hearing Officer also ruled in denying Petitioners’ Request For Reversal that the CPR Documents are “contractual[] in nature and binds only the parties, and not the Planning Commission or this Hearing Officer.” Tr. 3/4/2020 at 7. 58 IV. CONCLUSIONS OF LAW.40 A. Principles of Statutory Construction and Application. 1. “Courts are bound to give effect to all parts of a statute, and that no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute.” Robert D. Ferris Trust, 138 Hawai‛i at 310, 378 P.3d at 1026 quoting Kaakimaka, 84 Hawai‛i at 289-90, 933 P.2d at 626-67. 2. “When construing a statute, [the court’s] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And [the court] must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.” Haole, 111 Hawai‛i at 149, 140 P.3d at 382. 3. “Words are given their common meaning unless some wording in the statute requires a different interpretation.” Ferris Trust, 138 Hawai‛i at 311, 40 Only the pertinent arguments raised by Petitioners, the Planning Department, and/or Intervenors, are addressed in these Conclusions of Law. The other arguments advanced by them are not dispositive of the issues herein and therefore, need not be addressed in this Report and Recommendation. See generally Chun v. Board of Trustees of Employees’ Retirement System of State of Hawai‛i, 106 Hawaii 416, 420 n.7, 106 P.3d 339, 343 n.7 (2004) (The court will not recite arguments raised in the briefs that are not outcome-dispositive). 59 378 P.3d at 1027 (internal quotation marks omitted) quoting Saranillio v. Silva, 78 Hawai‛i 1, 10, 889 P.2d 685, 694 (1995). 4. “[W]here there is a plainly irreconcilable conflict between a general and specific statute concerning the same subject matter, the specific will be favored. However, where the statutes simply overlap in their application, effect will be given to both if possible, as repeal by implication is disfavored.” Mahiai v. Suwa, 69 Hawai‛i 349, 356-57, 742 P.2d 359, 366 (1987) (internal quotation marks and citations omitted). 5. “Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.” In the Interest of CM, 141 Hawai‛i 348, 353, 409 P.3d 752, 757 (2017) quoting State v. Young, 107 Hawai‛i 36, 39-40, 109 P.3d 677, 680-81 (2005) (citations, internal quotations marks, brackets, and ellipses omitted; format changed). 6. “When interpreting county charters, municipal ordinances, and administrative rules, the general principles of statutory construction apply.” Ferris Trust, 138 Hawai‛i at 310, 378 P.3d at 1026 quoting Kellberg v. Yuen, 131 Hawai‛i 513, 527, 319 P.3d 432, 446 (2014) (brackets omitted). 60 7. “It is a well established rule of statutory construction that, where an administrative agency is charged with the responsibility of carrying out the mandate of a statute which contains words of broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.” Hyatt Corp. v. Honolulu Liquor Com’n, 69 Hawai‛i 238, 242-43, 738 P.2d 1205, 1208 (1987) (brackets omitted). 8. “[I]n deference to the administrative agency’s expertise and experience in its particular field, the courts should not substitute their own judgment for that of the administrative agency where mixed questions of fact and law are presented.” Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d. 794, 797 (1984) citing Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 Harv.L.Rev. 70, 99-103 (1944). 9. “Ordinarily, deference will be given to decisions of administrative agencies acting within the realm of their expertise”. Maha‛ulepu v. Land Use Com’n, 71 Haw. 332, 335, 790 P.2d 906, 908 (1990) citing Outdoor Circle v. Harold K.L. Castle Trust Estate, 4 Haw.App. 633, 639, 675 P.2d 784, 789 (1983). Therefore, “review of special permit approvals is limited to discerning whether the administrative agencies committed errors of law or abused 61 their discretion in granting the permit.” Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908 citing Neighborhood Board No. 24 (Waianae Coast) v. Land Use Com’n, 64 Haw. 265, 639 P.2d 1097 (1982). B. The Director’s Report Should Be Given Deference Because Approval Of The Permits Is Within Its Realm Of Expertise Involving Mixed Questions Of Law And Fact. 10. The zoning powers of the Planning Commission are derived from Haw. Rev. Stat. § 46-4. That statute provides in relevant part: Zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner. Zoning in the counties of Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of this section. In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land to allow and encourage the most beneficial use of the land consonant with good zoning practices. The zoning power granted herein shall be exercised by ordinance which may relate to: . . . (1) The areas within which agriculture, forestry, industry, and trade, and business may be conducted; 62 (2) The areas in which residential uses may be regulated or prohibited; . . . (4) The areas in which particular uses may be subjected to special restrictions; . . . (12) Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions. . . . The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive general plan to ensure the greatest benefit for the State as a whole. This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations , except insofar as forest and water reserve zones are concerned and as provided in subsections (c) and (d). (emphasis added). 11. The Legislature also authorized the Planning Commission to enact and enforce rules regulating Special Management Areas. See Haw. Rev. Stat. § 205A-29. Specifically, 63 (a) The authority in each county, upon consultation with the central coordinating agency, shall adopt rules under chapter 91 setting the special management area use permit application procedures, conditions under which hearings must be held, and the time periods within which the hearing and action for special management area use permits shall occur. The authority shall provide for adequate notice to individuals whose property rights may be adversely affected and to persons who have requested in writing to be notified of special management area use permit hearings or applications. The authority shall also provide public notice that is, at a minimum, circulated throughout the county at least twenty days in advance of the hearing. The authority may require a reasonable filing fee which shall be used for the purposes set forth herein. Any rule adopted by the authority shall be consistent with the objectives, policies, and special management area guidelines provided in this chapter. Action on the special management permit shall be final unless otherwise mandated by court order. (b) No agency authorized to issue permits pertaining to any development within the special management area shall authorize any development unless approval is first received in accordance with the procedures adopted pursuant to this part. For the purposes of this subsection, county general plan, state land use district boundary amendments, and zoning changes are not permits. Id. (emphasis added). 12. By reason of the above quoted statutes, the County of Kaua‛i, through the Planning Commission, administers the SMA Rules and Coastal Zone Management Act (“CZMA”) codified in Haw. Rev. Stat. §§ 205A-1, et seq. See Morgan v. Planning Dept., County of Kauai, 104 Hawai‛i 173 185, 86 P.3d 982, 64 994 (2004) (“[T]he Planning Commission is vested with broad power and authority in implementing the CZMA’s mandate.”). 13. Since the Planning Commission, and by extension the Planning Department, is charged with the responsibility of enforcing the zoning laws, including the CZMA’s mandate, their decisions should be accorded deference, unless they are palpably erroneous. See Hyatt Corp., 69 Hawai‛i at 242-43, 838 P.2d at 1208 (“It is a well established rule of statutory construction that, where an administrative agency is charged with the responsibility of carrying out the mandate of a statute which contains words of broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.”). 14. Based upon these authorities, the Director’s Report recommending approval of the Application, and proposing the Director’s Conditions, involve mixed questions of law and fact requiring due deference be accorded those decisions unless the Planning Department “committed errors of law or abused [its’] discretion in [recommending approval of] the [P]ermit[s].” Maha‛ulepu, 71 Haw. at 336, 790 P.2d at 908 and see also Haole, 111 Hawai‛i at 149, 140 P.3d at 382 (“When construing a statute, [the court’s] foremost obligation is to ascertain and give effect to the intention of the legislature, which is 65 to be obtained primarily from the language contained in the statute itself. And [the court] must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.”). 15. In view of the foregoing authorities and principles of statutory construction, there was insufficient evidence introduced at the CC Hearing to establish by a preponderance of the evidence that the Planning Department committed errors of law or abused its discretion in the issuance of the Director’s Report and formulation of the Director’s Conditions. Rules of Practice and Procedure of the Kaua‛i County Planning Commission (Codified May 2014) (“Commission Rule” or “Commission Rules”) Rule 1-6-17(b) (The Party initiating the Commission’s consideration shall have the burden of proof by a preponderance of the evidence.). C. The Proposed Project Is Consistent With The Goals, Objectives, And Policies Of The CZMA, CZO, And General Plan.________________________________ 16. The Proposed Project satisfies Goals Numbered 1 through 4, and Polices Numbered 1-2, 8-9, and 11, of the General Plan. Exhibit C at 6-7. 17. The Proposed Project is also consistent with the goals and objectives of the North Shore Planning Area. Id. at 7. 66 18. With respect to the SMA Use Permit, the Proposed Project meets the objectives, policies and guidelines designed to protect coastal resources mandated by the CZMA. Id. at 7-8. 19. The Proposed Project, and contemplated agricultural activities to be conducted on the Subject Property as set forth in the Application, are compatible with the Subject Property’s zoning, will not be detrimental to Petitioners or the surrounding area, will not cause substantial harm to the environment and is not inconsistent with the intent of the CZO and General Plan. See Id. at 8-9, and E.g., Tr. 3/4/2020 at 81 and Tr. 3/13/2020 at 115. 20. The Proposed Project further “complies with the building height, setback, and off-street parking requirements for development within the Open/Special Treatment – Resource (O/ST-R) zoning district, as specified in Sections 8-4.3 & 8-4.5 [of] the Comprehensive Zoning Ordinance (CZO).” Exhibit C at 9. For instance, the Proposed Project “is not visible to the general public from Kāhili Makai Street or public vantage point along Kīlauea River.”41 Id. at 10. 41 According to the 1998 Conditions, “a landscape plan to help screen the [Proposed Project] from public views as seen from . . . the Kilauea River and Mouth, and the public areas in the Crater Hill area [would also be required].” Exhibit III at 2 (emphasis added). Petitioners’ proposed landscaping plan attempts to accomplish that result. See Exhibit 33 and Petitioners’ Closing Argument for CC-2020-2 (“Petitioner’s Closing Argument”) at 20. 67 21. These conclusions in the Director’s Report concerning approval of the Permits involve mixed questions of law and fact. Therefore, the only issue is whether the Planning Department committed errors of law or abused its discretion in recommending approval of the Permits. See Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908 (“[R]eview of special permit approvals is limited to discerning whether the administrative agencies committed errors of law or abused their discretion in granting the permit.”). 22. The Planning Department did not commit any errors of law, or abuse its discretion, in recommending approval of the Application because that decision involved mixed questions of law and fact that the Proposed Project is consistent with the goals, objectives and policies of the CZMA, CZO, and General Plan. Id. D. Since The Petitioners Did Not File The Affidavit Required By KCC § 8-3.1(f)(4) And SMA Rules § 9.0.E. The PC Hearing Must Be Rescheduled.______________ 23. Intervenors argue Petitioners failed to comply with their notice obligations set forth in KCC § 8-3.1(f)(4) and SMA Rules § 9.0.D. Intervenors’ Closing Arguments at 9-15. 68 24. In addition to Petitioners’ Notice being inadequate,42 no evidence was introduced at the CC Hearing that Petitioners filed the Affidavit with the Commission required by KCC § 8-3.1(f)(4), SMA Rules § 9.0.E., and/or Commission Rule 1-13-5(e). 25. Since Petitioners did not file the required Affidavit, the KCC § 8-3.1(f)(4) and SMA Rules § 9.0.F. require the PC Hearing to be postponed, the Petitioners pay the cost of republication and processing (“Rescheduling Fee”), and follow the same notification requirements of those provisions to re-notify affected persons of the postponed PC Hearing (“Rescheduled PC Hearing”). E. Petitioners Should Be Directed To Submit Complete Plans As Required By KCC § 8-3.1(b) And SMA Rules §§ 8.0 And 7.1._______________ 26. Intervenors argue the Application should be denied because the plans submitted with it: a. are not drawn to scale (“Alleged Deficiency No. 1”); b. do not show all the proposed structures comprising the Proposed Project (“Alleged Deficiency No. 2”); 42 See Footnote 37, supra. 69 c. are inconsistent with the text portion of the Application as to the square footage of the Farm Dwelling, as well as one (1) portion of the Application describing that square footage is numerically different from another part of the Application (collectively “Alleged Deficiency No. 3”); d. do not show building elevations and section drawings reflecting the finish and existing grades, or setbacks from the boundaries of the Subject Property (“Alleged Deficiency No. 4”); e. are not prepared by a Hawai‛i licensed architect (“Alleged Deficiency No. 5”); f. do not show the location of the Proposed Project in relation to the other uses and structures within the Special Treatment District and the ways in which it is consistent with the establishment of that district (“Alleged Deficiency No. 6”); and g. do not indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plan material within the boundaries of the Subject Property, and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands not less than one 70 hundred (100) feet from the property lines of the Subject Property (“Alleged Deficiency No. 7”). Intervenors CS Development LLC And Charles Somers Individually, Closing Arguments dated June 16, 2021 (“Intervenors’ Closing Arguments”) at 7-8. 27. KCC §§ 8-3.1(b)(3) and 8-11.5, and/or SMA Rules § 8.0 incorporating § 7.1, require Alleged Deficiency Nos. 1, 2 and 6 to be rectified by Petitioners prior to approval of the Permits by the Planning Commission. Compare Exhibits LX and LXI, with Haw. Rev. Stat. § 205A-29 and Article XIV, Section 14.03 of The Charter Of The County Of Kaua‛i (2020 Codified Version) (“County Charter”). At this juncture, these alleged deficiencies are insufficient for the Hearing Officer to conclude the Planning Department committed an error of law or abused its discretion in recommending approval of the Application.43 See generally Camara, 67 Haw. at 216, 685 P.2d. at 797 (“[I]n deference to the administrative agency’s expertise and experience in its particular field, the courts should not substitute their own judgment for that of the administrative agency 43 It is acknowledged that at least some of the Plans are “drawn to scale” or sufficiently accurate to determine setbacks. See Exhibit A-Exhibits H (original version attached to Application) and F (as explained by Cua – Tr. 6/24/2020 at 88-89). Furthermore, final action on the Application and Director’s Report by the Planning Commission has yet to occur. Commission Minutes at 60. As a result, the Application and Director’s Report may still be revised to comply with any and all requirements imposed by applicable law, including but not limited to, KCC §§ 8-3.1(b)(3) and 8-11.5(c), and/or SMA Rules § 8.0.A. incorporating § 7.1. 71 where mixed questions of fact and law are presented.”) and Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908 (“Ordinarily, deference will be given to decisions of administrative agencies acting within the realm of their expertise”.). 28. The Director’s Report recommending approval of the Application despite the existence of Alleged Deficiency No. 3 does not amount to an error or law or constitute an abuse of discretion by the Planning Department.44 See generally Camara, 67 Haw. at 216, 685 P.2d. at 797 and Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908. 29. According to Cua, it is the practice of the Planning Department to address Alleged Deficiency No. 4 when Petitioners apply for a building permit to construct the Proposed Project. Tr. 6/24/2020 at 34. That also appears to be the intent of the first requirement of the 1998 Conditions. See Exhibit III at 1. Therefore, deference should be given to that administrative decision. Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908. 30. According to the Planning Department, there is no requirement that the plans to be submitted by Petitioners with their Application be prepared 44 Unlike Alleged Deficiencies No. 1, 2 and 6, there is no specific requirement that the exact same square footage of each structure within the Proposed Project be reflected in all plans and/or parts of the Application. All that is required to address Alleged Deficiency No. 3 is the Application (including Plans) are to “thoroughly describe[] the proposed and intended use of the [Subject P]roperty.” See generally Exhibits LX at 2 and LXI at 2. 72 and/or stamped by an architect licensed pursuant to Chapter 464 of the Hawai‛i Revised Statues and therefore, Alleged Deficiency No. 5 need not be addressed by Petitioners at this time.45 See generally Exhibits LX and LXI and e.g., Tr. 6/24/2020 at 34. 31. KCC § 8-11.5(c) provides that Alleged Deficiency No. 7 is optional at the discretion of the Planning Director and therefore, are not grounds for denial of the Application. See also Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908. 32. It is premature to determine whether the Application should be denied and/or the Planning Department committed errors of law or abused its discretion because Petitioners may revise the Application to address those alleged deficiencies warranting correction (“Revised Application”), and submit the Revised Application for review by the Planning Department. In turn, the Director’s Report would revised and updated (“Revised Director’s Report”) for the Planning Commission’s consideration at the Rescheduled PC Hearing. 45 However, Petitioners may wish to do so when submitting their Revised Application because plans for the Proposed Project prepared and/or stamped by a licensed architect pursuant to Chapter 464 of the Hawai‛i Revised Statutes will be required at time of Building Permit Application. See generally KCC § 12-2.2 and Petitioners’ Closing Argument at 22 (“The Petitioners will engage Hawaii licensed architect(s) after approval of the Planning Application and prior to submission for building permitting.”) (emphasis added). 73 F. Notice Of The Rescheduled PC Hearing Should Accurately Reflect The Information Required By KCC § 8-3.1(f)(4), SMA Rules § 9.0.B., And Commission Rule 1-13-5(b).__________________ a. Commission’s Public Notice Requirements. 33. Intervenors argue the Commission’s Notice published pursuant to KCC § 8-3.1(f)(4), Section 9.0.B. of the SMA Rules, and Commission Rule 1-13-5(b), is inaccurate because: (a) the same does not describe the other structures that comprise the Proposed Project (i.e. Pool, Greenhouse, Storage Shed and Garage/Storage Shed); and (b) the Subject Property is not immediately adjacent to 4254 Kāhili Makai Street. Intervenors’ Closing Arguments at 12-13, and Compare with Exhibit 9. 34. KCC § 8-3.1(f)(4) requires the Commission’s Notice to include the: (a) date of the public hearing; (b) time of the public hearing; (c) location of the public hearing; (d) purpose of the public hearing; and (e) description of the Subject Property. The Commission’s Notice contains the first three, and possibly the last,46 of these requirements. Exhibit 9. However, the description of the Proposed Project is incomplete. Id. 46 See footnote 35, supra. 74 35. SMA Rules § 9.0.B. and Commission Rule 1-13-5(b) both require the Commission’s Notice to state: (a) the location of the Subject Property; (b) the land area of the Proposed Project; (c) the nature of the Proposed Project; (d) the date, time, and place of the PC Hearing; and (e) that persons may petition for intervention pursuant to the Commission Rules. The Commission’s Notice contains the last two, and possibly the first,47 of these requirements. Exhibit 9. However, the Commission’s Notice omits the land area of the Proposed Project and incompletely describes the nature of the Proposed Project.48 Id. 36. The deficiencies in the Commission’s Notice do not warrant a denial of the Application because the Planning Commission may revise its’ required notice and comply with all the requirements of KCC § 8-3.1(f)(4), SMA Rules § 9.0.B., and Commission Rule 1-13-5(b) (“Commission’s Revised Notice”), prior to the Rescheduled PC Hearing when considering the Revised Application. / / / / 47 See footnote 35, supra. 48 The Commission’s Notice does not include the Pool, Greenhouse, Storage Shed and Garage/Storage Shed contemplated by the Application. See Form Application at 1 and Main Application at 8. 75 b. Petitioners’ Notice Requirements. 37. Intervenors also argue Petitioners “have failed to prove by [a] preponderance of evidence that the legally required public notice was given in order to satisfy the procedural requirements in issuing a Class IV Zoning Permit and a SMA Use Permit.” Intervenors’ Closing Arguments at 12. 38. Petitioners’ Letter “TO WHOM IT MAY CONCERN” (i.e. Petitioners’ Notice) does not comply with KCC § 8-3.1(f)(4), SMA Rules § 9.0.B., and Commission Rule 1-13-5(b), because it fails to adequately describe the purpose or nature of the Proposed Project.49 See Tr. 6/24/2020 at 79. 39. The deficiency in Petitioners’ Notice does not warrant a denial of the Application because Petitioners may revise their required notice and comply with all the requirements of KCC § 8-3.1(f)(4), SMA Rules § 9.0.B., and Commission Rule 1-13-5(b) (“Petitioners’ Revised Notice”), prior to the Rescheduled PC Hearing. See KCC § 8-3.1(f)(4), SMA Rules § 9.0.F., and Commission Rule 1-13-5(f). / / / / 49 See Footnote 37, supra. 76 G. The Time From The PC Hearing Until The Rescheduled PC Hearing Is Excluded In Determining The Maximum Time Period Within Which The Planning Commission Is Required To Act On The SMA Use Permit.____________ 40. Since Petitioners did not file the required Affidavit, the SMA Rules require the PC Hearing “shall be postponed and the [Petitioners] shall pay for the cost of republication and processing, with shall be [the] same amount set forth in Section 8.0 above [(i.e. Rescheduling Fee)], and shall follow the same notification requirements of this section to re-notify affected persons. The Planning Commission shall reschedule another hearing with sixty (60) days after the receipt of the [Rescheduling F]ee.” SMA Rules § 9.0.F. 41. The Commission Rules clarify the time period in SMA Rules § 9.0.F. by providing “[t]he time between the initially scheduled Agency Hearing date and the date of a rescheduled and properly notified Hearing shall not be counted towards the maximum time period as designated in Section 1-13-7 of these Rules [(i.e. not later than 210 days after acceptance of the Application (‘Maximum Time Period’)50].” Commission Rule 1-13-5(f) (emphasis added). 50 The Maximum Time Period may be further extended upon the assent of Petitioners. However, Petitioners have not expressly agreed to do so. See Petitioners’ Closing Argument at 6-7. 77 42. Based upon Commission Rule 1-13-5(f), SMA Rules § 9.0.F is interpreted as excluding the time period between the PC Hearing held on October 22, 2019 and date of the Rescheduled PC Hearing in determining the deadline within which the Planning Commission is required to take action on the SMA Use Permit. In the Interest of CM, 141 Hawai‛i at 353, 409 P.3d at 757 (“Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.”). 43. The Application was received by the Planning Department on September 16, 2019. Exhibit C at 2. Therefore, the Maximum Time Period within which the Planning Commission is required to act on the SMA Use Permit was April 13, 2020. Compare Id., with Commission Rule 1-13-7(a). 44. The time period between the PC Hearing and Rescheduled PC Hearing is not counted towards the Maximum Time Period. Therefore, only thirty-six (36) days has run on the Maximum Time Period since the Application was accepted by the Planning Department on September 16, 2019 and the PC Hearing held on October 22, 2019. In other words, the Planning Commission has One Hundred and Seventy-Four (174) days remaining from the 78 Rescheduled PC Hearing to act on the Revised Application, assuming Petitioners submit the Revised Application and remit the Rescheduling Fee. 45. Notwithstanding anything to the contrary set forth in the immediately preceding Conclusion of Law, the Rescheduled PC Hearing must take place within sixty (60) days of the receipt of the Rescheduling Fee by the Planning Department. SMA Rules § 9.0.F. and See In the Interest of CM, 141 Hawai‛i at 353, 409 P.3d at 757. H. Petitioners Are Deemed To Have Assented To The SMA Use Permit’s Maximum Time Period For The Planning Commission To Act On The Class IV Zoning Permit And Use Permit.________________ 46. The PC Hearing on the Class IV Zoning Permit and Use Permit must be postponed because Petitioners did not file the Affidavit. See KCC§ 8-3.1(f)(4). In that event, “the Planning Commission shall reschedule another hearing within sixty (60) days of the postponed hearing [(“60-Day Time Limit”)].” Id. 47. According to the 60-Day Time Limit, the Rescheduled PC Hearing for the Planning Commission to act on the Class IV Zoning Permit and Use Permit was to have taken place no later than December 21, 2019. Compare Exhibit 9, with KCC § 8-3.1(f)(4). 79 48. The Application consolidated Petitioners’ request for the SMA Use Permit, with the Class IV Zoning Permit and Use Permit. Exhibit A at 6 and Exhibit C at 1. The Planning Commission also treated those three (3) permits together at the PC Hearing. Commission Minutes at 53. Additionally, members of the public were permitted to testify generally on the Application as a whole and were not restricted to testifying on any particular permit. See generally Id. at 53-54. 49. Petitioners were aware of the referral of their Application to a Hearing Officer for review and recommended action when the Planning Commission deferred action on it at the PC Hearing held on October 22, 2019. Id. at 60. They did not object to that deferral, but only to the Petition For Intervention. Compare Id. at 60, with Id. at 58-59. Second, letters dated December 5, 2019, from the Office of Boards and Commissions of the County of Kaua‛i, advised Petitioners, the Planning Department, and Intervenors (“Parties,” unless otherwise indicated to the contrary), that this Hearing Officer was appointed herein to review and recommend action on the Application. Third, the Parties participated in the Prehearing Conference held on January 17, 2020. See Scheduling Order at 2. Finally, since the issuance of the Scheduling Order, 80 Petitioners have actively engaged in all aspects of the proceedings related to this Contested Case. 50. By reason of the events and Petitioners’ conduct as described in the immediately preceding Conclusion of Law, Petitioners are deemed to have assented to the delay pursuant to KCC § 8-3.1(f)(4) as a result of the Planning Commission’s decision to refer the Application for review and recommended action by a Hearing Officer. See generally Kauai Springs, Inc. v. Planning Com’n of County of Kauai, 133 Hawaii 141, 170-71, 324 P.3d 951, 980-81 (2014) (The applicant assented to an extension of the time frame for the Commission act on the Use Permit and Class IV Zoning Permit by consolidating those permits with the Special Permit, and in their conduct prior and subsequent to the original deadline.). 51. Based upon Petitioners’ apparent, constructive, and/or implied assent to an extension of time for the Commission’s decision on the Class IV Zoning Permit and Use Permit by reason of being consolidated with the SMA Use Permit in the Application, treatment of the Permits on a consolidated basis at the PC Hearing without objection by Petitioners, and Petitioners vigorously litigating the issues in this Contested Case indicating their prior agreement to such extension by their conduct, the Maximum Time Period for 81 action on the SMA Use Permit shall also apply to those other permits. Id. at 169-71, 324 P.3d at 979-81. Therefore, the Rescheduled PC Hearing for the Planning Commission to act on Petitioners’ Class IV Zoning Permit and Use Permit must be held within sixty (60) days of the Planning Department’s receipt of the Rescheduling Fee from Petitioners.51 SMA Rules § 9.0.F. I. The Director’s Report Relies Upon SHPD For Expertise Whether The Proposed Project Affects Any Historic Sites. 52. Intervenors next argue the Proposed Project “will damage and destroy the precious remaining historic sites within the Subject Property on the plateau build site and below.” Intervenors’ Closing Arguments at 21-22. 53. Petitioners have already provided SHPD with information concerning the Proposed Project to determine whether any historic sites situated on the Subject Property would be damaged thereby.52 Exhibit A-Appendix 6. 54. “Based upon [that] information provided, [as well as the McGerty AIS (as updated by the McMahon Report),] the SHPD’s determination 51 As with the Application, the 60-day time period to hold the Rescheduled PC Hearing does not commence until the Revised Application is also accepted by the Planning Department. See generally Exhibit C at 2 and Tr. 6/23/2020 at 82. 52 However, the record is unclear precisely what information was provided to SHPD, except that Petitioners “intend to construct a single family dwelling and access road on the 9.5 acre property along with various improvements that include landscaping, possible river access, utilities and septic system. Exhibit A-Appendix 6 at 1. See also Exhibit XLVII. 82 for the [P]roposed [P]roject is no historic properties affected.” Id. at 2 (emphasis in original). 55. The Planning Department relies upon the expertise of SHPD to determine whether any historic sites are affected by the Proposed Project. Tr. 6/24/2020 at 51. 56. The Director’s Conditions also protect against damage to the historical sites. Exhibit C at 12, ¶9. 57. The decision of the Planning Department to rely upon the expertise and resources of SHPD to determine whether any historic sites will be affected by the Proposed Development, and SHPD’s determination that it does not, should both be given deference because Intervenors have not established by a preponderance of the evidence that either of those agencies committed errors of law or abused their discretion in making those decisions. Compare Camara, 67 Haw. at 216, 685 P.2d. at 797 and Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908, with Commission Rule 1-6-17(b). / / / / / / / / 83 J. The Planning Department Should Be Able To Conduct The Ka Pa‛akai Analysis For The Planning Commission To Assess Whether The Proposed Project Affects Any Native Hawaiian Customary And Traditional Rights Protected By The Hawai‛i State Constitution._______________________ 58. Intervenors further argue the “Application is devoid of any analysis regarding traditional and customary Hawaiian practices in connection with the Subject Property and the relevant project area.” This commonly known as the Ka Pa‛akai Analysis. Ka Pa‛akai o Ka‛Āina v. Land Use Comm’n, 94 Hawaii 31, 47, 7 P.3d 1068, 1084 (2000). 59. In Ka Pa‛akai, the Hawai‛i Supreme Court ruled that the Land Use Commission: in its review of a petition for reclassification of district boundaries, must—at a minimum—make specific findings and conclusions as to the following: (1) the identity and scope of “valued cultural, historical, or natural resources” in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (2) the extent to which those resources—including traditional and customary native Hawaiian rights—will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the LUC to reasonably protect native Hawaiian rights if they are found to exist. Id. at 47, 7 P.3d at 1084 (italics in original; bold emphasis added). 60. The Director’s Report attempted to conduct the Ka Pa‛akai Analysis. Exhibit C at 8, ¶b. However, the Application contains additional 84 information to update the Director’s Report to assist the Commission with its Ka Pa‛akai Analysis. See Exhibit A at 7 and 10-11, and Appendices 2-4 and 6. Petitioners may also elect to solicit input from Native Hawaiian Cultural Practitioners to include in the Revised Application to assist with the Ka Pa‛akai Analysis. 61. The determination of whether the Commission conducted the Ka Pa‛akai Analysis is to be made upon conclusion of the Rescheduled PC Hearing. Until that time, it would be premature to determine whether the Planning Commission fulfilled “its duty to protect customary and traditional practices of native Hawaiians to the extent feasible.” Ka Pa‛akai o Ka‛Āina, 94 Hawaii at 48, 7 P.3d at 1085. K. Compliance With The Requirements Of The CPR Documents Imposed Upon The Proposed Project Are Private Obligations Between The Owners Of The Kahili Makai Estates._____________________ 62. Intervenors lastly argue “Petitioners have not provided sufficient evidence to prove that the [P]roposed [Project] will not be detrimental to Persons or Property in the area [because of the 25-foot setback requirement in the 1998 Conditions and CPR Documents].” Intervenors’ Closing Arguments at 19. The CPR Documents also impose 85 “addition[al] conditions upon the construction and development upon all apartment owners.” Intervenors’ FoF at 10, ¶29. 63. With respect to the 25-foot setback requirement to the extent it is imposed by the 1998 Conditions, the Director’s Report concludes “the [Proposed P]roject complies with the building height, setback, and off-street parking requirements for development within the Open/Special Treatment-Resource (O/ST-R) zoning district”. Exhibit C at 9 (emphasis added) and see also Petitioners’ Closing Argument at 36. 64. With respect to the other construction and development conditions related to the Kahili Makai Estates not incorporated into the 1998 Conditions, the CPR Documents are “contractual[] in nature and binds only the parties, and not the Planning Commission or this Hearing Officer.” Tr. 3/4/2020 at 7. The Planning Department is also of like mind. See Tr. 6/24/2020 at 41. 65. The decision of the Planning Department not to consider the requirements of the CPR Documents as they may apply to the Proposed Project is an agency decision to be given due deference. Camara, 67 Haw. at 216, 685 P.2d. at 797 and Maha‛ulepu, 71 Haw. at 335, 790 P.2d at 908. 86 66. If any Conclusion of Law herein should be designated as a Finding of Fact, the same shall be deemed to have been identified as such. V. DECISION AND ORDER. Based upon the foregoing, it is recommended that the Planning Commission: FIRST, advise Petitioners to perform the following: A. Provide to the Planning Department the Revised Application addressing Alleged Deficiency Nos. 1, 2 and 6, and otherwise comply with KCC §§ 8-3.(b)(3) and 8-11.5(c)-(d), and SMA Rules § 7.1; B. Remit the Rescheduling Fee; and C. Provide to SHPD a copy of the Revised Application and confirm there is no change in its determination that the Proposed Project does not affect any historic sites.53 SECOND, upon receipt of the foregoing, it is recommended that the Planning Department prepare the Revised Director’s Report to comment on the Revised Application and address the Ka Pa‛akai Analysis. 53 Petitioners have already agreed they “would be supportive and provide the additional documentation assembled by a team of consultants, such that for the sixth time SHPD can 87 THIRD, upon receipt of the Revised Director’s Report, calendar the Rescheduled PC Hearing within sixty (60) days of the Planning Department’s acceptance of the Revised Application and receipt of the Rescheduling Fee, publish the Commission’s Revised Notice, and monitor and receive Petitioners’ Revised Notice and Affidavit. FINALLY, it is recommended the Planning Commission APPROVE the Proposed Project,54 SUBJECT TO THE FOLLOWING CONDITIONS: 1. The Proposed Project shall be constructed as represented in the Revised Application. Any changes to the operation and/or the respective structures shall be reviewed by the Planning Department to determine whether Planning Commission further review and approval is warranted. 2. In order to ensure that the Proposed Project is compatible with its surroundings and to minimize the visual impact of the structures contemplated, the external color of the Farm Dwelling, Greenhouse, Storage Shed and Garage/Storage Shed, shall all be of a moderate to dark earth-tone color. The proposed color scheme and a landscape plan should be submitted to the Planning Department for review and acceptance prior to building permit application. 3. The Petitioners shall submit for review and approval by the Planning Department prior to building permit application, a landscape plan composed of native species, or species common to the area, to help to screen the Proposed Project, and integrate the site with its surroundings. confirm that this [Proposed P]roject, including the build sites previously identified on Unit E since 1999, will have no adverse [e]ffect.” Petitioners’ Closing Argument at 34. 54 This recommendation assumes the Revised Director’s Report APPROVES the Proposed Project as detailed in the Revised Application. 88 4. The Petitioners are made aware that none of the structures comprising the Proposed Project shall be utilized for any transient accommodation purposes. Specifically, none of those structures shall be used as a transient vacation rental (TVR) or as a homestay. 5. If external lighting is to be used in connection with the Proposed Project, all external lighting should be only of the following type: downward-facing shielded lights. Spotlights aimed upward or spotlighting of structures proposed is prohibited. 6. The Petitioners shall develop and utilize Best Management Practices (BMPs) during all phases in the construction of the Proposed Project in order to minimize erosion, dust, and sedimentation impacts of that construction to abutting properties. 7. Unless otherwise stated in the Permits, once the Permits are issued, the Petitioners must make substantial progress towards completion of the Proposed Project, as determined by the Director of the Planning Department, within two (2) years of their issuance, or the Permits shall lapse and will no longer be in effect. 8. The Petitioners should resolve and comply with all agency requirements as recommended by those agencies, including but not limited to, the building permit & drainage requirements of the County DPW Engineering Division, County Fire Department, potable water & fire protection requirements of the County Department of Water, and regulations involving environmental concerns as administered by the Hawai‛i State Department of Health. 9. Since there are known archaeological sites on the Subject Property, the Petitioners shall work closely with SHPD in order to ensure that these archaeological sites remain undisturbed and/or unaffected by the proposed construction activities. Furthermore, Petitioners are advised that should any archaeological or historical resources be discovered during ground disturbing/construction work, all work in the area of the archaeological/historical findings shall immediately cease and the Petitioners shall contact SHPD and the Planning Department for further 89 instructions. 10. Prior to commencement of the Proposed Project, written confirmation of compliance with the requirements from all reviewing agencies shall be provided to the Planning Department. Failure to comply may result in forfeiture of the SMA Use Permit. 11. The Petitioners are advised that prior to construction and/or use of the Proposed Project, additional government agency conditions may be imposed. It shall be the Petitioners’ responsibility to resolve those conditions with the respective agency(ies). 12. The Planning Commission reserves the right to add or delete conditions of approval in order to address or mitigate unforeseen impacts the Proposed Project may create, or revoke the permits through the proper procedures should conditions of approval be violated or adverse impacts be created that cannot be properly addressed. DATED at Honolulu, Hawaii, August 23, 2021. /s/ Harlan Y. Kimura__________ HARLAN Y. KIMURA Hearing Officer for the Planning Commission of the County of Kaua‛i 1 BEFORE THE HEARING OFFICER OF THE PLANNING COMMISSION OF THE COUNTY OF KAUA‛I In the Matter of The Application: of Special Management Area Use Permit SMA(U)-2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the Construction of a Farm Dwelling Unit within Lot 7 of the Kāhili Makai Subdivision in Kilauea, Involving a Parcel Situated at the Terminus of Kāhili Makai Street and Immediately Adjacent to Property Identified as 4316-Z Kāhili Makai Road, Tax Map Key: (4) 5-2-01: 007 (Unit E), and Affecting a Portion of a Larger Parcel Approx. 27.56 Acres in Size, VALERIE M. NEILSON and DAVID N. KELLS, Petitioners, vs. PLANNING DEPARTMENT OF THE COUNTY OF KAUA‛I, Respondent, and ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CC-2020-2 Special Management Area Use Permit: SMA(U)-2020-1 Class IV Zoning Permit: Z-IV-2020-3 Use Permit: U-2020-3 TMK: (4) 5-2-021:007 (Unit E) CERTIFICATE OF SERVICE 2 CS DEVELOPMENT LLC and CHARLES SOMERS, Intervenors. ______________________________ ) ) ) ) ) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was duly served upon the following parties listed below, in the manner described thereto, at their last-known addresses, on August 23, 2021. U.S. Mail Hand Delivery Email VALERIE M. NEILSON DAVID N. KELLS, M.D. 4316-Z Kāhili Makai Street, Unit E Kilauea, Hawaii 96754 Email: dnvnkells@gmail.com Petitioners Pro Se ROY A. VITOUSEK, III, ESQ. MAUNA KEA TRASK, ESQ. Cades Schutte LLP 3135 Akahi Street, Suite A Līhu‘e, Kaua‛i, HI 96766 Email: mtrask@cades.com Attorneys for Intervenors CS DEVELOPMENT LLC and CHARLES SOMERS X X X X 3 U.S. Mail Hand Delivery Email CHRIS DONAHOE, ESQ. Deputy County Attorney County of Kaua‛i 4444 Rice Street, Suite 220 Līhu‘e, Kaua‛i, HI 96766 Email: cdonahoe@kauai.gov Attorney for Ka‛āina S. Hull, Director, County of Kaua‛i, Department of Planning LAURA BARZILAI, ESQ. Deputy County Attorney County of Kaua‛i 4444 Rice Street, Suite 220 Līhu‘e, Kaua‛i, HI 96766 Email: lbarzilai@kauia.gov Attorney for Planning Commission of the County of Kaua‛i ELLEN CHING Administrator Office of Boards and Commissions County of Kaua‛i 4444 Rice Street, Suite 150 Līhu‘e, Kaua‛i, HI 96766 Email: eching@kauai.gov asegreti@kauai.gov X X X X X X / / / / 4 DATED at Honolulu, Hawaii, August 23, 2021. /s/ Harlan Y. Kimura__________ HARLAN Y. KIMURA Hearing Officer for the Planning Commission of the County of Kaua‛i Valerie M. Neilson and David N. Kells, vs. Planning of the County of Kaua‛i and CS Development, LLC and Charles Somers; CC-2020-2; Certificate of Service CADESSCHUTTE A Limited Liabi li ty Law Partnership R OY A. VITOUSEK III MAUNA KEA TRA SK 1862-0 8418 -0 D yn asty Professio n a l Bui ldin g 3 135 Akahi St., Su ite A L ihu e, HI 96766 Te lep hone: (808) 2 45-1922 A ttorneys for Intervenors CS DEVELOPMENT LLC a nd CHARLES SOMER S, Individually AECEVED AUG 3 0 2021 BOARDS & COMldlllll BEFORE THE PLANNING COMM IS S IO N OFTHE COUNTY OF KAUA'I In th e Matter of T h e A pplication: of S pecial Management Area Use Permit SMA(U)-2020-1, C la ss TV Zo nin g Permit Z -T V-2020 -3, and Us e Permit U-2020-3 for the Construction of a Farm Dwelling U nit w ithin Lot 7 of the Kah ili Maka i Subdivision in Ki lauea, Involving a Parce l Situated at 4316 'Z Kahili Makai Street, T ax Map Key: (4 ) 5-2- 02 1: 007 (Unit E), a nd Affect in g a Porti o n of a Larger Parcel Approx. 27 .56 Acres in Size , VALERIE M. NEI L SON and D A YID N. KELLS, Petitioners , vs. PLANNING DEPARTMENT OF THE COUNTY OF KA U A'I , Res po ndent , and CS DEVELOPMENT LLC and CHARLES SOMERS , Individually I nterve nors. C C -2020-2 Spec ia l Mana ge m e nt Area Use Permit: SMA(U)-2020-1 C lass TV Zonin g Permit: Z-IV-2020-3 Use Permit: U -2020 -3 TMK: (4) 5-2 -0 2 1 :007 (Uni t E) INTERVENORSCSDEVELOPMENTLLC AND CHARLES SOMERS INDIVIDUALLY, EXCEPTIONS TO THE HEARING OFFICER'S REPORT AND RECOMMEND ATI ON S ; REQUEST FOR ORAL ARGUMENT BEFORE THE COMMISSION; CERTIFICATE OF SERVICE HEARING (Sc heduled): D ate s : March 4 , 6 , a nd 13 2020 , May 13 ,20 10 , Jun e 18, a nd 23 -25 , 2020 , a nd Ju ly 2 a nd 7 , 2020 Time : 9:00 a.m . O n A ll Da ys Hearing Officer: Harlan Y . Kimura , Es q . 2 INTERVENORS CS DEVELOPMENT LLC AND CHARLES SOMERS INDIVIDUALLY, EXCEPTIONS TO THE HEARING OFFICER’S REPORT AND RECOMMENDATIONS; REQUEST FOR ORAL ARGUMENT BEFORE THE COMMISSION Intervenors CS DEVELOPMENT LLC and CHARLES SOMERS, Individually (“Somers”) hereby submits his EXCEPTIONS TO THE HEARING OFFICER’S REPORT AND RECOMMENDATIONS and REQUEST FOR ORAL ARGUMENT BEFORE THE COMMISSION pursuant to the Rules of Practice and procedure of the County of Kauai Planning Commission (“Commission Rules”) §1-6-19 (b) and §1-6-19 (d). I. EXCEPTIONS TO FINDINGS OF FACT. Somers takes exception to the following Findings of Fact: III.A.3. The County of Kaua’i Planning Department (“Department”) is not responsible for approving VALERIE M. NEILSON AND DAVID N. KELLS (“Petitioners”) Application for Special Management Area Use Permit SMA (U) 2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 (“Application”). The County of Kaua’i Planning Commission (“Commission”) is responsible for approving Petitioners’ Application. See, Special Management Area Rules and Regulations of the County of Kauai - State of Hawaii (“SMA Rules”) Section 10.0, and County of Kauai Comprehensive Zoning Ordinance (“CZO”) §§ 8-3.1 (f)(4) and 8-3.2 (e) respectively. III.C.8. The Subject Property is within the Kauai County General Plan (“General Plan”) “Natural” land use designation. Mr. Dale Cua, Planner for the Planning Department (“Cua”), testified that he did not do an overlay of the General Plan map with the application, that it is likely that the General Plan designation for the Subject Property is “Natural” and testified that he is willing to amend the Director’s report to reflect that the General Plan land use designation is 3 “Natural” not “Agricultural”. See, 6/24/20 Contested Case Hearing Transcript (“TR”) at 15-16; General Plan at 241, fig. 5-7. III.C.9. Although the entire larger Lot 7 property is split zoned between the County Agriculture (A) zoning district and the County Open Special Treatment Resource (O/ST-R) zoning districts, the County Agriculture zoning district is limited to Unit A-1. See, 6/24/20 TR at 9. The Subject Property is entirely within the Open and Special Treatment Resource zoning districts. Id. III.C.12. Exhibit A-Appendix 2 at 5 and Exhibit A-Exhibit H are insufficient to prove by a preponderance of the evidence that the Natural Bench or Lower Plateau portions of the subject Property are within Zone “X” of the FEMA Flood Map. III.E.17. Exhibit XLVII does not prove by a preponderance of the evidence that Petitioners requested the State Historic Preservation Division of the Department of Land and Natural Resources for the State of Hawaii (“SHPD”) to comment on whether this specific Proposed Project would affect any historic sites located on the Subject Property (“Request for Historic Determination”). Exhibit XLVII is simply an email from Petitioners to Susan A. Lebo, PhD (“Lebo”) dated February 6, 2020 requesting a copy of a 2017 letter Petitioners sent to Lebo describing Petitioner’s “project goals”. See, Exhibit XLVII. III.E.20. Exhibit C - Appendix 2 at 5 does not note the McGerty AIS’ examination of the southern half of Lot 7. III.E.22. The SHPD determination that the Proposed Project would have no affect on historic properties was erroneous. Petitioners did not provide Lebo with any plans or architectural renderings of the Proposed Project to scale or accurately showing the location of where the various structures would be located on the Subject Property in relation to the historic sites and their features. See, 3/13/20 TR at 29. There are currently four (4) historic sites on the 4 Subject Property, three of which (974, 975, and 976) are recognized as significant. See, 6/24/20 TR at 122. There are a combined total of forty-two (42) historic features on the Subject Property, including two (2) potential burials. Id. Cua testified that despite the past damage to the historic sites and features, out of a total of 42 features 28 are still remaining and untouched on the Subject Property. See, 6/24/20 TR at 55. Nancy McMahon (“McMahon”) testified that the Proposed Project may significantly and adversely affect the historic properties on the Subject Property. See, 6/25/20 TR at 23. III.E.27. at footnote 26 erroneously states the record does not support that the County of Kauai Mayor’s Office pressured the Planning Department to accept Petitioner’s Application even though it contained various unaddressed deficiencies. In fact, during the contested case hearing Cua agreed that, “it was after pressure from the Mayor” that the Planning Department processed Petitioner’s Application and needed to approve it as complete. See, 6/24/20 TR at 81. III.G.29. at (1) and footnote 27 is erroneous. The Director’s Report did not require a SMA Use Permit because, inter alia, the Proposed Project included the construction of a second dwelling unit on Lot 7. The Director’s Report specifically states, “[p]ursuant to Hawaii Revised Statutes (HRS) Section 205A and the County of Kauai SMA Rules and regulations, the project is considered “Development” since the construction value exceeds $500,000 and for the construction of a second dwelling unit on a parcel.” See, Exhibit C at 1 (emphasis added). The record clearly shows that there is an existing dwelling unit on the Subject Property, and the reference to the existing dwelling unit was not concerning the dwelling unit located on Lot 7 Unit D. Petitioners’ Standard Zoning Permit Application clearly indicates that there is one (1) dwelling unit presently existing on the Subject Property. See, Exhibit A Standard Zoning Permit Application at 2. Petitioners have resided on the Subject Property full time since February of 2018. See, Exhibit A at 6. Included in the Application is a K-2 survey map showing the Subject 5 Property in which the purported garage that Petitioners are residing in is identified as a “Dwelling.” See, Exhibit A - Exhibit B. Further, Cua recognized that Petitioners were applying for a second dwelling unit on the Subject Property because the Petitioners are currently residing on the Subject Property in a “dwelling unit” given that the structure they are living in has a bathroom, a toilet, an outside shower and a kitchen area where Petitioners plug in appliances and prepare food. See, 6/24/20 at 35 - 36. This is substantiated by the fact that a certificate of occupancy was issued on September 12, 2002 for the use of the purported “garage” that Petitioners use as a dwelling unit. See, Exhibit LVIX. III.G.a.31 is erroneous because a SMA Use Permit is required pursuant to Hawaii Revised Statutes (“HRS”) § 205A-22 due to the fact that the construction value exceeds $500,000 and for the construction of a second dwelling unit on a parcel”, specifically Unit E of Lot 7. See, Exhibit C at 1 (emphasis added). III.G.a. 32 erroneously omits reference to HRS § 205A-26 (1) (A) and (B). The law is clear that all development in the special management area shall be subject to reasonable terms and conditions set by the authority in order to ensure: (A) Adequate access, by dedication or other means, to publicly owned or used beaches, recreation areas, and natural reserves is provided to the extent consistent with sound conservation principles; (B) Adequate and properly located public recreation areas and wildlife preserves are reserved. III.G.a.37.b. at footnote 29 erroneously states that, in relation to the Director’s Report statement that “the Planning Department is still awaiting comments from the State Department of land & Natural Resources (DLNR), Historic Preservation Division (SHPD)”, “Appendix 6 of the Application contains a copy of the letter dated August 31, 2017 from Susan A. Lebo, PhD, Archaeology Branch Chief, of the SHPD, concluding the Proposed Project does not affect any 6 historic properties, the import of which is that SHPD had already commented on the Application.” In fact, SHPD was one of the sister governmental agencies that was sent a copy of the Petitioner’s Application on or about September 18, 2019. See, Exhibit C at Exhibit A. On October 30, 2020 the Planning Department received a letter from Alan S. Downer, PhD of the State Historic Preservation Division (SHPD) regarding the Proposed Project (the “October 30, 2020 letter”). The letter has been made part of the Planning Department’s file and “shall constitute evidence for the purposes of an Agency Hearing”. See, Commission Rule § 1-16- 17(j). In the October 30, 2020 letter SHPD stated that they had “insufficient information to determine the potential for the project to adversely impact archaeological preservation sites.” See, Planning File (emphasis added). III.G.a.37.d. The Director’s Report erroneously concludes that there are “no known rare, threatened or endangered, plant or animal species or critical habitats located within the Proposed Project site.” Petitioners in their Special Management Area (SMA) Permit Assessment (“SMAPA”) checked “Yes” in an affirmative indication that the project site is a habitat for endangered species of flora and fauna, and further state that it is possible that the wetland area provides habitat for a variety of fauna, of which some may be endangered. See, Exhibit A, SMAPA at 9. According to Petitioners, their Survey of the Flora and Fauna of TMK (4) 5-2- 21:007, Unit E was conducted by the Petitioners with the assistance of Landscape Designer Dave Wyle and the Natural Conservation Resources Services (NRCS) employee Johana Stars. See, Exhibit A - Appendix 1 at 1; and 3/13/20 TR at 84 - 85. Ecologists are specialized scientists who have training and expertise in the survey of ecosystems and assessing the diversity, profusion and behavior of different organisms within an ecosystem. See, 3/13/20 TR at 83. Dave Wyle is not an ecologist. See, 3/13/20 TR at 84. NRCS employee Johana Stars is not an ecologist. See, 3/13/20 TR at 85. Petitioners do not provide any evidence that they are ecologists or that they 7 have any training or expertise in the survey of ecosystems and assessing the diversity, profusion and behavior of different organisms within an ecosystem. Findings of Fact must be supported by reliable, probative and substantial evidence in the whole record. See, HRS § 91–14(g)(5), and Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). Petitioners have not provided sufficient evidence to prove by a preponderance of the evidence that the Proposed Project will not have any significant impact on any endangered or protected flora or fauna in the area. See, Exhibit A at 11; and Exhibit A at Appendix 1. III.G.a.37.e. The Director’s Report erroneously concludes that the Proposed Project site does not offer immediate views from public viewing locations. The Proposed Project site is viewable from the following public viewing locations: (1) Kilauea River and Mouth; and (2) the public areas in the Crater Hill area. See, Exhibit III at 2. III.G.b.43, 44, 45 and 46 are erroneous. CZO§ 8-11.5 (c) specifically requires: Applications shall be accompanied by plans and three (3) dimensional drawings or models which clearly indicate the relation of the proposed development to other uses and structures within the Special Treatment District and the ways in which the proposed development is consistent with the reasons for the establishment of the District. Plans shall indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the applicant’s parcel and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands as required by the Planning Director, but no less than two hundred (200) feet from property lines of the parcel which abut a public thoroughfare, park or facility and one hundred (100) feet from the property lines of the parcel which abut privately owned property. Aerial photography may be utilized to meet these requirements if approved by the Planning Director. The above CZO requirements are mandatory and the Director lacked discretion to accept the Application without strict compliance with said requirements. Leslie v. Board of Appeals, 109 Haw. at 394, 126 P.3d at 1081 (2006). The plans accompanying the Application do not indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the applicant’s parcel and the existing or 8 proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands no less than one hundred (100) feet from the property lines of the parcel which abut privately owned property. See, Exhibit A - Exhibits F, G, H, I and J. III.G.c.48 is erroneous. According to CZO § 8-3.2(e)(1): “[a] Use Permit may be granted only if the Planning Commission finds that the establishment, maintenance, or operation of the construction, development, activity or use in the particular case is a compatible use and is not detrimental to health, safety, peace, morals, comfort and the general welfare of persons residing or working in the neighborhood of the proposed use, or detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the community, and will not cause any substantial harmful environmental consequences on the land of the applicant or on other lands or waters, and will not be inconsistent with the intent of this Chapter and the General Plan.” III.G.c.49.a is erroneous. The Director’s Report erroneously concluded that “[t]he location and size of the Proposed Project will not create unusual noise or other conditions that may be incompatible to the surrounding area.” See, Exhibit C at 9. As stated above, the plans accompanying the Application do not indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the applicant’s parcel and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands no less than one hundred (100) feet from the property lines of the parcel which abut privately owned property. See, Exhibit A - Exhibits F, G, H, I and J. Further, the location map contained in the Application is not to scale. Exhibit A - Exhibit A. Additionally, Petitioners’ Site Plan, Ecological Plan, Building Site Plan1, Floor Plan, and Elevation Plan are not to scale. See, Exhibit A - Exhibits F - J. Findings of Fact must be supported by reliable, probative and substantial evidence in the whole record. See, HRS § 91– 14(g)(5), and Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). The Director cannot make 1 Ron Agor testified that despite the text of the Building Site Plan (Exhibit A - Exhibit H) it is not to scale. See, 7/2/20 TR at 121-122. 9 an affirmative determination that “the location and size of the Proposed Project will not create unusual noise or other conditions that may be incompatible to the surrounding area” based upon an incomplete and inadequate Application and development plans that do not depict all lawfully required information and are not drawn to scale. III.G.c.49.b is erroneous. It is a non-sequitur for the Director’s Report to conclude that since the Proposed Project is situated within a “very rural neighborhood”, the Proposed Project should not be detrimental to persons residing in these areas and the properties surrounding the Subject Property are similarly zoned; and therefore, that the proposed project should not have significant adverse impact to the community. Petitioners have the burden to produce evidence to show that the Proposed Project will not be detrimental to persons residing on the Subject Property or in the Area. See, Commission Rule §1-6-17 (b). Findings of Fact must be supported by reliable, probative and substantial evidence in the whole record. See, HRS § 91–14(g)(5), and Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). The Director’s Report must base its conclusions on “reliable, probative and substantial evidence” proving by a preponderance of evidence that the Proposed Project will not be detrimental to persons residing on the Subject Property or in the Area and that there will be no significant adverse impact to the community, not whether or not the neighborhood is rural. III.G.c.49.c is erroneous. The Director’s Report incorrectly based its determination that the Proposed Project will not cause substantial harmful environmental consequences on the following limited reasons: (1) the Proposed Project site has been previously disturbed and utilized for agricultural purposes; and (2) it is unlikely that rare, threatened or endangered species or sensitive habitat will be affected by the Proposed Project. The first reason is a non- sequitur. The fact that the Proposed Project site has been previously disturbed and utilized for agricultural purposes does not provide a basis to conclude that the instant Proposed Project will 10 not cause substantial harmful environmental consequences. The second reason is not supported by Petitioner’s own Application, which, as stated above, indicates that the project site is a habitat for endangered species of flora and fauna, and further states that it is possible that the wetland area provides habitat for a variety of fauna, of which some may be endangered. See, Exhibit A, SMAPA at 9. III.G.c.49.d is erroneous. The Director’s Report conclusion that the Proposed Project will not be inconsistent with the intent of the CZO and General Plan is not based upon “reliable, probative and substantial evidence in the whole record.” The Application only cursorily addresses the four Vision and Goals of the General Plan, and only addresses five (5) of the General Plan Policies (specifically Policies # 8, #10, #11, #12 and #15) out of a total of 19 policies and goals. Petitioners state the Application contributes to the General Plan Vision and Goal #1 of a “Sustainable Island” by increasing the amount of locally grown foods without significantly increasing the demand on natural resources, and thus addressing Policy #11 which aims to help agricultural land be productive. See, Exhibit A at 14. However, the evidence does not support such statements. Petitioner David N. Kells is a retired medical doctor. See, 3/4/20 and continued 3/6/20 TR at 33 to 34. Petitioner Valerie M. Neilson is a semi-retired nurse and works part time. See, 3/4/20 and continued 3/6/20 TR at 117. Petitioners’ intent is to grow vegetables to share with family and friends. See, 3/4/20 and continued 3/6/20 TR at 30. Petitioners are not farmers and their farming background is limited to taking one semester of the three semester “Go Farm Program” at Kauai Community College. See, 3/4/20 and continued 3/6/20 TR at 115. Petitioners do not farm on any other property. See, 3/4/20 and continued 3/6/20 TR at 116. There is no evidence to show that Petitioners have applied for or receive special agricultural dedication tax rates for agricultural use of their property under Kauai County Code (“KCC”) § 11 5A-9.1. Petitioners make no profits and keep no financial records of any purported farming operations on the Subject Property. See, 3/4/20 and continued 3/6/20 TR at 117. Petitioners do not receive County of Kauai Department of Water agricultural water rates for agricultural water service on the Subject Property. Id. Petitioners do not file United States Internal Revenue Service Schedule F forms showing any profits or losses from farming. Id. Petitioners do not file Federal Fuel Tax exemption claims made pursuant to section 6427C of the United States Internal revenue Code relating to sales receipts related to agricultural activities. Id. at 117 - 118. Petitioners do not file any State of Hawaii General Excise taxes relating to agriculture. Id. at 118. Cua testified that the County recognizes the difference between gentleman and or token farming versus commercial farming. See, 6/24/20 TR at 10. Cua testified he agreed that a gentleman farmer is one who farms mainly for pleasure, not for profit. Id. Cua testified that Petitioners’ activity of raising four hens and a rooster is not poultry farming. Id at 11. Under KCC §5A-9.1 “Agricultural use” shall not mean uses primarily as yard space, landscaped open areas, botanical gardens, or the raising of livestock or fruit trees primarily for home use. Id. at 10 - 11. Based upon the evidence in the record, Petitioners are not proposing any bona fide agricultural uses on the Subject Property. Petitioners are gardeners or at most gentleman farmers which is discouraged by the North Shore Development Plan and the General Plan. See, Exhibit LV at 77; and General Plan at 168. Petitioners state that the Proposed Project contributes to the General Plan Vision and Goals # 2 of a “Unique and Beautiful Place” by identifying and replacing invasive plant species with more desirable and historically significant plant species, thus addressing General Plan Policy #8 Protecting Kauai’s scenic beauty and Policy # 12 Protecting Kauai’s watersheds. See, Exhibit A at 14. Petitioners do not have actual specific plans for their landscaping and purported agricultural activities. The Application contains only one exhibit that generally describes various 12 fruit trees that could constitute a fruit orchard for Hawaii. See, Exhibit A - Appendix 11. Petitioners later, in January 2020, after the issuance of the Director’s Report, submitted plans for a purported Agro-forestry planting pattern. See, Exhibit 33. However, Petitioners themselves testified that these plans are just recommendations, most of the plants they plant don’t survive, and that they are just trying to gather information for best practices. See, 3/13/20 TR at 154. Thus the statements in the Application and the Director’s Report regarding satisfaction of General Plan Visions and Goal # 2 of a Unique and Beautiful Place and satisfaction of General Plan Policies #8 and #14 are not supported by reliable, probative and substantial evidence in the whole record. See, HRS § 91–14(g)(5), and Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). Petitioners state that the Proposed Project contributes to General Plan Vision and Goal # 3 of a “Healthy and Resilient People” by increasing local agricultural production and by adding part time work opportunities through supporting local business to meet the needs of the project. See, Exhibit A at 14. Further, Petitioners state that the Proposed Project addresses General Plan Policy # 10 to help businesses thrive and complete Kauai’s shift to clean energy. Id. However, as stated above, Petitioners have no plans to actually farm the Subject Property, and the Application does not contain any evidence to show that they will employ anyone to farm the Subject Property or specifically how the Proposed Project will add part time work opportunities and support local businesses. Further, beside a vague reference to integrating the existing photovoltaic batteries located on the Subject Property to optimize solar energy, assumedly for personal use, the application does not provide any evidence to support the conclusion that the Proposed Project will help Kauai shift to clean energy. See, Exhibit A at 12. Petitioners claim that the General Plan Vision and Goal # 4 of an “Equitable Place, with Opportunity for All” is satisfied because Petitioners moved to Kauai with the hopes of living in a 13 community that is fair and unbiased and offers the same opportunities to all its residents. See, Exhibit A at 14. Petitioners’ justification is insufficient because it focuses on their own wants and desires and not how the Proposed Project fosters diverse and equitable communities with vibrant economies, access to jobs and housing, and a high quality of life for the community. See, General Plan at 32. Finally, Petitioners argue that their vision for this project honors the past by being responsible and respectful stewards of the land, and thus satisfies General Plan Policy #15 concerning Respecting Native Hawaiian Rights and Wahi Pana. See, Exhibit A at 14. However, Petitioners have not retained any consultants to study the archaeological and historical sites or burials located on the Subject Property and how this specific Application may adversely affect the same, nor have they consulted with any Native Hawaiians regarding any traditional and cultural practices that may be affected by the Proposed Project. In fact the evidence shows that the Proposed Project as currently presented in fact may significantly and adversely affect existing historic sites and burials located on the Subject Property. See, 6/25/20 TR at 23. Thus the evidence shows that Petitioners have not fulfilled General Plan Policy #15 concerning Respecting Native Hawaiian Rights and Wahi Pana. III.G.c.50 is erroneous because the record lacks reliable, probative and substantial evidence in the whole record to support the Director’s Report conclusion that the Proposed Project complies with the building height, set-back, and off-street parking requirements for development within the Open/Special Treatment - resource (O/ST-R) zoning district. The location map contained in the Application is not to scale. See, Exhibit A - Exhibit A. Additionally, the Site Plan, Ecological Plan, Building Site Plan2, Floor Plan, and Elevation Plan 2 Ron Agor testified that despite the text of the Building Site Plan (Exhibit A - Exhibit H) it is not to scale. See, 7/2/20 TR at 121-122. 14 are not to scale. See, Exhibit A - Exhibits F - J. The Director therefore cannot conclude that the Proposed Project complies with the building height, set-back, and off-street parking requirements for development within the Open/Special Treatment - resource (O/ST-R) zoning district because such a finding is not supported by reliable, probative and substantial evidence in the whole record. See, HRS § 91–14(g)(5), and Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). III.G.c.51 is erroneous. General Plan Vision and Goal #1 is not satisfied. The Proposed Project is not an example of responsible growth because Petitioners are proposing to construct a second dwelling unit on the Subject Property. As stated above, the record clearly shows that there is an existing dwelling unit on the Subject Property. Petitioners’ Standard Zoning Permit Application clearly indicates that there is one (1) dwelling unit presently existing on the Subject Property. See, Exhibit A Standard Zoning Permit Application at 2. Petitioners have resided on the Subject Property full time since February of 2018. See, Exhibit A at 6. Included in the Application is a K-2 survey map showing the Subject Property in which the purported garage, the structure Petitioners have been living in since 2018, is identified as a “Dwelling.” See, Exhibit A - Exhibit B. Further, Cua recognized that Petitioners were applying for a second dwelling unit on the Subject Property because the Petitioners are currently residing on the Subject Property in a “dwelling unit” given that the structure they are living in has a bathroom, a toilet, an outside shower and a kitchen area where Petitioners plug in appliances and prepare food. See, 6/24/20 TR at 35 - 36. This is substantiated by the fact that a certificate of occupancy was issued on September 12, 2002 for the use of the purported “garage” that Petitioners live in as a dwelling unit. See, Exhibit LVIX. Further, as stated above, the proposed Project is not intended to support agricultural activities for the island, but for their own personal non- commercial use. See, Exception to III.G.c.49.d. 15 General Plan Goal #2 “A Unique and Beautiful Place” is not satisfied. The Proposed Project is simply, inter alia, a $1.7 million dollar house with a pool and acres of landscaping. The Application does not prove by a preponderance of the evidence that the Proposed Project will compliment the natural, social and built environmental assets of the Kilauea Area, and more specifically, around the Kilauea Bay and River area, nor does the Director’s Report explain how the Proposed Project accomplished such goals. See, Exhibit A. Further, the only evidence of the color scheme of the Proposed house structure shows that it uses black, gold and red colors, not earth tone colors, and contains numerous glass windows and has a vaulted ornamental oriental inspired roof design that is not in character with the other houses in the Kahili area. See, Exhibit A - Exhibit J. General Plan Goal #3 “A Healthy and Resilient People” is not satisfied. It is a non- sequitur to say that there will be minimal visual impacts since the footprint of the proposed structure will be smaller than an eight year-old, unapproved and withdrawn permit application. See, 6/24/20 TR at 57. The proposed structure is a modern Italian-Korean hybrid design with gaudy colors, large ornamental roof design elements and is less than 25 ft. from the edge of the lower plateau area. See, Exhibit A - Exhibit J; and 7/2/20 TR at 121-122. Petitioners have not proved by a preponderance of the evidence that the Proposed Project will not be clearly visible from the public viewing locations of the Kilauea River and Mouth and the public areas in the Crater Hill area. Further, there are currently four (4) historic sites on the Subject property, three of which (974, 975, and 976) are recognized as significant. See, 6/24/20 TR at 122. There are a combined total of forty-two (42) historic features on the Subject Property, including two (2) potential burials. Id. Cua testified that despite the past damage to the historic sites and features, out of a total of 42 features 28 are still remaining and untouched on the Subject Property. See, 6/24/20 TR at 55. Nancy McMahon (“McMahon”) testified that the Proposed Project may 16 significantly and adversely affect the historic properties on the Subject Property. See, 6/25/20 TR at 23. Finally, the Application does not contain reliable, probative and substantial evidence to prove by a preponderance of the evidence that General Plan Vision and Goal #4 “An Equitable Place, With Opportunity for All” is satisfied. Petitioners have no plans to commercially farm the Subject Property, and the Application does not contain any evidence to show that they will employ anyone to farm the Subject Property or specifically how the Proposed Project will add part time work opportunities and support local businesses. Further, beside a vague reference to integrating the existing photovoltaic batteries located on the Subject Property to optimize solar energy, assumedly for personal use, the Application does not provide any evidence to support the conclusion that the prosed Project will help Kauai shift to clean energy. Exhibit A at 12. III.G.c.52 is erroneous. The Application fails to prove by a preponderance of evidence that General Plan Policies #’s 1,2,8,9, and 11 are satisfied. As to Policy #1, Petitioners are proposing to develop a second dwelling unit on the Subject Property in violation of the CZO and thus the Proposed Project is not consistent with preserving the rural character of the neighborhood and the current zoning is not suited for such residential development. Petitioners’ Standard Zoning Permit Application clearly indicates that there is one (1) dwelling unit presently existing on the Subject Property. See, Exhibit A Standar Zoning Permit Application at 2. Petitioners have resided on the Subject Property full time since February of 2018. See, Exhibit A at 6. Included in the Application is a K-2 survey map showing the Subject Property in which the purported garage, the structure Petitioners have been living in since 2018, is identified as a “Dwelling.” See, Exhibit A - Exhibit B. Further, Cua recognized that Petitioners were applying for a second dwelling unit on the Subject Property because the Petitioners are currently residing on the Subject Property in a “dwelling unit” given that the 17 structure they are living in has a bathroom, a toilet, an outside shower and a kitchen area where Petitioners plug in appliances and prepare food. See, 6/24/20 TR at 35 - 36. This is substantiated by the fact that a certificate of occupancy was issued on September 12, 2002 for the use of the purported “garage” that Petitioners live in as a dwelling unit. See, Exhibit LVIX. Policy # 2 “Provide affordable housing while facilitating a diversity of privately developed housing for local families” is not satisfied by the Application. The Proposed Project does not provide more housing opportunities in the North Shore, nor is it intended to further support housing opportunities. The Proposed Project is simply a million dollar private home on a parcel that already has one dwelling unit. See, Exhibit A. In fact, under General Plan Policy #2, the General Plan identifies that, inter alia, “predominantly single family residential construction, and fierce off-island demand for second homes” actually contribute to a severe lack of housing. See, General Plan at 39. The Department did not conduct a sufficient analysis of General Plan Policies #8 “Protect Kauai’s Scenic Beauty”, and #9 “Uphold Kauai as a Unique Visitor Destination” with regard to the Proposed Project. Cua testified that both of these paragraphs in the Director’s Report were copied and pasted from another Director’s Report concerning an unrelated development. See, 6/24/20 TR at 57 - 58. Policy #11 “Help Agricultural Lands be Productive” is not satisfied. Again, as discussed supra at exception to III.G.c.49.d, Petitioners’ are not proposing to engage in bona fide agricultural operations, but more aptly personal gardening or gentlemen farming. III.G.c.53 is erroneous. The Application does not contain reliable, probative and substantial evidence on the record as a whole to prove by a preponderance of evidence that the proposed Farm Dwelling “is consistent with the goals and objectives of [the North Shore Planning Area], and is compatible with the existing residences in this neighborhood; or that it 18 complies with the development standards contained in Section 10-2.4(e) of the Kaua‛i County Code (1987), as amended.” As stated above, the plans accompanying the Application do not indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the applicant’s parcel and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands no less than one hundred (100) feet from the property lines of the parcel which abut privately owned property. See, Exhibit A - Exhibits F, G, H, I and J. Further, the location map contained in the Application is not to scale. Exhibit A - Exhibit A. Additionally, the Site Plan, Ecological Plan, Building Site Plan3, Floor Plan, and Elevation Plan are not to scale. See, Exhibit A - Exhibits F-J. The Director cannot make an affirmative determination that “is consistent with the goals and objectives of [the North Shore Planning Area], and is compatible with the existing residences in this neighborhood; or that it complies with the development standards contained in Section 10-2.4(e) of the Kaua‛i County Code (1987), as amended” based upon an incomplete and inadequate Application and development plans that do not depict all lawfully required information and are not drawn to scale. Further, the Director lacked discretion to accept the Application without strict compliance with said requirements. Leslie v. Board of Appeals, 109 Haw. at 394, 126 P.3d at 1081 (2006). III.H. 62 is erroneous. The Planning Commission at its October 22, 2019 meeting did not “defer” this matter. The actual motion was to “refer” this matter to a Hearing Officer. See, Exhibit F at 60. Chair Mahoney clearly corrected the record that the motion on the floor was to refer” the matter to a hearings officer. Id. 3 Ron Agor testified that despite the text of the Building Site Plan (Exhibit A - Exhibit H) it is not to scale. See, 7/2/20 TR at 121-122. 19 III.H.63. is erroneous. The County requested that Cua be excused prior to the presentation of Intervenors case and without hearing the testimony of any of Intervenors’ witnesses. Intervenor objected to the County’s request arguing that Cua, as the designated representative of the Department, needed to hear testimony and witnesses called by the Intervenors including Nancy McMahon who testified as to the continued existence of historic sites and features on the property as well as two burials (6/24/20 TR at 122), that the proposed building site is within the historic preservation area (6/25/20 TR at 15), that the proposed building site plan is in violation of the preservation plan (6/25/20 TR at 16), and that historic properties may be significantly affected by the proposed development (6/25/20 TR at 23). Cua also did not hear the testimony of Ron Agor, Petitioners own architect, who testified as to the inadequacy of Petitioners’ Application and the plans contained therein. See, 7/2/20 TR at 118, 119, 120-121, 122, 124, 125, 139, 147, 153, and 154. The County’s request was granted over Intervenors objection and Cua was excused from contested case and therefore there is no evidence that the Planning Department’s only representative reviewed or considered any testimony of Nancy McMahon, Ron Agor or Intervenors themselves. See, 6/24/20 at 105 - 107. III.H.64 is erroneous. Cua did not carefully read the Archaeological Inventory included as Appendix 2 in the Application (“AIS”), he “breezed” over it and “went through” the conclusions. See, 6/24/20 TR at 52. Although Cua was made aware during hearing that there were missing pages in the Archaeological Inventory included as Appendix 2 in the Application (i.e. McGerty AIS), Cua did not review the missing pages that were later provided by Petitioners during the contested case hearing. See, 6/24/20 TR at 52. Further, Cua did not do his own independent review of the Archaeological Inventory included as Appendix 2 in the Application (i.e. McGerty AIS). Id. at 55. 20 III.H.66.a. is erroneous. Cua testified on record that it is likely that the Subject Property is within the General Plan “Natural” land use district and that he was willing to amend the Director’s Report to indicate the Subject property is within the General Plan ”Natural” land use designation. See, 6/24/20 TR at 15 - 16. III.H.66.c is erroneous. Cua testified that the Director’s Report conclusion that the Proposed Project would not exceed the permissible land coverage within the Open zoning district was based upon an assumption because Petitioners did not provide any calculations regarding land coverage in the plans attached to their Application. See, 6/24/20 TR at 40. III.H.66.d is erroneous. Although Cua testified that the Department doesn’t recognize restrictions that are imposed through CPR documents, Cua admitted that the Restrictions contained in the Declaration of Restrictive Covenants of the Kahili Makai Estates Condominium Property Regime (“CCRs”) at section 2. a - h are based upon Commission issued Use Permit U-98-2, Special Management Area Use Permit SMA(U)-98-4, Variance Permit V-98-5, and Class IV Zoning Permit Z-IV-98-27; and further that if any of the conditions contained in the CCRs were violation, the Planning Department could move to revoke the aforementioned permits and any violation notice would affect all three owners of the larger CPR lot. See, 6/24/20 TR at 41 - 48; Exhibit III; and Exhibit VI. II. EXCEPTIONS TO CONCLUSIONS OF LAW. Somers takes exception to the following Findings of Fact: IV.A. erroneously omits any reference to the legal burdens of proof, production and persuasion in this proceeding. IV.A.8 is erroneous. Findings of Fact must be supported by reliable, probative and substantial evidence in the whole record. See, HRS § 91–14(g)(5); and Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). To be granted deference, the Department’s 21 decision must be consistent with the legislative purpose. Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984); citing Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir.1976). The purpose of the CZMA and SMA Rules are expressed in HRS §205A-21: The legislature finds that, special controls on developments within an area along the shoreline are necessary to avoid permanent 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 Hawaii. Because the Department accepted an incomplete application that did not contain the requisite information according to County and State law, the Director’s Report is not entitled to deference. IV.B.13 is erroneous. No state or county law or rule requires the Commission to defer to the Director’s Report, nor does any law or rule provide that the Department has the discretion to make a binding recommendation to the Commission via the Director’s Report. According to Hawaii law, if the determination was not within the agency’s discretion, then it is not entitled to the deferential abuse of discretion standard of review. Unite Here! Local 5 v. Department of Planning and Permitting, 114 Haw. 453, 454 P.3d 394 (2019). In fact, the Director’s Report itself says the Commission should not defer to the recommendations contained therein by plainly stating: [T]his report does not represent the Planning Department’s final recommendation in view of the forth coming public hearing process scheduled for October 22, 2019 whereby the entire record should be considered prior to decision making. The entire record should include but not be limited to: a. Pending government agency comments; [and] b. Testimony from the general public and interested others[.] 22 See, Exhibit C at 12. The Commission, not the Department, is the recognized “Authority” to enforce the Coastal Zone Management Act (“CZMA”). See, HRS § 205A-1. The only authority delegated to the Department by the Commission is the authority to make determinations that a proposed project does not qualify as “Development” and to grant SMA Minor permits. See, SMA Rule 7.3 A and B. The Director’s Report is not a requirement under the SMA Rules and the Department has no duty to provide a Director’s Report to the Commission as part of a SMA Use Permit Application. The Director’s Report is a ministerial requirement of a Class IV Zoning Permit pursuant to CZO §8-3.1 (f)(3). The purpose of the Director’s Report is to “indicate [ ] the reasons supporting the issuance, issuance with conditions, or denial of the application,” nothing more. The Commission has the sole authority whether or not to issue a Class IV zoning permit with or without conditions or deny the same. See, CZO §8-3.1 (f)(4) IV.B.14 is erroneous. As stated above, because the issuance of the Director’s Report is a simple ministerial act, it is not afforded deference by any law or rule of the state or county, and because the Director’s Report itself says that it does not constitute the Department’s final recommendation, there is no requirement to accord due deference to the same. IV.B.15 is erroneous. This Conclusion of Law improperly assigns the evidentiary burdens of proof, production and persuasion to Intervenors. Petitioners, as the party initiating Commission consideration of the approval of the Application, shall have the burden of proof, including the burden of producing evidence as well as the burden of persuasion. See, Commission Rule §1-6-17 (b). The degree or quantum of proof shall be a preponderance of the evidence. Id. See, also Application of Hawaiian Elec. Co., Inc., 5 Haw.App. 445, 698 P.2d 304 (1985); citing HRS §91-10 (5) (Because HECO filed an application for rate increase before the 23 PUC, HECO alone has the burden of proof.). Intervenors do not have to prove by a preponderance of evidence that the Department committed errors of law or abused its discretion in the issuance of the Director’s Report and formulation of the Director’s Conditions. The only relevant questions are whether Petitioners have sustained their burden of proof to prove by a preponderance of the evidence to grant a Use Permit, a Class IV zoning permit and a SMA Use permit. Based upon the incomplete Application and general lack of reliable, probative and substantial evidence in the whole record, Petitioners have failed to sustain their burden of proof and production to show that the establishment, maintenance, or operation of the construction, development, activity or use is a compatible use and is not detrimental to health, safety, peace, morals, comfort and the general welfare of persons residing or working in the neighborhood of the proposed use, or detrimental or injurious to property and improvements in the neighborhood or to the general welfare of the community, and will not cause any substantial harmful environmental consequences on the land of the applicant or on other lands or waters, and will not be inconsistent with the intent of this Chapter and the General Plan, and thus their Application for a Use Permit must be denied. CZO § 8-3.2(e)(1). Further, based upon the incomplete Application and general lack of reliable, probative and substantial evidence in the whole record, Petitioners have failed to sustain their burden or proof and production to show: 1. the development will not have any significant adverse environmental or ecological effect including, but not be limited to the potential cumulative impact of individual developments. 2. the development is consistent with the objectives, policies, and special management area guidelines of HRS Ch. 205A and any guidelines enacted by the legislature specifically with regard to: Historic resources; Scenic and open space resources; Coastal ecosystems; Coastal hazards; Managing development; and Public participation; and 24 3. the development is consistent with the county general plan, community plan, and zoning. HRS §205A-26 (2)(A)-(C); and SMA Rule 4.0 B (1) - (3). For these reasons Petitioner’s Application for a SMA Use Permit should be denied. IV.C. 16 - 22 are erroneous. The record lacks reliable, probative and substantial evidence in the whole record to show that the Proposed Project is consistent with the goals, objectives, and policies of the CZMA, CZO, and General Plan. General Plan Vision and Goal #1 is not satisfied. The Proposed Project is not an example of responsible growth because Petitioners are proposing to construct a second dwelling unit on the Subject Property. As stated above, the record clearly shows that there is an existing dwelling unit on the Subject Property. Petitioners’ Standard Zoning Permit Application clearly indicates that there is one (1) dwelling unit presently existing on the Subject Property. See, Exhibit A Standard Zoning Permit Application at 2. Petitioners have resided on the Subject Property full time since February of 2018. See, Exhibit A at 6. Included in the Application is a K-2 survey map showing the Subject Property in which the purported garage, the structure Petitioners have been living in since 2018, is identified as a “Dwelling.” See, Exhibit A - Exhibit B. Further, Cua recognized that Petitioners were applying for a second dwelling unit on the Subject Property because the Petitioners are currently residing on the Subject Property in a “dwelling unit” given that the structure they are living in has a bathroom, a toilet, an outside shower and a kitchen area where Petitioners plug in appliances and prepare food. See, 6/24/20 TR at 35 - 36. This is substantiated by the fact that a certificate of occupancy was issued on September 12, 2002 for the use of the purported “garage” that Petitioners live in as a dwelling unit. See, Exhibit LVIX. Further, as stated above, the proposed Project is not intended to support agricultural activities for the island, but for their own personal non-commercial use. See, Exception to III.G.c.49.d. 25 General Plan Goal #2 “A Unique and Beautiful Place” is not satisfied. The Proposed Project is simply, inter alia, a $1.7 million dollar house with a pool and acres of landscaping. The Application does not prove by a preponderance of the evidence that the Proposed Project will compliment the natural, social and built environmental assets of the Kilauea Area, and more specifically, around the Kilauea Bay and River area, nor dos the Director’s Report explain how the Proposed Project accomplished such goals. See, Exhibit A. Further, the only evidence of the color scheme of the proposed house structure shows that it uses black, gold and red colors, not earth tone colors, and contains numerous glass windows and has a vaulted ornamental oriental inspired roof design that is not in character with the other houses in the Kahili area. See, Exhibit A - Exhibit J. General Plan Goal #3 “A Health and Resilient People” is not satisfied. It is a non- sequitur to say that there will be minimal visual impacts since the footprint of the proposed structure will be smaller than an eight year-old, unapproved and withdrawn permit application. See, 6/24/20 TR at 57. The proposed structure is a modern Italian-Korean hybrid design with gaudy colors, large ornamental roof design elements and is less than 25 ft. from the edge of the lower plateau area. See, Exhibit A - Exhibit J; and 7/2/20 TR at 121-122. Petitioners have not proved by a preponderance of the evidence that the Proposed Project will not be clearly visible from the public viewing locations of the Kilauea River and Mouth and the public areas in the Crater Hill area. Further, there are currently four (4) historic sites on the Subject property, three of which (974, 975, and 976) are recognized as significant. See, 6/24/20 TR at 122. There are a combined total of forty-two (42) historic features on the Subject Property, including two (2) potential burials. Id. Cua testified that despite the past damage to the historic sites and features, out of a total of 42 features 28 are still remaining and untouched on the Subject Property. See, 6/24/20 TR at 55. Nancy McMahon (“McMahon”) testified that the Proposed Project may 26 significantly and adversely affect the historic properties on the Subject Property. See, 6/25/20 TR at 23. Finally, the Application does not contain reliable, probative and substantial evidence to prove by a preponderance of the evidence that General Plan Vision and Goal #4 “An Equitable Place, With Opportunity for All” is satisfied. Petitioners have no plans to commercially farm the Subject Property, and the Application does not contain any evidence to show that they will employ anyone to farm the Subject Property or specifically how the Proposed Project will add part time work opportunities and support local businesses. Further, beside a vague reference to integrating the existing photovoltaic batteries located on the Subject Property to optimize solar energy, assumedly for personal use, the Application does not provide any evidence to support the conclusion that the prosed Project will help Kauai shift to clean energy. Exhibit A at 12. The Application fails to prove by a preponderance of evidence that General Plan Policies #’s 1,2,8,9, and 11 are satisfied. As to Policy #1, Petitioners are proposing to develop a second dwelling unit on the Subject Property in violation of the CZO and thus the Proposed Project is not consistent with preserving the rural character of the neighborhood and the current zoning is not suited for such residential development. Petitioners’ Standard Zoning Permit Application clearly indicates that there is one (1) dwelling unit presently existing on the Subject Property. See, Exhibit A Standard Zoning Permit Application at 2. Petitioners have resided on the Subject Property full time since February of 2018. See, Exhibit A at 6. Included in the Application is a K-2 survey map showing the Subject Property in which the purported garage, the structure Petitioners have been living in since 2018, is identified as a “Dwelling.” See, Exhibit A - Exhibit B. Further, Cua recognized that Petitioners were applying for a second dwelling unit on the Subject Property because the Petitioners are currently residing on the Subject Property in a “dwelling unit” given that the 27 structure they are living in has a bathroom, a toilet, an outside shower and a kitchen area where Petitioners plug in appliances and prepare food. See, 6/24/20 TR at 35 - 36. This is substantiated by the fact that a certificate of occupancy was issued on September 12, 2002 for the use of the purported “garage” that Petitioners live in as a dwelling unit. See, Exhibit LVIX. Policy #2 “Provide affordable housing while facilitating a diversity of privately developed housing for local families” is not satisfied by the Application. The Proposed Project does not provide more housing opportunities in the North Shore, nor is it intended to further support housing opportunities. The Proposed Project is simply a million dollar private home on a parcel that already has one dwelling unit. See, Exhibit A. In fact, under General Plan Policy #2, the General Plan identifies that, inter alia, “predominantly single family residential construction, and fierce off-island demand for second homes” actually contribute to a severe lack of housing. See, General Plan at 39. The Department did not conduct a sufficient analysis of General Plan Policies #8 “Protect Kauai’s Scenic Beauty”, and #9 “Uphold Kauai as a Unique Visitor Destination” with regard to the Proposed Project. Cua testified that both of these paragraphs in the Director’s Report were copied and pasted from another Director’s Report concerning an unrelated development. See, 6/24/20 TR at 57 - 58. Policy #11 “Help Agricultural Lands be Productive” is not satisfied. Again, as discussed supra at exception to III.G.c.49.d, Petitioners’ are not proposing to engage in bona fide agricultural operations, but more aptly personal gardening or gentlemen farming. The Application does not contain reliable, probative and substantial evidence on the record as a whole to prove by a preponderance of evidence that the proposed Farm Dwelling “is consistent with the goals and objectives of [the North Shore Planning Area], and is compatible with the existing residences in this neighborhood; or that it complies with the development 28 standards contained in Section 10-2.4(e) of the Kaua‛i County Code (1987), as amended.” As stated above, the plans accompanying the Application do not indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the applicant’s parcel and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands no less than one hundred (100) feet from the property lines of the parcel which abut privately owned property. See, Exhibit A - Exhibits F, G, H, I and J. Further, the location map contained in the Application is not to scale. Exhibit A - Exhibit A. Additionally, the Site Plan, Ecological Plan, Building Site Plan4, Floor Plan, and Elevation Plan are not to scale. See, Exhibit A - Exhibits F - J. The Director cannot make an affirmative determination that “is consistent with the goals and objectives of [the North Shore Planning Area], and is compatible with the existing residences in this neighborhood; or that it complies with the development standards contained in Section 10-2.4(e) of the Kaua‛i County Code (1987), as amended” based upon an incomplete and inadequate Application and development plans that do not depict all lawfully required information and are not drawn to scale. Further, the Director lacked discretion to accept the Application without strict compliance with said requirements. Leslie v. Board of Appeals, 109 Haw. at 394, 126 P.3d at 1081 (2006). Petitioners have failed to prove by a preponderance of the evidence that the Proposed Project meets the objectives, policies and guidelines designed to protect coastal resources mandated by the CZMA, particularly: 1. Historic Resources; 2. Scenic and open space resources; 3. Coastal Ecosystems; 4. Coastal Hazards; 5. Managing development; and 6. Public Participation. 4 Ron Agor testified that despite the text of the Building Site Plan (Exhibit A - Exhibit H) it is not to scale. See, 7/2/20 TR at 121-122. 29 Petitioners incorrectly claims that the project site does not include land(s) which have not been previously survey by an archaeologist. See, SMAPA at 6. According to the Application, Petitioners plan to conduct extensive agroforestry activities, landscaping activities, purported agricultural activities, cut a road and trails, and construct an accessory agricultural structure all within the lower riverine flood/plain portion of the Subject Property which, according to the Archaeological Inventory Survey, must be completely surveyed by an archaeologist prior to any development given the likelihood of the presence of historical and cultural sites an features. See, Exhibit A at 8 - 9. The Proposed Project is located within or near a historic settlement area and site surveys have revealed information on historic or archaeological resources5. However, the Application incorrectly states that an archaeological survey has been conducted for the proposed project site where in actuality no archaeological survey has been submitted to SHPD for review and recommendations as it specifically relates to this project. See, SMAPA at 7. As the evidence clearly shows, the only studies conducted of the project area are decades old and pertain to previous unapproved and withdrawn development applications. See, Exhibit A - Appendix 2. The project site abuts or affects valued scenic resources (sic) and landmarks within the SMA. See, SMAPA at 8. However, Petitioners do not provide sufficient evidence to prove that these resources will not be significantly and adversely affected. Petitioners have not provided reliable, probative and substantial evidence to prove by a preponderance of evidence that no substantial negative impacts will result from the proposed development and that the proposed structures will follow the building height and visual impact requirements. 5 See testimony of Nancy McMahon concerning the continued existence of historic sites and features on the property as well as two burials (6/24/20 TR at 122), that the proposed building site is within the historic preservation area (6/25/20 TR at 15), that the proposed building site plan is in violation of the preservation plan (6/25/20 TR at 16), and that historic properties may be significantly affected by the proposed development (6/25/20 TR at 23). 30 Petitioners have not provided reliable, probative and substantial evidence to prove by a preponderance of evidence that the proposed development will not alter existing public views within the Kilauea area including from the river mouth and river and the public viewing area at Crater Hill. Petitioners have not provided reliable, probative and substantial evidence to prove by a preponderance of evidence that the proposed development will be compatible with the visual environment. Petitioners state that the project site is a habitat for endangered species of flora and fauna, and that it is possible that the wetland area provides habitat for a variety of fauna, of which some may be endangered. See, SMAPA at 9. However, Petitioners have not provided reliable, probative and substantial evidence to prove by a preponderance of evidence that their proposed development will not adversely affect and impact these important floral and faunal species. Petitioners have not provided reliable, probative and substantial evidence to prove by a preponderance of evidence that the proposed development will not involve disruption or degradation of coastal water ecosystems through land uses especially due to the unspecified grading activities at the house site and the grading and agricultural activities proposed on the lower slope and within the flood plain area. Because the plans that Petitioners attached to their Application are not to scale and do not show height set-back, and off-street parking requirements for development within the Open/Special Treatment - Resource (O/ST-R) zoning district, it cannot be concluded that the Proposed Project complies with the tenets of CZO §§8-4.3 and 8-4.5. No state or county law or rule requires the Commission to defer to the Director’s Report, nor does any law or rule provide that the Department has the discretion to make a binding recommendation to the Commission via the Director’s Report. According to Hawaii law, if the 31 determination was not within the agency’s discretion, then it is not entitled to the deferential abuse of discretion standard of review. Unite Here! Local 5 v. Department of Planning and Permitting, 114 Haw. 453, 454 P.3d 394 (2019). The Director’s Report itself says the Commission should not defer to the recommendations contained therein by plainly stating: [T]his report does not represent the Planning Department’s final recommendation in view of the forth coming public hearing process scheduled for October 22, 2019 whereby the entire record should be considered prior to decision making. The entire record should include but not be limited to: a. Pending government agency comments; [and] b. Testimony from the general public and interested others[.] See, Exhibit C at 12. The Commission, not the Department, is the recognized “Authority” to enforce the Coastal Zone Management Act. HRS § 205A-1. The only authority delegated to the Department by the Commission is the authority to make determinations that a proposed project dos not qualify as “Development” and to grant SMA Minor permits. See, SMA Rule 7.3 A and B. The Director’s Report is not a requirement under the SMA Rules and the Planning Department has no duty to provide a Director’s Report to the Commission as part of a SMA Use Permit Application. The Director’s Report is a ministerial requirement of a Class IV Zoning Permit pursuant to CZO §8-3.1 (f)(3). The purpose of the Director’s Report is to “indicate [ ] the reasons supporting the issuance, issuance with conditions, or denial of the application,” nothing more. The Commission has the sole authority whether or not to issue a Class IV zoning permit or a Use permit with or without conditions or deny the same. See, CZO §8-3.1 (f)(4). IV.C.27. Intervenors agree that CZO §§ 8-3.1(b)(3) and 8-11.5, and/or SMA Rules § 8.0 incorporating § 7.1, require Alleged Deficiency Nos. 1, 2 and 6 to be rectified by Petitioners 32 prior to approval of the Permits by the Planning Commission. However, Intervenors assert that that it is erroneous to conclude that these deficiencies are insufficient to conclude the Department committed an error of law or abused its discretion in recommending approval of the Application. As stated above, the Director’s report is a ministerial act, and neither the law, nor the Director’s Report itself requires or even request that the Director’s report be accorded any discretion. IV.C.28 is erroneous. Petitioners’ Application fails to thoroughly describe the proposed and intended use of the subject property as required by county law and policy. See, CZO §§8- 3.1(b) 8-3.2 (c), SMA Rules 7.1 and 8.0 A; and Exhibits LX at 2 and Exhibit LXI at 2. Petitioners have not submitted any plans drawn to scale, showing all existing and proposed structures and any other information necessary: (A) to show conformity with the standards established in the CZO; and (B) to a proper determination relative to the specific request. See, Exhibit A - Exhibits F - J. Therefore, the only information provided that describes the proposed and intended use of the Subject Property is the text portion of the Application that inconsistently describes the square footage of the purported farm dwelling. Because this is the only evidence provided by the Petitioners, they have failed to submit a legally proper and complete application. See, Exhibit A at 8 and Exhibit A at page 1 “Kells Kauai Build”. IV.C.29 is erroneous. First, as stated above, the Director’s Report is not afforded discretion as an agency decision. Further, by failing to require Petitioners to submit plans that show building elevations and section drawings reflecting the finish and existing grades, or setbacks from the boundaries of the Subject Property the Department exceeded the scope of their authority under CZO §§8-3.1 (b)(3)(A)&(B), SMA Rules 7.1 and 8.0 A; and Use Permit U-98-2, Special Management Area Use Permit SMA(U)-98-4, Variance Permit V-98-5, and Class IV Zoning Permit Z-IV-98-27. This raises a question of statutory interpretation, and an agency’s conclusions of law are [ ] freely reviewable to determine if the agency’s decision was in violation 33 of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of [the] agency, or affected by other error of law. Curtis v. Board of Appeals, County of Hawai`i, 90 Haw. 384, 393, 978 P.2d 822, 831 (S. Ct. 1999); Hardin v. Akiba, 84 Haw. 305, 310, 933 P.2d 1339, 1344 (S. Ct. 1997). The provisions of the CZO and the County SMA Rules providing that applications for permits “shall” include certain matters including but not limited to a plot plan of the property, drawn to scale, showing all existing and proposed structures and any other information necessary: (A) To show conformity with the standards established in this Chapter; and (B) To a proper determination relative to the specific request. See, CZO §§8-3.1 (b)(3)(A)&(B), SMA Rules 7.1 B, and 8.0 A. These requirements are mandatory and not discretionary. See Leslie v. Board of Appeals, 109 Haw. at 393-394, 126 P.3d at 1080-1081 (citing: Voellmy v. Broderick, 91 Hawai‘i 125, 129, 980 P.2d 999, 1003 (App.1999) (stating that “[t]he word ‘shall’ ‘must be given a compulsory meaning ... and is inconsistent with a concept of discretion’ ” (quoting Black's Law Dictionary at 1375)); Gray v. Admin. Dir. of the Court, State of Hawai‘i, 84 Hawai‘i 138, 150, 931 P.2d 580, 592 (1997) (observing that “[t]he word ‘shall’ is generally construed as mandatory in legal acceptation” (quoting In re Adoption of Watson, 45 Haw. 69, 79, 361 P.2d 1054, 1059 (1961))). Use Permit U-98-2, Special Management Area Use Permit SMA(U)-98-4, Variance Permit V-98-5, and Class IV Zoning Permit Z-IV-98-27 require, inter alia, that: A. all farm dwellings shall be restricted to a 12 foot limit on uninterrupted wall height, with a 25 foot maximum height limited as measured along all points, from natural or finished grade, whichever is lower, to the roof peak; and B. all accessory structures shall be limited to a 12 foot limit on uninterrupted wall height, with an 18 foot maximum height limited as measured along all points, from natural or finished to grade, whichever is lower, to the roof peak. 34 See, Exhibit III. The permit requirements are mandatory and constitute “information necessary” to “show conformity with the standards established in [the CZO] and “a proper determination relative to the specific request”. See, CZO 8-3.1 (b)(3)(A)&(B), SMA Rules 7.1 and 8.0 A. The Department cannot defer these requirements via “practice” when Petitioners apply for a building permit. The law mandates this information be included in the Application prior to the Commission’s consideration and decision and failure to do so is a violation of the law. See, HRS §205A-26, and CZO§ 8-3.2 (e)(1). Accordingly, the contents of the Application do not satisfy the legal requirements of a complete application for a Use Permit and SMA Use Permit and the Director lacked discretion to accept the Application without strict compliance with the code requirements. Leslie v. Board of Appeals, 109 Haw. at 394, 126 P.3d at 1081 (2006). IV.C.31 is erroneous. CZO § 8-11.5 (c), relating to Applications for use permits in the Special Treatment District, provides, in relevant part, that: Applications shall be accompanied by plans and three (3) dimensional drawings or models which clearly indicate the relation of the proposed development to other uses and structures within the Special Treatment District and the ways in which the proposed development is consistent with the reasons for the establishment of the District. Plans shall indicate the location of all existing and proposed topography, buildings, walks, driveways, and utilities and plant material within the boundaries of the applicant’s parcel and the existing or proposed streets, sidewalks, driveways, trees, buildings, and topography on adjacent lands as required by the Planning Director, but no less than two hundred (200) feet from property lines of the parcel which abut a public thoroughfare, park or facility and one hundred (100) feet from the property lines of the parcel which abut privately owned property[.] The qualifying phrase “as required by the Planning Director” does not relate to the entire subsection, but simply to the requirement concerning the topography on adjacent lands. However, as clearly stated in the ordinance, the Director’s discretion is limited and the Director must require Petitioners to indicate topography on adjacent lands “no less than” one hundred 35 (100) feet from the property lines of the parcel which abut privately owned property. See, CZO § 8-11.5 (c), The Department’s failure to follow the clear language and requirements of the law raises a question of statutory interpretation, and an agency’s conclusions of law are [ ] freely reviewable to determine if the agency’s decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of [the] agency, or affected by other error of law. Curtis v. Board of Appeals, County of Hawai`i, 90 Haw. 384, 393, 978 P.2d 822, 831 (S. Ct. 1999); Hardin v. Akiba, 84 Haw. 305, 310, 933 P.2d 1339, 1344 (S. Ct. 1997). IV.C.32 is erroneous. Because the permit submittal requirements of CZO §8-3.1 (b)(3)(A)&(B), SMA Rules 7.1 and 8.0 A are mandatory. The Director lacked discretion to accept the Application without strict compliance with the code requirements. Leslie v. Board of Appeals, 109 Haw. at 394, 126 P.3d at 1081 (2006). Therefore it is not premature to determine whether the Application should be denied and/or the Department committed errors of law or abused its discretion. The only justification proffered for allowing amendment to correct these fundamental errors is the Department’s vague reference to its “practice”. This fails for two reasons. First, as shown in Exhibits LX and LXI, the aforementioned information is “required to initiate the processing of the application.” This is the clear written policy and practice of the Department. Second, even if such a practice exists, “neither official construction nor usage, no matter how long indulged in, can be successfully invoked to defeat the purpose and effect of a statute which is free from ambiguity, nor will the courts be influenced by the construction placed upon a statute by the officials whose duty it is to execute it where such construction is manifestly incorrect.” Town v. Land Use Comm'n, 55 Haw. 538, 543, 524 P.2d 84, 88 (1974). IV.C.36. Although Intervenors agree that CZO §8-3.1 (f)(4), Commission Rule § 1-13- 5(a) and SMA Rule 9.0 F generally allow the postponement of public hearing and rescheduling 36 of the same for failure to comply with the requisite notice requirements, a public hearing can only be held after the acceptance of a “properly filed and completed application as determine by the Director”. See, CZO §8-3.1 (f) (3), Commission Rule §1-13-5(a) and SMA Rule 9.0 A. As stated supra, the law prohibits the Department from accepting the Application as complete based upon the lack of required plans and information and these requirements cannot be waived. Further, the facts show that the Director correctly concluded for months that Petitioner’s Application was not complete as required by law and rule and therefore did not accept the same. See, 6/24/20 TR at 80 - 81. It was only upon receiving an email from the Mayor’s Office was the Department “pressured” into accepting and processing the Application as complete. Id. So although generally speaking, while a public hearing can be postponed and rescheduled, as it specifically relates to this case, a continued public hearing cannot be held because the Application itself is not properly filed and complete as required by the law. IV.C.39. Although Intervenors agree that CZO §8-3.1 (f)(4), Commission Rule §1-13- 5(a) and SMA Rule 9.0 F generally allow the revision of a public notice, a public hearing can only be held after the acceptance of a “properly filed and completed application as determine by the Director”. See, CZO §8-3.1 (f) (3), Commission Rule § 1-13-5(a) and SMA Rule 9.0 A. As stated supra, the law prohibits the Department from accepting the Application as complete based upon the lack of required plans and information and these requirements cannot be waived. Further, the facts show that the Director correctly concluded for months that Petitioner’s Application was not complete as required by law and rule and therefore did not accept the same. See, 6/24/20 TR at 80 - 81. It was only upon receiving an email from the Mayor’s Office was the Department “pressured” into accepting and processing the Application as complete. Id. So although generally speaking, while a public hearing can be postponed and rescheduled, as it 37 specifically relates to this case, a public hearing cannot be held because the Application itself is not properly filed and complete as required by the law. IV.G. 40 - 45 is only objected to the limited extent that a public hearing is allowed to proceed despite the failure of Petitioners to properly file a completed application that complies with CZO §8-3.1 (b)(3)(A)&(B); and SMA Rules 7.1 and 8.0 A. IV.H. 46 - 51 is only objected to the limited extent that a public hearing is allowed to proceed despite the failure of Petitioners to properly file a completed application that complies with CZO §8-3.1 (b)(3)(A)&(B); and SMA Rules 7.1 and 8.0 A. IV. I. 53 is erroneous. Petitioners have not proved by a preponderance of the evidence that they provided SHPD with sufficient plans and information necessary to allow SHPD to make a proper determination relative to the specific request. See, CZO §8-3.1(b)(3)(B), SMA Rules 7.1 B and 8.0 A. Petitioner Neilson stated that she didn’t provide SHPD with any plans for the development nor any of the drawings contained in the Application. See, 3/13/20 TR at 29. In fact, on October 30, 2020, the Department received a letter from Alan S. Downer, PhD of SHPD regarding the proposed development which was based upon review of the current Application. The letter has been made part of the Planning Department’s file and shall constitute evidence for this agency hearing. See, Commission Rule § 1-16-17(j)). In the letter SHPD stated that they had “insufficient information to determine the potential for the project to adversely impact archaeological preservation sites”. See, Planning file. IV.I.54. is erroneous. The initial SHPD determination of “no historic properties affected” was based upon insufficient evidence presented by the Petitioner and describing the Proposed Project. On October 30, 2020, the Department received a letter from Alan S. Downer, PhD of SHPD regarding the proposed development which was based upon review of the current Application. The letter has been made part of the Planning Department’s file and shall constitute 38 evidence for this agency hearing. See, Commission Rule § 1-16-17(j)). In the letter SHPD stated that they had “insufficient information to determine the potential for the project to adversely impact archaeological preservation sites”. See, Planning file. IV.I.55 - 57 is erroneous. The Commission must make its own determination as to whether historic resources will be significantly and adversely affected by a proposed project and whether that proposed project is consistent with the objectives and policies of the CZMA to “protect, preserve and where desirable restore historic resources” prior to the issuance of a SMA Use Permit. HRS § 205A-26 (2)(A)&(B), and SMA Rule 4.0 (B)(1)&(2). The Department or the Commission must accept as credible SHPD’s October 30, 2020 determination letter because only that letter was based upon a review of the Petitioner’s application. As stated above, SHPD stated that they had insufficient information to determine the potential for the project to adversely impact archaeological preservation sites. See, Planning Department file. The Commission must find that Petitioners have failed to sustain their burden of proof and production to prove by a preponderance of the evidence that the Proposed Project will not have a significant adverse affect on the numerous existing historic resources on the Subject Property and that the Proposed Project is consistent with the objectives and policies of the CZMA to preserve, protect and where desirable restore historic resources. HRS § 205A-26 (2)(A)&(B), SMA Rule 4.0 (B)(1)&(2). IV.J.60 - 61 is erroneous. The Director’s Report is based upon the Application and the Application does not contain any additional information to update the Director’s Report with respect to the Ka Pa’akai analysis. Intervenors assert that Petitioner’s Application should be denied and Petitioner should be required to submit a new Permit Application containing a sufficient Ka Pa’akai analysis. Intervenors maintain that it is improper to allow for a deferred 39 and continued public hearing despite Petitioner’s failure to properly file a completed application that complies with CZO §8-3.1 (b)(3)(A)&(B), SMA Rules 7.1 and 8.0 A. IV.K. 62-66 is erroneous. Cua admitted that the Restrictions contained in the Declaration of Restrictive Covenants of the Kahili Makai Estates Condominium Property Regime (“CCRs”) at section 2. a - h are based upon Use Permit U-98-2, Special Management Area Use Permit SMA (U)-98-4, Variance Permit V-98-5, and Class IV Zoning Permit Z-IV-98-27; and further that if any of the conditions contained in the CCRs were violation, the Planning Department could move to revoke the aforementioned permits and any violation notice would affect all three owners of the larger CPR lot. See, 6/24/20 TR at 41 - 48; Exhibit III; and Exhibit VI. The Department and the Commission must consider these conditions because despite the fact that they are contained in the CPR documents, they are also and independently lawful county Commission permit conditions, the violation of which has a direct affect on Intervenors, as Intervenors could be held responsible for their violation. See, 6/24/20 TR at 47 - 48. The Application is devoid of any plans or information to support the Director’s Report conclusions that the Proposed Project complies with the building height, setback, and off-street parking requirements for development within the Open/Special Treatment - Resource (O/ST-R) zoning district. The law requires that such conclusions must be supported by reliable supported by reliable, probative and substantial evidence in the whole record. HRS § 91–14(g)(5). Camara v. Agsalud, 67 Haw. 212, 685 P.2d 794 (1984). Because Petitioners failed to present such evidence, the Director’s Report is not afforded and deference in this regard. III. EXCEPTIONS TO RECOMMENDED ORDER. Intervenors agree that Petitioners’ Application is not complete and contains numerous deficiencies. However, Intervenors maintain that under the law the Commission must at this time deny the Application and Petitioners must re-apply for their proposed development, and 40 their resubmitted Application must address all Alleged deficiencies 1 - 7 as well as comply with CZO §§ 8-3.1 (B) (1) - (4), 8-11.5(c)-(d), and SMA Rules 7.1 and 8.0 A. Intervenors further agree that Petitioners must provide SHPD with a copy of the renewed and re-filed Application so that SHPD may make a proper determination as to whether this specific Proposed Project will significantly and adversely affect the remaining historic sites on the Subject property. Petitioners must conduct a legally sufficient Ka Pa’akai analysis as required by state law. Intervenors take exception to both the Third and the Final recommendations as it is premature at this time to make a conditional recommendation regarding the approval or denial of any future Applications. If Petitioners are allowed to proceed with submitting an amended Application for further review by the Department and Commission, Intervenors maintain the law requires they be allowed to continue to participate in any future proceedings as Intervenors and to further request a contested case based upon any newly submitted or revised Application(s). IV. REQUEST FOR ORAL ARGUMENT. Intervenors respectfully request to be allowed to orally argue their case before the Commission. The relevant issues concerning the facts and the law in this case are numerous and due to the Covid-19 pandemic, the contested case hearing on this matter spanned months and created a record that is difficult to process. Intervenors assert that oral argument is required to fulfill the purpose of the Commission Rules to “[ensure] that all persons and parties will have an opportunity to participate in this agency hearing in an open and orderly manner.” Commission Rule §1-1-1. DATED: Lihu'e, Hawaii, August 30, 2021. CADES SCHUTTE LLP ROY A. VITOUSEK III MAUNA KEA TRASK Attorney for lntervenors CS DEVELOPMENT LLC and CHARLES SOMERS, Individually 41 BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUA‘I In the Matter of The Application: of Special Management Area Use Permit SMA(U)-2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the Construction of a Farm Dwelling Unit within Lot 7 of the Kāhili Makai Subdivision in Kilauea, Involving a Parcel Situated at the Terminus of Kāhili Makai Street and Immediately Adjacent to Property Identified as 4254 Kāhili Makai Street, Tax Map Key: (4) 5-2-01: 007 (Unit E), and Affecting a Portion of a Larger Parcel Approx. 27.56 Acres in Size, VALERIE M. NEILSON and DAVID N. KELLS, Petitioners, vs. PLANNING DEPARTMENT OF THE COUNTY OF KAUA‛I, Respondent, and CS DEVELOPMENT LLC and CHARLES SOMERS Intervenors. CC-2020-2 Special Management Area Use Permit: SMA(U)-2020-1 Class IV Zoning Permit: Z-IV-2020-3 Use Permit: U-2020-3 TMK: (4) 5-2-021:007 (Unit E) CERTIFICATE OF SERVICE 2 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date a copy of the foregoing document was served by email transmission, with a hard copy served by regular mail, postage prepaid, on the following: KELLS-NEILSON REVOCABLE TRUST, DAVID N. KELLS, M.D., AND VALERIE M. NEILSON 4316-Z Kahili Makai Street, Unit E Kilauea, Hawai‘i 96754 Email: dnvmkells@gmail.com PETITIONERS HARLAN Y. KIMURA, ESQ. Hearing Officer Central Pacific Plaza 220 South King Street, Suite 1660 Honolulu, Hawai‘i 96813 Email: hyk@harlankimuralaw.com HEARING OFFICER The undersigned hereby certifies that on this date a copy of the foregoing document was served by email transmission, with a hard copy served by hand delivery, on the following: CHRIS DONAHOE, ESQ. Deputy County Attorney County of Kaua‘i 4444 Rice Street, Suite 220 Lihue, Hawai‘i 96766 Email: cdonahoe@kauai.gov cfoster@kauai.gov Attorney for COUNTY OF KAUA’I PLANNING DEPARTMENT ELLEN CHING Administrator, Office of Boards and Commissions County of Kaua‘i 4444 Rice Street, Suite 150 Lihue, Hawai‘i 96766 Email: eching@kauai.gov aseggreti@kauai.gov DATED: Lihu'e, Hawaii, August 30, 2021. 6154279.v2 CADES SCHUTTE LLP ROY A. VITOUSEK III MAUNA KEA TRASK Attorney for Intervenors CS DEVELOPMENT LLC and CHARLES SOMERS, Individually 3 MATTHEW M.BRACKEN C'ounty Attorney CHRIS DONAI10E 9095 Deputy County Attorney Office ot'the Countv Attornev 4444 Rice Street.Suite 220 LThu'e.llaivai'i 9676A Telephune:(808)241-4930 Facsimile:(808)241-6319 timail:m.bracken®kauai.gov ctlonahoeWkauai.iiov Attorneys for Respondeiit PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I "61;@yftTYOF!<AUAI •21 SEP -8 P 1 ^5 RECEIVED SEP 08 2021 aUU»S*COMMISSIONS nnni1UQ DEPT. BEFORE THE HEARING OFFICER OF THE PLANNING COMMISS10N OF THE COUNTY OF KAUA'I In the Mntter of'l'hc Appiication: of Special M.inagemcnt •i\rea Lrse Permit SMA(U)-21)20-1,('lass IV /.onini; Permit Z-IV-2020-3,and Llsc Perniil LI-2020-3 t'or the Constmctioii ot'a Fnnn Dwellin^Unit witliiti Lot 7 ot tlic Kahili Makai Subdivisiun in KTlaiiea.It]val\'in^1.1 Parcel Situatcd ..it the TenTiiiuis ofKaluli Mykai Strect aiul Iniincdiately AdjacetU lo Properly lclL-ntifici.1 tis 4254 Kiihili Makai Slreet,Tax Map Key:(4)5-2-021 :U()7 (Unit H)ancl Affectin^a Portion ol\i Larger Pnrce!Approx.27.56 Acres in Si/c, VAl.ERII':M.NKII.SONaiid [)..\VID N.KELLS. Pctitioncr?,, CC-2020-2 Special Manayemeiit Area Use ['cmiit:SMA(L')-2020-1 Class IV Zoning Permit: Z-IV-2020-3 Use Pennit:U-2020-3 TMK:(4)5-2-021:007 (UnitF.) RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF KALIA-rS SL.'PPORT OF HEAR1NG OFF1CER-S REPORT AND RECOMMENDATION:CERTIFICATE OF SERVICE vs. PLANNING DEPARTMENT OF THE COUNTY OF KAUA'l. Respondent, and CS DKVEI.OPMIiN'T l.LC and C11.'\AI.ESSOM1':RS. Intervenors, RESPONDENT PLANNING DEPARTMENT OF THE COUNTY OF KAUA'I'S SUPPORT OF HEARING OFFICER'S REPORT AND RECOMMENDATION Pursuaiit to Rules ofPractice and Procedure oftlie Kaua'i County I'laniiing Commission (hereinatter"RPPPC")§1-6-19(0(1).Rcspondent PLANNING DEPARTMENTOF THE COUNTY OF KAUA'I (hcreinafter "Planning Department").by anil through its undcrsiyned attoniuys.respcctfully submik its SL'PPORT OF HEAR1NG OFFICER'S REPORT AND RECOM.MENDAT10N relatins to Pctitioner.s VALERIE M.NEILSON and DAVID N.KELLS' (hereinaftcr "Petitioners")Application f'or Special Management Area L'se Pennit S.VIA (Li)- 2U20-1,Class IV Zoniny Pennit Z-1V-2U20-3,and Use Permit U-2020-3 fbr thc Con.struction uf a Farm Dwellini;Unit within t-ot 7 ot'thc K.ahili Makai Subilivision in KTIauea,Involvin.s;a Parcel Situated at the Tenniniis ofKahili Makai Street and Iinmeiliately Acljacent to Property Iclentified as 4254 Kahili Makai Strect.Tax Map Key:(4)5-2-01:007 (Unit E).and Affectini;a Portion ot'a Larger Parcel Approxin-iatrily 27.56 Acres in Si/e (h>;reinafter"Subjcct Property"). On March 4.6,ancl 13.202U,on June 18,23-25.202U,and on July 2 anil 7.2020,the abovri-entitled matter came on For a contested casc hearing betore Hearing Officer Harlan Kimura.On thc hearing datcs,Pctitioners wcre present pro se.Deputy Couiity Chris Donahue appeared on behalfut'Responclent PLANNING DEPARTMENT OF THE COt'NTY OF KAt'A'l.Mauna K.ea Trask,Esq.appeared on behalf'oflnten.'enurs CS DEVELOI'MEN'I'LLC and CHARLES SOMERS (hereinaftcr "Iiitervcnurs"). On August 24.2021.(he Planniny Department received thc Hearing Ot'f'icer's Report and Recommentlatioii ofContestucl Casc for tlie ahove-entitled matter.On August 30,2021,the Planning Depannient rcceiv^cd Intervenors CS De\'elupment LLC'and C'harles Somcrs Indiv'idually,Exceptiuns to the Hearing Officer s Report and Rccoinmendatioiis.Pursuant to Rules ot'Practicc and Procedure ot the Kaua'i Planniny Commission (hureinafter "RPPPC"). Chapter 6.Rule l-6-l')(c).the Planning Department hereby files its Support of'Hearing Officcr's Repurt antl Recommenclations for tlie abo\'e-eiitit[ed mattcr. The Planning Department supports the Hearing Officer's ultimate conclusion in the above-entitled matter.which is to recommend tliat the Plannin.g Cominission: 1)Advise Petitioners to perfomi the followiiig: A.Provide tt)the Planning Department the Revised Applicatioii addressing Allcged Dcficiency Nos.1.2 and 6,and otherwise comply with KCC 5S 8- 3.1(b)(3)and8-l 1.5(0 -(d).and SMA Rules S 7.1; B.Remit the Resclieduling Fee:and C.Provide to SHPD a copy ofthe Revised Application and confimi there is no change in its detennination that tlic Proposed Project does not affect any hiytoric sitcs 2)Upon receipt ofthe forcgoiny set torth abov'e,it is recommencled tliat the Planning Department prepare a Rcvisetl Dircctor's Report to comment tin thu Re\'ised Application and aildress the Ka Pa 'cikai Analysi.s. 3)L'pon reccipt ofthe Revised Director'.s Report,caleni.lar the Rescheduled PC'Hearin'j within sixty (60)days of tlic Planning Dcpartmcnt's acceptance ofthc Revised Application and rcccipt of the Rcscheduling Fce,publish the Commi.ssion'.s Revisud Notice,and monitur and rcceire Petitioners'Ru\'ised Noticc and Affitlavit. Finally,the Planning Department supports tl-ie Hearing Otticer's recommendation that thc Plaiming Commission APPROVE the Proposed Project.SL'BJECT TO THE FOLLOWING CONDITIONS: 1.The Proposutl Projeet shall be constn.icted as representcd in tlie Revised Applicaliun. Any changcs to thu uperation ancl!or tlie respecliv'e structures shall be reviuwed by the Planiiing Department to detenniiie whcther Planning Commission fiirther review ancl approval is u'an'aiuecl. 2.In orcler to cnsure Ihat the Proposecl Project is compatihle witli its surroundings and to minimize the visual impact ot thc structures contemplated,the external color ot thc Farm Dwelling.Grcenhoiise.Storage Shed ancl Oarage/Storagc Shed.shall all be ol'a moderate to tlark earth-tonc color.Thc proposecl color scheme and a landscape plan should be submittcil to thc Planning Department for ruview antl acccptance prior to building permit application. 3.The Petitioners sliall submit t'or rcvie'.v antl appro\'al by the Planning Department prior to building permit applicatiun,a landscapu plan composed ot native species,or species conimon to the area.to lielp to screen thc Proposed Project.ai'id integratethe site with it.s surroLinilings. 4.Thc Petitioners arc macte uware that nonc ofthe stiiictures comprisiny the Proposccl Projcct shall be utilized tor any transient accommodation purposes.Specifically. none oftho.se structures shall be used a.s a transicnt \acation rental (TVR)or as a humestay. 5.[fcxtemal liyhting is to bc used in connection vvith thu Proposcd Project.all external lighting siiOLitd be tmly ofthe tbllowing type:do\\'n\\Wti-facii}g shiclifecl li^hts. Spotlights aimed iipward or spotlightiny ofstructures proposccl is prohibitecl. ('.The Petitioners sliall develop ancl utilize Best Manageincnt Practices (BMP's)during all pliase.s in the construction of'the Proposed Project in order to minimize erusion. dust,and sedimentation impact.s ot'that construction to abutting propcrties. 7.t.'nless othenvise statcd in the Permits.once the Pennits are issued.the Pctitioners must make siibstantial progrcss towards coinpletion ofthe Pruposect Project.as dctcrmined by the Dircctor of'tlic Planning Department.within twu (2)years ut'their issuance.or tlie Permits shall lap.se ancl will no longer be in ef'fect. S.The Petitioiiers shoulil resolve and comply with all agency requiremcnts as recommcnclucl by thosc agencies.incliicling but not limitetl to,the biiilding permit & drainage requirements ofthe Coiinty DWT Engiiicering Di'.'ision.County Fire De|')artment.potablc iv'ater &fire protection reqiiireinents ot'tlie Coiiiity Department ot Water.aiul regulaliuns involving envirunmental concerns as administercd by the Hawai'i State Department ot Hcalth. 9.Since there are known archaeological site.s on thc Subject Property,tlie Petitioners shall vvork closclv with SHPD in order to ensure that these archaeoloyical sites remain undisturbed ancl/or ui'iatfected by the propused constructioii activities. Furthennore.Petitioncrs are aclvised that should any archacological or historical resoiirces bv (lisco\'ered durin".uround clisturbinK'constn.iction u'orfc,all \\'ork in the area ofthe arcluieological/historical findings shall immcdiately ceasc and tlie Pctitioners sliall coiitai.'t SHPD aiicf thc Planning Dcpartmciit tor fiirthcr instructions. 10.Prii.>r to conimcncemciit ofthc Proposed Project,written cunHniiation ofcoinpliance with the requirements I'rom all rc'.'iewing agencies shall be provided to the Planning Department.Failurc (o comply inay result in torf'citure ofthe SMA Use Pennit. 11.The Petitioners are aclvised that prior to coiistructioii antl/or use oftliu Proposecl Project,additional gin'crnment agency conditions inaybe iinposed.It shall be the Petitioncrs'responsibility to resolve tho.sc conditions vvith thc respective agency. 12.Thc ['lanning Commission reser\'es the right to acld ordelete conditions ofapproval in oi'tler to acltlress or mitigatc iinforeseen impacts tlie Proposed Projcct may create,ur revoke the pennits thruugh the proper procedures should conditions olapproviil be \'iolated or ad''erse impacts be created that cannot be properly addressed. Support tor the I-learing Ot'ticer's Report ancl Reconimendatioii otContcsted Casc tbr the above-entitletl matter reccived by the PIanning Departmeiit on August 24.2021 and in response to the exceptions submitted by Inten.'enors on Augli.st 30,2021 is basecl on the t'ullowing: 1,Response to Exccptions to Ccrtain Findinys ofFact: A.Commission's ADDrov.il of Kahili Makai Estatcs I.Thcre was a prepoiiderance ot evidence presented OVLT the coiirse ot ihc contestcd ca.se heariiig dates to properly establish that although the Director's Report ditl not ref'erence tlie original 1998 pennits.virtually all ofthe 1998 Cunditions were incorporatecl into the twel\'c (12)conditions ot approval contained in the Directur's report.Thc reason \'irtually all ofthe 1998 C'onditions were incorporatetl into tlie tvvelve (12)conditions of approval was bccause the 1998 Conditions wcre revicwed ivlicn evaliiating thu Petitioners'Application and preparing the Director's Report. Cnmparc Exhibit C at 1 -13 with Exhibit III at 1 -3;See also Tr.6'24'2020 at 44 - 45. B.Land Use and Zoning f'or Subicct Propert\ 2.There vva.s a prepondcrance oFevidcnce presented over the course ofthe uontcstcd cusc hearing dates to properly establish that the Subject Proprirty is witlun thc State Land Use A^ricultural District which "allows for a^ricultural uses that i\re consistent witli Chaptcr 205 ofthe Hawai'i Revi.scd Statutes."Scc Exhibit C at 2 and Id.at 4, SectionVII,1[4. 3.'l'here was a preponderance »te\'idencc presented over the coiirse oftlie contestccl ca.sc hearing clates to properly establish that tlic Subject Property is alsti within the "Agriculture"designation ofthe Kaua'i County General Plan (2018 Final Version Approvcd By Thc County Council)(hereiniiftur "County Gencral I'lan"or "Gcneral Plan").See Exhibit C at 2. 4.Thcrc was a preponderancc ot'eviclcnce presented over tlie course ofthe ccntested case hcaring clatcs to propcrly establisll that thc Subject Property is tuither w'lthm thc County Open (0)Zoning District antl the Spccial Treatment-Resource District (ST- R).Sce Exhibit C at 4.It is the intcnt ofthat "tlistrict lo insure that development witlun these areas recogni/'e,preser\'e.maintain and contribute tii tlie enhanccment of' tho.se cliaracteristics whicli are ofparticular significancc or valiie to the gencral public."See Exhibit C at 4,Section VII.']2. 5.There u'as a preponderancc ofevidence presentcd over tlie course ofthe cuntested case liearing clates to properly establish that tlie Subject Property is located cntirely M.'ithii'i tlie Special Management Arca (hereiiiat'ter "Special Management Area"or "SMA")as govurned by Chapter 205A ot the Hawai'i Revisecl Statutes.Scc Exhibit A at 5. 6.Therc was a preponderanec ofe\'idcnce presciited over thc course ofthe contested case hearing dates to propcrly establish that the Subject Pruperty is within the North Shorc Plannins;Area.See Exhibit C'at 2.and General Plan at 87 -92. C.Historic Sitcs in Rclation to Proposed Project 7.There ivas a prepuiiderancc ufevidcnce prescntctl over tlie course ot'the contcstcd case licaring dates to properly establish that the Petitioncrs requested that thc State Historic Preservation Di\'ision ofthu Department ot Lanil and Natural Resources t'or the State ofHawai'i (hereinafter "S1IPD")to comment on whether the Proposed Project would aft'cct any historic sitcs located on the SLibject Propurty.Sec admitted Exhibit XLV11. 8.There was a prepondcranci;ofevidcncc prescntcd over tliu course ofthe contested case huaring datus to propcrly establish that thc archaeological studics conducted for Lot 7 (nfn'hicli the Subject Property is a part)u'ere as ibllows: a.An Af'chcieologicii/Inventory Survey OfA Porium Of A 26 Acs'e Parcel,Kafuli Ahtiputi 'u.Ko 'o/iiii Oisrricl.Island o/Kaiia 'i.fla\\'ai 'i /T.\fK S-2-21:7/ (Revisccl May 1977)preparctl by McGcrty.et al.("hereinatter"McGerty A1S"),See Exhibit A -Appcndix 2;and b.Archcivological .-Issc'siiient Rcport 011 f)ciiiiages !o Historic Sites 011 'l'MK:4-5- 2-21:7 iiiiit 4 und 5 iind -i-3-2-21-6 111111 J (August 8,2003)preparecl by Nancy McMahon (hereinafter "Mc.VIalion Report"),See [ixhibit LI1I 9.There was a prcponderancc ofevidence presented over thc cour.se ot'the contested case liearing datcs to properly establish that based upon Ihe McGerty AIS.as updated by thc McMahon [<eport.it was "SHPD's detcnnination t'or the [Pjruposftl (P)roject is no historic properties affccted".See Exhibit A -Appcndix b at 2. D.SMA Usc Pcrmit Rcquirements 10.Therc was a preponderancc ofevidence presentecl o\'er thc coursc ofthe contested case licaring clate.s to propi.-rly establish that an SMA Usc Pennit i.s requiretl pursuant to Haw.Rev.Stiit.^205A-22 because the Subject Property is within a Special Management Area and tlie value ot'the Proposed Project exceed-,S500.000.00.See ExhibitCat 1. 11.'l'here was a preponttcrance ol'cvidence prescnted over tlw coiirsc ol the contcsted uase ]ieariiiy dates to pruperly cstablish that in its review ut tlie Petitiuners' application.and in its preparation ofthc Director'.s Report.the Planning Department propcrly analyzed tlii;pertincnt guidelincs for rcviuw and approval ot'projects proposecl in Special VIanagement Areas pursuaiu to HRS §205A-26.Sec Exliibit C at 7 -8. 12.Tlicre M'a.s a preponderance ofevidence prcsented over thc course of'the contested ca.sc hearing dates to properly establisli that in it.s rcview of'the Petitioners' application,and in its preparation ottlic Director's Report,the Planiiing Dcpartment properly analyzed whetlier the Proposed Project n'ould have a "significant aijverse environmental and ecologica]cff'ect"pursuant to SMA Rulcs §7.4.See Exhibit C at 10. 13.Therc u'as a preponclcrance ofevidencc presentccl over tlie course ol'the contcsted case heariny dates to establish that the Director's Report propcrly concluded that the Proposed Project doc.s not: a.Ins'olve dredging.filling or othcnvise alterin.e any bav.salt marsh.ri\'er moiith,slougli or laguoii h.Reduce the si/c ofany bcach or other area usable t'or public rccreation c.Reduce or impose restrictions iipon public access to tidal ancl submergcd lancls,beaches,rivers.ancl streams vvithin thc SMA d.Ad\'crsely afTcut iv'ater tjiiality.cxisting arcas ofopcn n-ater t'ree ofvisiblc structiires.existing ancl potential fisheries and fisliing grouncls,wildlifc habitats,estiiarine sanctuaries.potential or existing agriciiltural uses ot'land. Sce Exliibit C at 5 -6 4.There iva.s a prcponderancc ofevitlcncc prescntuil over the coursc ofthc cuntcsted case hcaring datcs to properiy establish that thc Director's Report also recognized the SMA Rules "contain objcctives.policies and guidelincs clcsignetl tK protect coastal resources...[and]special consideration is givcn to recreational opportunities,cultural and historic resources,sccnic qualities and opcn space,coastal ccosystems,and coastal hazards".See Exhibit C at 7. 5.There u'as a preponderance ot evitlence presentecl over tlie course ot'the conte.sted ca.se hcaring date.s to properly establish that tlic Planning Departmunt evaluateiJ the Proposed Project inindful ofthe goals ancl objuctives ofthe SMA Rules.Seu Exhibit C at 7-8. 6.As such,the Diructor's Rcport propcrly founil: a.With rcKard to Piiblic Acuess and Coastal Recreation."thcre are no opportuiiities tor public access to coa.stal recreatiunal area in connection with the [Pjruposed [P]roject' b.With regarcl to Cullural.Historical Resoiirces.given that Appendix 6 ot'the Application contained a copyot'the lettur dated August 31.2017 from Susan A.Lebo.PhD,Archaeology Branch Chict'ofthc SHPD,concluding that the Proposccl Project ducs not affect any historic properties."The [Petitiuners] shoiild ivork clo.sely with SMPD in orcler to ensure that tlicse arcliacoloyical siies remain iindistiirbed ancl or unaf't'ectecl by the proposed constniction iictivitics' 10 c.Witli regard to Coastal llazards."the [Prupused P]ro]ect is not at risk from coaatal ha/'arcls' tl.Witli regard tu Coastal Ecosvstcins."there are no kiiuM'n rare,threatuned or endangered,plant or animal spccics or critical habitals locatcd within the [Proposed P]ruject site' c.With regarcl to Scenic and Open Soace Resources."In order to mitigatc patential visual impacts,the exterior finishes ofthc residences should be of eartli-tone colors and a landscapc plan coinposed ot'nativc species.or species coinmon to the area should be prepared to assist in screening thc proposed structures.and to inteyrate the site with its sun'oundings" SecExhibitCat7-S. E.Class I\'Zoning Permit Requircinents 17,There was a preponclerance ot'cvidence presentctl over the course oftlie contcsted case heariny dates to properly cstablish that the Director's Report pruperly cimcluded tliat a "Cla.ss IV Zoning Pennit is a procetlural requirement [piirsiiant to KC'C S 8- 11.5]for obtaining a Use Pen-nit in the Spccial Trcatment-Resourccs District."Scc Exhibit C at 1 18.Thcre was a prepondcrance ol cvidence presentecl o\'er the course ot'the contestcd ca.se hearing dates to properly cstablish that the Pctitioners'Application ancl attachecl Exhibits and Appentliecs contained a description dt'the Subject Propcrty in sutTicient detail to determine its precise location aiul theretore the requirements ufKCC $8- 3.1(b)(2)were met.See Exhibit A at 5 antl 7;Exhibit A Exhibits B and Exhibit F. and Appendix 7 at 2 -4. 19.Therc was a prei'ionderance ol cvidence presented ovcr the course ot'the conte.steLl case licaring clatcs to propcrly cstablish that the Petitioncrs'Application and attached Exhibits and Appendices contained "plans and elevations ofthe [Farm Dwelling]", See Exhibits I antl J ofthe Application. 20.Thcrc was a preponderance ot cvidence prescnted over the course oftlie contested case liearing datcs to properly establish that the Petitioncrs'Application ancl attacheti Exhibits and Appendices contained descriptions oftlie existing topography of'thc area siirrounding tl-ie Proposed Project.location oftlie existiiig Garage.dri\'e\vay,ancl utilitics.and proposed walkways in several exhibits ancl an appendix,as required by KCC';;8-11.5(c).See Exhibit A-Exhibits F.G.and H and Appendices 7 at 2 antl 9. F.Use Permit Requirements 21.Thcru was a preponderance of evidence prcseiUed ovcr the course ol'the contestctl casu liearingdatcs to properly establish that the Planning Department.through Dale Cua,examined the Use Permit Ruquiremcnts pursuant to KCC §8-3.2 in its evaluation and analysis ofthe Petitioners'Applicatioii.See Exhibit C at S -9. 22.There was also a preponderunce ofevii.lencc presentecl orer the course ofthe contcsted casc hcaring dates to properly establish that tlic Planniny Department, thnuigh Dale C'tia.examined tlw L'se Permit Requiremcnts pursuant to KCC ;;8-3.2 in it.s preparation ofthe Direutor's Report.Sce Exhibit C'at 8 -9. 12 23.Therc was a prepontlerance ofeviduiice prcscntetl o\'er tlie course ofthc contestetl case liearing dates to properly establish that the Planiling Depaitmcnt,throiigh Dale Cua.examined the criteria containecl in KC'C 5 8-3.2fe)in it.s evaluation and analy.sis ot'the Petitioners'Application.Sce Exhibit C'at S -9. 24.There was a prepontlerance ofe\'idence presenteil over tiit;coursu ot the cuntestecl ca.se hearing dates to propcrly establish that the Planiiing Dcpartmcnt.throiigh Dale Cua,cxamined the tbllowing criteria contained in KCC §8-3.2(c)in the preparation ot thc Director's Report.See Exhibit C at S -9: a,Compatible Use -"The location anil size of'the [Proposed Project]vvill not create unusiial noise or other conditiuns that may be incoinpatible to the sun'oundin.i;area." b.Will Not Be Detrimental to Persons Residins on I'the Subjectl Prooerty_oi_in the Area -"Therefore.the [Proposecl Pjroject shoiild not lia\'e signiticant ad\'crse impact to the commLinity' c.VVill Not Caiise Substantial l-1amiful En\'ironmental Conseciuencus -"Due to the extensivc grouiul disturbance that occiirrecl t'roni the past,it i,s unlikely that any mammalian or avian spui.ies,or botanical resoiirces woiild be impactecl by the [Proposcd Pjroject' tl,VVill Not Be Inconsistent VVith thc (ntent ofthe CZO and General Plan -"As proptiscd.thc [Proposcd PJruject is consistent with the devclopmcnt standards ot'thc CZO and Visiiin &Goals ofthe General Plan". See Exhibit C at S -9. [3 25.Thci't;was a prcpondcmnce ofevidence prcsentcd over the coursc ufthe contcsted casu hearing dates to propcrly establish that the Planning Depaninciit propcrly cxainined the developmcnt standards requirecl by thc Comprehensivc Zoning Ordinance (hereinaftt.T "CZO").See Exhibit C at 9-10. 26.VVith regard to the (.levelopinent standards requiretl by the CZO.tliere was a prepoiulerance ofev'iclence presented o\!er tlie coiirse ofthe contestctl case hearing tlates to establish that tlie Planning Departincnt.tlu'ough the Director's Rcport, properly detenninecl that the Proposed Project: a."...complies ivith the building height,setback,and off-strect parking requirements tbr dcvelopment within the Open.'Special Treatment -Rcsource (0/ST-R)/oning district.as specifiecl in Sections 8-4.3 &S-4.5 [of]the Comprehcnsivc Zcning Ordinance (C'ZO)" b.",..the e.xternal colur slioulcl be ot'a moderate to dark eartli-tonc color.and the [Petitioners]sliould pro\'ide substantial landscaping' c."...theproposctl [Fjann jDJwelling shoultl not be utilizctl fur transient accommodation pui-poses" (I."...through propur liiiKlscaping.any \isual impacts ofthe [FJann [DJwelling or associatctl stnictiiru woultl be mitiyatcd as \'ie'.\'ed fruin ucrtain rantage points acros.s tlic KTlauea River" e."...night illuininatiiin should be dcsigned to minimize adversc iinpacts on tlie Federally Listed Threatened Specius.Nuwell's Shearwater and other seabircls" See Exhibit C at 9 -10. 14 27.7'here Wcis a prcpoaderancc ofe\'idence pt'csenLcd over thc COLII'SC ofthc contcstcd case iK'aring tlatus to prtiperly establisli tliat the Planniny Department pruperly detemiined in the Dircctor's Report that the Proposcd Projcct meets the fbllowing Goals of'the Gciieral Plan: a.Gual =1 "A Sustainable Island"-"...[Proposed [''jroject is an example of rcsponsihle growth in an area designated for residentia]and open space iises" b.Goal f?2"A Unique antl Beautitul PIace"-"The jPropuscd PJroject will complemcnt the natiiral.cultiiral,social and built environmental assets ol'the KTlauea area...the [Pruposed PJroject is compatible with similar uses in the area" c.Goal "3 "A Healthv antl Rcsilient People"-"...anticipatc no significant neeativu impacts on historic sites ur Hawaiian cultural practices' d.Goal '•"4 "An Eyuitable Place.with Opportunitv ForAll"-"The [Proposed I'jroject ivould siipport anil enliancu ecunomic aiul busiiiess opportunities and jobs on Kaua'I' Sce Exhibit C at 6.citinfi Section 1.3 ofthe General Plan 28.There was a prcponderance ofcvidence presentutl over tlie course of'the uontested case licanng datcs to properly establish that the Planning DepartiTient priipedy cletemiiiiect in tlic Dircctor's Report that the Pruposed Project furtlwr mccts the tbllowing "Policie.s To Guide Grnwth"ofthe General Plan: a.Policv #1 "ManaKe Growth to Preserve Rural Cliaracter"-"As proposccl.the project is consistent in prcscn'iiig the rLiral charactcr ot the neighborhood anct occurs in a locatloii that is zoned and suitcd for residential development.'" 15 b.Pulicy =2 "Providc Local Hous.in.g^-"Thc [Pctitioners]recogni/es thc need t'or inore luiiising in tlie nortii shore arca and is intenclctl to furtlier support housing opportunities." c.Pol]cv\=S "Protect Kaua'i's Scenic Beautv^-"The pruject shoiild not liave any substantial negative impucts on tlie visual resourccs in thc KTlaiiea area. Thu proposecl new color sclieine and landscaping for the projecl vvoulcl lessen the o\'erall visual impact ot the cuiTent improvements,as viewed from tlie Hanalei Bav area froin the Prince\'ille area. d.Policv #9 "Upholii Kaua'i a.s a Uniyue Visitor Destination"-"The Gcnural Plan identify areas likc Ha'ena.Wainiha and Hanalei bcing drastically impacted by non-tratlitional visitor intlustry operations.As a result.these communities have becn consitlerably altereil as a consequence ut'thesc opei'Litions.The [Petitioners]lias reprcsented tiiat this rcsidence is intendecl for themselves and it is not intendecl to be utilized for commercial resitlential purposes. e.Policy F=11 "Helo Aaricultural Laiids Be Productivc"-"As represcnted.the [Petitioners]intcnds to utilize thc parcel 1'or agriciiltural purposes.Tlie prujcct also involves thc construction ol a greenliousc (10'X 20')and t'arm equipment storase shed (14'X 14'). See Exliibit C al 7.citiny Scctiun 1.4 oflhe General Plan. 29."riicrc was a preponderance ofeviclence presented over the ciHirse ot'the contestecl case hearing tlates to properly establisli that tlie Planning DepartiTient properly dctemiinctl in the Director's Report that the Proposctl Fami Dwelling "is consistcnt 16 irith thc yoals and objccti'i'e.s ot'[thc North Shoru Planning Arca].ancl is conipatiblc vvith the cxistin.i;resiclcnces in this neighborhood.Furthcrmore,it coniplies with tlw duvelopinunt stanclarcts contained in Section 10-2.4(c)ol'tlie K.aLia'i County C'ode (1987),a.s amended."Sce Exhibit C at 7. G.Director's Prcliminarv Recommendation 30.There was a preponclerance ufc'.'idence prusentecl o\'er llie course ofthe contcsted case hcaring datcs to propcrly cstablish that the Planning Department properly cDnductucl an analysis and evaluation ofthe Petitioners'Application. 31.There ivas a preponderance ot evidcnce prcsentecl overthe courseofthe contested ca.se hearing clates to establisli that tlie Planning Department properly recommended in the Dircctor's Report that the Planning Commission approve the Pri.iposed Project. subject to the following conditions: a.The pruject shall be constnicted as represcntetl.Any clianges to the operatiun and/or the respective .structures shall be rcvieived by thu Department to detennine whether Planning Commission rcview and approval is wan'antcd; b.In orcler to ensure that the project i.s compatible with it.s surroundings and tu minimi/e the visual impact ot the structure.the extemal culor ut the proposctl residence shall be ot a moderate to clark earth-tone color.The proposccl colur scl-iemc and a landscape plan shoiiltl be siibmitted to thc Planiiiiig Departmcnt fiir re'i'iew ancl acceptance prior to buildiny pemiit application; c.The Applicant shall submit fur revieu'and approval by the Planning Dcpartmcnt,a landsuape plan composed ot'native species,or species commoii to the arca.to lielp tu screen the proposetl stmctures.ancl integrate the site with its surroundings; cl.The Applicant is matlu an'arc that tlie proposed residence shall not be utilixud fbr any Eransient accomiTiodation purposes.It shail not be useil as a transient racation rcntal (TV'R)or as a liomestav: 17 u.Ifextemal liyhting is to be used in connection with the proposcd project.all extemal lighting sliould be only ot tlic following type:duwiinard-tacing sliielded liglits.Spotlights aimecl upward ('r spotlightiny ofstructures is prohibited: t'.The Applicant sliall develop and utili/'e Best Management Practices (BMP's) during all phascs iif development in oi'tlcr to iTiinimi/'e erosion.diist.and sedimentation impacts ot the project tu abutting properties; y.Unless otlierwise stated in the pennil.unue a pennit is issued,thc Applicant must make siibstantial progi'ess.as determined by the Director.regarding the dev'elopment or activity vvithin two (2)years,or the pennit sliall be decmed to liave lapsecl antl iw longer be in et'tect: li.The Applicant shoiiltl resolve ancl coniply ivith all agency rei[uirements as recommendecl in tlie permit applicatioii revievv,including but nut limited to the building pennit &drainage reqiiiruments of tlie Coiinty DVVP Engineering Division.C'oiinty Fire.Department,pctable water &firu protection requirement.s tbr tlic County Dept.of VVater,and regiilation.s iiivol\'ing environmental cuiicerns as administurccl by the State Departinent ot Health; i.Since there are knoivn archaeological sitcs (agricultural tcrraces)on the subject parcel,thc (sic)shall closcly vvith State Departmcnt of'Lanti and Natural Resoiirccs -Historic Presei^'ation Division (SHPD)in order to en.sure that these aruliacolo.siical sites remaitl Lindistiirbed and'or unat't'ccted bv the proposed cuiistruction activities.Furthcrmore.the Applicant is ad^'ised that sliould any archaeolo.sical or historica]rcsources be discoveretl diirin.g .ground clisturbing.-'cDnsti'Liction vvork,atl \\ork in tlie area ofthe archaeological/liistprical findings shall immediately cease ancl the Applicant shall contact thc SHPD and the Planning Department; j.Prior to communceinent ofthe proposetl dcvclopment,u'rittcn confinnation ot compliance ivitli the requirements ti'oin all reviewing agencies shall be provided to the Planning Department.Failure to comply may rusitlt in tbrfeiture ot'thc SV1A Pennit; k.The Applicant is advisud that priur to cunstruction antl/ur use,additional govemment agency conditions may bc imposed.It shall be the Applicant's responsibility to rcsolvc those conditions with the respectivc agency(ies): ].The Planniny Commission rcserves the riylit to add or delete conditions ot' approval in order to address or mitigatc unforeseen impLicts this project may create,or rcvoke thc permits thi'OLtgh thc proper procedures should conditions ofapproval bc violatecl or adversc impacts be crcated that cannot be property addressed. SeeExhibitCat 11-12. 18 32,TIierc was a preponderance afe\'idence prcst'ntecl over the coiirse ol thc contested easc hcaring dates to prupcrly establish tliat tliesc contiitions otappi'tn'al are consistent with thc policics antl objectives sct tbrtli in the Coastal Zonc Management Prtiyram,HRS 205A-1 et.scq,HRS §46-4(a)(CountyZoning),thu SMA Rules and Rcgiilations.the Kaiia'i Cuunty Comprehcnsive Zoning Ordinance. H.Thc Tcstimony ofDale Cua 33.Mr.C'lia was prescnt at thc Contcstecl Casc 1-learing tor virtually thc cntire time ot the Petitioners'Case-ln-ChiuF See Tr.3,4 2020 ut 2.Tr.3'6'2020 at 96.Tr.6'18/2020 at 3.Tr.6,123-2020 at 2.iind Tr.6/24/2020 at 1 . 34.Mr.C'lia testificd that thc absence ofselect pagcs in the AIS included as Appendix 2 in the Application (i.c.McGerty AIS)ditl not change either the Diructor's Report or DifCL'tor's Conditions.Sec Tr.6 23'2020 at 118-119. 35.Mr.Cua further tcstitied that Petitioners'tcstimony elicited by extensivc questioning t'roin Intervenors'Couiisel clid not changc eitlier the Director's Report or Director's Conditions.See and Comparc Tr.3/6/2020 ;il 112 -70,Tr.3/13/2020 at 2 -157, 6'23'2020 at5-47.Tr.6/23 •2020 at 52 -65,Tr.6'23 2020 at 67-75,with Tr. fi23.'2020at 120-25. 36.Mr.Cua testifiecl that any additional testiiTiony tliat he heard duriiig thc contested casc hearing regarding a proposed pool did not chanyc any ofthe recommentlations by the Department as cuntainud in the Director's Ruport.See Tr.6 232 2020 at 121 -122. 37.Vlr.Cua also testified that any additional testimony he heard about grading did not change ot the recommendations as containecl in the Director's Report because 19 Condition Eight ofthe Directur's Report would atlclrc.ss any additiunal polentiat yradine cuncems.See Tr.6 23 2020 at.122. 3S,Vfr.Cua also tustified that any atlclitional testimony lic hcard about lcrraccs did not change the recomniendations by (IK'Department as containcd in the Diructor's Report because Condition Ninc ofthe Director's Report woultl actclress any additional potential terrace concerns,See Tr.fi.'23/2020 at 122. 39.Mr.Cua testified tliat any testiinony he heard duriny the contested case heuring regarding a proposed safe room d'\d not change tlie rccommendations as contained in the Director's Report.See Tr.6.23.;2020 at 122. 40.Mr.Cua al.so testified that any testimony he heard cluring the contested casc hearing regarding a propo.sed landsuaping plan on the Subject Propcrty would not change any ofthe recommentlations as containcd in the Director's Report.See Tr.6'23,12020 at 123. 41.Mr.Ciia testiliecl tliat any testimony he hearcl regardiny Ihe size ot'tlie proposed shed n'oulcl not chanse any ofhis recommenclations as contained in the Director's R.eport. Sce Tr.6/23/2020 at 123. 42.Regarding the pruposed living spacc ot'tlie residcncc,Mr.Cua also tcstiRucl cluring the contestecl case heariny that hc lieard testimony tliat the proposed sqiiare teet ofthe residencc was bctivecn 2.700 squarc t'eet and 5.000 plus square feet.Scc Tr. 6/23'2020 at 124.Hoivever.Mr.Ciia testified that this tcstimony that liu licard regarding thc proposed squarc fect ot'the residcnce tlid not change his recommendalion.s as containeil in thc Director's Repurt.See Tr.6 23 2020 at 124. 20 43.Mr.Cua ivas also cross-exaniiiied at length by Intervenors.See Tr.6 24 2020 at 7- 80. 44.Mr.Cua specifically testifiecl that any ol'Ihe additional infonnation or te.stimony that hc heard during the entire contestcd case liearing,whether introcluced by Intcrvunur's coLinsel or by the Petitioners.dicl not cl'iange any of his recommendations containctl in the Director's report.See Tr.6 23'2020 at 124. I.The Evidence Presented at the Contested Case Hearing Demonstrated By a Preponderance ofthe Evidence That thc Planning Commission,And By Extension thc Planning Dcpartment,Is the Propcr Authoritv to Enforce the Petitioners' Pcrmits As Well As The Conditions For Approval of the Permits and Therc VV'as No Evidence Presented That Thc Pctitioners Would Either Violate the Conditions of Approval or That The Plannina Dcoartmcnt or Plannins Commission Would Not Enforce These Violations 45.The Planning Commission,and by extcnsion the Planning Department.has becn siven statutorv'authority to eiifot'L'i;the zonini;ordinances.includinK tlie autlionty to impose penalties for noncompliance ivith tliese zoning ordinances in the Form ot'civil fine.S.MA Rule 13.0;HRS j;;205A-22 and 205A-32. 46.The Planning Commission.and by extciision the Planning Dcpartment.lias bccn giv'en statutory authority tu enforee the /.oning urclinances.including the aiitliority to impose penalties for noncumpliaiicc ivitli these zoning ordinanccs in the torm ofcivil line.SMA Rule 13.0;HRS .?§205A-22 and 205A-32. 47.Pursuant to SMA Rulc 13.0.aiiy pcrson vvho violates any prorision oftlie.se Rules and Regulations shatl bu subject tr civil tine not to exceed S100.000 or thc i-ost or retuming the affected en'.'ironi'nent ur ecology ivithin the SMA to the condition existing before the violation.SMA Rule 13.0(A). 21 48.Additionally.a pcrson wha is \iolating any provision ot'these zoning ordinances sliall be liable t'or a civil tine not to exceed S 10.000 a tlay in which such violation persists. SMARulc 13.0(A);1-1RS §205A-32(b). 49.The enfbrcement pruvisions ofSMA Rule 13.0 ancl HRS >;205A-32,as well as the conditions ot approval.\\'ill ensure that the neighboring parcels.landowners,and adjoining pro|ierties ivill not be adversely aft'ecled. 50.The entbrcement provisions ofSMA Rule 13.0 anil HRS §205A-32,as u'ell a.s tlie conditions ofapproval,will also ensurc that tlic policies and objectives as meiitioncd in the Director's Rcport ivill remain satisfied. 51.During the uoiitestcd case hearing,Mr.Ciia testificcl tliat it is the Planning Department's duty to cnfbrce zoning ordinances.See Tr.6 23 2020 at 124. 52.Mr.Cua also testificcl (.lurins the contested case licarin^that ifthe Petitioners are not. able to coniply ur tlo not comply with any ot the twclvc recommended conditions ot approval as sct t'urtli in the Director's Report,then tlic I'lanning Departmcnt would enforce any potcntial violations ofzoning ordinanccs against them.See Tr. 6'23'202Uat 125. 53.During thc contcsted case hearing Intervenor Cliarlcs Soiners also acknowledged tllc Planning Departmeiu as thc authority rcsponsiblc t'ur cntbrccment ofzoiiing stattitcs. ordinances,and conclitions ot pennit appro'.'al.During the July 7,2020 portion ot'thc contesti-'d cu.sc licaring,the following excliangt;took place: Mr.Donahoe:...Mr.Somers,would you agrce that it is the Planning Department wlio is rcsponsiblc for enforcenient ofzoning statutcs ancl ordinances,ifyou know'? Mr.Somct'1-;:I believe so. Mr.Donahoc:Okav.And ifvou know.woultl VOLI aaree it's the Plannins Department \vho enforccs any violations of/oning statutes and ordinances? ~)~) Mr.Soincrs:They're supposecl ti>.ycs. Mr.Donahuc:Okay.And thcn woiilcl you agree that it's the Planning Department. wlio alsi>entbrces any contlitions that have been placed on approvcd pennits? \'lr.Somcrs:They're supposeJ to.ycs. See Tr.7,'7-2020 at 20. 54.Tlieretbre,at the contested case licaring several ivitnesses acknowledged that it is thc Planning Departmcnt that has beeii yiven statutory authority to enlorce the zoning ordinanccs,including the authority to inipose penalties tor noncompliance with thesc zoning ordinances in the torm ot civil t'lne.pursuant to SMA Rulc 13.0 and H'RS §;; 205A-22 anil 205A-32. 55.Othcr tlian speciilation,during tlie coiitestetl case hearing therc was absolutely no evidence presented that the Petitioners would violate any ofthe recummended tivclve condition.s uttached to approval ot thuir requested pennits. 56.To thc contrary.on March 6.21)20 tlic tbllo\\'ing exchange took place betivecn Deputy County Attorney Chris Donatioc and Ms.Neilson: Mr.Donahoc;And you understaiul,that -that these conditions ofapproval must bc cumplied v\'ith in order to liavu ytiur pennits continue to bc approved? Ms.Ncilson:Yes Mr.Doiialioe:Okay.And yoii imtlcrstand that non-compliance ivith anyofthese conditions by approval coiild siibject yoii to penalties lcvicd by the Planning Departnicnt? Ms.Neilson:Yes sir. Mr.Donahoe:Okay.And you iindcrstaiicl that some oftlie pen..ilties for non- conipliance levied by the Planiuiig Departmcnt could bc fines or injunctions or revocation of'any pennit'.' M.s.Neilson:'t'es Mr.Donalioe:Okay.And is it -il'yoiir pen-nits are approved by the Planning Conimission,is it your intent to cumply ivith each antl evcry sinyle one ot these contlitions ot'approval.including thu condition -the conditiun rcgarding historical or'archeological tinils tluring the biiild? Ms.Neilson:Yes sir. SeeTr.3/6/2020at 111. -:J 57.Acklitionully.w'hcn askcd if.Mr.Somcrs woulcl appru\e ot'thc proposed project if the Petitioncrs mect certain conditions,Mr.Somers respunded '"i'es,as long as they follow (!ie CPR cunditions,and they follow tlie coiulitions that are establishecl in thL' SMA,whicli tlicy wure clearly aware ot'ivlicn tliey piircliased the property.yes,"Set; Tr.7'7!'2020 at 30. 58.Howerer,no spccit'ic ev'idence ivas presentcd at Ihc contested case hearing ttiat wcuilcl shov.'that thc Petitioners would not tollow the CPR coiitlitions.tlie conditions that are established in the SMA.or the proposcd conditions ot approval sct forth in the Director's Rcport. 59.Aclditionally.no spccit'ic evidence was presentetl tliat clemonstrates that the Planning Department vvoiild not seek enforceiiient ofany violatioiis otzoning ordinances or statutes,inclutlin.B SMA Rules and HRS ;;205A,or any ot'the proposed conditions of approval set fortli in tlw Director's Report. II.Responses to Exceptions to Conclusions ofLavv 60."Courts arc bounct to gi\'e et'tect to all parts ot'a statiite.and that no clause.or worcl shalt be cunstrucil as supertluous,void.or insigniticant it a construction can be legitimatuly f'oiiiKl \','liicli ivill gi\'e force to aiul prescrvc all ivorcls ofthe statute.' Rohert D.l-'crris Tnist,13<S Hawai'i at 310.37<S P.3tl at \0~i6 ciuofing Kaakiiiiiikc:,84 Hawai'i at 289-90,933 P.2d at 626-67. 61."Words arc yivcn thcir common meaning unles.s soinc wording in the statute requires adif'terent interprelation."/•t'ffu T'nis!.138 Kawai-i at 311,378 P.3d at 1027 24 (intemal qiiotation marks omitted)qiioliiig Saniitillii)r.Sih'a.78 Hawai'i I.10,8.S9 P.2d 685.694 (]y95). 62."Laivs iii puri mi.ilcricil.or upon the same subjcct [iiattcr,shall be construcd witli ret'erencc to each otlier.What is clear in one statute may be called upon in aicl lo explaiii wliat is cloubttii]in another."/«;/;<.'Inlcrvsl ul CM.141 Haivai'i 348,353. 409 P.3d 752,757 (2017)qiioring Slate v.Young.107 Hawai-i 36,39-40.109 P.3cl 677.680 -6S1 (2005)(citations.intemal quotations marks,brackets.ancl ellipses omitted:tbnnat clian.i;ed). 63."When inlcrpreling county charters,municipal orcliniinces,and administrative riilcs, the general principlcs ofstatutory construction a|5ply."f'i'nis Tritst.138 Havvai'i at 310.37<S P.3dat \(}26 ciiioting Kellherg v.YIICII.131 Hawai-i 513,527,319 P.3d 432. 446 (2014)(brackets omitted). 64."It is a well established rule ofstatutory constniction tliat.where an admiiiistrativ'e agcncy is cliaryccl vvitli the responsibility ofcarrying out the mandate ofa statiite which contains ivords ofbroad and indefinite ineaning,courts accord persuasive weisht to aclministrative construction ancl t'ollow tlic saine,unless the construction i.s palpably crroneou.s."llyatt Corp.r.Honoliihi l.ii/iior Coiii '11.69 Hawai'i 238.242 • 243.73S P.2d 121)5.1208 (1987)(brackets omittL->.l). 65."[IJn dctereiKL'to tlie uclministrative agency's expertise and experience in its particular fieltl.tlie courts should not substitute thcir ownjudgment for that ofthc administrative ayency where mixed questions ^ftact antl law are presented."Cciniaru v.Ag.ialttd.67 Haw.212.216,685 P.2d.794,1V7 (1984)citinf;Stem.Revieu-oj 25 rim{ings ofAtiministrators,Jaclgcs anci Jiiries:A Compurativc Afiafvsis,58 Harv.L.Rev.70,99-103 (1944). 66."Orclinarily,deference will bc gi\'en to decisions ot'adininistrativr aguncies acting u'ithin thc rcalm ofthcir cxpertisc."Miiha 'tilepii r.l.aiid (./?<.'C'oin '11.71 Haw.332, 335.790 P.2d 906.908 {19W)citiiig Otitdoar Circlc v.Harold K.l..Casllc 'f'nist Estate.4 Haw.App.633.639.675 P.2d 784,789 (1983).Theretbrc.-review of special permit approrals is limited to discerning ivliether tlic adininistrativ'e agencies cominittcd CITOI'S oflaw or abused their cliscrction in granting thu pcrmit." Maha 'ulepu,1 \Haw.at 335,790 P.2d at 908 citing Ncighborhootl Boarc!;Vo.2-/ Hi'aiuiiiie Coasl)v.Lanci Lise Com 'n.64 Havr.265,639 P.2d 1097(1982). 67.The Planning Department agrees with tlie preccding statutory anil ca.st;law aiialysis as set fortli in the Hearing Officer s Report ancl Recomnicnclation'.s Conclusions of Laiv (hereinafter "COL")Nos.1,3,5,6,7,<S.and 9.ancl believe it to be the cuntrolling authurity that should be relied upon by the Planning Cominission. 68.Based on this analysis,the Planning Departmcnt disagrces with thc Intervenors analysis submitted in its Exceptiuns to the Hearing OITicer's Report ancl Recommendation ancl instead supports thc Hearing OFHcer's Repurt ancl Recommentlation detenTiining that the Director's Report shoultl bc gi\'en tletcrcnce because analysis ofpenTiit applications ancl approval of'pcrmits i.s within its rcalm ot expcrtise in\'olving mixed questions ot'law antl tact. 69.Given that tlie zoning powers ot the Planning Commi.ssion arc dcrivctl t'rom Haw. Rc'\:Stat.$46-4.and that the LeKisIatiu'c also authori/ed tlie Plannins C'ommission to enact and cnforce niles regulating Specia]Management Areas pursiiant to llaw.Rev. 26 Srcit.^205A-29.the County nfKaua'i.through the Planning Commission.is the propcr aLitluirity who administers the S.VIA Rules ancl Coastal Zone Management Act (hereinat'ter "CZMA")codifieti in lluw.Rc\:Stut.§;;2015A-1.ct.sccj.See Morgan Y.Planning Dcpt..Coiiim ofKuuai,104Hawai'i 173,I<S5,86 P.3d 982,994 (2004) ("[T]he Planning Commission is vested with broad povver ancl aiithority in implementing the CZMA's manclate"). 70.Given th'is authority.the Ptanning Departincnt supports Hearing Ott'icer's COL No. 13 that "Siiice the Planning Cominission.and by extension thu Planning Department, is chargecl witli the responsibility ofenforcing zoning laws,including the CSMA's mandate,their decisions should bc accorded clefercnce,untess thcy arc palpably erroneous,"See llyatt Corp..69 Hawai'i at 242 -243.83S P.2d at 1208". 71.Based upon tliesc authorities.the Planning Department supports Hearing Officer's COL No.14 that states that thc "Director's R.eport recommeiuling approval ofthe Application.ancl proposing the Diructor's Conditions,involvc nuxecl questions oflaw and t'act ret|Liinng due deference bc iiccorcled those decisions unlcss the Planning Department 'committed en'ors ot'lau'or abiised [its]discretion in [rccommending approval ot~\the [Pjennits.' "Ciling Maha 'iiiepii,71 Haw.at 336,790 P.3d at 908 and sec ulso lluole.\\\Hawai'i ;it 149.140 P.3d at 382. 72.The Planning Department disagrces »'ith tlie Intervenors Exccptions to the Hearing OtTiccr^Report and Recommcnciation ani.1 instead supports Hcaring Officer's COL No.15 statiny that "there was insuf'l'icient evidence introclucccl at the CC Hearing to estabfish by a preponderaiice ot the evicience that thc Planniny Dcpartment committecl en'ors oflaw ur abused its discretion in the issiiance ofthe Dircctor's Report and 27 fomiiilation dt'the Director's Conditicins.Rtili'f ot I'racticc and Procediirc o/'lla' Kuiici 'i Coiliily I'taiiniilg Commission fCoili/it'ij Miiy 2014)("Commission Rulc"iir "Commission Rules")Rulc l-6-17(b)(Thc Party initiating the Commission's consideration shall havc the burden ofproofby a preponderance ofthe eviclence).' 73.There vvas a prepondcraiice ofevidcncc presented cn'er the course ofthe contcstcd case hearing dates ti)properly establish that the Proposctl Project satisties Goals Numbcrecl 1 throusli 4.ancl Policies Numbered 1-2.8-9,and 11,ofthe General Plan. See Exhibit C at 6 -7,Hearing Officer COL 16, 74.There was a prcpondcrance ofevidence presented ovcr the course ofthe contested case liearing dates to pruperly establish that the Proposed Project is also consistent with the goals anil objecti\es ofthe Nortli Sliorc Planning Area.See Exhibit C at 7, Hearina Officer COL 17. 75.There was a prupontlerance ofev'idence presentetl ovcr the course ofthe contustei.! case hearing dates to properly establish that witli respcct to the SMA Use Pcnnit,thc Proposed Project meets the objectives,policies antl guiclelines designed to protect coastal resourccs mandated by the CZMA.Sec Exhibit C at 7-8,Hearing OtTiccr COL 18. 76.There wa.s a preponclerance ot'evidence presented over the coiirse of'the contested case heariiig tlates to properly establisll tliat tlie Proposecl Project.and contcmplated agricultiiral activities to be conductecl on thc Subjcct Property cis set forth in thc Application,are compatible with the Subject's Property's zoning,will not be detrimental to PetitiDiiers or the surroundin.u arca,wil]not caiise substantial harm to the environmeiit ancl is not inconsistent with tlie intent ut'the CZO and General Plan. 28 SeeExhibitCat8-9.Tr.3.'4.'2020 at 81.Tr.3,'13/2020 at I15.antl HearingOfficer COL 19. 77.Tlicre was a prepoiulcrance ofevidencc prcscntecl over the course ot'tlic contested casc licaring dates to propcrly establish that tlie Proposed Project fui-tlicr "complies with the building height,sctback.and off-strcet piirking requirements for dcvelopment within the Open Special Treatinent -Resource (O'S'l'-R)zoning district. as spccified in Sections 8-4.3 and 8-4.5 [of|the Comprehensive Zoning Ordinance (CZO)."See Exhibit C at 9.Hcaring Officer COL 20. 78.Sincc the conclusioils in the Director's Report conccming approval ot'the Permits involve tnixed questions ot'laiv and fact,the only issue is whether tlie Planning Dcpartment committcd urrurs oflaw or abiised its cliscretion in recoi'iimending approval ofthe Pennits.Sce Maha 'iilepii,71 Haw.at 335,790 P.2d at 908 ("[R]c\iew ofspecial perniit approvals is limitL'd tu cliscerning whcther the atlministrativc agencies cominitted eirors ot lavr or abused their discretion in granting the permits."See Heuring Ot'ticer COL 21. 79.The Planning Department supports the Heannt:Ol'ticer's determination that the Planning Department did not commit any errors ot'law.or abuse its cliscrction.in recommending approval iifthe Application becaiisc that decision involvecl mixed qiiustions oflaw anil tiict that the Proposed Projcct i.s consistcnt with the yoals, objectives ancl policies ofthe CZMA,CZO.and Genera]Plan.See Hearing Officer ("OL 22. 80.Tlie Planning Departmcnt supports the Hearing Ot'ticer's detennination that since the Petitioners did not file the required Aft'idavit as required by KCC §<S-3.1(0(4),SMA 29 Rulc §9.0.E.and Commission Rule l-13-5(e).KCC §8-3.1(0(4)ancl SMA Rule ;; 9.0.F require thc PC Hearing to be postponetl,that thc ['ctitioncrs piiy thu cost of repiiblication and processing.ancl follow the sanie notiHcation i't;t|uirenici'its ot tliose pruvisions to rc-notit'y affccted persons ofthu postponed PC'llearing.Sce Hcaring Ofticer COL 25. S 1.The Planning Department suppons the Hearing Officcr's clcturmination that KCC ;;;; 8-3.1(b)(3)and 8-11.5 and orSMA Rulc $;8.0 incorpurating Rule ;;7.1,require Alleged Deficiency Nos.1 (plans are not drawn to scale),2 (plan.s clo not shovv all the proposed structures comprising the Proposed Project),and 6 (plans dt)not sho\v the location ot'the Proposed Project in relation to the other uses and structures ivithin the Special Treatment District and the ways in wliich it is consi.slent ivith the establishment ot'that district)to be reclirieil by Petitioncrs prior to appruvyl ofthe Pcmiits by the Planning Commission.Compare Exhibits t.X untl LX1.witli t-laiv. Re\:Slcil.§205A-29 and Articl XIV.Section 14.03 oftlie Kaua-i County Charter. See also Hearin.g Officer COL 27. 82.Hoivever.even .eiven these alle.sed "tleficiencies"that havc to be ructifietl by the Petitioners prior to appro'.'al ot the Permits by thc Planning Coinniission.the Planning Departinent supports the Hearing Officer's cleterminatiun tluit tliusc alleyecl "cleficicncies"are insufficient for the Hearin.i;Officcr tu concludc that the Planning Department committed an en'or ot law or abusecl its discretion in recoinmending approval ot'the Application.See Camara.67 Haw.at 21A.6S5 P.2cl at 797 ("[IJn tlet'erence to the administrativc agency's expertise and expcriencc in its particLilar lield,the courts should not substitute theirownjudgmeni t'ur that ot'the 30 administrati\'e agency wliere inixecl qucstioiis of t'act and law arc presentrid.")ancl .1/17/ii('iilepii,71 Haiv.at 335.790 P.2d at 90*s (••Orclinarily,deference will be .eiven to (.lecisiuiis ofadministratiic aycncies acting with the realm ot'thcir cxpcrtise").See al.so I learing Officer COL 27. 83.The Planning Departmcnt supports the Hcaring Ofticer's determinalion that the Director's Report reciimmcntling appro\'al ot the Application despite the existence of' allegetl Deficiency No.3 (plans are inconsistent with the text portion ot'the Application as to the square footage ofthe Farm Dwelling.as ivell a.s one (1)portion oftlie Application describing that square footayc is numerically difFerent trom another part ofthe Application)cloes not amount to an error ot law or constitute an ahuse ot'discretion by thu Planning Department.Scc Camaru,67 Haw.at 216,685 P.2tl at 797.Maha 'iilcpu.71 Haw.at 335.790 l'.2d at 908.Hearing Ofticer COL 28. 84.As tcstitied by Dale Cua cluring the contestetl case hearing.it is the practice ofthe Pianning Department to adLlress Alleged Deficicncy No.4 (plans do iiot shovv builcling elevations antl section dravvings renccting thc finish ancl cxisting grades,or setbacks from the boLindaries of'the Subject Property)when Pctitioners apply for a builtling permit to construct the Proposed Projcct.See Tr.6'24 21120 at 34.As seen in Exliibit III at 1.this also appears to be the intent ofthe first requiremcnt ut'the 1998 C'onclitidns.As such.llie Planning Departmcnt supports the Hearing Officer Report antl Recommendation that det'erence shoultl bc given to that administrative decision. A/o/ii;'ulcpu.71 Haw.a(335.790 P.2d at 908.See Hearins OtTicer COL 29. S5.Thc Planning Department supports the Hearing OtTicer's COL No.30.namely that Allcged Deficiency Nt).5 (plans are not prepared by a Hawai'i licensed architect) 31 ctoes not nccd tu be addrcs.sed by the Petitioners at this time buuaiise there was a prepondcrancc ofthe evidcncc prescnteil ;it tlie contested ca.sc hearing tluit tlieru is no requircment tliat the plaiis to be submitted by Petitioners with tlicir Application be prepared and/or stamped by an architect liceiiscd pursuant tii Chapter 464 ol'the Hawai 'i Rcvi.'icd Statiites.See Exhibits LX anil LXI.Tr.6.24 '2U20 at 34.aiul Hearin.aOfticerCOL30. S6.Since K.CC §8-1 1.5(c)provitlcs that Allugctl Dcticiency No.7 (plans do not indicate the location ot all existing ancl proposcd topography,builclings.walks.driv'eways,and utilities anil plan material wilhin the bountlaries ofthe Subject Property,antl tlie existing or pruposed streets,siclewalks,driveways,trees.biiildings,and topogruphy on adjaceiu lands not less than one hundred (1 00)feet from tlie property lines ofthe Subject Property)is optional at Ihe discretion ot'the Planning Director.the Planning Department supports the 1-lcaring Officer's Rcport and Recommendation that this Alleged Dcficiency is not grounds for denial ot'the Application.See Hearing Ofticer COL 31. 87.The Planniiig Department supports the Heariiig Officer's Repurt and Recommendation in its detcrmination that thc deficiencies in the Planning Commission's Notice as required by KCC !;8-3.1 (f)(4),SMA Rules §9.0.B..and RPPPC Rule l-13-5(b)clo not wan'ant a dcnial ofthe Application because the Planning Commission may rcvise its required nutice and comply with all thc requirements ofKCC §8-3.1(0(4),SMA Rules ;;9.0.8.,aiul RPPPC Rule l-i3-5(b) prior to the Rescheduled PC Hearing when considering the Re\'ised Application.See HearingOI'f'iuerCOL36, M 88.Thc Planiiing DL'partment siipports the Hearing Officer's Report ancl Recommuniiation in its determination that the tlet'icicncv in Petitioners'Nutice tloc.s not vvan'ant a tleniul ut'the Petitioners'Applicatioii bucau.se Pctitioners may rcvi.se their requircd noticu antl comply ivith all tlie rct|uiix'nients ot'KCC g S-3.1(0(4), SMA Rules S 9.0.F,and RPPPC Rule 1-13-5(0.See Hearing OfficerCOL 39. 89.With regard to tlic State Historic Presen'ation Divisiun (hereinafter "SHPD").therc was a prepontlcraiicc ot evidence presentecl (>\'er the course ofthe contested case hearing clatcs to properly establish that the Petitioners liave already providecl SI-11'D with infbnnatinn conccrning the Proposeil Project to cleteriTiine ivhether any historic sites situated 011 tlie Subject Property woiild bu damayed tliereby.See Exhibit A - Appendi.x 6. 90.There was a prcpontlerance ofevidence presentecl ovcr thc course ofthc contested case lieariny clatcs to properly establish that baseil 011 the information prov'ided to SHPD.as wull as tlie McGerty AIS (as iipclatecl by tlie McMahon Report)the SHPD's detem'lination tbrtlie Proposed Project is "no historic pruperties affected".Sci; Exhibit A. 91.There vva.s a prcpontlerance ofevidence presentcd ovcr the course ofthe contested case heanng dates to properly establish that tlie Planning Department relies upoii the expertisc ofSHPD to dctcnnine whether any liistoric sites arc affectecl by thc Proposetl Project.See Tr,6;'24,'2020 at 51. 92.The Plaiining Dcpartmcnt supports the Hearing Ofticer's Report ancl Recoinmendation dctermination that Approval Condition 9 as contained in the :f:f Dircctor's Report also protects against potential clamayt;to thc historical sites.Scc Hearing Ofticer COL 56. 93.Based on tliu eviclcncc prcsented diiring thc coiir.se ot'the contested case heariiig,tliu Planning Department siipports the Hearing Ot'ticcr's Rcport ancl Recommendation that the decision ot'the Planning Department to rely upon the expertise and resOLirces ofSHPD to cletcnninc whether any historic silcs will be aftected by the Proposed Development.and SHPD's determination that it tloes not.should both be given deterence becaiise Intervenors did not establi.sh by a preponderance ofthe evidencu that either the Planning Department or SHPD committccl errors oflaw or abusecl their discretion in makin.y those decisions.Sec Caniara,67 Havv.at 216,685 P.2cl at 797. Maha 'ulfpii.71 Haw.at 335.790 P.2cl at 908.RPPPC Rule l-6-17(bl. 94.With regard to the Ka Pu 'tikai analysis ptirsiiant to Kii Pa 'akai o Ka 'Aiiia r.Lunil Use Coiiim 'it.y4 Hawaii 31,47.7 P.3d 1068,1 084 (2000),the Planning Departmciu supports the Hearing Ot't'icer's Report aiul RccDmmciKlation detennination that the Planning Dcpartincnt did attempt to conduct thc Kti I'u 'iikai analysis.See Exhibit C' at 8.HearinK Officer COL 60. 95.Additionally,thc Planning Department also supports thc Hearing Officer's Report and Recommeiitlation that the Petitioners'Application docs contain additional infonnation to update the Director's Report to assist the Planning Commission u'ith its Ka Pa 'akai analysis.See Exhibit A at 7 anil 10-II,and Appendices 2 -4 and 6, HearinBOfficcrCOLAO. 96.With respecl to the 25-tbot setback requiremcnt to the extent it is imposed by the 199S Conclitions,the evidence at the contested ca.se hearins shoived that thc 34 Director's Rcpurt spccifically atltlre.ssecl this issue by conclutling that "lliL'[Proposed Pjroject complics ivith the building hcight.setback.aiul oft-street parking requirements t'or dcvelopment williin tlie OpeiT'Special Treatmcnt-Resource (0/ST-R) zoning district."Sec Exhibit C at 9.Hearing Officcr COL 63. 97.With respect to the other construction ancl developnient conditions relatecl to the Kahili Makai Estates not incorporated into the 1998 Cunditions,it is thc position of the Planning Department that thc CPR Documents arc "contractual []in nature and binds only thc parties.and not the Planning Commission or this Heariiiy Ofticer."TR. See Tr.3/4.'2D20 at 7 and Tr.6124,12020 at 41.Heariw OFtlcer COL 64. 98.The Planning Department supports the Hearing OITiucr's Report and Recommendatioii detenTiination tliat tlie decision ut'tlie Planning Departinent not to considcr the reqLiireiTients of'tlie C'PR Documents as tlicy may apply ty tlie Proposed Project is an agency decision to bc given due dcterencc.See Camcira.67 Haw.at 216.685 P.2d at 797 and Maha 'iili.'pii,71 Haw.at 335,790 P.2d at 908.Hearing Officer COL 65. 99.For the atbrementioned reasuns.the Planning Dcpartment supports the Hearing Ot'ficer's Report ancl Recommcntlation ofContested C'ase receivecl on August 24, 2021. J5 DATED:LThu-e.Kaua'i.llawai'i.Septembcr 7,2021 MATTHEW M.BRACKEN Coiintv Attomev Bv 'CU-i- CHRIS DONAHOE Deputy County Attorney Attomcys for Respundent PLANNING DEPARTMENT OF THE COUNT^'OF KAUA-1 36 CERTIK1CATE OF SERVICE The iintlersigned heruby certifics tluit a copy of'tlie foregoiny document ivas served on all parties at their rcspcctive atlclresses by L'mail and depositing the sanie in the L.'.S.mail.postagc prcpaitl,on datc .specified bcluvv: VALERIEM.NEILSON DAV1D N.KELLS 4316 Kahili Makai Strcet,#E KTlauea,Kaua'i.Haivai'i 96754 Email:diu'mkells((-(Kinail.com Petitioiicrs MAUNA KEA TRASK,ESQ. Cades Scluitte,LLP 3135AkahiStreet,SuiteA Lihu'e,llaivari 96766 Ema [1:mt ras k (?£;cacl cs ._com Attornevs t'or Inter\'enors CS DEVELOPMENT LLC and CHARLES SOMERS LAURA BARZILA1.ESQ. Deputy County Attorney County ot'K.aua'i 4444 Rice Street.Suite 220 LThu'e,Kaua'i.IIau'ai'i 96766 Email:IbarxilaiCakauai.sov Attorncy for Planning Commission ofthe Cuuntv of Kaua'i ELLENCH1NG Admini.strator Office of Boards and Cummissiuiis 4444 Rice Street.Suite 150 LThu'c.Kaua'i.Hawai'i 96766 Email:echinfii'akaiiai.KOV asc(;reti(Uikauai.Kov IIARt.AN Y.KIMURA.ESQ. C'cntral Pacit~ic Plaza 220 South Kin.u Strcct,Suitel660 Honolulu,Ha\\ai'i96S[3 Eniail:hyk@h;]rlankiinuralaw.com Hearins;Officur For the Planning Commission ot the County ot'K.aua'i DATED:LThu'c.Kaua'i.Hawai'i.Septembcr 7.2021 MATTHEW M.BRACKEN County Attorney By_ CHR1S DONAHOE Deputy County Attorncy Attonieys for Respondent PLANNING DEPARTMENT OF THE COL'NTY OF KAL'A' BEFORE THE PLANNING COMMISSION OF THE COUNTY OF KAUA’I 1 In the Matter of The Application: of Special Management Area Use Permit SMA(U)- 2020-1,Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the Construction of a Farm Dwelling Unit within Lot 7 of the Kahili Makai Subdivision in Kilauea, Involving a Parcel Situated at the Terminus of Kahili Makai Street. Property Identified as 4316-Z Kahili Makai Street, Tax Map Key: (4)5-2-21:007 (Unit E), and Affecting a Portion of a Larger Parcel Aprox. 27.56 Acres in size, VALERIE M NEILSON AND DAVID N KELLS, MD Petitioners, vs. PLANNING DEPARTMENT OF THE COUNTY OF KAUA’I, Respondent, and CS DEVELOPMENT LLC and CHARLES SOMERS, Intervenors. CC-2020-2 Special Management Area Use Permit: SMA(U)-2020-1 Class IV Zoning Permit: Z-IV-2020-3 Use Permit: U-2020-3 TMK: (4)5-2-021:007 (Unit E) PETITIONERS’ SUPPORT OF THE HEAR- ING OFFICER’S REPORT AND RECOM- MENDATION; CERTIFICATE OF SERVICE Hearing Officer: Harlan Y. Kimura, Esq. PETITIONERS’ SUPPORT OF THE HEARING OFFICER’S REPORT AND RECOMMENDATION David N Kells and Valerie M Neilson, Petitioners hereby join in with the County of Kauai's Support of the Hearing Officer's Report and Recommendations. DATED: September 7, 2021 DATED at Kilauea, Hawaii, September 7, 2021 /s/ Valerie M. Neilson and David N. Kells M.D. VALERIE M. NEILSON DAVID N. KELLS, M.D. 4316-Z Kāhili Makai Street, Unit E Kilauea, Hawaii 96754
 Email: dnvnkells@gmail.com Petitioners Pro Se BEFORE THE HEARING OFFICER OF THE PLANNING COMMISSION OF THE COUNTY OF KAUA‛I In the Matter of The Application: of Special Management Area Use Permit SMA(U)-2020-1, Class IV Zoning Permit Z-IV-2020-3, and Use Permit U-2020-3 for the Construction of a Farm Dwelling Unit within Lot 7 of the Kahili Makai Subdivision in Kilauea, Involving a Parcel Situated at the Terminus of Kahili Makai Street. Property Identified as 4316-Z Kahili Makai Street, Tax Map Key: (4)5-2-21:007 (Unit E), and Affecting a Portion of a Larger Parcel Aprox. 27.56 Acres in size, VALERIE M NEILSON AND DAVID N KELLS, MD Petitioners, vs. PLANNING DEPARTMENT OF THE COUNTY OF KAUA’I, Respondent, and CS DEVELOPMENT LLC and CHARLES SOMERS, Intervenors. _____________________________________ CC-2020-2 Special Management Area Use Permit: SMA(U)-2020-1 Class IV Zoning Permit: Z-IV-2020-3 Use Permit: U-2020-3 TMK: (4)5-2-021:007 (Unit E) 
 CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was duly served upon the following parties listed below, in the manner described thereto, at their last-known addresses, on September7, 2021. U.S. Mail Hand Delivery Email XX HARLAN Y. KIMURA, ESQ. Central Pacific Plaza 220 King Street Suite 1660 Honolulu, HI 96813 Email: hyk@harlankimura.com 
 Hearing Officer for the Planning Commission 
 U.S. Mail Hand Delivery Email XX CHRIS DONAHOE, ESQ. Deputy County Attorney County of Kaua‛i
 4444 Rice Street, Suite 220 Līhu‘e, Kaua‛i, HI 96766 Email: cdonahoe@kauai.gov Attorney for Ka‛āina S. Hull, Director, County of Kaua‛i, Department of Planning U.S. Mail Hand Delivery Email X X LAURA BARZILAI, ESQ. Deputy County Attorney County of Kaua‛i
 4444 Rice Street, Suite 220 Līhu‘e, Kaua‛i, HI 96766 Email: lbarzilai@kauai.gov Attorney for Planning Commission of the County of Kaua‛i U.S. Mail Hand Delivery Email X X ELLEN CHING Administrator
 Office of Boards and Commissions County of Kaua‛i
 4444 Rice Street, Suite 150 Līhu‘e, Kaua‛i, HI 96766
 Email: eching@kauai.gov asegreti@kauai.gov U.S. Mail Hand Delivery Email X X A. VITOUSEK, III, ESQ. MAUNA KEA TRASK, ESQ. Cades Schutte LLP
 3135 Akahi Street, Suite A Līhu‘e, Kaua‛i, HI 96766 Email: mtrask@cades.com Attorneys for Intervenors
 CS DEVELOPMENT LLC and CHARLES SOMERS DATED at Kilauea, Hawaii, September 7, 2021. /s/ Valerie M. Neilson and David N. Kells M.D. VALERIE M. NEILSON DAVID N. KELLS, M.D. 4316-Z Kāhili Makai Street, Unit E Kilauea, Hawaii 96754
 Email: dnvnkells@gmail.com Petitioners Pro Se